Placer (PNG) Ltd v Leivers [2005] PGSC 43; SC781 (4 May 2005)

SC781

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA No. 97 of 2004

Between:

PLACER (PNG) LIMITED
Appellant

And:

ANTHONY HAROLD LEIVERS
Respondent

Coram: Kapi C.J., Injia D.C.J., Cannings J
26th April, 4th May 2005

PRACTICE AND PROCEDURE – Objection to Competency of Application for Leave to Appeal – Mandatory to set out the three requirements under O 7 r 2 (c) of the Supreme Court Rules – All Applications to set out the three requirements under separate headings – Form 7 of the Supreme Court Rules to be amended.

Counsel:
R. Thompson for the Applicant
A. MacDonald for the Respondent.

4th May 2005.

BY THE COURT: Placer (PNG) Limited (Applicant) filed an application for leave to appeal against the decision of the National Court made on 25th June 2004. In the Court below, Anthony Harold Leivers (Respondent) issued proceedings (WS 188 of 2004) against the Applicant alleging that on 3rd March 1998 and in the course of his employment he injured his knee and as a result he is confined to a wheel chair. He alleged that either the Applicant breached an implied condition of contract or breached the duty of care in failing to provide a safe system of work.

In defence the Applicant pleaded the limitation period under s 84 of the Workers Compensation Act as precluding the Respondent from bringing a claim beyond three years. Subsequently, the Applicant filed an application for summary dismissal of the action on this basis. The application was refused.

The Applicant filed Application for Leave to Appeal and Notice of Appeal on 9th July 2004.

The Respondent filed Notice of Objection to Competency with regard to the Notice of Application for Leave to Appeal on 3rd August 2004. It is this matter which has come before us for determination.

The main ground of objection alleges non-compliance with O 7 r 2 (c) of the Supreme Court Rules which relevantly provides:

"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;"

This provision requires that Notice of Application for Leave to Appeal shall state three matters:

1. The nature of the case.
2. The questions involved.
3. The reasons why leave should be granted.
   

Order 7 r 2 (e) further states that notice shall be in accordance with Form 7 in the Rules. The form does not set out the three requirements as set out in o 7 r 2 (c) but simply requires grounds to be stated.

The Application for Leave to Appeal in the present case complied with form 7 by simply stating the grounds.

Counsel for the Respondent submits that O 7 r 2 (c) is expressed in mandatory terms and the three requirements serve a useful and necessary purpose to identify key issues and allows both the Court and the opposing party to efficiently and expeditiously deal with the question of leave to appeal. This proposition is well established (Gigmai Awal v Elamo Elema (Unreported Judgment of the Supreme Court dated 29th September 2000, SC652)).

The question is whether the Application for Leave to Appeal in the present case states the three requirements. It is true that the Application for Leave to Appeal has not set out the requirements under three distinct headings as a matter of form. This stems from the fact that form 7 under the Rules does not set out the form in this manner. As a matter of form, form 7 is inadequate. We will come back to address the issue later.

The fact that the Application for Leave to Appeal in the present case does not formally set out the three requirements as a matter of form does not necessarily render the Application defective or contrary to O 7 r 2 (c) of the Rules. In Gigimai Awal v Elamo Elema (supra) the Application was drafted in accordance with form 7 by simply setting out the grounds for leave to appeal as in the present case.

The Court examined and considered whether the Application sufficiently and substantially set out the three requirements. The Court concluded that the Application stated all three requirements with the exception of a particular ground which did not state the reasons why leave should be granted. The Court directed the Applicant to provide the reasons why leave should be granted. The Notice of Objection to Competency was dismissed.

It is necessary to examine the grounds relied upon in the Application for Leave to Appeal in the present case:

"2 GROUNDS:

The grounds on which the application is made are that:

1. The decision to refuse to dismiss the proceedings was wrong because:
   
   • (a) The judge erred in finding that the three-year time limit provided by Section 84 of the Workers Compensation Act, related only to claims for workers compensation.
   • (b) The judge erred in finding that the Respondent/Plaintiff was entitled to bring either a claim for workers compensation under the Workers Compensation Act or a claim for damages at common law and that if the Respondent/Plaintiff chose to bring a common law action, he had 6 years within which to issue proceedings;
   • (c) The judge erred in failing to find that the three-year time limit provided by Section 84 of the Workers Compensation Act, applied to common law claims;
   • (d) The judge erred in finding that it was relevant whether or not the Applicant/Defendant had given notice of injury to the Registrar of Workers Compensation within 7 days of the date of the injury;
   • (e) The judge erred in finding that the three-year time limit provided by Section 84 of the Workers Compensation Act, was not applicable to the Respondent/Plaintiff proceedings;
   • (f) The judge erred in failing to find that as the proceedings were not issued within 3 years of the date of the injury, the Respondent/Plaintiff’s claim was time-barred;
   • (g) The judge erred in the exercise of her discretion by failing to give any or any proper consideration to the oral submissions made by the lawyer for the Applicant/Defendant to the effect that:
     
     • (i) for the time limit in Section 84 of the Workers Compensation Act to become effective, all that was required to be shown was that the worker/respondent/plaintiff was entitled to receive workers compensation.
     • (ii) Whether or not the employer gave notice of injury to the Registrar within 7 days of the date of the accident was not relevant to the applicability of Section 84 of the Workers Compensation Act."
       

The Nature of the Application.

The Application relates to refusal by Her Honour Justice Davani to dismiss the proceedings WS No. 188 of 2004 (see para 1 (a)) under s 84 of the Workers Compensation Act (see para 2 A (a)- (g) inclusive). We are satisfied that the nature of the application is clearly stated.

The Questions Involved.

The central issue raised relate to the period of limitation of three (3) years under s 84 of the Workers Compensation Act. The questions involve interpretation and application of s 84 of the Constitution (para 2 A (a) –(g)). We are satisfied that the application states the question of law involved.

The Reasons Why Leave Should Be Granted.

The grounds ((a) – (g)) enumerate the alleged errors committed by the trial judge. They constitute the reasons why leave should be granted. Whether or not these grounds have any merit is a different matter.

We are satisfied that the Application for Leave to Appeal sufficiently states the nature of the questions involved and the reasons why leave should be granted. The Respondent and the Court have no difficulty in appreciating the issues for the purposes of determining whether leave should be granted.

We now return to the question of form 7 in the Rules. We do not consider that the form is inconsistent with O 7 r 2 (c). It is simply inadequate as it does not indicate the three requirements in the form. The form should be amended to include the three requirements. Until this is done, we would direct that all Applications from now on should set out the three requirements under separate headings. The Registrar should ensure that this direction is complied with.

Leave to Appeal.

Counsel for the Respondent concedes that if the Court dismisses the Objection to Competency, leave should be granted for the question of law raised to be considered by the Supreme Court. We understand that the issue raised has yet to be decided by the Supreme Court. We grant leave to appeal. We direct that the Notice of Appeal filed by the Appellant on 9th July 2004 constitute the Notice of Appeal in this matter.

In the result, we dismiss the Notice of Objection to Competency with costs to the Applicant.

Lawyers the Applicant : White Young & Williams
Lawyers for the Respondent : Posman Kua Aisi