Australia and New Zealand Banking Group (PNG) Ltd v Equipment Hire Ltd [2024] PGSC 46; SC2579 (22 April 2024)

SC2579

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 105 OF 2023

BETWEEN:
AUSTRALIA AND NEW ZEALAND BANKING
GROUP (PNG) LIMITED
Applicant

AND:
EQUIPMENT HIRE LIMITED
First Respondent

AND:
NATIONAL DEVELOPMENT BANK
Second Respondent

Waigani: Hartshorn J
2024: 18^th & 22^nd April

SUPREME COURT APPEAL – practice and procedure - application for leave to appeal on questions of fact

Cases Cited:

Rea Joseph v. Manau Severa (2011) SC1152
Kevin Puruno v. Francis Karaie (2022) SC2348

Counsel:

Mr. W. Mininga, for the Applicant
Mr. G. Kult, for the First Respondent

Oral decision delivered on
22^nd April 2024

1. HARTSHORN J: This is a decision on a contested application for leave to appeal a judgment of the National Court on questions of fact pursuant to s.14 (1)(c) Supreme Court Act.

Background

2. The first respondent filed a proceeding in the National Court against the applicant claiming that the applicant had made deductions from the first respondent’s bank account without the first respondent’s authority.

3. The applicant denied the first respondent’s claims. It stated that the deductions were made pursuant to a standing order authority that had been issued to the applicant by the first respondent.

4. The primary judge found that the applicant was negligent as it had breached its duty of care to the first respondent in making the deductions. The primary judge also held that the applicant’s negligence bordered on criminal conduct and awarded amongst others, aggravated, exemplary and general damages to be assessed.

Consideration

5. The first respondent raises competency issues and also submits that this application for leave is an abuse of process. I consider the abuse of process issue first.

6. In the application for leave to appeal the applicant states that the proposed grounds of appeal are that:

“(a) The trial Judge erred in fact in finding that the applicant made deductions from the first respondent’s account without the first respondent’s authority when there was a lack of clear evidence demonstrating the applicant’s knowledge of the expiration of the SOA.

(b) The trial Judge erred in fact in finding that the applicant should have obtained the consent of the first respondent before making the deductions when there was an existing SOA in place for deductions to be made on the first respondent’s account.”

7. In regard to the first proposed ground of appeal, the applicant contends that the primary judge erred in a finding of fact when there was a lack of evidence.

8. In regard to the second proposed ground of appeal, the applicant contends that the primary judge erred in fact contrary to the evidence. In Kevin Puruno v. Francis Karaie (2022) SC2348 I said at [6] and [7]:

“6. In Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, Kapi J as he then was said:

“It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law. ... I cannot see anything in the circumstances of this country that would render these principles inapplicable. I adopt them as part of the underlying law (Schedule 2.2 of the Constitution).”

7. In Kostas v. HIA Insurance Services Pty Ltd (2010) HCA 32, Hayne, Heyden, Crennan and Kiefel JJ held that:

“Whether there was no evidence to support a factual finding is a question of law, not a question of fact. A tribunal that decides a question of fact when there is “no evidence” in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.”

9. As to the first ground, by contending that the primary judge found in fact when there was a lack of evidence, the applicant is challenging the primary judge’s determination of whether there was sufficient evidence to support the primary judge’s finding of fact. On the above authority, this is a question of law.

10. As to the second ground, by contending that the primary judge erred in fact contrary to the evidence, the applicant is asserting that the primary judge made a conclusion which could not reasonably be drawn on the evidence. On the above authority, this is a question of law.

11. As both proposed grounds are in respect of findings of law or mixed fact or law, which are being questioned, leave to appeal is not required.

12. Consequently as leave is not required contrary to what is applied for by the applicant, this application for leave to appeal should be dismissed: Rea Joseph v. Manau Severa (2011) SC1152. Given this, it is not necessary to consider the other submissions of counsel.

Orders

a) The application for leave to appeal is dismissed.

2. The applicant shall pay the costs of the first respondent of and incidental to the said application for leave to appeal.

__________________________________________________________________
Bradshaw Lawyers: Lawyers for the Applicant
Young & William Lawyers: Lawyers for the First Respondent