Telikom PNG Ltd v Nambawan Trophy Ltd [2021] PGSC 107; SC2178 (30 April 2021)

SC2178

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 8 OF 2020

TELIKOM PNG LIMITED
Applicant

V

NAMBAWAN TROPHY LIMITED
Respondent

Waigani: Salika, CJ, Kariko, J & Miviri, J
2021: 28^th & 30^th April

APPEALS - appeal against decision of single Judge of Supreme Court – application for leave to file application for review under s.155(2)(b), Constitution - appeal pursuant Order 11 Rules 25 & 26, Supreme Court Rules – competency of appeal – whether appealed Judge erred

Cases Cited:

Avia Aihi v The State (No.2) [1982] PNGLR 44
Mann v Kumbu (2019) SC1799
Paraia v Yansuan (1995) N1343
The State v Toka Enterprise Limited (2013) SC1266

Legislation Cited:

Constitution
Supreme Court Act
Supreme Court Rules 2012

Counsel

Mr C Karaiye, for the Applicant
Mr B Nutley, for the Respondent

JUDGMENT

30^th April, 2021

1. BY THE COURT: This is an appeal by Telikom PNG Limited (Telikom) filed pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules, challenging the decision of a single Judge sitting as the Supreme Court, whereby the learned Judge on 2^nd September 2020 ordered the dismissal of Telikom’s application for leave to file a review under s.155(2)(b) of the Constitution.
   

Background

2. Briefly, the relevant facts giving rise to this appeal are:
   
   • (1) The respondent Nambawan Trophy Limited (NTL) filed proceedings WS(COMM) N0. 1161 of 2011: Nambawan Trophy Limited v Telikom PNG Limited in the National Court at Waigani, claiming that Telikom breached a Distributorship Agreement entered into between the parties in 2008, that resulted in losses suffered by the NTL.
     
   • (2) After finding liability against Telikom, a separate trial on assessment of damages was held that concluded with the Court ordering on 21^st May 2020 the following damages in favour of NTL:
     
     • (a) K700,00.00 for costs of constructing phone huts;
     • (b) K250,000.00 for loss of profit, revenue and commission; and
     • (c) K80,000.00 for other heads of damages.
       
   • (3) Telikom was informed of the decision by its lawyers on 3^rd July 2020, after the statutory time-limit for appealing had lapsed 3 days earlier.
     
   • (4) Aggrieved by the National Court decision, Telikom could only dispute the decision by seeking judicial review pursuant to s.155(2)(b) of the Constitution.
     
   • (5) Leave to apply for the review was filed on 16^th July 2020, and the appealed Judge dismissed the leave application on 2^nd September 2020, resulting in this appeal.
     

Objection to competency

3. In submissions, counsel for NTL objected to the competency of this appeal, arguing that:
   
   • (1) it is an abuse of process as the decision of the single Judge is final; and
     
   • (2) The grounds of the application for leave (which were argued again on this appeal) do not specify how it is alleged the trial Judge erred in determining the various damages awarded, and these grounds therefore offend Order 7 Rule 10 of the Supreme Court Rules.
     
4. We dismiss the objection for the reason that no formal application was filed. In any case, we consider the argument on abuse of process has no legal basis, and the challenge to the form of the grounds of application for leave, not convincing.
   
5. In Mann v Kumbu (2019) SC1799, the Supreme Court explained the application of Order 11 Rules 25 and 26 of the Supreme Court Rules as follows:
   
   11. Among others, Rule 25 allows a party who is aggrieved by an order of a Judge given under the Supreme Court Rules or s.5 of the Supreme Court Act, to apply to the full court of the Supreme Court for “such order as appears just”. Pursuant to Rule 26, the application takes the form of an appeal under Order 10 and shall conform with the procedural rules of that Order as modified.
       
   12. Rule 25 deals with two types of orders given by a Judge – those made pursuant to the Rules or those issued under s.5 of the Act.....
       
   13. In short, s.5 of the Act deals with incidental directions and interim orders made where an appeal is pending.....
       

(Our emphasis)

6. The order that dismissed the application for leave on 2^nd September 2020, is an order made under the Supreme Court Rules.
   
7. We are satisfied this appeal had been properly commenced under Order 11 Rules 25 and 26 of the Supreme Court Rules.
   

Leave for review

8. It is settled law that a person who is aggrieved by the judicial decision of the National Court, and no longer has any statutory right to have that decision reviewed, may nevertheless make application to the Supreme Court to exercise its inherent and discretionary power to review that judicial decision under s155(2)(b) of the Constitution; Avia Aihi v The State (No.2) [1982] PNGLR 44.
   
9. Leave is first required to apply for a review under s 155(2)(b). The principles upon which leave may be granted as established by that landmark case and endorsed by many subsequent Supreme Court decisions, including The State v Toka Enterprise Limited (2013) SC1266, cited by counsel. They are:
   
   • (1) It is a matter wholly in the discretion of the Court and not granted as a matter of course.
   • (2) There must be convincing reasons as to why leave should be granted in the applicant’s favour.
   • (3) The applicant must offer a satisfactory explanation for delay or default in complying with the statutory time period in exercising his right of appeal; and
   • (4) The applicant must demonstrate that he has an arguable case on the merits.
     

Appealed decision

10. The main arguments for the grant of leave before the appealed Judge were that:
    
    • NTL did not have standing to file the National Court proceedings;
    • Telikom had a reasonable explanation for not appealing within time, namely, that its lawyers only inform it of the National Court decision after time had expired;
    • The applicant had an arguable case, that there was no evidentiary basis for the monetary amounts awarded to NTL as damages.
      
11. His Honour rejected the submission on standing, as the issue was never raised in the National Court. In relation to the explanation for the default in filing an appeal, his Honour found the explanation unacceptable and unreasonable. We find no error with these findings.
    
12. As to whether the applicant has an arguable case, his Honour held that the trial Judge was entitled to make the awards of damages based on the evidence before him. The applicant contends that the appealed Judge erred in his decision. Summarized, Telikom claims that his Honour erred in not finding the applicant had an arguable case, and that serious legal or factual issues arose. It was stressed that in the court below, the trial Judge acknowledged that proper evidence had not been adduced to prove the damages claimed. However, his Honour awarded damages relying on the principle affirmed in Paraia v Yansuan (1995) N1343 that “Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can”. Telikom argues that be that as it may, the trial Judge did not explain how he calculated the amounts he awarded and that raises serious legal or factual issues.
    
13. We are persuaded by Telikom’s argument. A perusal of the decision in the National Court lends support to the submission.
    
14. Substantial damages were awarded, and we consider it to be in the interest of justice that a review properly settles whether the amounts awarded were appropriately calculated.
    
15. We allow the appeal.
    

Order

16. The Court orders that:
    
    • (1) The appeal is upheld.
    • (2) The order of 2^nd September 2020, refusing the applicant leave to file an application for review of the decision of the National Court given on 21^st May 2020 in proceedings WS(COMM) N0. 1161 of 2011: Nambawan Trophy Limited v Telikom PNG Limited, is set aside.
    • (3) The leave sought is hereby granted.
    • (4) The applicant shall file and serve its application for review by 14^th May 2021.
    • (5) Costs shall be in the cause.
    • (6) Time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

___________________________________________________________

Morgens Lawyers: Lawyers for the Applicant
Goodwin Bidar Nutley Lawyers: Lawyers for the Respondent