Martin v Motor Vehicles Insurance (PNG) Trust [2007] PGSC 36; SC896 (2 November 2007)

SC896

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

S. C. APPEAL NO 9 OF 2007

UNASI MARTIN
and Others (All Infants) As Next Friend
First Appellant

AND:

SERAH MARTIN
for herself and others (all infants) as Next friend
Second Appellant

V

MOTOR VEHICLES INSURANCE (PNG) TRUST
Respondent

Waigani: Batari J., Lay J. and Hartshorn J.
2007: 30 October & 2 November

SUPREME COURT– civil appeal - objection to competency - whether grounds of appeal questions of fact alone requiring leave.

Facts
The respondent objected to the grounds of the appellants appeal on the basis that it alleged that each of the grounds was a question of fact, from which leave to appeal had not been sought. Alternatively ground 3 (c) was incompetent in law.

Held

1. 1. Ground 3(a) of the Appeal raised issues of fact alone. The objection to competency is upheld on that ground;
   
2. 2. Grounds 3 (b) and (c) raise issues of mixed fact and law from which an appeal lies without leave. The objection to competency is dismissed with respect to these grounds;
   
3. 3. It is not sufficiently clear that ground 3 (c) coupled with the other remaining ground would be incompetent to stop the appeal at the objection stage.
   

Cases Cited

Wahgi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
Sidi Adevu v MVIT [1994] PNGLR 57 and in Oio Aba v MVIL (2005) SC799
Imambu Alo v MVIT [1993] PNGLR 1
Chief Inspector Robert Kalasim & The State v Aina Mond & Ors SC828
Don Pomb Polye v Jimson Sauk Papaki (1999) SC643

Counsel
F. Griffin, For the Respondent Applicant
No appearance for the appellant

DECISION ON AN OBJECTION TO COMPETENCY

2 November, 2007

1. BY THE COURT.: The appellants brought proceedings against the respondent in the National Court as dependants of a person deceased in a motor vehicle accident. The proceedings were dismissed and the appellants filed an appeal within the time allowed by the Supreme Court Act. The appellants did not file an application for leave to appeal.
   
2. The respondent objects to the grounds in the notice of appeal on the basis that it contends that each of the grounds are questions of fact. Section 14 of the Supreme Court Act provides that an appeal lies to the Supreme Court on a question of fact with leave. No leave has been sought.
   
3. Upon the hearing of the objection the appellant was not represented although the court requested counsel for the respondent to contact the appellant's lawyers on the record and adjourned briefly for that purpose.
   
4. As Kearney DCJ said in Wahgi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC 185 Kearney DCJ, Andrew J. and Kapi;
   

" What are questions of fact and law are difficult to determine. On this question Lord Denning said:

"On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and in so far as those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts". (Underlining mine.)

See British Launderers' Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All E.R. 2111 at pp. 25 and 26. This same passage was referred to by the then Deputy Chief Justice, Prentice, in the case of Dillingham Corporation of New Guinea Pty. Ltd. v. Constantino Alfredo Diaz (1975) P.N.G.L.R. 26212 at p.270.

Where primary facts are found (which cannot be challenged on appeal except by leave of the court) the question of law is what is the proper conclusion to be drawn from those facts. It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law. See Edwards (Inspector of Taxes) v. Bairstow and Another (1956) A.C. 1413; Instrumatic Ltd. v. Supabrase Ltd. (1969) 1 W.L.R. 51914. I cannot see anything in the circumstances of this country that would render these principles inapplicable. I adopt them as part of the underlying law (Schedule 2:2 of the Constitution)."

5. The passage from Lord Denning's judgment was also cited by the Supreme Court in Sidi Adevu v MVIT [1994] PNGLR 57 and in Oio Aba v MVIL ( 2005) SC 799 (Injia DCJ, Sawong J. Lay J.).
   
6. The first ground of appeal is:
   

"3(a) The learned judge erred in finding that the evidence given by Misek John was a more (sic mere) assertion when:-

(i) It was not suggested to him at the trial that his evidence in regards to the accident and the subsequent death of the deceased was not true and that the rule in Dunn v Browne had not been complied with by the Defendant.

(ii) There was no evidence given by the Defendant at the trial to disprove Misek John's evidence that the accident did not happen and the deceased died as a result of that accident.

(iii) The Defendant through their line of questioning and the submission did not dispute the fact that there was an accident on the 23rd of January 1996 and the deceased died as a result of the Motor Vehicle Accident. The Defendant had pleaded that the deceased died as a result of the motor vehicle accident.

(iv) The Defendant was alleging contributory negligence in their defence, which suggest their acceptance of the accident and the subsequent death by the deceased."

7. We would have been greatly assisted on this application by a copy of his Honour's reasons. Doing the best we can without that assistance it seems that his Honour has drawn the conclusion from the evidence before him that the evidence of the only witness for the appellants cannot be accepted as first-hand evidence of the events alleged by the appellants.
   
8. It appears that the appellants are challenging the judge's assessment of the evidence as a tribunal of fact and on appeal would ask this court to reassess the finding. It is a somewhat similar situation to the factual position in Imambu Alo v MVIT [1993] PNGLR 1 where grounds of appeal calling for the Supreme Court to reassess the findings of primary fact were found to be grounds relating to findings of fact only.
   
9. As to ground 3 (a), it is not a question of the sufficiency of the primary facts to support a secondary finding. It is a weighing of the primary evidence in reaching the conclusions of primary fact. The questions raised are questions of fact, for which leave must be obtained. We uphold the objection with respect to ground 3 (a) of the Notice of Appeal.
   
10. Ground 3 (b) of the Notice of Appeal is that:
    

"The Learned Judge erred in dismissing the claim when there was evidence given by Misek John that there was a motor vehicle accident on the 23rd of January 1996 involving the deceased and he died as a result of that accident."

11. The conclusion of law reached by the trial judge that the proceedings ought to be dismissed on the evidence as it stood, is a question of mixed fact and law. An appeal lies as of right from the finding, without leave. The objection is dismissed with respect to this ground.
    
12. The last ground of appeal, ground 3 (c) is that:
    

" The learned Judge erred in dismissing the claim when there was evidence that the death of the deceased arose out of the use of the motor vehicle and therefore the Defendant was liable pursuant to Section 54 of the Motor Vehicle (Third-Party) Insurance Act.

13. The respondent’s submission in respect of this ground is that while it might concede that there is some issue of law mixed with fact, it is entirely misconceived as it appears to proceed on an assumption that if it can be shown that a person died in a motor vehicle accident, that is sufficient to find the defendant liable, when in fact the Motor Vehicles Insurance (Third-Party Insurance) Act does not establish a no-fault scheme and the plaintiff is required to prove that the death was caused by negligence of a tortfeasor.
    
14. The ordinary statement of principle as to what is the nature of an objection to competency is that:
    

"An objection to competency is really an objection to the jurisdiction of the court to entertain the point,.....": See Waghi Savings and Loan society Ltd. v Holis pls Bank of South Pacific Ltd. SC185 (Kearney DCJ, Andrew and Kapi JJ as he then was, per Kearney DCJ)".

15. However, an objection to competency has been successful when the appeal cannot possibly succeed as a question of law, for example:
    
    1. raising on appeal admissibility of a document admitted into evidence at trial without objection;
       
    2. raising on appeal a point of law not raised at the trial and the facts do not give rise to the question of law; See Chief Inspector Robert Kalasim & The State v Aina Mond & Ors SC 828;
       
    3. the point has already been decided by the appellate court between the parties or their privies so that there is an issue estoppel or res judicata; See for example Don Pomb Polye v Jimson Sauk Papaki (1999) SC643 (Sheehan, Jalina and Sawong JJ);
       
16. If ground 3 (c) was the only remaining ground, and the court was assisted with the reasons of the trial judge, it might be clear that the appeal could not succeed because, for example, there was no appeal against a finding that there was no evidence of negligence. The court is in the position that it does not know what findings the trial Judge made and consequently it does not know which findings are essential to be reversed on appeal in order to succeed in the cause of action.
    
17. We find that this is not a case in which the legal result which must prevail on appeal is so clear that the appeal should not be allowed to proceed past the objection to competency stage. The objection is dismissed with respect to this ground.
    
18. ORDERS:
    
    1. Ground 3(a) of the Notice of Appeal is struck out;
    2. The objection to competency is dismissed with respect to the remaining grounds of appeal;
    100. Costs shall be costs in the appeal.

________________________

Young Williams: Lawyers for the Respondent
Warner Shand: Lawyers for the Appellant