Bismark Maritime Ltd v Talisman Energy Niugini Ltd [2018] PGSC 99; SC1769 (28 September 2018)

SC1769

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 77 OF 2018

BETWEEN:
BISMARK MARITIME LIMITED
Appellant

AND:
TALISMAN ENERGY NIUGINI LIMITED
Respondent

Waigani: Dingake J
2018: 6 Aug & 5 Sept

Counsel:

Mr B Frizzell, for the Appellant
Mr D Tumul, for the Respondent

Case Cited:

Rea Joseph v Manau Sereva (2011) SC1152
Punagi v Pacific Plantation Timber Ltd ( 2011), PGSC 38, SC1153
Hengonofi Development Corporation v Public Officers Superannuation Fund (2010) SC1025

28 September, 2018

1. DINGAKE J: This is an application for leave to appeal.
2. The background to this matter is that the respondent brought proceedings against the appellant in the lower Court, in proceedings WS No. 1242 of 2015 to recover certain moneys paid to the appellant. The appellant cross-claimed. The amount sought by the respondent in terms of the agreement executed by the parties came to US$163,546.91.
3. As part of progressing the matter to trial, the Court issued several orders directing the appellant to file affidavits within stipulated time frames, all of which were disregarded by the appellant.
4. Upon failure to meet the time lines set by the Court, the respondent applied for summary judgment of its claim.
5. A notice of motion brought by the appellant to extend the time to comply with earlier Court Orders was unsuccessful and the Court struck out the defence and cross-claim for non compliance with directions of the Court and summarily entered judgment for the respondent.
6. The appellant, aggrieved by the decision of the National Court filed both an Application for Leave and the Notice of Appeal that are substantially identical, in the same proceeding. In other words the application for leave and notice of appeal are not distinct proceedings as they serve in one file.
7. It is plain on the authorities of this Court that leave to appeal with respect to summary judgment, to the extent that it gives finality to the proceedings, even though it may be interlocutory, is not required. The appellant is entitled to file a notice of appeal as of right (Rea Joseph v Manau Sereva (2011) SC1152; Steven Punagi v Pacific Plantation Timber Ltd 2011, PGSC 38, SC1153).
8. It is also improper, incompetent and an abuse of Court process to plead identical grounds in the Application for Leave and Notice of Appeal (Hengonofi Development Corporation v Public Officers Superannuation Fund (2010) SC1025).
9. However, pleading identical grounds of appeal and for leave to appeal does not necessarily result in the dismissal of both applications. The question whether or not the Notice of Appeal should suffer the same fate as the application for leave, namely, dismissal, depends on the circumstances of each case. Ordinarily, the Notice of Appeal would usually be saved where it raises questions of law and or questions of mixed fact and law.
10. The difficulty with the applicant’s identical Application for Leave and Notice of Appeal is that the applicant’s Notice of Appeal has not been filed as contemplated by Order 7 Rule 7 to 10 of the Supreme Court Rules.
11. In this case both the leave application and notice of appeal appear in the same proceedings or file. This cannot be a Notice of Appeal as envisaged by the Rules.
12. In the result:
    • (a) The application for leave is dismissed;
    • (b) Proceedings SCA No. 77 of 2018 are dismissed in their entirety;
    • (c) The appellant shall pay costs incidental to the proceeding (ordinary scale).

___________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant
Allens Lawyers: Lawyers for the Respondent