Pacific Equities & Investments Ltd v Goledu [2009] PGSC 4; SC962 (28 April 2009)

SC962

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 92 0F 2008

PACIFIC EQUITIES & INVESTMENTS LIMITED
Appellant

V

TEUP GOLEDU, CHAIRMAN,
SECURITIES COMMISSION OF PAPUA NEW GUINEA
First Respondent

MELANESIAN TRUSTEE SERVICES LIMITED
Second Respondent

NATIONAL SUPERANNUATION FUND LIMITED
Second Respondent

WAIGANI: DAVANI J, CANNINGS J, MANUHU J
27, 28 APRIL 2009

Practice and procedure – objection to competency of appeal – alleged failure of grounds of appeal to state errors committed by primary Judge – Supreme Court Rules, Order 7, Rules 8 and 9.

A respondent to an appeal against a judgment of the National Court objected to the competency of the appeal on the ground that the notice of appeal did not state the errors committed by the primary Judge.

Held:

(1) The notice of objection failed to set out its jurisdictional basis and failed to state any law that the notice of appeal offended against, which rendered it incompetent. The notice of objection was therefore itself incompetent. The notice of objection was unsustainable as it relied on the ground that the grounds of appeal set out in the notice of appeal did not state the errors committed by the primary Judge, but the notice of appeal did state such errors.

(2) The grounds of appeal complied with the Rules.

(3) The objection to competency was accordingly dismissed.

Case cited

The following cases are cited in the judgment:

Haiveta v Wingti (No 2) [1994] PNGLR 189
Henao v Coyle (2000) SC655
Ipili Porgera Investments Ltd v Bank South Pacific Ltd SCA No 15 of 2006, 27.06.07
Joshua Kalinoe & Ors v Paul Paraka Trading As Paul Paraka Lawyers SCA Nos 15 & 17 of 2006, 27.09.07
Kakaraya v Somare (2004) SC762
NCD Water and Sewerage Ltd v Tasion (2002) SC696
The State v Turu and Maku (2008) SC904

OBJECTION

This was an objection to the competency of an appeal against a judgment of the National Court.

Counsel:

S Javati for the appellant
R Raka for the first respondent
D Koeget for the second respondent
J Olingu for the third respondent

BY THE COURT: This is a ruling on an objection to competency of an appeal to the Supreme Court.

The objection has been filed by the second respondent, Melanesian Trustee Services Ltd. Their ground of objection is that the grounds of appeal set out in the notice of appeal filed by the appellant, Pacific Equities & Investments Ltd, do not state the errors committed by the primary Judge. The objection is supported by the other parties to the appeal: the first respondent, the Chairman of the Securities Commission, and the third respondent, National Superannuation Fund Ltd.

The appeal which the respondents say is incompetent is against the judgment of Hartshorn J in the National Court in CIA No 19 of 2006. Those National Court proceedings were an appeal by the appellant in the present Supreme Court proceedings, Pacific Equities & Investment Ltd, against decisions of the Chairman of the Securities Commission including a decision to direct Melanesian Trustee Services Ltd to terminate the appointment of Pacific Equities & Investments Ltd as fund manager of the Pacific Balanced Fund and the Pacific Property Trust. His Honour on 14 July 2008 dismissed the appeal for want of prosecution.

THE OBJECTION

Objection to the competency of the appeal to the Supreme Court is taken on the ground that:

the appellant’s grounds of appeal do not state the errors committed by the learned [primary] Judge in the exercise of his discretionary powers either in the findings of facts or in the application of the relevant statues and case law authorities or both, when his Honour dismissed the proceedings in CIA 19 of 2006 for want of prosecution.

DETERMINATION OF OBJECTION

We are going to dismiss this objection for three reasons.

1. The notice of objection is defective

It is defective in two respects. It does not state the jurisdictional basis of the objection. And it does not state any law that the notice of appeal offends against, which renders it incompetent.

The notice of objection should have expressly referred to Order 7, Rule 14 of the Supreme Court Rules as its jurisdictional basis. It should have also referred to Order 7, Rules 8(c) and 9 of the Supreme Court Rules, they being the provisions of the Rules that specify how the grounds of an appeal must be set out in a notice of appeal.

These deficiencies in the notice of objection mean that it is itself incompetent and provide a sufficient reason to dismiss the objection.

2. The ground of objection is unsustainable

Even if the notice of objection were competent, the ground of objection relied on – that the grounds of appeal do not state the errors committed by the learned primary Judge – is unsustainable.

The notice of appeal, filed on 22 August 2008, clearly set outs two grounds of appeal:

(i) The learned trial Judge erred in law and fact when his Honour found that "The Commission is prejudiced by the delay as it has been unable to properly perform its functions in regard to Pacific Equities & Investments Ltd and related matters because of the restraining orders in force pending the hearing of the appeal", in [five respects detailed in paragraphs (a) to (e)].

(ii) The learned Judge erred in law and fact in finding "Pacific Equities & Investments Ltd has not prosecuted its appeal with due diligence. ... It has not taken any steps to progress the appeal between the filing of the application for dismissal and the hearing. In my view there is no basis on which the Court can exercise its discretion in favour of Pacific Equities & Investments Ltd" in that it has been established in the case of SCA No 15 & 17 of 2006 Joshua Kalinoe & Ors v Paul Paraka Trading As Paul Paraka Lawyers that when an application for dismissal for want of prosecution is filed it effectively stops the respondent [sic] from taking any further action in progressing the appeal pending the hearing of the application to dismiss for want of prosecution.

Whatever the merits of those grounds of appeal – and we emphasise that we are not hearing the appeal at the moment, we are just determining an objection to its competency – it is clear that they do state the errors allegedly committed by the learned primary Judge. As objection was taken on the ground that they "do not state the errors committed by the learned primary Judge", the objection must be dismissed.

3. The grounds of appeal meet the requirements of the Rules

If we put aside for a moment the above defects in the notice of objection and assess whether the notice of appeal meets the requirements of the Supreme Court Rules as to the drafting of the grounds of an appeal, we would still not uphold the objection to competency.

In Ipili Porgera Investments Ltd v Bank South Pacific Ltd SCA No 15 of 2006, 27.06.07 the Supreme Court indicated that there are three requirements arising from Order 7, Rules 8(c) and 9 of the Supreme Court Rules.

Rule 8(c) states:

The notice of appeal shall ... state briefly but specifically the grounds relied upon in support of the appeal.

Rule 9 states:

Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment 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.

The three requirements are:

1. The ground relied on in support of the appeal must be stated briefly, but specifically.

2. If it is alleged that a judgment is against the evidence or the weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence.

3. If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.

The Supreme Court explained in Haiveta v Wingti (No 2) [1994] PNGLR 189 that these requirements exist for two reasons:

- the respondent must be informed of the basis of the appeal so they can prepare their arguments; and

- the court must be informed of the issues to be determined.

If the notice of appeal fails to meet those requirements, the Supreme Court has discretion to strike out the offending ground(s) of appeal. Examples of cases where it did that are Haiveta v Wingti (No 2) [1994] PNGLR 189, Henao v Coyle (2000) SC655 and NCD Water and Sewerage Ltd v Tasion (2002) SC696. Alternatively, the Court could dismiss the entire appeal as incompetent. If, for example, all of the grounds set out in a notice of appeal were defective in that they failed to comply with the requirements of Order 7, Rules 8(c) and 9, the natural conclusion to draw would be that the appeal is incompetent.

In the present case, the two grounds of appeal do not make vague or bland statements that the learned primary Judge’s decision was against the weight of the evidence or was wrong in law. They set out briefly and specifically how it is argued that his Honour erred. They meet the requirements of the Rules. Thus, even if the notice of objection was competent and relied on proper grounds of objection, it would still be dismissed.

We conclude that the notice of objection is ill-drawn and misconceived and must be dismissed.

REMARKS

We note in passing that the second ground of appeal raises the interesting issue of whether, in an application to dismiss an appeal for want of prosecution, it is relevant to consider what the appellant has done to progress the appeal since the filing of the application. The Supreme Court may, on one interpretation of its judgment, have said in SCA Nos 15 & 17 of 2006, Kalinoe v Paraka, that it is irrelevant. However, in other cases including Kakaraya v Somare (2004) SC762 and The State v Turu and Maku (2008) SC904, the view has been expressed that it is relevant to consider the conduct of the appellant in the period since the filing of an application for dismissal. This issue goes to the merits of the appeal against Hartshorn J’s decision and it is not appropriate to say any more about it.

JUDGMENT

The Supreme Court will direct entry of judgment in the following terms:

(1) the objection to competency is dismissed;

(2) the respondents shall pay the appellant’s costs of these proceedings on a party-party basis to be taxed if not agreed.

Judgment accordingly.

_____________________

Lawyers for the appellant: Mawa Lawyers
Lawyers for the first respondent: Elemi Lawyers
Lawyers for the second respondent: Gubon Lawyers
Lawyers for the first respondent: Gadens Lawyers