Independent State of Papua New Guinea v Mabiria [2024] PGSC 81; SC2612 (9 August 2024)

SC2612

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 74 OF 2021 (IECMS)

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND
THE POLICE COMMISSIONER, GARI BAKI
Second Appellant

THE PROVINCIAL POLICE COMMANDER, JIMMY ONDOPA
Third Appellant

AND
LEMSON MABIRIA and ANDY HAMAGA on their behalf and on behalf
of 15 other clan members of Honoka Clan residing at Para Village in Komo District
Respondents

Waigani: Kandakasi DCJ, Yagi J & Wood J
2024: 26^th March
2024: 9^th August

SUPREME COURT – The Notice of Appeal did not specify whether the appeal was from the whole, or part of a National Court judgment – the omission of the words, ‘whole of the decision’, was as a result of poor drafting – notwithstanding this, special circumstances arise in this case and exceptional circumstances exist that warrant the grant of leave to the appellants to amend the Notice of Appeal – the amendment sought to the Notice of Appeal did not raise competency or jurisdictional issues


Held:

An order granted to the appellants for leave to amend the Notice of Appeal

Cases Cited:

Birch v The State [1979] PNGLR 75
Damane v The State [1991] PNGLR 224
Green International Ltd v Commissioner General of Internal Revenue [2022] SC2269
Kas v The State (1999) SC772
Mirenbean Enterprises Ltd v Nathan Kaugla (2019) SC1826
Tsang v Credit Corporation [1983] PNGLR 112


Legislation

Supreme Court Act, Chapter No. 37
Supreme Court Rules 2012

Counsel

Ms P Ohuma, for the Appellants
Mr J Simbala, for the Respondents

9^th August 2024

1. BY THE COURT: The matters before the Court on 26 March 2024 were the hearing of the Application filed on 19 July 2023 by the appellants (the Application) and the respondents’ Notice of Objection to Competency filed on 26 July 2023 (the Objection to Competency).
   
2. The respondents’ lawyer submitted that whether the hearing of the Objection to Competency should occur, was dependent upon what decision the Court made regarding the Application, whereby if the Application was upheld, it would not be necessary to hear the Objection to Competency. The Court agreed with that proposal by the respondents’ lawyer. Due to the hearing of the Application on 26 March 2024, following which the Court reserved its decision, the Objection to Competency was not heard that day.
   

Background

3. The circumstances giving rise to the Application are as follows. On 5 July 2021 in National Court proceeding WS No. (HR) No. 26 of 2015, entitled Lemson Mabiria & Andy Hamaga on their behalf and on behalf of other clan members of Honoka Clan, Para Village, Hela Province v The Independent State of Papua New Guinea & others, the trial Judge delivered his judgment in which he awarded the amount of K2,668,091.95 in damages in favour of the respondents (the National Court judgment).
   
4. The appellants subsequently filed a Notice of Appeal on 15 July 2021 (the Notice of Appeal) in relation to the National Court judgment. As one of the grounds of the Notice of Appeal, the appellants claim that in addition to damages being awarded to the 15 ‘primary plaintiffs’, the trial Judge erred in awarding damages to additional family members who were not named as plaintiffs in the National Court proceeding. In submissions by the appellants’ lawyer at the hearing of the Application, it was contended that the trial Judge had awarded damages to 61 people, whereas only the two principal plaintiffs and 15 other plaintiffs were named in the National Court proceeding.
   
5. The Application seeks leave to amend paragraph 1 of the Notice of Appeal, so that the words, ‘whole of the decision’, are added. In other words, the appellants seek to amend the Notice of Motion to read as follows:
   
   

‘The Appellant appeal from the whole of the decision of His Honour Justice Cannings made on the 5^th July 2021 in the National Court at Waigani in the proceeding styled as WS (HR) NO. 26 OF 2015; LEMSON MABIRIA & ANDY HAMAGA ON THEIR BEHALF AND ON BEHALF OF OTHER CLAN MEMBERS OF HONOKA CLAN, PARA VILLAGE, HELA PROVINCE V. THE INDEPENDENT STATE OF PAPUA NEW GUINEA & ORS where his Honor ordered and awarded K2, 688, 091.95 in total damages against the Appellants in favour of the Respondents after a trial on assessment of damages.’

The form of the Notice of Appeal

6. We note that Form 8 of the Supreme Court Rules prescribes the form of a Notice of Appeal, namely:
   

O.7 Rule 9(e)

Form 8

GENERAL FORM NOTICE OF APPEAL

IN THE SUPREME COURT OF JUSTICE

S.C. APPEAL No....of 20... A.B Appellant C.D. Respondent

NOTICE OF APPEAL

1. THE Appellant appeals from the whole (or if a part specify part) of the judgment of (specify National Court or National Court Judge) given on (specify date) at (place).

2. (Where applicable) THE appeal lies without leave OR (where applicable) THE appeal is brought pursuant to leave granted on (specify order)

3. GROUNDS (specify each particular ground by paragraph).

4. ORDER SOUGHT (state what judgment or order appellant seeks in lieu of the judgment appealed from).

5. The name of the primary judge is:

6. A transcript is/is not required.

Dated:
_______________
Sgd: Appellant or his
Lawyer
FILED BY: (Form 17)
APPOINTMENT
The Appeal Book will be settled before the Registrar at the Supreme Court at (time) on the (date).
________
Registrar

7. In this regard, Form 8 requires that an appellant should state whether they appeal from the whole, or if a part, what part of the judgment they appeal.

Submissions for the appellants

8. As stated on behalf of the appellants’ lawyer, we note that the Application is made under Order 11 Rule 11 of the Supreme Court (Miscellaneous Amendment) Rules 2022 and section 155(4) of the Constitution. Order 11 Rule 11 of the Supreme Court Rules provides as follows:

‘11. The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.’

9. The appellants’ submission in support of the Application to amend the Notice of Appeal to include the words ‘whole of the decision’ is that the error in not including those words initially was a ‘minor error or oversight’ and that the ‘... error or oversight if corrected’ will not prejudice the appellants’ substantive claim.

10. In support of the Application, the appellants relied upon the decision in Green International Ltd v Commissioner General of Internal Revenue [2022] SC2269, where Justice Hartshorn cited with approval the principles that were set out in Mirenbean Enterprises Ltd v Nathan Kaugla (2019) SC1826.

11. For the purpose of this decision, we consider it more convenient to quote directly from paragraphs 9 to 21 in the Mirenbean judgment (supra), where the Court (per Chief Justice Salika, Justice Batari and Justice Dingake) stated as follows:

9. The appellant in its application to amend the notice of appeal does not seek to alter the factual allegations that underpin its case and generate a new cause of action.

10. Against this background, the only issue that falls for determination is whether the applicant/appellant has made out a case to be granted leave to amend its notice of appeal.
11. The principles applicable to this issue have been set out in numerous cases in this jurisdiction.
12. In the case of Charles Bougapa Ombusu v The State (1996) PNGLR 335; SC 496, the Court stated the relevant test in the following terms:

• “The test ... is whether there are special circumstances in a particular case which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal ...”

13. It would not be prudent to seek to enumerate a list of special circumstances contemplated by the Court, suffice to say that each case must turn on its own circumstances.
14. It is trite learning that the grant of leave to amend is discretionary. Such discretion must be exercised reasonably, the focus being to promote the interest of justice, at all times.
15. In addition to the above, the modern trend is that, generally, amendments of the nature sought, are most likely to be allowed if the application is not mala fide or would not result in prejudice on the respondent, which cannot be compensated by costs.
16. In our considered view an amendment that facilitates a proper ventilation of the issues in dispute and causes no prejudice to the respondent should ordinarily be granted.
17. In this case, we are satisfied that there exist special circumstances that warrant this court granting the relief sought.
18. It is sufficient for present purposes to cite only one such circumstance: the judgment sum of K31,663,381.32, is an extra ordinary large amount of money, won in circumstances, in which the legality of the win is at best debatable.
19. The existence of the special circumstances referred to in the preceding paragraph is reinforced by the fact that on the evidence adduced before us there is no prejudice that the respondent would suffer if we allow the appellant to amend the notice of appeal. There is still sufficient time for the respondent to consider the proposed grounds.
20. It seems to us that the amendment sought will facilitate a proper ventilation of the dispute between the parties, and that to that extent, it is in the interest of justice to allow the amendment sought.
21. For the above reasons, the amendment sought ought to be granted.
    

Submissions for the respondents

12. The written and oral submissions by the respondents to oppose the request for leave to amend the Notice of Appeal are effectively that:

1. by deleting paragraph 1 of the Notice of Appeal and substituting it with a new paragraph 1, which contains the words ‘whole of the decision’, would effectively constitute the filing of a new appeal and that it may be regarded as adding a new ground of appeal (the first Issue);
   
2. the Application was only filed in response to a warning letter from the respondents’ lawyer dated 30 June 2023, in which it was stated in the letter that the Notice of Appeal was ‘incompetent’ because of the (purported) failure in omitting those words which the appellants now seek leave to include in the Notice of Appeal (the second Issue);
   

100. the issue of whether the appellants should be permitted to amend the Notice of Appeal outside the prescribed time concerns the ‘jurisdiction’ of the Court and therefore the Supreme Court does not have the discretion to grant leave to the appellants. In this regard, the respondents rely on the judgments in Tsang v Credit Corporation [1983] PNGLR 112 and Kas v The State (1999) SC772 (the third Issue);
     

4. the filing of the Application is ‘ill-conceived and mala fide’, whereby the appellants’ lawyer (either by design or inadvertence) failed to ensure the Notice of Appeal was compliant with the requirements of Order 7 Rule 9 of the Supreme Court Rules (the fourth Issue);
   
5. the filing of the Application constitutes a ‘guise’ to circumnavigate the mandatory time period that is prescribed under section 17 of the Supreme Court Act (the fifth Issue); and
   
6. there are no exceptional circumstances warranting the grant of leave. In this regard, the respondent relies on the judgments in Damane v The State [1991] PNGLR 224 and Birch v The State [1979] PNGLR 75 (the sixth Issue).
   
   
   
   

Analysis of the issues

13. In relation to the first Issue, we do not agree that the addition of the words the ‘whole of the decision’, would constitute the filing of a new appeal. This is because Order 11 Rule 11 of the Supreme Court Rules provides that the Supreme Court or a Judge may order that, ‘...the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.’

14. Furthermore, we consider the amendment sought to the Notice of Appeal does not seek to introduce a new ground of appeal as it only clarifies whether there is an appeal from part or the whole of the judgment.

15. Also, in relation to the first Issue, we note the respondent also relied on the extract from the judgment of Birch v The State (supra) where Kearney J stated at page 85 as follows:

I would refuse leave to add an additional ground of appeal. It is the duty of counsel when settling an appeal to see to it at the time, or reasonably promptly, that all grounds on which it is intended to rely are sufficiently set out. Here no adequate reason has been advanced for inaction in the period of seven months between the lodging of the appeal and its hearing.

16. While the above citation refers to the time period of seven months, which appears to be more of a time issue, rather than what the respondents contend at paragraph 55 of their submissions is a ‘fresh ground of appeal’ argument, we consider the adding of the words ‘whole of the decision’, would not constitute the adding of new ground of appeal. The first reason is because the adding of the words ‘whole of the decision’, is not contained within the ‘grounds’ section of Form 8. Secondly, by virtue of the amendment sought, we consider it clear that the appellants are seeking to clarify that they are seeking to appeal against the whole of the decision of the trial Judge, and not just part of it. That does not constitute the introduction of a new ground of appeal.

17. Furthermore, we do not consider the length of time by the appellants in seeking to amend the Notice of Appeal to being unreasonably inordinate in the circumstances. For the above reasons, we dismiss the first Issue.

18. In relation to the second Issue, while we note it is contended that the Application was only filed in response to the error being raised in the forewarning letter dated 30 June 2023, we note that the Application was filed 19 days later, and we consider this was not an inordinate delay in time. We also consider it adequately reflects the concern by the appellants that the issue should not remain uncorrected. For these reasons, we dismiss the second Issue.

19. In relation to the third Issue, we note the respondents relied on an extract in the Tsang judgment (supra), commencing at page 116 as follows:

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.

Applying these principles to the present case, the appellant cannot introduce a new matter, that is, application for leave to appeal, outside the 40 days period. The appellant has failed to apply for an extension of time in which to file an application for leave to appeal. The supplementary notice of appeal is, therefore, incompetent in so far as it relates to the decision of the National Court on joinder of parties. No amendment can be allowed in these circumstances. This part of the decision of the National Court cannot be reviewed under the Supreme Court Act.

20. We have considered the Tsang judgment (supra) and consider the facts in that case are different, because as one of the principal issues in that case, counsel for the respondents raised a preliminary issue in relation to the ruling by the trial Judge refusing the application to add Sakai Management Services Pty Ltd as a second defendant. When the original Notice of Appeal in that matter was filed, the appellant sought to appeal against the whole of the decision. The Notice of Appeal was expressed to be without leave of the Court. Counsel for the respondent argued that that part of the decision related to the joinder of parties, which was an interlocutory order whereby no appeal can lie to the Supreme Court except with the leave of the Court. In other words, the Tsang judgment on that issue related to the joinder of a party, for which leave had not been obtained, which issue does not arise in the appeal before us. Accordingly, we reject the reliance by the respondents on the principles cited in Tsang (supra) on that issue as they are different to facts of this case.

21. In relation to the third Issue, we also do not accept the respondents’ submission that the addition of the words ‘whole of the decision’, concern a question of jurisdiction. In this regard, we repeat our above reference to Order 11 Rule 11 of the Supreme Court Rules, which provides that the Supreme Court or a Judge may order that, ‘...the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.’ Furthermore, while the addition of a new ground (which we consider has not occurred in this case) may well give rise to a question whether the Supreme Court has the jurisdiction to grant an amendment outside the 40 day appeal period, we consider the addition of the words ‘whole of the decision’, only seeks to clarify whether the appeal is against part or the whole of the National Court Judgment, which is not an issue of jurisdiction. For these reasons, we dismiss the third Issue.

22. In relation to the fourth Issue, we have considered the affidavits relied upon by the appellants and consider it is apparent from the evidence that the initial lawyer who drafted the Notice of Appeal did not thoroughly check the wording in Form 8 of the Supreme Court Rules, which requires that an appellant specify whether the appeal is from the whole or part of a judgment. While there is no excuse for such an omission, in our experience, we have seen other cases like this over the years. In this regard, we consider the omission to be one of inadvertence and poor drafting, however, we do not consider the omission to be done mala fide or done by design. In addition, we do not consider the respondents have adduced any evidence of actions which would constitute the omission being mala fide or done by design. For these reasons, we dismiss the fourth Issue.

23. In relation to the fifth Issue, the respondents contend that the filing of the Notice of Appeal constitutes a ‘guise’ to circumnavigate the mandatory time period that is prescribed under section 17 of the Supreme Court Act. We do not agree. We consider the respondents have not adduced any evidence to support its objection, nor does the Notice of Appeal seek to introduce a new ground of appeal. This is because, in our view, it only clarifies whether there is an appeal from part or the whole of the judgment. For these reasons, we consider there is no attempt by the appellant to seek to file a new appeal or new grounds of appeal past the 40 day appeal period. Moreover, and as stated above, Order 11 Rule 11 of the Supreme Court Rules provides that the Supreme Court or a Judge may order that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions. Accordingly, we dismiss the fifth Issue.

24. In relation to the sixth Issue, we note in paragraph 59 of the respondents’ written submissions, it is stated that ‘exceptional circumstances’ must depend on the factual circumstances and merits of each individual case. The respondents also state in paragraph 59 that ‘Apart from the reasons given for leave to amend, other factors such as the conduct of the parties, the length of time, the stage of the proceeding at which the application is made, and the like are relevant considerations, in our respectful submission, to be taken into account when considering whether or not to grant leave to amend.’

25. In the circumstances, we refer to the principles in Mirenbean (supra), which we have summarised below, namely:

1. the test is whether there are special circumstances in a particular case which would make the case an exceptional case that should warrant the grant of leave to amend a notice of appeal;
   
2. it would not be prudent to seek to enumerate a list of special circumstances contemplated by the Court, suffice to say that each case must turn on its own circumstances;
   

100. the grant of leave to amend is discretionary. Such discretion must be exercised reasonably, the focus being to promote the interest of justice, at all times;
     

4. generally, amendments of the nature sought, are most likely to be allowed if the application is not mala fide or would not result in prejudice on the respondent, which cannot be compensated by costs;
   
5. an amendment that facilitates a proper ventilation of the issues in dispute and causes no prejudice to the respondent should ordinarily be granted; and
   
6. an amendment may be granted if it facilitates a proper ventilation of the dispute between the parties, and that to that extent, it is in the interests of justice to allow the amendment sought.
   

26. We agree with the principles in Mirenbean (supra), and consider that special circumstances arise in this case and that exceptional circumstances exist, which warrant the grant of the Application, namely:

1. while the omission of the words ‘whole of the decision’ was as a result of poor drafting, once this was realised by the appellants, they took adequate steps, and within a reasonable time, to file the Application;
   
2. we consider the amendment sought to the Notice of Appeal does not seek to introduce a new ground of appeal, but rather, it only clarifies whether there is an appeal from part or the whole of the judgment;
   

100. one of the grounds of the Notice of Appeal, in essence, is that the trial Judge awarded damages to certain other persons who were not named as part of the claim. Given this and because of the quantum of damages awarded, we consider there should be a proper determination of that issue;
     

4. we consider the omission of the words ‘whole of the decision’ was not done mala fide and that there is no prejudice to the respondents, which issue can be addressed by costs if the Application is upheld;
   
5. we consider the amendment sought in the Application will facilitate a proper ventilation of the issues and to that extent, it is in the interests of justice to allow the amendment sought.
   

27. For the above reasons, the sixth Issue is dismissed.

Conclusion

28. On the basis of our above reasoning, we grant the order sought in paragraph 1 of the Application.

29. Based on the above matters referred to in our judgment, we consider the amendment sought to the Notice of Appeal does not raise any issues of competency or render the Notice of Appeal incompetent. Nor does the amendment sought regarding the Notice of Appeal raise the ‘jurisdiction’ of the Court (or jurisdictional issues) as contended by the respondents. For these reasons, and because we have upheld the order in paragraph 1 of the Application, we dismiss the Objection to Competency.

30. Notwithstanding that we have dismissed the Objection to Competency, there has been some delay in the progression of the appeal due to the above omission in the drafting of the Notice of Appeal. The issue of the award of costs is discretionary and so we consider it appropriate that the parties should pay their own costs of the Objection to Competency.

Orders

31. In the circumstances we make the following orders:

1. The order sought in paragraph 1 of the Application filed on 19 July 2023 is upheld, whereby the appellants are granted leave to amend paragraph 1 of their Notice of Appeal filed on 15 July 2021 as per the terms of the draft paragraph which is referred to in paragraph 1.1 of the Application filed on 19 July 2023.
   
2. In relation to the order made in paragraph 1 herein, the appellants shall file and serve the Amended Notice of Appeal within 14 days of today’s judgment.
   
3. The Notice of Objection to Competency filed on 26 July 2023 is dismissed on the basis that the parties will pay their own costs of that Notice of Objection.
   
4. The appellants shall pay the respondents’ costs of and incidental of the Application filed on 19 July 2023 on a party and party basis, to be taxed if not agreed.
   
5. The terms of these Orders are abridged, to the date of settlement by the Court, which shall take place forthwith.
   

Office of the Solicitor General: Lawyers for the Appellants
Vijay & Co Lawyers: Lawyers for the Respondents