Nandali v Curtain Brothers Ltd [2012] PGSC 55; SC1483 (4 May 2012)

SC1483

PAPUA NEW GUINEA
['[IN THE SUPREME COURT OF JUSTICE]

SCA 14 OF 2011

BETWEEN:

JOSEPH NANDALI
Appellant

AND:

CURTAIN BROTHERS LIMITED
Respondent

Waigani: Hartshorn, Makail and Logan JJ.
2012: 1st and 4th May

Ruling on Notice of Objection to Competency

Facts:

The appellant appeals against the dismissal of his National Court proceeding. That proceeding had claimed damages and compensation for injuries allegedly sustained in the course of his employment. The respondent now objects to the competency of this appeal. The grounds for the objection include that some grounds of appeal are in relation to findings of fact for which leave is required and leave has not been sought or granted. Other grounds of objection are lack of particularity and that certain matters were not raised before the National Court.

Held;

The appellant has invoked the jurisdiction of the Supreme Court. Therefore the objection to competency of the appeal is dismissed.

Cases:

Pacific Equities & Investments Ltd v. Goledu (2009) SC962

Counsel:

Mr. L. Mamu, for the Appellant
Mr. F. Griffin, for the Respondent

4th May, 2012

1. BY THE COURT: The appellant appeals against the dismissal of his National Court proceeding. That proceeding had claimed damages and compensation for injuries allegedly sustained in the course of his employment. The respondent now objects to the competency of this appeal. The grounds for the objection include that some grounds of appeal are in relation to findings of fact for which leave is required and leave has not been sought or granted. Other grounds of objection are lack of particularity and that certain matters were not raised before the National Court.
2. The appellant submits that the objection to competency itself is defective as it does not expressly state its jurisdictional basis and the law that the Notice of Appeal offends. The appellant relies upon the decision of this court in Pacific Equities & Investments Ltd v. Goledu (2009) SC962 in which it was held amongst others, that the notice of objection to competency in that case, failed to set out its jurisdictional basis and failed to state any law that the notice of appeal offended thus rendering the notice of objection incompetent.
3. . The respondent submits that Order 7 Rule 14 Supreme Court Rules does not require that the jurisdictional basis or the law that the notice of appeal offends be stated and that its notice of objection is in accordance with form 9 of the first schedule to the Supreme Court Rules. Further, the respondent submits that Pacific Equities (supra) is not binding on this court and there can be no doubt as to the Rule pursuant to which its application concerning competency is made.
4. . In the course of argument, the court made reference to Order 13 Rule 15 Supreme Court Rules which came into force after Pacific Equities (supra). This Rule relevantly provides:

"All applications for interlocutory orders must contain a concise statement of the Court's jurisdiction to grant the orders being sought. ....."

The word "Application" is defined in Order 13 Rule 1 as:

"means any application as provided for under the Supreme Court Rules, Supreme Court Act, the Constitution and any other legislation."

5. . Given the requirement of Order 13 Rule 15 and in the absence of argument as to why we should depart from the decision in Pacific Equities (supra), we are of the view that the notice of objection to competency should be dismissed as being incompetent.

Is there any merit in the objection in any event?

6. . While the technical flaws in the objection to competency are enough in themselves to warrant its dismissal, we consider that it is in the interests of justice, especially because the issue was fully argued by the respondent, to deal with whether there would be any merit in the objection even if it were not attended with the technical flaws to which we have referred.
7. . The order of dismissal made by the National Court had the practical effect of finalising the proceedings in that court. Thus, for the purposes of s 14 of the Supreme Court Act, it is not to be characterised as an interlocutory judgment. That means that no grant of leave to appeal was necessary. The appellant was entitled to appeal as of right, providing, of course, that his notice of appeal disclosed that the appeal was either on a question of law or on a question of mixed fact and law, as s 14(1)(a) and s 14(1)(b) Supreme Court Act respectively require.
8. . By his objection to competency the respondent subjected the appellant's notice of appeal to piecemeal analysis instead of reading the notice as a whole. Sometimes, this approach will be warranted; sometimes it will not. Much depends on the way in which a particular notice is drawn. In this case, such an approach was not warranted.
9. . Paragraph 3.1 of the Notice of Appeal recited in sub-paragraphs 3.1 (i) to (v) (inclusive) particular events prior to 9th February 2011 which it is alleged were not taken into account by the learned primary judge on 9th February 2011 when, in default of an appearance by the appellant, his Honour dismissed the proceeding. Reading this ground in isolation from the balance of the notice of appeal, the respondent alleged in its objection to competency that it raised only a question of fact and thus, because there was no grant of leave to appeal as s14(1)(c) Supreme Court Act required, the appeal was incompetent.
10. . The difficulty with this approach is that the various facts alleged in paragraph 3.1 of the notice of appeal engage with and form the foundation of the balance of the grounds in the notice of appeal (Grounds 3.2 to 3.4, inclusive) which, in substance allege that the dismissal occurred in circumstances which amount to a denial of natural justice constituted by a failure to afford the appellant an opportunity to be heard prior to making the order of dismissal. If the facts alleged in paragraph 3.1 of the notice of appeal are accepted, it may well be the case that the appellant was inadvertently and through no fault of his own or that of his lawyers placed in a position where he and they were not aware that the proceeding was to be heard on 9th February 2011. Indeed, if those facts were to be accepted, the learned primary judge may well, inadvertently have proceeded on the basis that the appellant had not appeared even though aware that the matter was listed in court on 9th February 2011 and that an appearance then was necessary. In these circumstances the appellant would have been denied an opportunity to be heard and a denial of natural justice would have occurred.
11. . In the notice of appeal the appellant pleaded that the appeal lay without leave because it raised a question of law. We agree that the appeal lay without leave but consider that the better view is that this was because it raised a mixed question of fact and law. Whether an order of dismissal made after a denial of natural justice is liable to be set aside is a question of law but whether there existed circumstances which amounted to a denial of natural justice raises questions of fact; hence our preference for characterising the notice of appeal as one which institutes an appeal on a mixed question of law and fact.
12. . So characterising the notice of appeal means that the appellant has invoked the jurisdiction of the Supreme Court. Unless the effect of a notice of objection to competency is that, if upheld, this Court has no jurisdiction at all to entertain the appeal as instituted by the notice of appeal, the objection must be dismissed. Here, read as a whole, the notice of appeal regularly invoked the Court's jurisdiction. It follows that, even aside from the technical deficiencies in this objection to competency, it must in any event be dismissed.
13. . Costs in respect of the hearing and determination of the objection to competency should follow the event.
    

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Office of the Public Solicitor: Lawyers for the Appellant
Young & Williams Lawyers: Lawyers for the Respondent