Tilto v Gourley [2020] PGSC 53; SC1960 (10 June 2020)

SC1960

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 76 of 2017

BETWEEN:

LEVI TILTO

Appellant

AND:

JOHN GOURLEY, GENERAL MANAGER,

HIDES GAS DEVELOPMENT COMPANY LIMITED

First Respondent

AND:

HIDES GAS DEVELOPMENT COMPANY LIMITED

Second Respondent

AND:

CBI CLOUGH JV PTE LIMITED

Third Respondent

Waigani: Mogish, Dingake & Anis JJ

2019: 28 August

2020: 10^th June

NOTICE OF APPEAL – substantive appeal against cost – section 14(1)(a) & (b) – Supreme Court Act Chapter No. 37 - objection to competency of appeal – section 14(3)(c) – Supreme Court Act - statutory requirement that leave must be sought if appeal is against cost only – leave to appeal not sought – appeal incompetent

Cases Cited:

Taemae v. Motor Vehicle Insurance Ltd (2011) SC1121

Counsel:

Mr. L Tilto, in Person
Mr. S Kaule, for the Third Respondent

10^th June, 2020

1. BY THE COURT: This is an appeal against the decision of Kandakasi J (as he then was) made on the 21^st April, 2017 in the National Court at Waigani in proceedings WS No. 336 of 2014, wherein ex parte orders for costs were awarded against the appellant Levi Tilto personally with such costs to be taxed if not agreed. The appeal by Kari Bune Lawyers was withdrawn at the commencement of the hearing.

2. The Notice of Appeal was filed on 31 May, 2017 (Notice of Appeal). There are essentially 6 grounds of appeal. They are set out at pages 4 and 5 of the Appeal Book. The grounds of appeal are as follows:

A. Costs

The learned trial judge on 21^st April 2017 erred in law and in fact in the exercise of his discretion when the learned trial judge made ex parte orders for costs against Levi Tilto, the First Appellant personally without giving the said Levi Tilto, the opportunity to be heard on the issue of costs.

The learned trial judge on 21^st April, 2017 erred in law and in fact in the exercise of his discretion when Levi Tilto had ceased to act for the Plaintiff in the proceedings WS No. 33 of 2014 on t4th April, 2017.

The learned trial judge on 21^st April 2017 erred in law and in fact in the exercise of his discretion when Levi Tilto, the First Appellant was not a party to the proceedings WS No. 336 of 2014.

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Under the circumstances and based on the above grounds of Appeal, the Appellants have suffered substantial miscarriage of justice.

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3. The appellant seeks the following orders: -

The Appeal be allowed.

The orders for costs made on 21^st April, 2017 against the First Appellant be quashed.

The 1^st, 2^nd and 3^rd Respondents pay the costs of the appeal on a solicitor/client basis

Such further order the Court deems fit under the circumstances.

Background

4. Kari Bune Lawyers filed proceeding in the National Court on behalf of the Plaintiff in WS 366 of 2014. Mr. Levi Tilto appeared as counsel. Kari Bune Lawyers ceased to act for the Plaintiff on the 5^th of April, 2014 because the Plaintiff had failed to give instructions. Notice Ceasing to Act were served on Kuman Lawyers who acted for the first & second respondents and Young & Williams Lawyers who acted for the third respondent, under cover of a letter dated 10^th April, 2014.

5. On 11 April, 2014, the matter came before the primary judge. The purpose of that hearing was to determine whether an earlier direction for the Plaintiff to produce certificate of incorporation of the plaintiff company had been complied with. Mr. Komane, the Operations Manager appeared on behalf of the plaintiff. Mr. Tabuchi appeared for the third defendant while Ms. Matiabe appeared for the first & second defendants. The appellant did not appear as counsel for the plaintiff.

6. During the proceeding, Mr. Komane informed the primary judge that the appellant had ceased to act for the plaintiff and that the plaintiff company was not a registered company. Mr. Tabuchi also confirmed that the appellant had ceased to act for the plaintiff. Mr. Komane then informed the court to have the proceeding withdrawn. The proceeding was accordingly withdrawn. The court then adjourned to 21 April, 2014 for the issue of cost to be argued.

7. On 21 April, 2014, the primary judge ordered cost against the appellant and his law firm Kari Bune Lawyers. The order for cost was not served on the appellant until he was told by another lawyer, some 4 days later, that is, after cost had been awarded against him and his firm. The appellant made inquiries and then filed the appeal against the cost award.

8. In the Notice of Appeal, the appellant complained that the primary judge erred in law and fact in the exercise of his discretion when he made the ex parte orders when (i) he was not a party to the proceedings WS No 336 of 2014; (ii) he was not given an opportunity to be heard on the issue of costs and (iii) he had ceased to act for the Plaintiff in WS No 336 of 2014 at the time when the cost order was made.

Objection to competency of Appeal

9. At the commencement of the appeal, we heard an Objection to the Competency of the Appeal that was filed by the third respondent on 31 May, 2019. The third respondent submits that the Notice of Appeal is incompetent for want of leave. The third respondent submits that, according to the Notice of Appeal, the appellant is appealing against the whole of the decision of the primary judge made on 21 April 2017, in respect of cost orders only that had been ordered against him. As such, the appeal, the third respondent submits, is against the orders for costs only and therefore leave was required pursuant to section 14(3)(c) of the Supreme Court Act Chapter No. 37 (Supreme Court Act). As the appellant has not sought leave before filing the Notice of Appeal, the third respondent submits that the appeal itself is incompetent and cannot proceed further.

10. The appellant submits as follows in reply. He says the third respondent’s Notice of Objection and in particular its ground enumerated as paragraph 2(a) and (b) is misconceived and that it amounts to an abuse of process. The National Court proceeding WS 336 of 2014, the appellant submits, concluded when the Court handed its final decision on 21 April 2017. The appellant submits that the order for cost that was made on 21 April 2017 was a final order. The appeal, according to the appellant, is made as of right under section 14(1)(a) & (b) of the Supreme Court Act and leave is not required. The appellant therefore submits that the appeal is competent.

11. We set out section 14(1)(a),(b) and (3) of the Supreme Court Act herein:

13. Civil appeals to the Supreme Court.

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

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(3) No appeal lies to the Supreme Court without leave of the Supreme Court—

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(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

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Ruling on Objection to Competency

12 Appeals against costs only are expressly governed by statute, namely, section 14(3)(c) of the Supreme Court Act. An appellant, faced with that situation, does not have a right of appeal and must seek leave of the Court first before he or she may be permitted to lodge a Notice of Appeal. We note that this was also observed by this Court in Taemae v. Motor Vehicle Insurance Ltd (2011) SC1121.

13. In the present appeal, we agree that the decision appealed against is not as of right under section 14(1)(a) & (b) of the Supreme Court Act, and therefore that leave was required. Accordingly, we uphold the Objection to Competency. It is obvious that the appellant, pursuant to section 14(3)(c) of the Supreme Court Act, has no right of appeal since his appeal only concerns the cost order that was made against him by the National Court on 21^st April, 2017. As such and in filing the Notice of Appeal, it means, in our view, that the notice is defective and void. The appellant should have filed an application for leave to appeal in the first instance, and later, the Notice of Appeal, that is, subject to leave being granted by the Court. In this case, the appellant appears to “put the cart before the horse,” so to speak. He files this Notice of Appeal when he does not have the right to do so in the first place. He therefore cannot be permitted to be heard any further, and this appeal must therefore fail.

Cost

14. An order for cost is discretionary. We will order cost to follow the event.

COURT ORDER

15. We make the following orders:

1. The appeal is dismissed as being incompetent.
   
2. The appellant shall pay the respondents’ costs on a party/party basis to be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.
   

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First Appellant in person

Young & Williams Lawyers: Lawyer for the Third Respondent