Awal v Elema, Insurance Commissioner [2000] PGSC 15; SC652 (29 September 2000)

SC652

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 68 of 1999

BETWEEN:

GIGMAI AWAL
Applicant

AND:

ELAMO ELEMA
(as the INSURANCE COMMISSIONER)
First Respondent

AND:

MOTOR VEHICLES INSURANCE (PNG) TRUST
Second Respondent

Waigani: Amet CJ., Kapi DCJ., Sevua J.
23rd August, 29th September 2000

PRACTICE AND PROCEDURE - Objection to Competency of Application for leave to appeal - there is no requirement for service of application leave to appeal under the Supreme Court Rules - therefore not a valid ground for Objection to Competency - Objection to Competency under O7 r 2(c) of the Supreme Court Rules considered.

Counsel:
K Kua for the applicant

A. Kandakasi for the respondents

29th September 2000

BY THE COURT: The applicant applied for an extension of time within which to give notice of claim to the second respondent pursuant to s 54 (6) (b) of the Motor Vehicles (Third Party) Insurance Act (Cap 295). The National Court refused the application.

The applicant filed an application for leave to appeal against this decision.

The second respondent filed notice of objection to competency of the application for leave to appeal. The objection has come before us for determination on two grounds: (a) that the applicant has not served the application for leave to appeal promptly or within 40 days of the decision (b) that the application failed to comply with the requirements of O 7 r 2 in that it fails to state the nature of the case, the question and the reasons why leave should be given and failed to give particulars of the errors committed by the trial judge.

Service of Application for Leave to Appeal

During submissions, counsel for the respondent conceded the argument by counsel for the applicant that there is no provision for service of application for leave to appeal under the Supreme Court Rules. O 7 r 12 of the Rules regulates service of a notice of appeal, namely, a copy of notice of appeal shall be served on each party without delay.

Filing and service of an application for leave to appeal is regulated by O 7 Div 2 r 4:

"The provisions of Rule 10, with necessary modifications shall apply to an application for leave to appeal and notice of such application."

This provision adopts only the manner of giving notice of appeal for purposes of giving notice of an application for leave to appeal, namely, by filing the application in Court. Such procedure has been prescribed pursuant to s 17 of the Supreme Court Act. O 7 r 4 does not go so far as to adopt O 7 r 12 which deals specifically with service of notice of appeal.

This is to be contrasted with the former Supreme Court Rules (Cap 37) wherein s 22 adopted the requirement for prompt service of notice of appeal (under s 19 (4) of the former Rules) for the purposes of service of the application for leave to appeal. We can only conclude in accordance with the general principles of construction of statutes that the Judges in their rule-making power under s 184 of the Constitution, deliberately repealed the requirement for service of application for leave to appeal under the current Rules. Therefore, in our view, the failure of service of an application for leave to appeal cannot constitute a valid ground for objection to competency.

Counsel for the respondent has raised two other categories of grounds of objection to competency. The first relates to the requirement for application for leave to appeal pursuant to O 7 r 2 (c) of the Supreme Court Rules. The second ground of objection is worded more in terms of the requirement under O 7 r 9 of the Rules in respect of a notice of appeal. In our view it is not proper to consider this objection under O 7 r 9 as it is not applicable. The objection should be considered under O 7 r 2 (c).

The Nature of the Case, the Questions involved and the Reasons for Leave.

O 7 r (2) (c) relevantly provides as follows:

"2. An application for leave to appeal shall be made by filing a notice in writing and shall -

(a) ..

(b) ..

(c) state the nature of the case, the questions involved and the reason why leave should be given;

(d) Be in accordance with form 7"

It is necessary to set out the grounds of application for leave to appeal:

"2. GROUNDS

1. His Honour the Trial Judge wrongfully dismissed the Appellant’s application for an extension of time on exercising his discretionary powers under section 54(6)(b) of the Motor Vehicle (Third Party Insurance) Act Ch. No. 296. On the question of whether or not the Appellant has shown "sufficient cause" the Learned Trial Judge held that:
   

(1) the Appellant was not a bona fide claimant; and

(2) the injury was not linked or connected to the use of a motor vehicle and in the circumstances dismissed the application.

2. In holding that the Appellant was not a bona fide claimant the Learned Trial Judge erred;
   

(1) In fact and in law in holding that there was no or insufficient evidence to prove the Appellant’s bona fides and, or

(2) failed to take into account the uncontested evidence of the Appellant’s identity as set out in the affidavits of the Appellant sworn on 3 November 1998, and Constable Gradon Suma sworn on 17th November 1998.

3. In holding that there were no evidence to prove that the accident arose out of the use of a motor vehicle the Learned Trial Judge erred in:
   

(1) Applying the wrong burden of proof;

(2) failing to hold that there was sufficient evidence; and or

(3) holding that the injury did not arise out of a use of a motor vehicle.

4. On the whole the correct test in deciding whether or not "sufficient cause" has been shown the Learned Trial Judge is to first examine why the initial 6 months were allowed to expire; and second, whether any extension by the Court would prejudice the interests of the Second Respondent.
   

(1) The Learned Trial Judge erred in holding in effect that:

(a) no reasonable explanation was shown by the Appellant for allowing the initial six (6) months to expire, and

(b) that the interests of the Second Respondent would be prejudiced by an extension of time when no real or specific evidence to that effect was adduced.

5. Alternatively the Judge failed to consider the fact that there were no evidence adduced by the Second Respondent to show any real or potential prejudice to be suffered by a grant of an extension of time."
   

O 7 r (2) (c) requires an application for leave to appeal to state three matters (a) the nature of the case (b) the questions involved and (c) the reasons why leave should be given. The purpose for these requirements has been stated in numerous cases, namely, to inform the respondent of the nature of the case he has to face and to inform the Court of the nature of the issues between the parties.

The Nature of the case

The application needs to indicate the nature of the proceedings before the court below. In the instant case, paragraph 2.1 of the application for leave indicates that this was an application for leave to extend time under s 54 (6) of the Motor Vehicle (Third Party Insurance) Act (Cap 296). We are satisfied that this requirement has been met.

The Questions Involved

This requirement relates to the questions (issues) raised for determination by the court below. Paragraph 2.1 of the application clearly states the questions and how the trial judge decided them:

"On the question of whether or not the Appellant has shown ‘sufficient cause’ the Learned Trial Judge held that:

(1) the Appellant was not a bona fide claimant; and

(2) the injury was not linked or connected to the use of a motor vehicle and in the circumstances dismissed the application."

We are satisfied that the application has met this requirement.

The Reasons Why Leave Should Be Given

This requires the applicant to state the reasons why leave should be granted to appeal. Paragraph 2.2 states that the trial judge erred in ruling that the appellant was not a bona fide claimant and states the reason, namely, that the trial judge "failed to take into account uncontested evidence of the appellant’s identity" set out in the relevant affidavits.

In paragraph 2.3 the application states further reasons, namely, the trial judge applied a wrong burden of proof, that there was sufficient evidence to show that the injury received by the applicant arose out of a motor vehicle accident. Whether, or not, leave will be granted is another matter and is not relevant on the question of competency.

Paragraph 2.4 and 2.5 raise the point that there was no evidence before the trial judge to show any prejudice to the respondent by an extension of time. These paragraphs states the reason the applicant proposes to rely on for leave. Again, whether, or not, there is any merit in the ground is another matter.

The only ground of application for which no reason has been stated distinctly for granting leave is in paragraph 2.4 (1) (a) in relation to the finding by the trial judge that no reasonable explanation was shown by the appellant for allowing the initial six (6) months to expire. No reason has been stated in the application. We would direct that the applicant amends the application by giving a reason why leave should be granted on this particular ground. We direct that this amendment be made within 14 days of this judgment. In the event that this direction is not complied with paragraph 2.4 (1) (a) stands dismissed.

In the result we would dismiss the objection to competency with costs to the applicant.
_____________________________________________________________________
Lawyers for the Applicant : Fiocco Posman & Kua
Lawyers for the Respondent : Young and Williams