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Pokawin v The State [1998] PNGLR 466 (10 May 1995)

[1998] PNGLR 466

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

STEVEN POKAWIN & ORS

V

THE STATE

WAIGANI: AMET, CJ; KAPI DCJ; WOODS, LOS, HINCHLIFFE JJ

10 May 1995

Facts

The State appeals from an interlocutory judgment of the National Court wherein the notice of appeal was pleaded in the alternative without specifically seeking leave of court to appeal as required by s 14(3)(b) of the Supreme Court Act that stipulates: "No appeal lies to the Supreme Court without leave of the Supreme Court from an interlocutory judgment made or given by the National Court."

Held

1. The decision appealed from is an "interlocutory judgement" of the National Court and leave of the Supreme Court is required to appeal to the Supreme Court pursuant to s 14(3)(b) of the Supreme Court Act.

2. Paragraph 2 of the notice of appeal which is in the terms of Form 8 of the Supreme Court Rules as required by O 7 r 8(c) is defective. It is drafted in the alternative where a question of fact may require leave. It does not specifically apply for leave to appeal against an interlocutory judgment which is the requirement of s 14(3)(b) of the Act.

3. The purported notice of appeal is therefore incompetent.

4. The notice of objection to competency was sufficiently "filed" within time on the date it was lodged in the Supreme Court Registry.

Counsels

F Damen, for applicant.
K Naru, for respondent.

10 May 1995

BY THE COURT. This is a preliminary application by the respondent State against the competency of the Notice of Appeal by the appellants. In responding to this application, the appellants also raised a further preliminary objection to the respondent’s notice of objection to competency as not having been filed within fourteen (14) days after service on it of the notice of appeal, as required by O 7 r 14 of the Supreme Court Rules.

We deal firstly with this preliminary objection by the appellants to the competency of the notice of objection to competency filed by the respondent. The notice of appeal was filed on 18 January 1995 and served on the Solicitor-General for the respondent on 19 January 1995. The notice of objection to competency filed by the Solicitor-General on behalf of the respondent has recorded on it as having been filed on 17 March 1995. It was submitted by the appellants that that being the date of filing of the notice of objection to competency, it is considerably out of time and in breach of O 7 r 14 and therefore incompetent.

The respondent had filed affidavit by the legal officer having carriage of the matter deposing to the fact that the notice of objection to competency was in fact lodged with the Supreme Court Registry on 30 January 1995 well within the fourteen (14) days prescribed by O 7 r 14, but that the then Acting Registrar Supreme Court had advised that because of the court vacation period, the document would not be sealed and returned until after the Court vacation. It was deposed, that subsequently the document was sealed and returned on the date so recorded on the document on 17 March 1995. It was submitted therefore that the court should hold that the Notice of Objection to Competency was sufficiently filed within time on the date it was lodged in the Supreme Court Registry.

We are satisfied on that evidence and the practice of the Supreme Court Registry in receiving documents on particular dates but stamping them as having been filed some days after the date on which they were lodged. Hence we accept that the notice was filed on the date the document was lodged in the Supreme Court Registry, and thus complying with the time prescription required by the Supreme Court Rules. The notice of objection to competency was therefore filed within time and is competent.

We return now to the principal objection by the respondent to the competency of the appellant’s notice of appeal. The respondent has submitted that the document entitled "Notice of Appeal", also pleads in the alternative, that leave will be sought, is not specifically seeking leave to appeal against an interlocutory judgement, as required by s 14(3)(b) of the Supreme Court Act, which specifically stipulates that no appeal lies to the Supreme Court without leave of the Supreme Court from an interlocutory judgement of the National Court. It was submitted that the judgement appealed from is an interlocutory one and so leave is required to appeal to the Supreme Court. It was therefore contended that the notice of appeal purporting to seek leave in the alternative is therefore incompetent.

The appellants submitted that the question of leave is sufficiently incorporated in the notice of appeal, which pleads that the appeal lies without leave or in the alternative leave will be sought at the hearing and therefore it has sufficiently complied with s 14(3)(b) of the Supreme Court Act. It was further submitted that the appeal is based on a question of mixed fact and law and therefore a person is afforded the right of appeal without the need to seek leave. It was submitted therefore that the correct Form in the Rules for the notice of appeal has been used and that the appellant has complied with the requirements of the Supreme Court Act and Rules. In the alternative, it was submitted that, even if the appeal is from an interlocutory judgement, the Notice of Appeal has been pleaded with the objective of seeking leave at the hearing and that if Form 7 is said to be the correct form that ought to have been used, it does not provide for leave to be sought and so the requirement of s 14(3)(b) has been complied with. If the Court were to rule that Form 7 was the appropriate form then, it was submitted, this procedural defect should not render the proceedings defective.

Section 14(3)(b) of the Supreme Court Act provides that:

"No appeal lies to the Supreme Court without leave of the Supreme Court from an interlocutory judgement made or given by the National Court."

The appellants have not contested that the judgement appealed from is in fact an interlocutory judgement. We are satisfied that it is an interlocutory judgement and by virtue of s 14(3)(b) of the Act, leave of the Supreme Court is specifically required before appeal can lie to the Supreme Court. The principal issue therefore is whether the purported notice of appeal, as pleaded, complies with the requirement of this provision to apply for leave of the Supreme Court.

The relevant provisions of the pleading in the notice of appeal are:

"1. The appellant appeals from the whole of the judgement of the Hon Mr Justice Sheehan given on 28 December 1994 at Waigani in proceedings OS 501 of 1994 whereby it was ordered that the appellants’ application to strike out or dismiss the respondent’s action be refused and the Attorney-General be added as a plaintiff in the proceedings.

2. The appeal lies without leave or in the alternative leave to appeal will be sought at the hearing as the matters to be raised in that application are in all and/or in part the substantive matters constituting the grounds of appeal set out in the grounds No. 3(a)(i) to 3(a)(iv) below.

3. Grounds:

(a) The learned judge erred in law and in fact in that:"

The pleading in issue is paragraph 2. We have quoted the opening clause in paragraph 3, which stipulates the error, to demonstrate the submission that was made by the appellants that the grounds raised were relating to errors in law and in fact, for which no leave is required. The central issue remains whether para 2 sufficiently complies with the requirement of s 14(3)(b) as applying for leave.

It will be noted that in the first part it purports to plead that "the appeal lies without leave". The next important part of the paragraph pleads that "in the alternative leave to appeal will be sought at the hearing as the matters to be raised in that application are in all and/or in part the substantive matters constituting the grounds of appeal set out in the grounds No. 3(a)(i) to 3(a)(iv) below".

It is quite evident, in our view, that this form of pleading is quite misconceived. It purports to plead that the appeal first lies without leave but that if in the alternative leave to appeal were required then that was to be applied for at the hearing. It quite manifestly does not distinguish between the requirement of s 14(1) and (3)(b). It is quite clearly misconceived in that it purports to plead that the appeal as a whole or parts of the appeal lie without leave.

The legal position is quite clear. This judgement appealed from is an interlocutory one and no appeal lies to the Supreme Court without the leave of the Supreme Court first having been obtained by application. Leave of the Supreme Court is therefore mandatory.

Paragraph 2, as pleaded in the purported Notice of Appeal, in the terms of Form 8 which is appropriate for a Notice of Appeal required under O 7 r 8 (e) is in our view manifestly defective. The fact that it has been pleaded to seek leave in the alternative is in our view not sufficient. It does not specifically only apply for leave to appeal against an interlocutory judgement, which is the requirement of s 14(3)(b) of the Act in this case.

It is quite simply not sufficient and thus incompetent to plead in the form of para 2 in the alternative, where leave is mandatorily required either in an appeal against findings of fact only or against an interlocutory judgement such as in this case. The Form 8 para 2 format specifically provides (where applicable) which means that the appropriate clause is to be pleaded such as that the appeal lies without leave or if leave has been previously granted then it should be pleaded that the appeal is brought pursuant to leave granted on the particular date on which it was granted. If leave had not yet been granted but is going to be applied for then the applicable clause that should be specifically pleaded is that leave to appeal is sought at the hearing.

It is quite clearly not intended that all of the words that are there set out in para 2 of form 8 are to be pleaded without the particular applicable clause as we have indicated being pleaded in the appropriate kind of appeal.

We now state without any equivocation that to plead in the form that para 2 has been pleaded, whether it be on an appeal against an interlocutory judgement or a final judgement where the appeal is likely to be both without leave as well as with leave in relation to findings of fact, will not be sufficient. If there is grounds of appeal that lie without leave as well as others, which require leave, then those categories of grounds need to be pleaded separately and distinctly. A form of pleading that would differentiate between the different grounds that require leave and those that do not require leave will be necessary. Firstly, grounds that do not require leave may be pleaded in this form: the appeal lies without leave in relation to the following grounds; and then those that require leave may be pleaded in a separate paragraph in this form: the appeal lies with leave of the Court in relation to the following grounds and so on.

In the end result the purported notice of appeal is incompetent in not having specifically complied with the requirements of s 14(3)(b) of the Supreme Court Act by applying for leave to appeal against an interlocutory judgement of the National Court.

Lawyer for the applicant: Solicitor-General.

Lawyer for the respondent: Carter Newell Lawyers.