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Sasingian v Air Niugini Ltd (trading as Air Niugini) [2023] PGSC 94; SC2434 (11 August 2023)

SC2434

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 67 OF 2023

BETWEEN:
EDWARD SASINGIAN
Applicant

V

AIR NIUGINI LIMITED trading as AIR NIUGINI
Respondent

Waigani: Anis, J
2023: 10^th & 11^th August

APPLICATION FOR LEAVE TO APPEAL – intended appeal on cost only – leave is required - Order s.14(3)(c) – Supreme Court Rules – whether leave should be granted – exercise of discretion

Cases Cited:

Levi Tilto v John Gourley and Ors (2020) SC1960
James Kruse v Beatrice Geita and Ors (2015) SC1849
Oberia v Charlie [2005] SC801
Nou Nou and Ors v Richard Puara (2022) SC2251

Counsel:

E Sasingian, in person
Nil appearance by the Respondent

RULING

11^th August, 2023

1. ANIS J: I heard the applicant’s application for leave to appeal (filed 29 May 2023) on 10 August 2023, and reserved my ruling to this morning at 9:30am.

2. This is my ruling.

BRIEF BACKGROUND

4. The applicant is seeking leave to appeal (leave application) pursuant to s.14(3)(c) of the Supreme Court Act 1975 (SCA). The section and sub-section read:

(3) No appeal lies to the Supreme Court without leave of the Supreme Court–

......

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

5. The applicant intends to appeal against the decision of the trial Judge on costs only. The applicant was the lawyer for plaintiffs Dorothy Gerota and Catherine Paulus (Plaintiffs), in proceeding described as WS 162 of 2022 – Dorothy Gerota and Catherine Paulus v Air Nuigini Ltd (WS 162). In its final decision, the National Court dismissed the plaintiffs’ claim for damages (which was for alleged breach of provisions of an agreement that concerned their long service leave entitlements; the agreement concerned was called Air Niugini Flight Attendant Association Agreement). However, in regard to costs of the proceeding, the Court made this order, and I quote “The Plaintiffs’ lawyer shall pay the Defendant’s cost on a solicitor-client basis, to be taxed, if not agreed.”

6. The applicant is aggrieved and intends to challenge that part of the Court’s decision, that this, where cost of the proceeding was awarded against him personally on solicitor/client basis. As such and in view of s.14(3)(c) of the SCA which does not afford him a primary right of appeal, he files this leave application. See cases: Levi Tilto v John Gourley and Ors (2020) SC1960 and James Kruse v Beatrice Geita and Ors (2015) SC1849.

7. At the hearing of the leave application on 10 August 2023, I was satisfied that the respondent had knowledge of the hearing date but failed to appear, so I allowed the application to be heard.

EVIDENCE

8. The applicant relies on his own affidavit filed 29 May 2023 in support of the leave application.

LAW

9. The Court’s power to grant leave to appeal is discretionary.

10. I note that the applicant filed the leave application within the 40-day appeal period as required by s.17 of the SCA. Leave had to be sought as required under s.14(3)(c) of the SCA thus this application. I also note that the leave application is made premised on the new Order 7 Rule 1, Sub-division 2 of the Supreme Court (Miscellaneous Amendments) Rules 2022.

11. The Supreme Court’s criteria for leave to appeal was stated in the case of Oberia v Charlie [2005] SC801, which was adopted in Nou Nou and Ors v Richard Puara (2022) SC2251, as follows:

(a) Is there an arguable or prima facie case or has it been demonstrated that the primary judge was wrong?

(b) Does the appellant have other recourse in the original jurisdiction?

(c) Was the ruling within the discretion of the judge constituting the original jurisdiction? If so, has it been shown that the exercise of that discretion was manifestly unreasonable exercised on the wrong principle or a mistake of fact?

CONSIDERATION

12. In regard to arguable case, I note from the evidence filed including the transcript of the proceedings the following. First, the respondent at no time, whether it be the warning letter that it had adduced in evidence to the Court where it had warned the Plaintiffs on costs nor during submissions by counsel, had asked the Court to award cost against the plaintiffs’ counsel which is the appellant. Submissions made by the respondent on cost were directed only against the Plaintiffs.

13. The second point I note is this. The trial Judge, having decided to award cost of the proceeding against the applicant on a solicitor-client basis, did not, as appears from the evidence in support of the leave application, give an opportunity to the applicant to respond. Evidence adduced shows that the applicant only learnt of the decision on cost which was made against him personally from the final written decision of the Court at the date of its delivery on 21 April 2023.

14. In view of these, I do find that there is arguable case in this matter.

15. Does the applicant have other recourse to take before the Court below? The obvious answer to that is “no”, and I note that the decision of the Court was final which included the cost order.

16. The third relevant consideration is in 2 fold, that is, whether the said decision was within the discretion of the trial Judge. The obvious answer to that is “yes it was”. The second query is whether the exercise of that discretion was manifestly unreasonable exercised on the wrong principle or a mistake of fact. In my view, the applicant has demonstrated that the trial Judge may have exercised her discretion premised on a mistake of fact in that she may have thought that that was what the respondent had requested for, that is, to ask for cost on a solicitor-client basis against the plaintiffs’ lawyer and not against the plaintiffs which, based on the evidence presented, shows otherwise. The trial Judge may have also acted on the wrong principles because unlike the normal order for cost that is awarded that follows the event on a party/party basis where no special consideration may be given, where a Court intends to award costs on higher cost scale such as solicitor-client basis against a lawyer, then the lawyer affected must be given a fair opportunity to be heard or respond. Evidence adduced herein appears to suggest otherwise.

17. I therefore find that the applicant has also met the 3^rd requirement.

18. In summary, I find that the applicant will suffer permanent or grave injustice if this Court is minded to and refuses him leave to appeal.

SUMMARY

19. In summary, I will grant leave to appeal to the applicant to file his notice of appeal.

20. I will issue directions to the applicant to file his Notice of Appeal within 21 days from the date of this order as per the requirement under Order 7 Rule 6 of the SCR.

21. Service shall follow thereafter.

ORDERS OF THE COURT:

22. I make the following orders:

1. Leave is granted to the applicant to appeal.
   
2. Pursuant to Order 7 Rule 6 of the Supreme Court Rules 2012 (amended to date), the applicant shall file his Notice of Appeal within 21 days from the date of this Court Order.
   
3. The applicant to serve a sealed copy of his Notice of Appeal on the respondent after that without delay.
   
4. After service of the Notice of Appeal, the applicant to prepare and file a draft Index to Appeal, set or obtain an appointment date with the Registrar to settle the Index to Appeal Book and notify the respondent.
   
5. Time is abridged.
   

The Court orders accordingly

________________________________________________________________
E Sasingian: Appellant in Person
Ashurst PNG: Lawyers for the Respondent