Appellate courts are reluctant to disturb findings of fact, and the Supreme Court Act reflects that: a fact-only ground needs leave, whether the judgment appealed from is final or interlocutory.
Section 14(1)
An appeal lies to the Supreme Court from the National Court —
(a) on a question of law; or
(b) on a question of mixed fact and law; or
(c) with the leave of the Supreme Court, on a question of fact.
— Supreme Court Act (Chapter 37). Section 4(2) is in the same terms for appeals from a Judge sitting on appeal, and section 22 for criminal appeals.
Paragraph (b) is generous. A question of mixed fact and law lies as of right. So a ground that engages a legal standard and its application to the facts does not need leave.
It is the ground that is purely about what happened — which witness to believe, what inference to draw — that falls in paragraph (c).
Law, fact, or mixed?
| Ground | Category |
|---|---|
| The judge applied the wrong legal test | Law |
| The judge misconstrued a statute or contract term | Law |
| There was no evidence capable of supporting a finding | Law |
| The judge took into account an irrelevant consideration | Law |
| The judge applied the correct test but reached a conclusion not open on the facts found | Mixed |
| The judge failed to give adequate reasons | Law |
| The judge should have believed witness A rather than witness B | Fact |
| The judge should have drawn a different inference from the evidence | Fact |
| The damages were assessed at the wrong figure | Usually fact, unless a wrong principle was applied |
There is an important difference between saying the judge weighed the evidence wrongly (fact) and saying there was no evidence capable of supporting the finding (law).
The second is a legal proposition about the sufficiency of the evidentiary foundation and lies as of right. Framing a genuine no-evidence point that way is legitimate. Dressing up a disagreement about weight as a no-evidence point is not, and the Court will see through it.
Order 7 Rule 10
Without affecting the specific provisions of Rule 9, 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.
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.
— Supreme Court Rules 2012, O 7 r 10
Rule 10 targets exactly the formulations that appellants reach for when unhappy with findings of fact. “The learned trial judge erred in fact and in law” and “the decision is against the weight of the evidence” are, on their own, not sufficient grounds.
What is required is particularity: which finding, why the evidence did not support it, and what the judge should have found. See drafting grounds of appeal and incompetent grounds.
The appeal is a rehearing — but on the same evidence
(1) An appeal shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the Supreme Court’s right — (a) to allow fresh evidence where it is satisfied that the justice of the case warrants it; and (b) to draw inferences of fact.
(2) For hearing and determining an appeal, the Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
Section 6(1)(b) expressly empowers the Supreme Court to draw inferences of fact. Where a finding rests on inference from primary facts rather than on the credibility of witnesses seen and heard, the Court is in as good a position as the trial judge, and an appellant’s prospects are correspondingly better.
Where the finding turns on the trial judge’s assessment of a witness in the box, they are correspondingly worse.
On fresh evidence, see new evidence on appeal and Order 7 Division 20.
Appealing an award of damages
In Motor Vehicles Insurance (PNG) Trust v Tabanto [1995] PGSC 16; [1995] PNGLR 214 the Supreme Court held that it will not disturb the damages award of a trial judge unless it is of the view that the amount awarded is so inordinately high that it is a wrong estimate of the damages.
So a quantum appeal that simply argues for a different figure will fail. What must be shown is either a wrong principle (a question of law, appealable as of right) or an award so far outside the range as to demonstrate error.
Before settling grounds, go through each one and ask which paragraph of section 14(1) it falls under. If any ground is fact only, a Form 7 application for leave must be filed within the 40 days, alongside the Form 8 notice for the other grounds.
See separate notices for mixed grounds and what leave requires.
Sources
- Supreme Court Act (Chapter 37) — ss 4, 6, 14, 22
- Supreme Court Rules 2012 — O 7 rr 9, 10, 52–59
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
- MVIT v Tabanto [1995] PGSC 16; [1995] PNGLR 214
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.