Serowa v Dowa [2023] PGSC 38; SC2381 (21 April 2023)

SC2381

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 11 OF 2022

THOMAS SEROWA
First Appellant

T SEROWA LIMITED
TRADING AS T SEROWA & CO
Second Appellant

V

PAULUS M DOWA
TRADING AS PAULUS M DOWA LAWYERS
First Respondent

BANK OF SOUTH PACIFIC LIMITED
Second Respondent

Waigani: Cannings J, Collier J, Berrigan J
2023: 28^th March, 21^st April

SUPREME COURT – practice and procedure – application to full court for variation of interlocutory orders of single Judge of Supreme Court – Supreme Court Rules, Division 11.13.

SUPREME COURT – practice and procedure – objection to competency of appeal – whether grounds of appeal raised questions of fact for which leave of Court was required – whether grounds of appeal met requirements of Supreme Court Rules, Order 7 rule 9(c) and 10 – whether new grounds in a supplementary notice of appeal required leave of Court.

The appellants filed a notice of appeal against an order of the National Court that entirely dismissed proceedings the appellants had commenced, as plaintiffs, against the respondents, as defendants. The appellants then filed a supplementary notice of appeal on 25 August 2022 (and two subsequent further supplementary notices of appeal). The second respondent responded to each notice of appeal with a notice of objection to competency. During directions hearings in the Supreme Court, a single Judge on 5 October 2022 made an order against the appellants, ordering that they pay the second respondent’s costs of the objections to competency on a full indemnity basis and preventing the appellants from taking any further steps in the appeal until the costs were paid. The appellants then filed an application to vary the costs order of the single Judge. Set down for hearing before the full court of the Supreme Court were the appellants’ application for variation of the costs order and the second respondents’ objection to competency of the appeal. It was clarified at the hearing that the objection was to the supplementary notice of appeal filed on 25 August 2022, the other iterations of the notice of appeal having been superseded or withdrawn with leave of the Court.

Held:

As to the application for variation of the orders of 5 October 2022:

(1) Per Collier J & Berrigan J; Cannings J dissenting: The application was filed late and lacked merit and was refused.

As to the objection to competency of the appeal:

(2) Per Cannings J & Berrigan J; Collier J dissenting: There was at least one ground of appeal that was competent and engaged the jurisdiction of the Court. Therefore, the appeal was competent and the objection to competency was refused (Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205 applied).

Cases Cited:
Papua New Guinean Cases

The following cases are cited in the judgment:

Able Construction Ltd v W R Carpenter (PNG) Ltd (2014) N5636
Akiko v Ekepa (2022) SC2203
Birch v The State [1979] PNGLR 75
Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205
Covec (PNG) Ltd v Kama (2020) SC1961
Coyle v Henao [2000] PNGLR 17
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262
Guli v The State (2022) SC2272
Haiveta v Wingti (No 2) [1994] PNGLR 189
Hariki v The State (2007) SC1320
Hegele v Kila (2011) SC1124
Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322
James Kruse v Beatrice Geita and George Nicholas Constantinou and NC Resource Limited (2015) SC1849
Konda’lane Properties Ltd v Parkop (2022) SC2289
Kou v Kaupa (2010) SC1021
Lama v NDB Investments Ltd (2015) SC1423
Luma v Kali (2014) SC1608
Mann v Kumbu (2019) SC1799
National Executive Council v Toropo (2022) SC2193
NCD Water and Sewerage Ltd v Tasion (2002) SC696
Ombusu v The State [1996] PNGLR 335
Opi v Telikom (2020) N8290
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1) (2019) SC1821
Rex Paki v MVIL (2010) SC1015
Rolf Schubert v The State [1979] PNGLR 66
Schubert v The State [1979] PNGLR 66
Timothy v Timothy (2022) SC2282
Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Turia v Nelson (2008) SC949
Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Overseas Cases

AON Risk Services Australia Limited v Australian National University [2009] HCA 27

Counsel

T Serowa, the first appellant in person, for the Appellants
L David, for the First Respondent
J Brooks, for the Second Respondent

21^st April, 2023

1. CANNINGS J: There are two matters before the court:

• an amended application filed by the appellants on 16 March 2023 to vary the interlocutory orders of Batari J of 5 October 2022;
  
• the objection by the second respondents, filed by notice of objection on 5 September 2022, to competency of the appeal, constituted by the supplementary notice of appeal filed 25 August 2022.
  

2. I rely on and adopt the summary of the procedural history set out in the judgment of Collier J.

AMENDED APPLICATION FILED 16 MARCH 2023 TO VARY INTERLOCUTORY ORDERS OF 5 OCTOBER 2022

3. This application is not properly before the Court as it was filed late. It had to be filed and served within 21 days of the making of the order of 5 October 2022, to be a proper application under Order 11 rule 25 of the Supreme Court Rules. It was not filed until 10 March 2023, then amended on 16 March 2023. The appellants argue that the order of 5 October 2022 was not served until 2023. But it is not the date of service of the order that is the trigger for running of the 21 days. It is the date of making of the order. The appellants were represented in court on 5 October 2022, so there is no excuse for not filing the application in time.

4. I consider, however, that the full court of the Supreme Court has an inherent power to on its own initiative review an interlocutory costs order of a single judge. It can exercise that power if it is satisfied that an error has occurred in the exercise of discretion as to the making of the order. The costs order had two parts to it:

• the appellants are to pay the second respondent’s costs of the previous objections to competency on a full indemnity basis; and
  
• costs are to be paid prior to the appellants taking any further steps in the appeal.
  

5. I agree with Collier J that no good reason has been provided by the appellants for setting aside or reviewing the first part. However, I consider that the second part is problematic. It is inherently harsh in its operation, unnecessary, operates in the nature of a penalty or a security for costs and tends to put a brake on efficient progression of the appeal. I would set aside that part of the order. I decline to vary any other part of the order of 5 October 2022.

THE OBJECTION TO COMPETENCY OF THE APPEAL

6. It was clarified at the hearing of these matters that the relevant objection to competency was the one filed by notice on 5 September 2022. It is an objection to competency of the appeal, constituted by the supplementary notice of appeal filed on 25 August 2022, the other iterations of the notice of appeal having been superseded or withdrawn with leave of the Court.

7. There are 20 grounds of appeal against the decision of the National Court of 4 January 2022 to dismiss the proceedings WS 994 of 2008, which had been commenced by the appellants against the respondents.

Grounds of objection

8. The second respondent argues that the appeal is incompetent as each ground of appeal:

• raises questions of fact for which leave to appeal has not been granted, contrary to the Supreme Court Act;
  
• fails to comply with Order 7 rules 9(c) and 10 of the Supreme Court Rules as it is unclear, fails to say why the primary judge was wrong and what the judge ought to have found, makes statements without identifying the alleged error of the primary judge, makes general statements that are submissions, not grounds of appeal, is vague, ambiguous, confusing and/or unintelligible, fails to provide particulars to demonstrate that the primary judge’s decision was against the weight of the evidence or wrong in law and/or fails to demonstrate reasons as to how the primary judge erred in law;
  
• is an amendment to the original notice of appeal, or a new ground of appeal, which has been made or included outside the time limit set by Order 7 rule 26 of the Supreme Court Rules;
  
• is misconceived, disingenuous and/or otiose;
  
• is a ground of appeal against the order of Frank J of 11 September 2020, which referred the WS proceedings to mediation, but which is not the subject of the appeal in SCA 11 of 2022;
  
• is a ground of appeal against the order of the primary judge of 16 July 2021, which is not the subject of the appeal in SCA 11 of 2022;
  
• is a ground of appeal against the order of the primary judge to refuse the appellants’ application for adjournment, which is an interlocutory ruling requiring leave of the court to pursue, and which is not the subject of the appeal in SCA 11 of 2022; and/or
  
• is raised for the first time in the Supreme Court.
  

9. It is thus argued that all 20 grounds of appeal are defective and this means the appeal is incompetent. It is further argued that the supplementary notice of appeal filed 25 August 2022 is defective, rendering the appeal incompetent, as it:

• fails to state whether the whole or part only of the judgment of the primary judge is appealed from, contrary to Order 7 rule 9(b) of the Supreme Court Rules; and/or
  
• includes, in paragraph 3, a new matter, a purported application to introduce fresh evidence, which is not in a proper form and fails to comply with s 6 of the Supreme Court Act and Order 7 rules 54 and 55 of the Supreme Court Rules.
  

General principles

10. I adopt the general principles for determining an objection to competency set out by the Supreme Court in Geru Holdings Ltd v Kruse (2022) SC2318 and Komkaeli Holdings Ltd v Wamp (2022) SC2322:

• A ground of appeal that raises a question of fact only, as distinct from mixed fact and law, is only valid if leave of the Court has been granted (Supreme Court Act, s 14(1)(c)) (Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262, Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, Haiveta v Wingti (No 2) [1994] PNGLR 189).
  
• Order 7 rules 9(c) and 10 of the Supreme Court Rules impose three requirements for a ground of appeal:
  

(a) the ground must be stated briefly, but specifically (ie the ground must make grammatical and legal sense and be intelligible);

(b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence;

(c) if it is alleged that the judgment is wrong in law, 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 (Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322, Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962, Lama v NDB Investments Ltd (2015) SC1423).

• An objection to competency must demonstrate that all grounds of appeal are invalid. If one ground is identified as valid, the appeal is competent and the objection fails (Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205, Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201). This means that the objecting party must demonstrate that each of the grounds of appeal is invalid in that it fails to invoke the jurisdiction of the Supreme Court. The corollary is that the opposing parties only need show that one of their grounds of appeal is valid, and the objection to competency will be repelled.
  

11. I now consider the first ground of appeal, “4.1”, which states:

His Honour erred in fact and law by failing to take into consideration the oral submission made in case-law where this matter is one that fell into the category of cases not suitable for mediation pursuant to case law Able Construction Ltd v W R Carpenters (PNG) Ltd [2014] PNGC N5636; 18 June 2014, Kandakasi J, paragraph 18, ground No 9, where liability for breach of duty of care owed in contract of purchase/sale of land against the 2^nd respondent was established by default judgment and assessment of damages flowing from the meaning and application of the contract of sale/purchase required trial proper.

12. The grounds of objection to this ground of appeal are that:

1. to the extent that it alleges that the primary judge erred when he failed to take into consideration the oral submissions of the appellants, it is a question of fact and leave to argue it was required under s 4(2)(c) of the Supreme Court Act but was not obtained;
   
2. to the extent that it challenges the orders of the primary judge made on 18 November 2020, extended on 19 January 2021 and again extended on 16 July 2021 to refer resolution of the claim to mediation, the ground is misconceived and otiose because the issue before the primary judge on 4 January 2022 was whether there had been compliance with those previous orders, not whether the mediation orders were “derogatory by case law” or whether the matter ought to have been removed from the mediation track and placed back on the civil track;
   
3. the allegations that the mediation orders were “derogatory by case law” or whether the matter ought to have been removed from the mediation track and placed back on the civil track are raised for the first time in the Supreme Court;
   
4. the assertions that the claim in the underlying proceeding was not suitable for mediation and that the mediation orders were “derogatory by case law” do not demonstrate any reasons as to how the primary judge erred in law when he dismissed the proceeding for failure to comply with the previous orders, contrary to Order 7 rules 9(c) and 10 of the Supreme Court Rules; and/or
   
5. it is new ground of appeal, raised after the expiry of 40 days after the date of judgment, contrary to Order 7 rule 26 of the Supreme Court Rules.
   

13. I determine these grounds of objection as follows:

1. The allegation that the primary judge erred when he failed to take into consideration the oral submissions of the appellants is essentially a question of law, but in the context of other allegations in ground of appeal 4.1, it is at least a question of mixed fact and law, and leave to argue it was not required under s 4(2)(b) of the Supreme Court Act. I dismiss this ground of objection.
   
2. The respondents’ argument that ground 4.1 is misconceived and otiose is an argument as to the merits of the appeal. It is not a proper ground of objection to competency. A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction. An argument that the proposed grounds of appeal are frivolous or vexatious or unmeritorious does question the jurisdiction of the court (Turia v Nelson (2008) SC949, Hegele v Kila (2011) SC1124). I dismiss this ground of objection.
   
3. The second respondent’s argument that the allegations that the mediation orders were “derogatory by case law” and that the matter ought to have been removed from the mediation track and placed back on the civil track were being raised for the first time in the Supreme Court, is also not a proper ground of objection to competency. The argument may well succeed at the hearing of the appeal and the contentious part of the ground of appeal may be struck out but it is not a jurisdictional argument. I dismiss this ground of objection.
   
4. The second respondent’s argument that ground of appeal 4.1 does not demonstrate any reasons as to how the primary judge erred in law when he dismissed the proceeding for failure to comply with the previous orders, contrary to Order 7 rules 9(c) and 10 of the Supreme Court Rules, is frivolous. The argument raised in the ground of appeal – that the primary judge erred in law by not considering the submission that the proceedings were not suitable for mediation – raised a question of law and adequate reasons were given as to how the primary judge erred, it being alleged that his Honour failed to consider the principles he had set out in Able Construction Ltd v W R Carpenters (PNG) Ltd [2014] PNGC N5636. I dismiss this ground of objection.
   
5. Determination of this ground of objection requires a consideration of Division 7.8 (amendment by supplementary notice) of the Supreme Court Rules, consisting of rules 25 and 26, which state:
   

25. A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice.

26. A party who files a supplementary notice under Rule 25 shall file and serve it in accordance with Rule 13. The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days.

14. I reject the second respondent’s argument that ground of appeal 4.1 is a new ground of appeal due to it deleting a phrase from the original notice of appeal without expressly showing that the phrase has been deleted. The phrase deleted was in the following terms:

... rending the mediation orders as quite derogatory by case law, refused to remove the matter from the mediation track and back to the civil track for proper conclusion of the proceedings, and thereby his Honour dismissed the proceedings as against the first defendant and further dismissed the claim for assessment of damages against the 2^nd defendant by miscarriage of justice.

15. I agree it would have been preferable to retain that deleted phrase in the supplementary notice of appeal and expressly show that it was deleted by striking through the deleted phrase (“... rending the mediation orders as quite derogatory by case law ...”) or in some other way indicating clearly the amendment. However, to simply delete that phrase without explanation or indication involved no breach of the rules. At most it was ]a breach of a customary practice. A comparison of ground of appeal 4.1 with its equivalent, ground 3.1 in the original notice of appeal, reveals that the appellants have simply deleted that phrase from the end of ground 3.1. Ground of appeal 4.1 is an amendment of an existing ground, not a new ground of appeal. It is not subject to the requirements of Order 7 rule 26 of the Supreme Court Rules.

16. I find that the date of filing of the supplementary notice of appeal, 25 August 2022, pre-dated the date set for settlement of the appeal book under Order 7 rule 42, 20 September 2022. It was open to the appellants to file the supplementary notice of appeal without leave of the court. I dismiss this ground of objection.

17. I have thus dismissed all grounds of objection to ground of appeal 4.1. I now address the general grounds of objection to competency of the appeal, which in summary are that the supplementary notice of appeal:

• fails to state whether the whole or part only of the judgment of the primary judge is appealed from, contrary to Order 7 rule 9(b) of the Supreme Court Rules; and/or
  
• includes, in paragraph 3, a new matter regarding a purported application to introduce fresh evidence, and is therefore not in a proper form and fails to comply with s 6 of the Supreme Court Act and Order 7 rules 54 and 55 of the Supreme Court Rules.
  

18. The first of those grounds is trivial. True it is that the supplementary notice of appeal fails to expressly state whether the whole or part only of the judgment of 4 January 2022 is appealed from. However the only reasonable inference to draw from the supplementary notice of appeal is that it is an appeal against the whole of the judgment. It can be read no other way. An express statement to that effect was unnecessary. If I am wrong in that view, a breach of Order 7 rule 9(b) is not a matter going to competency of the appeal. It is at most a procedural irregularity, which causes no prejudice. I dismiss this ground of objection.

19. I make similar comments regarding the second ground. Paragraph 3 of the supplementary notice of appeal is confusing. It appears to be an application to introduce fresh evidence. It appears to be a procedural irregularity, which can be quickly resolved at the hearing, or before the hearing, of the appeal. It causes no prejudice. It is not a matter going to competency of the appeal. I dismiss this ground of objection.

Conclusion re objection to competency

20. I have dismissed all specific objections to ground of appeal 4.1. I have also dismissed the general grounds of objection. It follows, applying the rule in Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205, that the appeal is competent and the objection to competency fails.

PROPOSED ORDER RE APPLICATION FOR VARIATION OF THE ORDER OF 5 OCTOBER 2022 AND OBJECTION TO COMPETENCY

21. I would make the following order regarding the two matters before the court:

(1) The order of 5 October 2022 is varied by deleting at the end of order 2, the words “prior to the appellants taking further steps in the appeal”.

(2) The objection to competency, filed by notice of objection to competency on 5 September 2022, is refused.

(3) The parties shall bear their own costs of and incidental to the amended application filed 16 March 2023 for variation of the order of 5 October 2022.

(4) The second respondent shall pay the appellants’ costs of the objection to competency on a party-party basis, which shall if not agreed be taxed, and the first respondent shall bear its own costs of the objection to competency.

(5) The proceedings are adjourned to the Registry and shall be referred to the duty judge for directions as soon as is practicable.

22. COLLIER J: The proceedings before the Court have a complex and lengthy procedural history dating back to 2008 when the appellants’ claim was originally filed. The events in question the subject of that claim took place in 1998.

23. The appellants in this proceeding filed four Notices of Appeal – namely on 8 February 2022, 25 August 2022, 22 September 2022 and 4 October 2022. I note at this point my view that, as a general proposition, Notices of Appeal filed later in time supersede those filed earlier in time, and that an appellant is not entitled to either

• simultaneously rely on multiple notices of appeal read together, or
• pick and choose between notices of appeal it has filed in order to defeat an objection to competency.
  

24. After some discussion at the hearing between the Bench, Mr Serowa (the first appellant, acting for himself and the second appellant), and Counsel for the second respondent, it became clear that, of the Notices of Appeal filed by Mr Serowa in these proceedings, the Notice of Appeal on which he sought to rely was that filed on 25 August 2022. In the circumstances of this particular case the Court was prepared to allow Mr Serowa to rely on that Notice of Appeal (Pressed Notice of Appeal).

25. Of course, the matter before the Supreme Court at this time was not the hearing of the Pressed Notice of Appeal. Actually before the Court were two issues:

• First, an objection the competency of the Pressed Notice of Appeal brought by the second respondent, Bank of South Pacific Limited. The first respondent has taken no active part in the second respondent’s objections to the competency of the various Notices of Appeal filed by the appellants. The most recent Notice of Objection to Competency, not surprisingly, was filed on 7 October 2022 in response to the most recent Notice of Appeal filed by the appellants on 4 October 2022. After some discussion at the hearing between the Bench, Mr Serowa, and Counsel for the second respondent, where the Bench invited Mr Brooks for the second respondent to make his submissions in respect of the competency of the appeal, I understand that the second respondent relied on that Notice of Objection to Competency in respect of the Pressed Notice of Appeal (Notice of Objection to Competency). I further understood that this approach was not disputed and was permitted by the Bench.
  
• Second, an Amended Application to Vary Orders and For Leave Etc (16 March 2023 Application) filed by the appellants on 16 March 2023.
  

26. On 22 March 2023 Justice Cannings made the following orders:

1. The hearing of the first [sic] respondent’s objection to competency is set for Tuesday 28 March 2023 at 1.30 pm is reconfirmed.
   
2. Also set for hearing on 28 March 2023 at 1.30 pm is the appellant’s amended application to vary orders and for leave, etc filed 16 March 2023 which is wet immediately preceding the second respondent’s objection to competency.
   
3. At the request of the appellants the application filed 17 March 2023 to stay taxation is adjourned to the Registry.
   
4. The Supreme Court Registry shall make multiple copies available to the members of the court of the amended application to vary orders, etc. filed 16 March 2023 and the supporting affidavit of Thomas Serowa filed 10 March 2023.
   

27. It follows that it is appropriate for this Court to first consider the 16 March 2023 Application, and then turn to the Notice of Objection to Competency.

16 MARCH 2023 APPLICATION

28. I note that an earlier iteration of this application was filed on 10 March 2023. The 16 March 2023 Application was an amended version of that application.

29. At the hearing Mr Serowa informed the Court that the appellants pressed only three paragraphs of the 16 March 2023 Application, namely:

(a) Pursuant to Sections 41(a)(b)(c), 59(1)(2), 155 (4), and Schedule 2.5.9 Section (1) of the Constitution, Sections 5(3), 5(1)(a)(b) and 8(1)(c)(e) of the Supreme Act, and pursuant to Order 3 Rules 2(a)(b) & 3 and order 11 Rules 25 & 26 of Supreme Court Rules, the direction order paragraph 2 made on the 5^th October 2022 be varied by deleting the terms “The Second Respondent’s Costs of previous Objections to Competency filed in in this appeal shall be paid by the First Appellant on a full indemnity basis prior to taking further steps in the appeal” and replace the same with the words “Costs shall be in the cause of the Objection to Competency”.

(b) In the alternative to term 1(a) above, pursuant to Sections 41(1)(a)(b)(c), 59(1)(2), 155(4), and Schedule 2.5.9 Section 1 of the Constitution, Sections 5(3), 5(1)(a)(b) and 8(1)(a)(c)(e) of the Supreme Act, and pursuant to Order 3 Rules 2(a)(b) & 3 and order 11 Rules 25 & 26 of Supreme Court Rules, the direction order paragraph 2 made on the 5^th October 2022 be varied by deleting the terms “prior to the Appellant taking further steps in the appeal” and replace the same with the words “and shall be taxed if not agreed upon conclusion of the appeal proceedings”.

...

(i) Pursuant to Order 5 Rules 39 of the Supreme Court Rules, Sections 41(1)(a)(b)(c), 59(1)(2), 155(4), and Schedule 2.5.9 Section 1 of the Constitution the Court dispense compliance with the requirements of the rules under Order 11 Rules 25 and 26 of the Supreme Court rules pertaining to orders made on the 1^st September 2022 and 5^th October 2022 in so far as compliance requirements within 21 days.

(errors, emphasis, underlining and strike-out in original)

30. It is not in dispute that paragraphs (a) and (b) both related to Orders of Batari J, sitting as a single Judge of the Supreme Court in the substantive appeal proceedings on 5 October 2022, where his Honour ordered as follows:

1. The matter is adjourned to the Registry for the Respondents to respond to the latest Notice of Appeal filed by the Appellants on 4 October 2022.
   
2. The Second Respondent’s costs of the previous Objections to Competency filed in this appeal shall be paid by the First Appellant on a full indemnity basis prior to the Appellants taking further steps in the appeal.
   
3. The Appellants shall not file any further amended Notice of Appeal without first obtaining leave of Court.
   

31. At the hearing before this Court, Mr Serowa conceded that he was present at Court on 5 October 2022 when Batari J made these Orders. It also appears that these Orders were formally served on Mr Serowa by letter (sent by email) from the second respondent to Mr Serowa on 20 February 2023.

32. Other than the filed material in this appeal, there is nothing before the Court which can inform the Court of the context in which these Orders were made by Batari J, or his Honour’s reasons for decision.

33. Insofar as it is possible for me to comment on this issue, I observe as follows.

34. First, the 16 March 2023 Application is not an appeal against the costs orders made by Batari J. Rather, the appellants seek orders of the Supreme Court varying the costs orders of Batari J. In the 16 March Application the appellants list a number of legislative provisions pursuant to which they seek variation. In particular I note s 5 of the Supreme Court Act 1975 which provides:

5. INCIDENTAL DIRECTIONS AND INTERIM ORDERS.

(1) Where an appeal is pending before the Supreme Court–

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.

35. Section 5 of the Supreme Court Act deals with incidental directions and interim orders made where an appeal is pending: Mann v Kumbu (2019) SC1799 at [24]. As the Supreme Court also observed in Luma v Kali (2014) SC1608:

The nature of an application under s 5(3) is explained in several decisions of this Court. It is an application to “vary or discharge” an order of a single Judge; it is not a fresh appeal or a review from that decision. The application is interlocutory in nature and made in the context of the existing appeal: National Executive Council & others v Dr Vele Pat Ila’Ava & another, Unreported judgment of the Supreme Court dated 26th February 2014, per Gabi, Sawong & Murray JJ. ToRobert v ToRobert (2011) SC1130, Powi v The State (2006) SC844, National Executive Council & others v Dr Vele Pat Ila’Ava & another (supra). As with all proceedings before the Supreme Court, the matter proceeds by way of a rehearing de novo: see s 6 of the Act.

36. So, for example, orders which have been the subject of cases considering variation applications include interim orders under s 5(1)(b) of the Supreme Court Act restoring an appellant to office pending the determination of his appeal (Luma v Kali), and an interim order restraining the Electoral Commission from conducting a proposed general election for local-level governments (Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1) (2019) SC1821).

37. I also note that the appellants applied pursuant to Order 11 of the Supreme Court Rules, which relevantly provides:

25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.

38. Order 11 Rules 25 and 26 (as they then were) were considered by the Supreme Court in National Executive Council v Toropo (2022) SC2193 where Manuhu, Makail and Kariko JJ found that an application to the Supreme Court to vary or discharge an interim order by a single Judge under s 5 of the Supreme Court Act may be sought pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules.

39. Limited submissions were made by the appellants in respect of principles applicable where a variation is sought of Supreme Court Orders. As matters stand, it may be that an order restraining the appellants from taking further steps in the appeal until payment of indemnity costs by the appellants is an Order falling within the parameters of s 5 of the Supreme Court Act and Order 11 Rules 25 and 26.

40. For present purposes I assume that the orders of Batari J fell within those parameters.

41. However, noting that the Orders of Batari J were made on 5 October 2022, the appellants were plainly considerably out of time in filing the 16 March 2023 Application. Even if the Court has power to extend time to the appellants to file their application for variation of the Orders of Batari J (which was not the subject of submissions by either party in this case), no explanation has been provided by the appellants for their delay in seeking to file the 16 March 2023 Application except that they contend that they were not served a copy of the orders of Batari J by the second respondent, and/or Mr Serowa “forgot” those Orders notwithstanding the attendance of Mr Serowa at Court on 5 October 2022 when the Orders were made.

42. In my view such explanations lack merit. This is because:

• as I have already noted, both Mr Serowa and Counsel for the second respondent were at the hearing when Batari J made the relevant costs orders. I infer that Mr Serowa heard and understood the Orders made by his Honour at that time. He was entitled to obtain a copy of these Orders for himself, which is a reasonable and prudent step to take when prosecuting one’s own litigation; and
  
• while Mr Serowa is a litigant in person, it is not in dispute that he has prosecuted this and related litigation since 2008. It is reasonable to infer that he is familiar with Court process.
  

43. Second, Order 11 Rule 26 requires that a proceeding under Rule 25 shall be instituted as if it was an appeal under Order 10, and the application of the Rules under that Order with all necessary modifications shall apply. While the present matter before the Court is not an appeal, to the extent that the 16 March 2023 Application should be regarded in the nature of an appeal by the appellants, costs orders are, of course, made at the discretion of the Court, in an exercise of judicial power: Timothy v Timothy (2022) SC2282 at [93], [127]. I also note the following observations of the Supreme Court in Konda’lane Properties Ltd v Parkop (2022) SC2289:

30. ... [I]n any appeal against or review of a National Court order as to costs, the Supreme Court will take the same reticent approach required to be taken in respect of any discretionary judgment of the National Court. It will only intervene if the exercise of discretion is clearly wrong. The exercise of discretion will only be clearly wrong if an identifiable error has occurred or if, though there is no identifiable error, the resulting decision is so unreasonable or plainly unjust that it must be inferred that an error has occurred (James Kruse v Beatrice Geita and George Nicholas Constantinou and NC Resource Limited (2015) SC1849).

(emphasis added)

44. In my view these principles plainly also applies to circumstances where a costs order is made by a single Judge of the Supreme Court.

45. The exercise of discretion by the primary Judge in making Orders as to costs includes any conditions associated with the payment of costs, such as case management conditions restraining the filing of further material until the costs are paid.

46. As I have observed, there is no transcript before the Court of the hearing before Batari J or any other material indicating his Honour’s reasons. Mr Serowa asked the Court if we would be minded to adjourn the hearing to permit him the opportunity to obtain a copy of the transcript, or for the Court itself to obtain a copy of the transcript of the hearing before Batari J, however this request was refused. Mr Serowa had had ample time to seek a copy of that document and provide it to the Court in support of his own application.

47. I note that Mr Serowa is a litigant in person, while the respondents are respectively a law firm and a large corporation. However as the procedural history of this matter demonstrates, the Court has plainly been very accommodating to him in many ways, including in permitting him to rely on this particular application.

48. There is only so much the Court can do in the interests of justice without the result being unfairly prejudicial to the respondents. The respondents are equally entitled to justice in the eyes of the law and in the administration of the law by the Court.

49. In the circumstances I am not satisfied that any identifiable error was made by Batari J in respect of the Orders of 5 October 2022.

50. A question remains however as to whether the orders of Batari J were so unreasonable or plainly unjust that it must be inferred that an error has occurred in his Honour’s decision to make those orders? Mr Serowa submitted that he has the benefit of a judgment in his favour against the second respondent in respect of his breach of contract claim, that he wishes to have his day in the National Court for damages to be assessed (as distinct from having that particular issue mediated), and that the effect of Batari J’s orders was that he could take no further steps in prosecuting the present appeal without paying the respondents’ costs on an indemnity basis.

51. These arguments are sound. However I am not satisfied that the orders of Batari J can be characterised as so unreasonable or plainly unjust that this Court must infer that his Honour erred. In particular I note:

• Once again, the absence of a transcript of the hearing before Batari J which allows the Court to understand the reasons for his Honour’s ruling. Responsibility for the absence of this material must squarely be placed at the door of the appellants. In light of the lengthy history of this litigation and the clear experience of the appellants in prosecuting their claims, I reject any suggestion that Mr Serowa was unaware that evidence supporting a claim for variation must be adduced.
  
• The undisputed procedural history whereby the appellants had repeatedly filed notices of appeal in response to objections to competency, in order for the appellants to – in the words of Mr Serowa in written submissions – “fine tune” the grounds of appeal. It is not the role of the Court or the respondents to provide endless opportunities to litigants in person – or indeed to any litigant before the Court – to “fine tune” their claims, at the financial expense of the respondents who are obligated to continually respond to those “fine-tuned” documents, and ultimately also at the expense of the Court to the extent that resources of the Court are consumed.
  
• The length of time during which this litigation has been before the Courts. As this Court observed in Kewa v Kombo (2016) SC1542, albeit in a different context: 74. It follows that whilst strict compliance with the rules of pleading is to be encouraged, a failure to correctly label the available cause of action that the facts as pleaded constitute should not be fatal. The considerations relevant to allowing or refusing an amendment to pleadings under the judicature system was fully discussed by the High Court of Australia in AON Risk Services Australia Limited v Australian National University [2009] HCA 27. The ratio of the case is succinctly summarised by French CJ at [4] – [6]. Basically, it was held that, whilst amendments should be allowed to enable the true merits of the dispute to be addressed, with costs as the appropriate remedy for an opposing party, case management considerations, the effective and efficient use of court resources, the prejudice that may be occasioned by delay and any explanation for it may outweigh those other considerations so that leave to amend pleadings should be denied. It may be observed too that the result of the denial of leave to amend in that case did not leave the respondent without a remedy.
  
• To the extent that the orders of Batari J were made to ensure efficient case management of the appeal in accordance with these principles, the reasoning of his Honour was sound.
  
• Importantly, the absence of evidence of the appellants that their payment of the second respondent’s indemnity costs in accordance with the orders of Batari J would unfairly prejudice them. As matters stand, Mr Serowa’s submissions were essentially that he was being “punished”. However, there is evidence before the Court (from which an inference could be drawn) that payment of the second respondent’s costs would not cause undue hardship to the appellants, and that the appellants were in a position to pay them. In particular I note a letter signed by Mr Serowa, to the lawyers for the second respondent dated 27 February 2023, being Annexure “B1” to the Affidavit of Thomas Serowa sworn 10 March 2023, which was in the following terms:
  

We refer to your letter by way of email dated 20^th February 2023 with the enclosed Court order made on the 5 October 2022 and your proposal of offer of K100,000 as final settlement. You referred in your above letter to your indemnity costs standing at K143,687.55. Please kindly email me your bill of costs (from which you approximated standing at K143,687.55) so that I can peruse the same and make an offer in agreement with your client’s offer at K100,000.00 or make alternative offers. Should your [sic] not respond before the end of the week by Thursday 2^nd March 2023, I hereby forewarn that I will file an application to vary the terms of the order paragraph 2 made on 5^th October 2022.

52. I infer from this letter that the appellants were able to pay costs in accordance with the orders of Batari J in the amount of K100,000 or alternatively to make an alternative offer. Why this did not progress is, again, unfortunately not the subject of evidence before the Court. I am unable to draw any inference as to why this did not proceed.

53. In all of these circumstances I am unable to identify any error on the part of Batari J in making the orders of 5 October 2022, such as to warrant an order varying his Honour’s orders of that date. I infer that the most likely reason his Honour exercised his judicial discretion to make those Orders was to make the appellants accountable for progressing their appeal in an orderly manner, in accordance with good case management practices and in circumstances where there was no reason for his Honour to apprehend that the appellants could not pay those costs and continue to progress their appeal.

54. I do not accept that Batari J made those orders arbitrarily or to “punish” the appellants as Mr Serowa contended.

55. The orders of Batari J were not unreasonable or unjust to the appellants.

56. In my view the application should be dismissed. With costs against the appellants.

NOTICE OF OBJECTION TO COMPETENCY

57. I turn now to the Notice of Objection to Competency filed by the second respondent and note again that submissions of the second respondent in regard to the substantive proceedings relate to the Pressed Notice of Appeal.

58. The Pressed Notice of Appeal seeks to appeal an ex tempore decision of the National Court delivered 4 January 2022 dismissing the substantive proceedings in that Court (WS 994 of 2008, Serowa v Dowa & Bank of South Pacific Limited) for non-compliance with previous Court Orders (the Primary Decision).

The Primary Decision

59. As I noted earlier, the substantive proceedings between the parties related to events first occurring in 1998, and concerning substantive claims commenced in the National Court in 2008 by the appellants:

• against the second respondent, for breach of contract of sale of land, and
• against the first respondent, for professional negligence in relation to that sale of land.
  

60. By way of background I note that on 11 September 2020 Frank J made the following orders:

1. This matter is referred to the ADR track to come before the ADR sittings commencing 16 November 2020 before His Honour Deputy Chief Justice.
   
2. Parties are to communicate for the purpose of having this matter mediated; parties are to liaise with the ADR Assistant Registrar to ascertain availability of a mediator to discuss Mediation and in the usual terms settle on the terms of Mediation and the order incorporating those terms.
   
3. This matter shall return to Court on 25 September 2020 at 9.30 am for the Court to endorse mediation consent orders.
   

(11 September 2020 Orders)

62. Subsequently on 18 November 2020 the following orders were made by the Registrar:

1. This matter is adjourned to return on Tuesday, 19 January 2021 at 9.30 am or soon thereafter.
   
2. The parties shall take all steps necessary to have this matter resolved, for which purpose, the Plaintiff shall forward a Settlement Proposal to the Defendants by Monday 4^th December 2020, to which, the Defendants shall respond by Friday 18 December 2020.
   
3. The Plaintiff shall also draft and forward to the Defendants, a Statement of the relevant Facts and Issues for Resolution (Statement) by Monday 04 December 2020, to which, the Defendants shall respond by Friday 18 December 2020.
   
4. The Statement referred to Item 3 of these orders shall be in the form of a table having three columns, with the first one containing paragraph numbers, the second stating only the relevant facts chronologically guided by the questions of who said or did what to whom and in what manner and form, when, where, how and the consequences that followed but without stating any arguments, submissions, conclusions opinions or any law with the final column indicating where appropriate, any disputed fact with a statement of the alternative narrative and concluded immediately below the table with a statement of the issues presented for resolution.
   
5. The parties shall meet in settlement conference by or before Thursday 31 December 2020, discuss any matter in dispute between them, settle those and incorporate the terms of the settlement into a draft consent order finalizing the proceeding for the Court’s consideration and endorsement if all is in order.
   
6. Failing settlement, the parties shall settle the Statement and come ready to address the Court on the points in contention for the Court to consider and issue a binding opinion or refer the matter for resolution by external mediation as directed by the Court yesterday.
   
7. For the purpose of any mediation order, the parties shall come with a draft consent order with arguments on the external mediator to be appointed, all fees payable and the dates for the various steps to be taken including the actual mediation conference dates.
   
8. On the next return of the matter, the Court will endorse either the draft order for mediation or the Statement and if the latter is inevitable, trial will proceed in the month of April 2021.
   
9. The time of entry of these orders is abridged to take place forthwith upon the Court signing the Orders.
   

(18 November 2020 Orders)

63. In summary, by the 18 November 2020 Orders the appellants were tasked with drafting and forwarding a Statement of Facts and Issues (Statement of Facts and Issues) and a Settlement Proposal (Settlement Proposal) to the respondents by 4 December 2020 with the respondents to reply by 18 December 2020. Those Orders included specific instructions on process, including what should be included in Statement of Facts and Issues and the Settlement Proposal. The parties were then to participate in a settlement conference by 31 December 2020.

64. On 19 January 2021 the time for compliance with the 18 November 2020 Orders was extended.

65. On 16 July 2021 the time for compliance with the 18 November 2020 Orders was extended again (16 July 2021 Orders). Those Orders were as follows:

1. The First Defendant’s application to dismiss this proceeding is dismissed.
   
2. The orders of 18^th November 2020 as extended on 19^th January 2021 are further extended and varied as follow:
   

(a) Term 2 – The Plaintiffs shall communicate their Settlement Proposal to the Defendants by 13^th August 2021.

(b) Term 3 – d The Plaintiffs shall redraft the Statement of Facts and Issues strictly in accordance with term 4 of the orders of 18^th November 2020 stating only Facts and not arguments, submissions, opinions or the law and forward the same to the Defendants by 13^th August 2021.

(c) The Defendants shall respond to the Plaintiffs’ Settlement Proposal and the Statement by 31^st August 2021.

(d) Term 5 – The parties shall meet in settlement conference by 10^th September 2021.

(e) Term 6 – Failing settlement, the parties shall settle the Statement of Facts and Issues and also a draft mediation order for mediation to commence and conclude during the balance of the month of September 2021 and forward the draft mediation order to Kandakasi DCJ’s Chambers by email on 14^th September 2021.

(f) The Court will consider and endorse the mediation order and forward sealed copies by 17^th September 2021 for the parties full compliance.

3. Unless the Plaintiffs have first sought competent legal advise and such advise recommends they shall refrain from filing any further interlocutory applications including a pursuance of the pending application for amendment of their pleadings until the orders of 18^th November 2021 as further extended and varied by term 2 of these orders are fully complied with including the conclusion of any Court ordered mediation process.
   
4. The matter shall next return to the Court on Tuesday 12^th October 2021 at 10.30 am or soon thereafter.
   
5. Each party shall bear their own costs of the dismissed motion.
   
6. 6. The time for the entry of these orders is abridged to take place forthwith upon the Court signing them.
   

66. Relevantly, on 4 January 2022 the matter was listed in the National Court as part of a call over, to determine compliance with the 16 July 2021 Orders.

67. It is common ground that the Mr Serowa appeared late at the call over on 4 January 2022, explaining that he had understood the matter was being stood over until 17 January 2022. It appeared that he attended Court after he received a courtesy call from Counsel for the first respondent informing him that the matter was listed at the call over. Consequently, Mr Serowa made an oral application to the Court for an adjournment. The primary Judge refused the appellants’ application for an adjournment because there was no formal evidence before the Court regarding the mistake of date on the part of the appellants.

68. At the hearing, Counsel for the first respondent sought to proceed on a Notice of Motion filed on 12 November 2021 to dismiss the proceedings (12 November 2021 Notice of Motion). Counsel for the second respondent also made an oral application to dismiss the proceedings for non-compliance by the appellants with Court orders.

69. In relation to the 12 November 2021 Notice of Motion the first respondent tendered an unsealed copy of an affidavit of service of James Collin which detailed the attempts made to serve that Notice of Motion and a supporting affidavit on the first appellant. However, before the 12 November 2021 Notice of Motion could proceed, the Court confirmed that the matter was only proceeding at that time on the question of non-compliance with the 16 July 2021 Orders. It followed that the 12 November 2021 Notice of Motion was not the subject of argument before the National Court on 4 January 2022.

70. Relevantly the transcript of the hearing of 4 January 2022 before his Honour contained the following exchange:

HIS HONOUR: And in any event, the matter, is it returning because of your – the matter is listed for today, is it because of your motion or is it the return of Court Orders?

MR PIAM: Your Honour, it is not because of the motion. It is returning of the court orders.

HIS HONOUR: All right. But regardless of the motion - - -

MR PIAM: That is correct, your Honour.

HIS HONOUR: - - - I will be still be requiring parties to demonstrate compliance?

MR PIAM: Exactly, exactly. And - - -

HIS HONOUR: - - - of course court orders and the court will check that as the matter of course.

MR PIAM: That is correct, your Honour.

HIS HONOUR: All right. So compliance, non compliance is what we will be looking at. If a motion is an issue, that is not a problem for me. What it is the parties explaining compliance, non compliance.

...

MR PIAM: For purposes of record, we filed the application but the court has discretion on its own motion to check whether the orders of last have been complied with or not and the consequences still follow.

...

HIS HONOUR: No motion is required. No warning is required when there is a self-executing order.

71. Plainly, the only issue before the primary Judge at the call over was whether the appellants had complied with the 16 July 2021 Orders, in circumstances where (in the respondents’ submission):

(a) The ordered Statement of Facts and Settlement Proposal prepared by the appellants was not in the form prescribed, and contained submissions, evidence, the law and arguments.

(b) The appellants filed the Statement of Facts and the Settlement Proposal without comment from the respondents, and in circumstances where the appellant was not directed to file the documents, but rather circulate a draft document to the respondents.

(c) The appellants served sealed copies of the Statement of Facts and the Settlement Proposal on the respondents outside of the time prescribed by the court (namely the documents were due 13 August 2021 but were served 22 and 24 September 2021).

72. It appears that on 30 September 2021 a letter had been personally served on the first appellant by the second respondent advising that this conduct amounted to breach of the 16 July 2021 Orders. In that correspondence the second respondent requested that the appellants rectify the breaches within 7 days. The primary Judge noted that an affidavit of service to that effect had been filed and was before the Court.

73. At the call over on 4 January 2022, the first respondent made the following submissions in respect of non-compliance by the appellants with the 16 July 2021 Orders, in summary:

• On 16 July 2021 the Court attempted to coach the appellants in the format required by the Court in relation preparation of the Statement of Facts and Issues and the Settlement Proposal.
  
• On 30 September 2021 the first respondent wrote to the appellants giving the appellants an opportunity to rectify the documents, which opportunity was refused by the appellants.
  
• It was the first appellant’s right to take up the case himself rather than seek the assistance of lawyers, however Court rules and orders must be complied with.
  
• The appellants had already been given an extension of time and had been provided some assistance by the Court.
  
• The claim of the appellants concerned a substantial amount of money.
  
• Order 10, Rule 15 and Order 10 Rule (9)(a)(15)(1) and (2) of the National Court Rules allow the Court to summarily dispose of the proceedings.
  
• The case of Kalang Advertising Limited v Kuppusamy (2008) SC924 was authority that the Court has power to summarily determine a matter if the last orders of the Court have not been complied with.
  
• On the question of prejudice to the appellants, title to the relevant property had already been given to the appellants. The State Lease rentals had already been settled. What remained owing or not owing to the first appellant was the Mt Hagen Urban land rates in the amount of K9,060.
  
• This was a proceeding filed in 2008 concerning a cause of action which arose in 1998. The proceeding could not go on for ever, and it was appropriate that the proceeding come to an end at this point because of non-compliance.
  
• Costs ought be paid by the appellants on an indemnity basis, or alternatively the appellants pay 50% of the first respondent’s costs.
  

74. The second respondent submitted, in summary:

• This was the third instance of non-compliance by the first appellant.
  
• The second respondent gave the appellants notice by letter dated 22 September 2021 that it would be making an application for dismissal on the basis of non-compliance.
  
• The second respondent relied on Order 10 Rule 9(a)(15)(a) and Order 4 Rule 38(2)(c) of the National Court Rules in support of the application to dismiss the proceedings.
  
• Given that the parties were returning before the Court only to update the Court on the status of compliance, no formal motion had been put forward by the second respondent, however, an affidavit had been filed in relation to the issue of non-compliance.
  
• The first appellant had apparently had time to file an application for leave to appeal from earlier orders in the proceeding preventing him from filing further unnecessary motions on 22 July 2021, yet was unable to comply with the 16 July 2021 Orders.
  
• The appellants had not shown any genuine attempt to resolve the matter as quickly as possible and appeared to be delaying the prosecution of this matter.
  
• The second respondent contacted the appellants to remedy the Statement of Agreed Facts and Issues and the Settlement Proposal, and requested a Word copy of the documents be provided, which the appellants refused. A copy of an email to that effect was exhibited as Annexure F to the affidavit of Mr Clayton Joseph dated 30 December 2021.
  
• Costs ought be ordered in favour of the second defendant on a party/party basis, or alternatively the parties should bear their own costs.
  

75. Before his Honour, the appellants submitted in summary:

• The first appellant had a right to protection of the law under s 37 of the Constitution.
  
• He did not have the benefit of the affidavits relied upon by the respondents as he had not been served.
  
• Section 59 of the Constitution guarantees “unprejudiced fairness” in respect of evidence not served on the appellants.
  
• In relation to the issue of prejudice, the Court “delivered [the title] without knowing or without considering the underlying fact that the town authority rates on the contract clause 9.2 were not settled.”
  
• The appellant was sick on 6 August 2021 and went to hospital on 7 or 11 August 2021, as he suffered from “left arm had a problem – had a pain and I could not walk properly with my arm and the shoulder” and therefore filed the documents late.
  
• The Statement of Facts and Issues and the Settlement Proposal were served on the respondents.
  
• The appellants were not allowed to file any further motions pursuant to previous Orders.
  
• Liability had already been resolved against the second respondent, and the issue that remained for trial was liability against the first respondent and quantum of damages.
  
• The matter was ready for trial.
  
• The matter was not appropriate for mediation.
  
• The appellants sought leave to tender a medical certificate as evidence.
  
• The appellants should be entitled to the benefits of costs against the second respondent.
  

76. In summary, the primary Judge noted, in relation to the 16 July 2021 Orders:

• There was no order for the appellants to file documents, but rather the appellants were ordered to communicate directly with the respondent parties. There were no orders for the appellants to unilaterally file the documents and then serve them.
  
• The Court did take the appellants, as self-represented litigants, through what was required of them during a previous appearance before the Court, yet the appellants had still not complied with the 16 July 2021 Orders.
  
• Despite orders in place directing the appellants not to file any further motions, if the appellants knew they could not comply with the 16 July 2021 Orders they could have sought an extension of time for compliance, by consent.
  
• The appellants’ application for leave to file an affidavit exhibiting a medical certificate ought to be refused as improper, inappropriate and unfair given that the appellants only sought leave to file such material after submissions had been made by the respondents.
  
• The material before the Court in respect of non-compliance was affidavits relied on by the respondents.
  
• The plain purpose of the 16 July 2021 Orders was to endeavour to resolve the proceedings by mediation in a structured manner that avoided unnecessary delays, a lengthy trial in the National Court and further costs. At the time of the call over, the second respondent had been found liable for breach of contract.
  
• As a general proposition, a Statement of Facts and Issues (which was to be produced in the proposed mediation/settlement conference) is critical in the Court process.
  
• Putting aside the fact that the appellants had filed documents erroneously (and not in compliance with any Court Orders), by the time the appellants did file the Statement and the settlement proposal they were out of time.
  
• The Statement of Facts and Issues and the Settlement Proposal should be struck out as irregular.
  
• The Court rejected the appellants’ submissions on the merits of their case.
  
• There was no reasonable explanation or evidence as to why the appellants failed to comply with the 16 July 2021 Orders.
  
• The appellants were put on notice by the respondents of their intention to seek dismissal of the proceedings prior to the call over.
  
• The application by the respondents to dismiss the proceedings was not in the form of a filed notice of motion. It was an oral application at the call over before the primary Judge and in light of the non-compliance with earlier orders by the appellants.
  
• Despite being put on notice of the intention to dismiss, the first appellant had not filed any affidavit answering the foreshadowed intention to dismiss nor evidence of compliance.
  

77. Plainly an issue of importance in the matter was the dismissal of the proceedings in circumstances where the second respondent had been found liable for breach of contract with the appellants (and there was a live issue of assessment of damages). His Honour recognised this. His Honour noted as follows:

HIS HONOUR: For those reasons, I am finding (1) Non-compliance of court orders. (2) No reasonable explanation offered for non-compliance. The purported compliance are out of time and without leave of the court. Unilateral and in any event steps taken unilaterally and not in the spirit of the orders which was for parties to discuss, settle upon and return to court with a final position considered by all parties not unilaterally. That being the case, I am minded that counsel of a Supreme Court decision that says that, “A court cannot dismiss a claim following assessment of damages if liability has been resolved by some order or default judgment”

So I will need counsel’s assistance as to the kind of orders I can make today. If it was still an open case, liability all of that, dismissal would be in order right away but liability has been resolved in favour of Mr Serowa so what could be the appropriate orders on finding failure to comply with court orders as I have. Yes?

MR PIAM: Your Honour, the orders for liability – default judgment as against the bank. Liability against the first defendant, Mr – but then now the Judge Mr Dowa - - -

HIS HONOUR: Yes. That is liability it is an open question, is it?

MR PIAM: Is an open question and my submission would be that liability – the case against Mr Dowa be dismissed.

HIS HONOUR: Okay. And then what would be the appropriate order in relation to the claim as against the second defendant. Mr Joseph?

MR JOSEPH: Sorry, your Honour, if I were to - - -

HIS HONOUR: Yes.

MR JOSEPH: We believe liability is entered. The court has the powers to revisit liability.

HIS HONOUR: I am not going into usual trial mode. It is about noncompliance of court orders and consequences that should follow. So, liability is there unless it is properly revisited in a trial proper. I cannot go there.

....

HIS HONOUR: All right, let me hear from Mr Joseph as to what should be an appropriate order in respect of the claim against your client’s claim? Liability, I cannot revisit but as to assessment of damages, that is the part that is remaining.

MR JOSEPH: Yes. Now, my submission is that Mr Serowa cannot sit on that judgment and delay the proceeding. Those orders were made to progress the matter to assessment. And yes, in fact as your Honour has found, he has failed to comply with those orders. And the effect – the purpose of those orders was to bring this matter to hearing on assessment. And, your Honour, my submission would be that this is an appropriate for dismissal.

HIS HONOUR: Dismissal of the claim or dismissal of that claim for assessment of damages?

MR JOSEPH: Yes that would be correct, your Honour. Because those orders were purposely to bring the matter to hearing on assessment of damages. And he has failed to comply with those orders on numerous occasions, this time being the third time. And my submission is that that aspect be dismissed and the proceeding - - -

HIS HONOUR: Will stand concluded that way. Subject of course to Mr Serowa’s right of appeal.

MR JOSEPH: Yes. Yes, your Honour.

78. In determining that the proceedings ought be dismissed, the primary judge concluded:

... that being the case, the question that remains to be answered is whether the proceedings should be coming to a close today by the appropriate orders of the court on account of non compliance of its previous orders or should it be ordered to go to trial so Mr Serowa as he submits, will have his day in court?

Section 337 – 39(7) as well – 59 and 37 of the Constitution, although he does not cite any specific provision of those two constitutional provisions, the issue of fair trial and full protection of the law is there. But those can only be exercised in accordance with the practice and procedure and rules and laws that govern how a party gets to trial upon his claim. Court orders and discretions are necessary. And as I was indicating in the decision on the importance of a state of the relevant facts, it is a critical component; a critical requirement to get to trial. That is what Mr Serowa had to focus on. If he knew how to do it then that is not a problem. If he did not know how to do it the law and seeking a lawyer was always an option. He chose not to.

In fact one of the orders does say, unless he has received other appropriate legal advice that he can, he should refrain from taking any further interlocutory steps. That simply highlights, ill informed or he ill advised steps taken that had unnecessarily delayed this proceeding. So a statement is such an important requirement. I was at trouble trying to explain to Mr Serowa on the last occasion for him to get that statement properly and the description given there is easy for anyone to understand. The draft statement that he has filed is nowhere near stating any relevant fact for the purposes of assessing any damages. Assessment of damages are dependent on fact, not submissions or not law. So what are the facts? It is not articulated, not applied. That being the case, we cannot even be talking about trial without knowing what are the facts and which of those facts are issue and which of those facts are disputed?

I have now come to the decision that the court does have the power under order 10 rule 9A(15)(2) to put a close to this long drawn out proceeding that has been dragged on and parties on account of the plaintiff not getting to clearly articulating what his facts are for the purpose of trial or settlement, the matter must clearly come to an end.

Accordingly, I will order dismissal of the claim as against the first defendant. I will order the claim for damages against the second defendant also dismissed. Costs to be borne by all parties in the light of the liability being resolved in favour – as between – sorry, as between the plaintiff and the second defendant, each party bear their own costs. As against the first defendant, the plaintiff will bear the first defendant’s costs, those costs to be ascertained by taxation, if not by agreement. And time for entry of the orders is abridged.

79. Accordingly on 4 January 2022 the primary Judge ordered as follows:

1. The claim as against the First Defendant is dismissed.
   
2. The claim for damages against the Second Defendant is dismissed.
   
3. The Plaintiff shall pay the First Defendant’s costs to be agreed if not taxed.
   
4. For the costs between the Plaintiff and the Second Defendant, each party to bear their own costs.
   
5. The previous orders for costs remain unaffected by the foregoing orders.
   
6. The time for entry of these orders is abridged to take place forthwith upon the Court signing the orders.
   

80. The appellants appealed these Orders, currently in the Pressed Notice of Appeal.

Pressed Notice of Appeal

81. The appellants rely on the following twenty grounds of appeal:

The grounds of this Appeal are:

(1) His honour erred in fact and in law by failing to take into consideration the oral submission made in case-law where this matter is one that fell into the category of cases not suitable for mediation pursuant to case law Able Construction Limited v W R Carpenters (PNG) Limited [2014] PGNC 87; N5636; 18 June 2014; Kandakasi J, paragraph 18, Ground No 9, where liability for breach of duty of care owed in contract of purchase/sale of land against the 2^nd Respondent was established by default judgment and assessment of damages flowing from the meaning and application of the contract of sale/purchase required trial proper.

(2) His honour erred in fact by overlooking the fact that I stood to suffer prejudice from unpaid Mount Hagen Town Authority rates for K9,060.00 owing by the 2^nd Defendant up to the date of transfer of the title on the 15 June 2016 pursuant to Clause 9.1 of the Contract of purchase/sale for which judgment on liability for breach of duty of care owed in contract was settled on the 13^th April 2013 and where the 2^nd Defendant bluntly refused to discharge its obligation under the Contract to settle the foregoing amount, and against which both respondents made no objections, being in agreement, that I was bound to suffer such prejudice upon dismissal of the proceedings and the claim for assessment of damages with no recourse action.

(3) His honour erred in fact by overlooking the fact that I stood to suffer prejudice from the undischarged mortgage on the title held against the former landlords and in favour of the Bank pursuant to Clause 9.2(a) of the Contract of purchase/sale for which judgment on liability for breach of duty of care owed in contract was settled on the 13^th April 2013 and where the 2^nd Defendant bluntly refused to discharge its obligation under the Contract to remedy such with the Registrar of Titles, and against which both respondents made no objections, being in agreement, that I was bound to suffer such prejudice upon dismissal of the proceedings and the claim for assessment of damages with no recourse action.

(4) His honour erred in fact and in law by procedural unfairness exercised in relying on affidavits filed by the Respondent Defendants lawyers not served on me, nor sought leave of Court by application for substituted service if they had any difficulty in executing service process, and without leave of the court dispensing compliance with service process of each affidavit under the rules, which were an abuse of processes, and thereby his honour invoked the Courts powers pursuant to Order 10 Rule 9A(15)(2)(c) of the NCRs, denying the appellants of their rights to protection of the law pursuant to Section 37 and 59 of the Constitution.

(5) His honour erred in fact and in law by technically relying on the unserved Notice of Motion to dismiss the proceedings filed by the 1^st Defendant which Notice of Motion his honour formally refused in the open Court to entertain hearing on grounds of not being served but by the very fact that his honour permitting the evidences therein to be introduced and placing reliance on the unserved affidavits filed in support of the motion resulted in technically allowing the intended purpose of the unserved Notice of Motion to be prosecuted which was technically allowing the prosecution of the unserved Notice of Motion, and thereby his honour invoked the Courts powers pursuant to Order 10 Rule 9A(15)(2)(c) of the NCRs, denying the appellants of their rights to protection of the law pursuant to Section 37 and 59 of the Constitution.

(6) His honour erred in fact and in law by procedural unfairness exercised in overlooking the fact that his honour by court order made on the 16 July 2021 took away my right and barred me from filing any Notice of Motion application in the proceedings, including barring me from filing an application with supporting affidavits setting out the unpremeditated circumstances which arose in seeking extension of time to comply with his honours orders of 16^th July 2021 extended from orders of 18 November 2020, denying me of my rights to protection of law pursuant to Section 37 and 59 of the Constitution.

(7) His honour erred in fact and in law by overlooking the fact that I acted in good faith and complied with the orders of the Court made on the 16^th July 2021 extended from orders 18 November 2020 by serving upon the Respondent Defendants on the 22^nd September 2021 a sealed copy of the Settlement Proposal to start the process for which proof of service was filed on 24/09/2021, wherein the orders of 16 July 2021 and the ADR rules were silent on the requirement for sealing such document in the Court of records with no prejudice to be suffered whereby his honour struck out the document on grounds of sealing such document and being filed out of time.

(8) His honour erred in fact by overlooking the fact that I had acted in good faith and complied with the orders of the Court made on the 16^th July 2021 extended from orders of 18 November 2020 by serving upon the Respondent Defendants on the 23^rd September 2021 a sealed copy of the Statement of Facts And Issues for Resolution substantially in draft form to start the process for which proof of service was filed on 24/09/2021, wherein the orders of 16 July 2021 and the ADR rules were silent in the requirement for sealing such document in the Court of records with no prejudice to be suffered his honour struck out the documents on the grounds of sealing such document and being filed out of time.

(9) His honour erred in fact by overlooking the fact that I acted in good faith and complied with the orders of the Court made on the 16^th July 2021 extended from orders of 18 November 2020 by serving the Respondent Defendants on the 11^th October 2021 further an unsealed copy of the statement of facts in draft form to start the process where the 2^nd Defendant by his lawyers refused such document and insisted the service of a word form soft copy of the same which the Court did not order to be served and which was unnecessary as I have complied with the orders by producing to the Bank’s Lawyers disposal the Court ordered statement, and where the 1^st Defendant took no objection to the same document served.

(10) His honour erred in fact by overlooking the fact that both Respondent Defendants acted in bad faith and did not attempt to respond in mitigating the ADR process having received and having in their possession a copy of the sealed Settlement Proposal, a copy of the sealed Statement of Facts and Issues for Resolution in substantially draft form, and a copy of the unsealed draft Statement of Facts and Issues for Resolution in substantially draft form, wherein both defendants grounded the excuse that the documents were not served within the timeline dates fixed by the Court and both refused to accept the explanations offered by cover letters for serving out of time and foregone working on them, resulting in failed Mediation by bad faith conducts demonstrated by the Respondent Defendants.

(11) His honour erred in fact and in law by procedural unfairness exercised in overlooking that the court by his honour’s orders made on the 16 July 2021 took away my right and barred me from filing any Notice of Motion application in the proceedings, including barring me from filing a Notice of Motion application with supporting affidavits setting out the facts for entry of judgment against the 1^st Defendant for liability on professional negligence for breach of duty of care owed to me grounded on bad faith conduct and for failure to expediting compliance with mediation orders and for entry of judgment as to damages, interests and costs as proposed in the settlement proposal at page 31 filed on the 08/09/2021, denying me of my rights to protection of law pursuant to Section 37 and 59 of the Constitution.

(12) His honour erred in fact by overlooking the fact that the Settlement Proposal and the Statement of Facts and Issues For Resolution originated and flowed from the pleadings pursuant to the Amended Statement of Claim filed on the 03/09/2020 for settlement discussions on liability for breach of trust for professional negligence, which is for breach of duty of care owed to me, against the First Defendant which was outstanding and for settlement discussions on damages pleaded in paragraphs 49 to 50 of the Amended Claim and against which the counsels for the Defendants failed to demonstrate to the Court from their unserved affidavits where I have departed from the Amended pleadings and if done so then they failed to put their position to me of such departures to be taken off in the settlement discussions by mediation.

(13) His honour erred in fact and in law by procedural unfairness exercised by taking me by ambush wherein I did not have the opportunity to address the Court by way of filing an affidavit in response to the unserved affidavits of the Defendants pursuant to Section 59 of the Constitution whereby as of right I was denied from deposing the fact that I was given sick leave by the medical doctor at the Mount Hagen General Hospital who attended to my medical condition and where I was unable to comply with the orders within the timelines fixed by the Court and subsequently after recovery from sickness as of 23^rd August 2021 I complied with the orders outside the timelines fixed by the Court Order.

(14) His honour erred in fact and in law by procedural unfairness exercised by taking me by ambush wherein I did not have the opportunity to address the Court by way of filing an affidavit in response to the unserved affidavits of the Defendants pursuant to Section 59 of the Constitution whereby as of right I was denied from deposing the fact that the Mount Hagen National Court Registry was shut down by Court under COVID-19 control measures from the 3^rd September 2021 to the 13^th September 2021 which were beyond my control and where I subsequently complied with the orders outside the timelines fixed by the Court after lockdown was lifted.

(15) His honour erred in fact and in law by procedural unfairness exercised by taking me by ambush wherein I did not have the opportunity to address the Court by way of filing an affidavit in response to the unserved affidavits of the Defendants pursuant to Section 59 of the Constitution whereby as of right I was denied from deposing the fact that the former employed lawyer of the 1^st Defendant who left Dowa Lawyers and who become Assistant Registrar in the Mt Hagen National Court harassed me repeatedly on the 22/07/2021, 26/06/2021, 27/07/2021 and 29/07/2021 from which I was traumatised for a 1½ week (One and Half week) thereafter and reported the matter to the National Court Registrar and others and gave Section 5 Notice under the Claims By And Against The State Act 1996, which were beyond my control and where I subsequently complied with the orders outside the timelines fixed by the Court after suffering from the trauma.

(16) His honour erred in fact and in law by procedural unfairness exercised by taking me by ambush wherein I did not have the opportunity to address the Court by way of filing an affidavit in response to the unserved affidavits of the Defendants pursuant to Section 59 of the Constitution whereby as of right I was denied from deposing the fact that the Supreme Court made its final orders on the 24 November 2015 and the National Court made direction orders on the 13 April 2013 and 19 August 2020 compelling the parties to complete trial on liability in the civil track against the 1^st Defendant and to be followed by the assessment of damages, which Orders of the High Court the Court below by his honour lacked jurisdiction to set aside.

(17) His honour erred in fact and in law by procedural unfairness exercised by taking me by ambush wherein I did not have the opportunity to address the Court by way of filing an affidavit in response to the unserved affidavits of the Defendants pursuant to Section 59 of the Constitution whereby as of right I was denied from deposing the fact that I have acted in good faith in complying with the Supreme Court orders made on the 24 November 2015 and the other related direction orders of the National Court Civil Track made on the 13/04/2013 and 19/08/2020 by filing and serving all Notices on the Defendants under the Evidence Act and filed and served repeated Notices to set down for trial in the Civil Track on liability against the First Defendant and to be followed by trial for assessment of damages but my rights to trial were taken away by the referral mediation Orders made by Frank J on 11/09/2020.

(18) His honour erred in fact and in law by procedural unfairness exercised by taking me by ambush wherein I did not have the opportunity to address the Court by way of filing an affidavit in response to the unserved affidavits of the Defendants pursuant to Section 59 of the Constitution whereby as of right I was denied from deposing the fact that the Bank’s Lawyers disclosed the Bank’s position by way of a letter dated 26 November 2020 that it denied both liability and damages, and therefore there was nothing to mediate before the mediations Court which rendered all the documents filed in court by mediation orders were futile and waste of time and court resources from which the Bank refused to attend to the documents filed and served, which rendered the matter to be given the benefit of trial in the Civil Track.

(19) His honour erred in fact and in law by procedural unfairness exercised by taking me by ambush wherein I did not have the opportunity to address the Court by way of filing an affidavit in response to the unserved affidavits of the Defendants pursuant to Section 59 of the Constitution whereby as of right I was denied from deposing the fact that the 1^st Defendant’s Lawyers disclosed Mr Dowa’s position by way of a letter dated 30^th September 2021 that he denied both liability and damages, and therefore there was nothing to mediate before the mediations Court which rendered all the documents filed in court by mediation orders were futile and waste of time and court resources from which the First Defendant refused to attend to the documents filed and served, which rendered the matter to be given the benefit of trial in the Civil Track.

(20) His honour erred in fact by overlooked the fact that the Registry misinformed me of the date of hearing when I turned up at the Mt Hagen Court house on the 3^rd January 2022 that all mediation proceedings were adjourned to the 17^th January 2022 and relying on such I did not come to Court except by a Courtesy phone call by Lawyer Mr. Henry Pora who notified me that the Mediation Court was in session on the 4^th January 2022 and from which I left the PNG Bible Church General Conference meeting at Pabarabuk in the Nebilyer District and drove straight to the Court Room without the benefit of my files and sought adjournment to the next day or two but his honour refused leave for adjournment, proceeded to hearing, refused my oral submissions as bar table submissions without factual merit by sworn affidavit.

(errors and underlining in original)

82. Plainly, the Pressed Notice of Appeal is detailed and of significant length. In summary the appellants claimed that the primary Judge erred as follows:

(a) Failing to take into consideration oral submissions of the first appellant referable to his view that the matter was not suitable for mediation (ground 1, last sentence of ground 17)

(b) Failing to find that the first appellant would suffer prejudice (grounds 2 and 3)

(c) Relying on documents not served on the first appellant (grounds 4 and 5)

(d) Denying the first appellant his rights to protection of law (grounds 6 and 11)

(e) Overlooking that the first appellant acted in good faith (grounds 7, 8 and 9)

(f) Overlooking the fact that the respondents acted in bad faith (ground 10)

(g) Overlooking facts regarding the Settlement Proposal and Statement of Facts and Issues for Resolution (ground 12)

(h) Ambushing the first appellant (grounds 13, 14, 15, 16, 17, 18 and 19)

(i) Refusal of primary Judge to adjourn the matter at the call over (ground 20).

83. The relief sought by the appellants in the Pressed Notice of Appeal is as follows:

(a) The Appeal be allowed and the Grounds for the Appeal to be upheld.

(b) Quash the Orders of the National Court made on the 04/01/2022 made by his honour Deputy Chief Justice Honourable Ambeng Kandakasi.

(c) The 2^nd Respondent Defendant, without prejudice, settle the Mount Hagen Town Authority land rates outstanding for K9,060.00 up to the time of transfer of Title to the First Plaintiff within 30 Days from date of orders pursuant to Clause 9.1 of the Contract.

(d) The 2^nd Respondent Defendant, without prejudice, at its own costs discharge the mortgage registered on the Registered title of Section 38 Lots 5 & 6 of Mount Hagen Town, registered in its favour, held against the former landlords within 30-days from the date of orders and thereafter return the title to the 1^st Appellant forthwith pursuant to Clause 9.2(a) of the Contract.

(e) The proceedings WS 994 of 2008 in the National Court are to continued in the Civil track for trial on liability on breach of professional duty of care as against the First Respondent Defendant and to be followed by trial on assessment of damages pursuant to the Orders of the Supreme Court made on the 24 November 2015 and pursuant to orders of the National Court made on the 18 August 2020.

(f) Costs following the event are to be paid by Respondents and to be taxed if not agreed.

(errors in original)

Submissions on Notice of Objection to Competency

84. In summary, the appellants submitted as follows:

• The Notice of Objection to Competency cannot proceed or be heard until Orders dated 5 October 2022 are dissolved or varied.
• The objection book did not include critical documents.
• The Court ought to adjourn the hearing and direct a new objection book be compiled as a matter of procedural fairness and provision of administration of justice, and to preserve the first appellant’s primary rights.
• The objection book ought include documents outlining the procedural history of the matter.
• The respondents did not file any affidavit material setting out the facts opposing an Order for a new draft index to the objection book.
• Each and every ground of appeal contains mixed fact and law.
• The facts in issue originated from settled judgment on liability in law and cannot be isolated as fact alone.
• The original appeal grounds are “polished or shortened”.
• Whether or not the jurisdictions relied upon were competent or not were matters for the Supreme Court upon hearing the appeal.
• The appellants’ costs in respect of the Notice of Objection to Competency ought to be paid by the second respondent on an indemnity basis because:
  • The second respondent’s lawyer was an officer of the Court and owed a duty of care to the Court.
  • The second respondent’s lawyer was obligated to guide the Court in circumstances where the first appellant was entitled to a trial.
  • The second respondent’s lawyer wilfully misled the Court to dismiss the matter.
  • The respondents put the appellants through the “perils of suffering prejudices and unpremeditated costs”.
    

85. The second respondent submitted, in summary:

• All twenty grounds of appeal were vague, prolix, unintelligible, in the nature of arguments or submissions contrary to Order 7 Rule 9(c) and 10 of the Supreme Court Rules, and did not demonstrate error on the part of the primary Judge.
• Grounds of appeal 2, 3, 8, 9 10, 12 and 20 all introduced “questions of fact” for decision without leave contrary to s 4(2)(c) of the Supreme Court Act.
• Contrary to s 17 of the Supreme Court Act and Order 7 Rules 25 and 26 of the Supreme Court Rules the Pressed Notice of Appeal was filed well after the expiry of the 40-day period which commenced on the date of the primary decision (namely 4 January 2022) contrary to such authorities as Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112. Further, the Pressed Notice of Appeal introduced new matters after the expiry of the 40 day period.
  

Consideration

86. The principles relevant to an objection to competency are well established. In Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205 the Supreme Court observed that:

An objection under O 7, r 14 RSC is, materially and as that rule expressly provides, "to the competency of an appeal", not to the notice of appeal. An appeal will be competent if, having regard to the notice by which the appellant has sought to initiate it, the jurisdiction of the Supreme Court has been invoked. A concession that the notice contained at least one ground by which the court's jurisdiction was validly invoked is necessarily a concession that the appeal is competent. That remains so even though it may be that other grounds specified in the notice lack merit, including a lack of merit because they seek to raise an issue which the court does not have jurisdiction to entertain. That absence of merit may well result in the dismissal of those grounds but that dismissal will not occur because the appeal is incompetent but rather because particular grounds lack merit. The importance of this distinction and of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised.

(emphasis added)

87. For the second respondent’s objection to competency to succeed, it bears the burden of establishing that the Supreme Court’s jurisdiction had not been properly invoked: Order 7 Rule 17 Supreme Court Rules; Akiko v Ekepa (2022) SC2203 at [16]; Lama v NDB Investments Ltd (2015) SC1423 at [11]-[12]; Kou v Kaupa (2010) SC1021 at [8].

88. The second respondent’s objections can be organised into the following categories:

(a) Filing of the Pressed Notice of Appeal outside the statutory 40 day time period.

(b) Noncompliance with Order 7 Rules 9(c) and 10 of the Supreme Court Rules.

(c) Grounds of appeal raise questions of fact only, requiring leave to appeal.

(d) Appeal raises complaints not subject of the primary Judge’s decision.

89. Given that the Court must be satisfied as to whether there are any grounds of appeal capable of properly enlivening the Supreme Court’s jurisdiction, I will now turn to the grounds of appeal.

Failing to take into consideration oral submissions of the first appellant referable to his view that the matter was not suitable for mediation (ground 1, last sentence of ground 17)

90. In my view ground 1, and to the extent that it deals with the views of the appellants concerning mediation, ground 17, are not competent grounds of appeal. This is for the following reasons.

91. First, as the respondents properly submitted, the record clearly shows that the underlying mediation orders were made by Frank J in the 11 September 2020 Orders. The substantive appeal before the Court the subject of the competency objection is not an appeal of those orders – in fact insofar as I am aware those orders were never appealed.

92. Second, the decision of the primary Judge concerned compliance with the 16 July 2021 Orders. Insofar as I am aware, the only aspect of those Orders which the appellants have sought to appeal was the restraint on the appellants filing further interlocutory applications. This was in an Application for Leave to Appeal filed on 22 July 2021. The status of that application is unknown to me. No submissions were made in respect of it by either party. Ultimately I cannot see its relevance in this proceeding.

93. Third, that Mr Serowa may not have agreed with Orders of the National Court requiring him to take steps on the path to mediation, and may not have wished to attend mediation, because he considered that the matter should be determined in trial, is irrelevant to the question of non-compliance with earlier Orders of the National Court. Unless expressed in non-mandatory terms in case management (for example, orders giving a party the opportunity to file reply submissions should they so choose), compliance with Court Orders is not optional. The primary Judge decided that the failure of the appellants to comply with previous National Court Orders was fatal, resulting in the dismissal of the appellants’ claims. Grounds of appeal 1, and 17 do not identify error on the part of the primary Judge in so deciding.

Failing to find that the first appellant would suffer prejudice (grounds 2 and 3)

94. In my view grounds 2 and 3 are not competent grounds of appeal. This is for the following reasons.

95. Order 7 Rules 9(c) and 10 relevantly provide in respect of Notices of Appeal:

9. The notice of appeal shall—

...

(c) state briefly but specifically the grounds relied upon in support of the appeal; and

...

10. 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.

96. The second respondent contends that the grounds are vague, unintelligible and fail to provide any particularity amounting to noncompliance with Order 7, Rules 9(c) and 10 of the Supreme Court Rules.

97. In the matter of Lama v NDB Investments Ltd (2015) SC1423, the Supreme Court observed:

Relevantly, the respondents drew our attention to comments of the Supreme Court in Pacific Equities & Investments Ltd v Goledu (2009) SC962. In that case their Honours, referring to the predecessor to Order 7, Rules 9(c) and 10, observed:

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.
   

98. 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.

99. 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, Coyle v Henao [2000] PNGLR 17 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.

100. Similar observations were made in the earlier Supreme Court decision in Ipili Porgera Investments Ltd v Bank of South Pacific Ltd (2007) SC1322. We glean from the observations in those cases the requirement that any ground of appeal must make grammatical and legal sense and be intelligible. If it does not meet that requirement it will be incompetent.

101. It is clear that these matters are mandatory and that failure to comply with them is fatal to the competency of an appeal (Simon Kou v Simon Kaupa (2010) SC1021).

102. Having regard to grounds of appeal 2 and 3, and such authorities as Lama, I am of the view that the appellants have failed to sufficiently identify how the primary Judge allegedly erred.

103. The appellants make generalised complaints about prejudice to – presumably – the first appellant. They claim “settlement” of judgment on liability for breach of duty of care owed by contract when a cursory examination of the Court file reveals that the appellants were actually successful because of strike-out on 5 April 2013 of the second respondent’s amended defence for want of discovery.

104. Ground 2 specifically refers to alleged prejudice to the first appellant, quantified in the amount of K9,060.00, when the appellants’ claims against the respondents were for significantly higher amounts. I note in particular the submission of Mr Serowa at the hearing before the primary Judge where he stated he was entitled to damages in the following terms:

Now, if you look at page 31 of that document of the settlement proposal I have clearly identified in paragraphs in one page the basis for consideration for settlement discussions. Now, I am not just making up these figures. It took me some time to formulate those facts and attach the relevant valuations attached to the property and also the rental loss I suffered from non-development of the property. So, and also – they stated the figure of K36 million, but to the bank that figure was in addition to interest pursuant to the contract I claimed at 15 per cent...

(emphasis added)

105. The appellants claimed “overlooking” by the primary Judge of potential prejudice to the appellants, however a further cursory glance at the transcript of the proceedings before the primary Judge reveals that the primary Judge was aware of the appellants’ prejudice claims. The appellants specifically referred in submissions to “the issue of prejudice I will suffer”. His Honour referred to the general principle that a court cannot dismiss a claim following assessment of damages if liability has been resolved by some order or default judgment. His Honour referred to the importance of compliance by parties with practice and procedures which govern how a party gets to trial upon a claim. In making a blanket claim that they would suffer prejudice and that this was ignored by the primary Judge, the appellants have failed to particularise in these grounds of appeal that the reasoning of the primary Judge was against the evidence or the weight of the evidence.

Relying on documents not served on the first appellant (grounds 4 and 5)

106. In my view grounds 4 and 5 are not competent grounds of appeal. This is for the following reasons.

107. Ground 4 refers vaguely to “affidavits filed by the Respondent Defendants lawyers not served on me”. It is entirely unclear to which affidavits the appellants are referring in this ground. It is also entirely unclear how the appellants claimed the primary Judge “relied” on such affidavits, or if he did, how the primary Judge allegedly erred in doing so.

108. Similar flaws appear in respect of ground 5, including the appellants’ complaint that the primary Judge “technically” relied on an unserved Notice of Motion. It is apparent from the transcript that the first respondent had filed a Notice of Motion to dismiss the proceedings, while the second respondent made an oral application to dismiss the proceedings for non-compliance. Exactly what the appellants are describing in ground of appeal 5 is not identified, particularly when it appears that the first respondent’s Notice of Motion was not before the Court on 4 January 2022.

Denying the first appellant his rights to protection of law (grounds 6 and 11)

109. In grounds of appeal 6 and 11 the appellants complain about the deprivation of the rights of (presumably) the first appellant by the 16 July 2021 Orders. As I have already explained, the decision of the primary Judge concerned compliance with the 16 July 2021 Orders, which were lawful orders of the National Court. That the appellants were apparently aggrieved by those earlier Orders was not relevant to the question whether they had complied with them, and the consideration by the primary Judge of proper consequences flowing from failure to comply.
The appellants identify no error in the reasoning of the primary Judge. Grounds of appeal 6 and 11 are not competent.

Overlooking that the first appellant acted in good faith (grounds 7, 8 and 9)

110. It is entirely unclear to me how the alleged good faith of a party can be the basis of an appeal against a decision of the National Court regarding failure of that party to comply with Court orders. To the extent that the appellants claimed they tried to comply with the 16 July 2021 Orders, but did not, or that they did not comply within time, or that they took steps which in their view constituted compliance (but which the primary Judge found did not), I am not persuaded that such claims invoke the jurisdiction of the Supreme Court on appeal. Further, the appellants did not particularise the principles the primary Judge was required to take into account referable to attempts by the appellants to act in good faith in this context.

Grounds of appeal 7, 8 and 9 are incompetent.

Overlooking the fact that the respondents acted in bad faith (ground 10)

111. Ground of appeal 10 is similarly incompetent. The appellants allege “bad faith” on the part of the respondents, again without identifying how that was relevant to the decision of the primary Judge in respect of the appellants’ non-compliance with Court Orders. Rather, ground 10 appears to be related to a misconceived grievance by the appellants against the respondents which was irrelevant to the decision of the primary Judge that the appellants had not complied with relevant Orders.

Overlooking facts regarding the Settlement Proposal and Statement of Facts and Issues for Resolution (ground 12)

112. In my view ground of appeal 12 is incomprehensible. It seems to represent an apparent stream of consciousness on the part of the appellants concerning the Statement of Facts and Issues, the Settlement Proposal, the first respondent, settlement discussions, damages, amended pleadings, unserved evidence, failure to consult with him, and so on.

113. It is vague and unintelligible.

Ground 12 is incompetent.

Ambushing the first appellant (grounds 13, 14, 15, 16, 17, 18 and 19)

114. In each of these grounds of appeal the appellants complained of “ambush” by the primary Judge, in allegedly refusing him the opportunity to explain his failure to comply with Court Orders. While a failure to afford procedural fairness can properly be a legitimate ground of appeal against a decision of the National Court, in respect of these grounds of appeal:

• References to “unserved affidavits of the Defendants” in grounds 13, 14, 15, 15, 17, 18 and 19 were unparticularised, such that the grounds relying on this material were meaningless; and
• Precisely how the primary Judge allegedly “ambushed” the appellants as alleged in these grounds of appeal was neither defined nor particularised.
  

Grounds of appeal 13, 14, 15, 16, 17, 18 and 19 are incompetent.

Refusal of primary Judge to adjourn the matter at the call over (ground 20)

115. Ground 20 is incompetent. The decision of the primary Judge to refuse adjournment was an interlocutory decision, requiring leave to appeal pursuant to s 14(3)(b) of the Supreme Court Act (which leave the appellants have not sought). I further note that ground of appeal 20 refers to allegations unsupported by any evidence before the primary Judge, notwithstanding that reference to the transcript immediately reveals his Honour’s question of Mr Serowa concerning the existence of relevant evidence.

Other bases of incompetence

116. In addition to these specific reasons for each ground of appeal being incompetent, there are broader defects rendering specific grounds in the Pressed Notice of Appeal incompetent.

Out of time

117. The respondents submitted that the Pressed Notice of Appeal was generally incompetent because it was out of time.

118. Section 17 of the Supreme Court Act provides:

Time for appealing under Division 2

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.

119. Section 17 should be read with Order 7 Rules 25 and 26 of the Supreme Court Rules, which provide:

25. A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice.

26. A party who files a supplementary notice under Rule 25 shall serve and file it in accordance with Rule 13. The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days.

120. The appellants submitted that they were entitled to rely on the Pressed Notice of Appeal because it was filed prior to the date of appointment to settle under Order 7 Rule 42 of the Supreme Court Rules, being a date fixed by the Registrar. In this case, the relevant date was 20 September 2022.

121. The problem with this position is that Order 7 Rule 26 of the Supreme Court Rules provides that new grounds of appeal shall not be added after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days.

122. The Supreme Court has ruled on these provisions on many occasions. The 40-day time limit has been strictly applied. For example, in Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 the Supreme Court held:

There is a long line of authorities which support the proposition that where an appeal is not filed within 40 days as required by s 17 of the Supreme Court Act, there is no power in the Supreme Court to hear such a matter under the Supreme Court Act. see Avia Aihi -v- The State (supra); Shelly -v- PNG Aviation Services (supra); Dillingham Corporation -v- Diaz [1975] PNGLR 262; Wood -v- Watkins (PNG) [1986] PNGLR 88; PNG -v- Colbert [1988] PNGLR 138.

123. In Schubert v The State [1979] PNGLR 66 Prentice CJ and Andrew J said:

We should like at the outset to voice our disapproval of this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court. We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal, in which case it will invariably be struck down by s. 27 of the Supreme Court Act 1975

124. See also Kandakasi DCJ in Covec (PNG) Ltd v Kama (2020) SC1961. The date of judgment in this case was 4 January 2022. No application was made within 40 days after the date of judgment, for a further period to add a new ground of appeal.

125. It follows that a key question before the Court now is whether the Pressed Notice of Appeal is incompetent because it raised new grounds of appeal in the Pressed Notice of Appeals more than 40 days from judgment date.

126. Mr Serowa rejected the proposition that new grounds of appeal were added to the Pressed Notice of Appeal. Rather the amendments to that document were merely “fine tuning”.

I am unable to accept that proposition.

127. The Pressed Notice of Appeal contains tracked changes, reflecting amendments from the earlier iteration of the Notice of Appeal filed on 8 February 2022. It contains such amendments as the addition of claimed errors of “fact” and “in fact and in law” on the part of the primary Judge, in grounds of appeal 1, 2, 3, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20.

128. In my view the addition of these issues changed the scope of the previous grounds of appeal, such that they became new grounds of appeal referable to alleged errors of fact, and errors of “fact and law”, by the primary Judge. Prior to these changes, the grounds of appeal were drafted such that the errors were presumably those of law and/or fact and law, which required no leave to appeal.

129. A further issue arising is that although the appellants also claim in the Pressed Notice of Appeal that the amendments were by reference to “fact and law”, that the appellants have amended the Pressed Notice of Appeal by the introduction of grounds of appeal relating to only errors of fact draws support from the written submissions of the appellants. In particular I note paragraph 2 (f) on page 6 of Mr Serowa’s submissions filed 27 March 2023, where he stated:

There are seven paragraphs of factual grounds of appeal having their origins in law by settled judgments and orders and challenging the mediation jurisdiction who lacked jurisdiction under the ADR rules, contained in the Notices of Appeal filed on the 08/02/2022 and 25/08/2022 where:

1. Factual appeal ground of appeal and 3.2 and 4.2 respectively at page 11 below
   
2. Factual appeal ground of appeal and 3.3 and 4.2 respectively at page 12 below
   
3. Factual appeal ground of appeal and 3.8 and 4.8 respectively at page 17 below
   
4. Factual appeal ground of appeal and 3.9 and 4.9 respectively at page 18 below
   
5. Factual appeal ground of appeal and 3.10 and 4.10 respectively at page 19 below
   
6. Factual appeal ground of appeal and 3.12 and 4.12 respectively at page 21 below
   
7. Factual appeal ground of appeal and 3.20 and 4.20 respectively at page 29 below
   

130. These written submissions identified grounds of appeal as referable to alleged factual errors, but the appellants claimed they were errors of fact “having their origins in law by settled judgments and orders”. The exact meaning of this phrase is, at best, unclear, and at worst misconceives the nature of an error of fact and an error of fact and law. I also note that qualifications to that effect were introduced into the Pressed Notice of Appeal.

131. To that extent, the amended grounds of appeal in that notice were new grounds of appeal, and were also grounds for which leave may be required.

132. For this additional reason grounds of appeal 1, 2, 3, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20 are incompetent.

Relief sought

133. The relief sought by the appellants bore limited relevance to the decision of the primary Judge. To reiterate – the appellants sought the following relief in the Pressed Notice of Appeal:

(a) The Appeal be allowed and the Grounds for the Appeal to be upheld.

(b) Quash the Orders of the National Court made on the 04/01/2022 made by his honour Deputy Chief Justice Honourable Ambeng Kandakasi.

(c) The 2^nd Respondent Defendant, without prejudice, settle the Mount Hagen Town Authority land rates outstanding for K9,060.00 up to the time of transfer of Title to the First Plaintiff within 30 Days from date of orders pursuant to Clause 9.1 of the Contract.

(d) The 2^nd Respondent Defendant, without prejudice, at its own costs discharge the mortgage registered on the Registered title of Section 38 Lots 5 & 6 of Mount Hagen Town, registered in its favour, held against the former landlords within 30-days from the date of orders and thereafter return the title to the 1^st Appellant forthwith pursuant to Clause 9.2(a) of the Contract.

(e) The proceedings WS 994 of 2008 in the National Court are to continued in the Civil track for trial on liability on breach of professional duty of care as against the First Respondent Defendant and to be followed by trial on assessment of damages pursuant to the Orders of the Supreme Court made on the 24 November 2015 and pursuant to orders of the National Court made on the 18 August 2020.

(f) Costs following the event are to be paid by Respondents and to be taxed if not agreed.

(errors in original)

134. Prayers for relief (c), (d) and (e) were irrelevant to the decision of the primary Judge to dismiss the appellants’ claims in the National Court for non-compliance with the 16 July 2021 Orders. Further, prayers for relief (c) and (d) sought substantive relief referable to the appellants’ claims for damages the subject of the National Court proceedings. Prayer for relief (e) related to other Orders of the National Court not before the primary Judge and not the subject of the appeal.

135. Of the prayers for relief in the Pressed Notice of Appeal, only (a), (b) and (f) are competent.

Fresh evidence

136. At paragraph 3 of the Pressed Notice of Appeal the following paragraph appears:

3. Further where in so far as concerning the element(s) of factual ground(s) herein referred to below in the appeal grounds, such grounds are pursued pursuant to Sections 6 (1)(a) and 8(a) & (c) of the Supreme Court Act and pursuant to Order 7 Rules 52 to 59 of the Supreme Court Rules on application filed on the 30^th June 2022.
   

(underlining in original)

137. Unfortunately, this paragraph is unintelligible. However to the extent that I can discern any meaning at all from it, it is an amendment to an earlier Notice of Appeal and appears to refer to the introduction of new facts into the Pressed Notice of Appeal. I infer this in circumstances where the appellants have relied specifically on s 6(1) of the Supreme Court Act.

138. No leave has been sought by the appellants to introduce fresh evidence into the appeal pursuant to s 6 of the Supreme Court Act. No submissions on this issue were made.

139. At best, the grounds of appeal which specifically claim error of fact – namely grounds 2, 3, 8, 9, 10, 12, and 20 – are incompetent for the reason that they refer to fresh evidence for which no leave has been sought or granted.

CONCLUSION

140. In conclusion I make the following observation. Upholding the Notice of Objection to Competency effectively brings the appellants’ claims against both respondents to an end. However, that was already the effect of the primary Judge’s decision. I note that the primary Judge had regard to this issue and noted that it was an issue of importance in making the orders the subject of the substantive appeal. Whether his Honour’s decision was correct such that those orders should be upheld or set aside is not an issue for resolution by the Supreme Court at this time. The only issue currently before the Supreme Court in relation to the appeal of his Honour’s orders is whether the appeal was competent.

141. In my view the objection to the competency of the Pressed Notice of Appeal is substantiated. It is appropriate that costs follow the event, with previous costs orders to remain unaffected.

142. I note that at the hearing no submissions were made by the first respondent referable to costs, and no written submissions were filed by the first respondent. It follows that I propose no costs orders be made in favour of the first respondent.

143. For the reasons outlined above, in my view the appropriate orders of the Court are as follows:

(1) The Amended Application to Vary Orders and For Leave Etc (Amended Application) filed by the appellants on 16 March 2023 be dismissed.

(2) The objection to the competency of the appellants’ Notice of Appeal filed on 25 August 2022 be upheld.

(3) The appeal against the decision of Kandakasi DCJ of 4 January 2022 in WS 994 of 2008 be dismissed.

(4) The appellants pay the second respondents’ costs of the Amended Application, the Notice of Appeal filed on 25 August 2022, and the objection to competency, subject to any previous costs orders made in the appeal, to be taxed if not otherwise agreed.

144. BERRIGAN J: I am grateful to Collier J for setting out the procedural history of the matter.

AMENDED APPLICATION FILED 16 MARCH 2023 TO VARY INTERLOCUTORY ORDERS OF 5 OCTOBER 2022

145. In my view the amended application to vary the interlocutory orders of 5 October 2022 should be dismissed for the following reasons.

146. The application was made well outside the 21-day period required under Order 11 rule 25 of the Supreme Court Rules, not being filed until 10 March 2023, some five months late, before it was amended, without leave, on 16 March 2023. No explanation was provided for the lateness of the application.

147. In addition, an order for costs is discretionary. The discretion must be exercised on a principled and judicial basis. It is well established, however, that this Court will only intervene if an exercise of discretion is clearly wrong. An exercise of discretion will only be clearly wrong if an identifiable error has occurred or if, though there is no identifiable error, the resulting decision is so unreasonable and plainly unjust that it must be inferred that an error has occurred: Curtain Bros (PNG) Ltd v UPNG (2005) SC788 and the many cases which have applied it, including James Kruse v Beatrice Geita and George Nicholas Constantinou and NC Resource Limited (2015) SC1849 and Konda'lane Properties Ltd v Parkop (2022) SC2289 in the context of costs.

148. In the absence of the transcript or other material establishing the reasons given by the learned Judge for his decision the appellants have failed to establish that an identifiable error has occurred.

149. As to whether the orders were plainly unreasonable or unjust, it is my view that an order that a party pay interlocutory costs before taking any further steps in an appeal should be regarded as exceptional. It does have the potential to impede the efficient progression of an appeal, particularly when made against a party with limited resources. That is not in the interests of any party or the efficient administration of justice. Those are matters which should be taken into account when determining whether or not to make such an order.

150. Such an order cannot of itself, however, be regarded as plainly unreasonable or unjust.

151. The Rules envisage such orders. Order 12 rule 4 of the Supreme Court Rules provides that the Court or a Judge may order costs at any stage of a proceeding, and further, may require that the costs be paid forthwith notwithstanding that the proceeding is not concluded. It follows that an ancillary order governing the future progress of the proceeding pending the payment of such costs might also be made.

152. Ultimately, the question is not whether this Court would have made the orders of 5 October 2022 or whether the orders are arguably unjust or unreasonable but whether they are plainly so.

153. In my view it may be inferred that indemnity costs were ordered by his Honour because he found the appellants' conduct to be unnecessary or unreasonable (see Rex Paki v MVIL (2010) SC1015, Opi v Telikom (2020) N8290 at [225] to [236] as to the nature of indemnity costs), and that he ordered that the costs be paid before any further steps were taken in the appeal to ensure the timely and cost-effective future conduct of the matter.

154. Having regard to the discretion of the judge on costs, and the matters noted by Collier J, in particular, the failure of the appellants to produce reasons, the age of the matter, the repeated filing of amended notices of appeal, and the absence of any unfair prejudice, the appellants have failed to establish that either aspect of the orders made by Batari J on 5 October 2022 is so unreasonable or plainly unjust that it must be inferred that his Honour erred.

OBJECTION TO COMPETENCY

155. I agree that the objections to the competency of ground 4.1 of the appeal should be dismissed for the reasons given by Cannings J.

156. It is sufficiently clear from ground 4.1 that the appellants contend that the primary judge erred by failing to consider the submission that the proceedings were not suitable for mediation having regard to the principles outlined in Able Construction Ltd v W R Carpenter (PNG) Ltd (2014) N5636. That is a question of law, for which leave was not required. Whether or not that ground has any merit is a matter for determination on the hearing of the appeal. The amendment did not change the nature of the ground, which remained one of law, and cannot be regarded as creating a new ground of appeal.

157. Furthermore, an appeal cannot be regarded as "generally incompetent" because a supplementary notice of appeal is filed out of time. An objection is to the competency of an appeal not the notice of appeal: Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205.

158. If amendment to an existing ground is purported to be made out of time and without leave in compliance with rule 25 then it is simply that, out of time and therefore not made.

159. Similarly, an appellant may be precluded from relying on a new ground of appeal raised out of time but it does not render the existing grounds of appeal incompetent. It is not uncommon for this to occur in the context of criminal appeals: see Rolf Schubert v The State [1979] PNGLR 66, Birch v The State [1979] PNGLR 75, Ombusu v The State [1996] PNGLR 335, Hariki v The State (2007) SC1320, Guli v The State (2022) SC2272, bearing in mind the principles which apply in such cases.

160. Having found one ground of appeal to be competent, the appeal should proceed: Coca Cola Amatil (PNG) Ltd v Kennedy, applied.

CONCLUSION

161. I would make the following orders:

(1) The amended application to vary the orders of 5 October 2022 is dismissed.

(2) The parties shall bear their own costs of and incidental to the amended application to vary the orders of 5 October 2022.

(3) The objection to competency, filed by notice of objection to competency on 5 September 2022, is refused.

(4) The second respondent shall pay the appellants' costs of the objection to competency on a party-party basis, which shall if not agreed be taxed, and the first respondent shall bear its own costs of the objection to competency.

(5) The proceedings are adjourned to the Registry and shall be referred to the duty judge for directions as soon as is practicable.

ORDER

As to the application for variation of the orders of 5 October 2022:

(1) The amended application to vary the orders of 5 October 2022 is dismissed.

(2) The parties shall bear their own costs of and incidental to the amended application to vary the orders of 5 October 2022.

As to the objection to competency of the appeal:

(3) The objection to competency, filed by notice of objection to competency on 5 September 2022, is refused.

(4) The second respondent shall pay the appellants' costs of the objection to competency on a party-party basis, which shall if not agreed be taxed, and the first respondent shall bear its own costs of the objection to competency.

(5) The proceedings are adjourned to the Registry and shall be referred to the duty judge for directions as soon as is practicable.

_______________________________________________________________
Pacific Legal Group: Lawyers for the First Respondent
Ashurst PNG: Lawyers for the Second Respondent