NCD Water & Sewerage Ltd v Tasion [2002] PGSC 12; SC696 (4 October 2002)

SC696

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE IN WAIGANI]

SCA NO. 36 OF 2002

BETWEEN:

NCD WATER & SEWERAGE LIMITED trading as EDA RANU
Appellant

AND:

SAM MASKUMAN TASION

First Respondent/Applicant

AND:

MASKUMAN LIMITED

Second Respondent/Applicant

WAIGANI : HINCHLIFFE, KIRRIWOM, DAVANI, JJ
2002 : July 30

September 27

: October 4

SUPREME COURT ACT s. 14 (3) (b) - whether summary judgment for unliquidated amount with damages to be assessed is a final judgment - whether leave is required.

Counsel:
A. Furigi for the Applicants/First and Second Respondents
T. Dawidi for the Appellant

DECISION
(objection to competency of Appeal)

4 October 2002

BY THE COURT: The application before this court is an objection to the competency of an appeal filed by the Respondents (‘Applicants’). Before consideration of arguments raised by both counsel, it is necessary that the court understand the history of this matter. Below is a brief chronology.

Chronology

1. 4 April 2002 – National Court Waigani entered summary judgment for the Applicants in proceedings WS 1377 of 1999. Judgment for damages to be assessed and for costs.
   

2. 9 May 2002 - Appellant filed this appeal

3. 23 May 2002 - Applicants filed a Notice of Objection to Competency.

4. 20 June 2002 – Applicants filed an Amended Notice of Objection to Competency of Appeal.
   

Background

On 4 April 2002, the court, after hearing parties, ordered that summary judgment be entered for the Applicants and for damages to be assessed. The Appellant filed an appeal against this decision.

The action arose out of a breach of contract by the Appellant where the Appellant terminated the Applicants Consulting Agreement. The court found there to be a duly approved and executed contract and that the Appellant did not have a Defence. At the National Court hearing, the Appellants did not offer any evidence in reply, only making submissions in response to the application for summary judgment.

Notice of Objection to Competency

The applicant raises five grounds of incompetency which are summarized as follows;

1. The grounds of appeal fail to specify with sufficient particularity the grounds relied on under O. 7 R. 8 and 9 of the Supreme Court Rules (‘SCR’);
   
2. The grounds of appeal raise questions of fact and as such, leave is required;
   
3. The judgment being appealed against is not a final judgment and as such, leave is required.
   

Generally, the Applicants argue that the Appeal is incompetent because the Appellant must first obtain leave to appeal pursuant to s. 14(3) (b) of the Supreme Court Act (‘SCA’). He submits that this is because the National Court (Summary) judgment is not a final order.

The Law

Set out below is the law in relation to the matters raised in the objection to competency. These are;

Section 14 (1) (a) (b) (c) (3) (b) of the SCA states:-

"14 Civil appeals to the Supreme Court

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court –

• (a) on a question of law; or
• (b) on a question of mixed fact and law; or
• (c) with the leave of the Supreme Court, on a question of fact

(3) No appeal lies to the Supreme Court without leave of the Supreme Court –

...

(b) from an interlocutory judgment made or given by the National Court ...

O. 7, R. 8 (c) and 9 of the SCR states:

"8. The Notice of Appeal shall:-

(a) ...
(b) ...
(c) state briefly but specifically the grounds relied upon in support of the appeal".

"9. Without affecting the specific provisions of the Rule, it is not sufficient to allege that a judgement is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law".

Analysis of arguments on Objection to Competency and Notice of Appeal;

Ground 3(i) of the Notice of Appeal states that the learned Trial Judge was wrong in law in entering summary judgment contrary to O. 12 R. 38 of the National Court Rules (‘NCR’).

The first ground of appeal reads:

"The learned judge erred in law in entering summary judgment contrary to O. 12 R. 38 of the National Court Rules and the established legal principles relating to entry of summary judgment."

The Applicant submits that the Appellant must particularize the errors of law as required by O. 7 R. 8 and 9 of the NCR. The position at law is that grounds alleging errors of law must be particularized. (see Christopher Haiveta, Leader of the Opposition v Paias Wingti, Prime Minister and Attorney General and National Parliament (No. 2) (1994) PNGLR 189 and PNG National Stevedores Ltd v The Honourable Andrew Baing, MP and the State SCA 40 of 2001, 21.3.02) (SCA 465). There the court held that there are two reasons for this rule.

1. He must specify the basis for this allegation in order to inform the respondent the basis of the appeal so that they can prepare for proper arguments on appeal.
   
2. To inform the court of the issues in law that would be argued by both parties on appeal.
   

If O. 7 R. 9 is not complied with, by the particularizing of the ground of appeal, the ground will be incompetent unless an application by the Appellant to amend is made (see Christopher Haiveta (supra)).

This ground of appeal does not contain particulars of the error in law as prescribed by O. 7 R. 8 and 9 of the SCR. Accordingly, this ground is incompetent.

The second ground of appeal is pleaded in the alternative, that –

"The ... trial judge erred in law in entering Summary Judgment when there was a Defence on the merits raising triable issues of fact and law."

Again, the Applicant submits that because the Appellant is pleading an error in law that the ground must be fully particularized to show the grounds he is relying on, as required by O. 7 R. 9 of the NCR.

This court finds that leave must be obtained and the grounds fully particularized as these are legal procedural requirements that must be complied with.

In relation to ground 3(iii) (a) (b) (c) (d) of the Notice of the Appeal, the court notes that these are issues of fact which will require that the Appellant obtain leave in accordance with O. 14 R. (1) (c) of the SCA. This is because the grounds pleaded relate to the contract and its contents.

Ground 3 (iv) of the Notice of Appeal raises errors in law, which again must be particularized to comply with O. 7 R. 9 of the SCR. The Appellant has not particularized what he claims to be "penal in nature" and also not particularized why the "contract is void and unenforceable at law".

Christopher Haiveta (supra), is clear in that "... if a ground of appeal does not give these particulars in accordance with O. 7 R. 9 of the rules, the grounds may be incompetent ..."

The Applicants then raise a major objection to the appeal which is that because the summary judgment is an interlocutory judgment, that the Appellant should firstly, obtain leave pursuant to s. 14(3) (b) of the SCA.

The facts in relation to this component of the Applicants’ objection is that having obtained summary judgment, the matter will then be set down for the hearing of the assessment of damages. The Applicants submit that this then deems the National Court order to be interlocutory in nature. The Appellant however submits otherwise, that an order entering summary judgment with damages to be assessed with costs is in the nature of a final order because it results in the rights of the parties in those proceedings, as far as liability is concerned, being terminated or extinguished or conclusively determined.

In saying this, the appellant relies on the authorities; NCD v PNG Water Ltd & 2 Ors SC624 (1999) (unreported) Ruma Construction Pty Ltd v Christopher Smith SC600 (1999) (Unreported) L A Jarden Collector Agency Pty Ltd & Anor v Masket Iangalio & Anor SC507 (1998) (Unreported).

It is necessary that this court review these cases as against the present facts. We say this because the Applicants also rely on the same cases in saying that the summary judgment is not a "final" judgment.

The position of law is that there are two tests to be applied when determining whether a decision is "interlocutory" or "final" in nature. These are;

1. The court must look at the nature of the application to the court and not the order eventually made;
   
2. The court must look at whether the judgment or order made finally disposes of the rights of the disputing parties.

(see L.A. Jarden Collector Agency (supra); Ruma Construction (supra); Davis v David Tasion SC364)

An order for summary judgment was made with a further order that damages be assessed. The nature of the application is that the court gave judgment on an unliquidated amount for damages to be assessed. Justice Los in Davis v David Tasion (supra) said at pg 25 and 26;

"If the claims were for unliquidated damages, the Appellants were quite entitled to seek to invoke o. 12 r. 28 to enter judgment against the Respondents for damages to be assessed. For a comparable practise in other jurisdictions, I refer to Odgers "Principles of Pleading and Practise" 21st edition at p. 56;

"If, however, the plaintiff’s claim is for unliquidated damages, he cannot immediately obtain final judgment since damages have to be assessed. He gets instead what is called an interlocutory judgment which he can afterwards convert into a final judgment (O. 13 R. 2)...".

This is the situation here. Although the Appellant argues that there is a Defence on the merits, it did not plead it in its Defence. In any event, at the hearing of the application for summary judgment, it did not deny the existence of the contract. Its Defence rested solely on claims of invalidity, but the court found they could not raise that Defence on a document they themselves created. Furthermore, the claims of invalidity only went to the form of the document, i.e the fact that it was not stamped by the Stamp Duties office and that the company seal was not properly annexed. Clearly there was (or is) no Defence. The matter could or can only go for assessment of damages.

Therefore, it could not be said that the judgment finally disposed of the matter but that it must and will return for assessment of damages.

The court finds that because it is an interlocutory judgment, the Appellant must obtain leave to lodge an appeal pursuant to O. 14 R. 3 (b) (iii) of the SCA.

We therefore find the whole of the appeal to be incompetent and uphold the application.

The Appellant shall pay the costs of the Applicants’ application to be taxed if not agreed.
_____________________________________________________________________
Lawyer for the Applicant : Poro Lawyers
Lawyer for the Appellant : Pato Lawyers