Can I Appeal in an MVIL Case?

MVIL litigation has generated a large body of Supreme Court authority, much of it on the mechanics of appealing. The lessons apply to any civil appeal, but they are illustrated here by the motor accident cases.

When leave is needed

An appeal lies without leave on a question of law or of mixed fact and law, but leave is required for a ground that raises a question of fact alone, and for an appeal against an order for costs only. Several MVIL appeals have stumbled here. In Alo v MVIT [1993] PGLawRp 505; [1993] PNGLR 1 the Supreme Court held that a notice of appeal mixing questions of law, mixed fact and law, and fact “should indicate specifically that leave is being sought in respect of the questions of fact”. In Martin v MVIT [2007] PGSC 36; SC896 an objection to competency was upheld against one ground that raised fact alone and dismissed against grounds of mixed fact and law. In Taemae v MVIL [2011] PGSC 20; SC1121 leave was necessary for an appeal against costs only. Whether a ground is one of fact or of mixed fact and law “can only be determined upon consideration of the whole case”: Adevu v MVIT [1994] PGLawRp 662; [1994] PNGLR 57, where the absence of medical evidence of an eye injury was held to involve mixed fact and law. The site’s Supreme Court series explains when leave is needed and how to apply.

Appeals on the amount of damages

Within that standard the Supreme Court has been willing to recalculate. In MVIT v Etape [1994] PGSC 12; [1994] PNGLR 596 it used its power under section 6 of the Supreme Court Act to substitute its own finding on future economic loss, reducing K91,553 to K37,313. In MVIL v Kol [2007] PGSC 38; SC902 it set aside past economic loss and replaced K75,400 future loss with K20,000 while upholding K60,000 general damages. In MVIL v Manduru [2018] PGSC 93; SC1750 it halved a parent’s dependency award as speculative. Two limits: the Court will not increase an award in the absence of a cross-appeal, however low it thinks it (Kol), and it will not interfere with a finding of fact, such as net earnings, that the appellant did not challenge at trial (Tabanto).

Appeals on the extension of time to give notice

A refusal to extend time under section 54(6) is appealable, and the Supreme Court has allowed such appeals where the discretion was wrongly exercised: Rundle (No 1), where the trial judge had overemphasised an error of fact, and Taemae v MVIL [2013] PGSC 8; SC1224, where villagers injured in a head-on collision were given 14 days to give notice. The insurer, conversely, may appeal a grant, as in MVIT v Viel Kampu [1998] PGSC 49; SC587.

Prosecuting the appeal

Appeals are dismissed for want of prosecution under Order 7 of the Supreme Court Rules where there is inordinate, unexplained delay in preparing the appeal book. MVIL lost an appeal this way in MVIL v Api [2015] PGSC 4; SC1406, eighteen months after filing with no appeal book; claimants lost theirs in Inugu v MVIL [2011] PGSC 66; SC1155 and Kapo v MVIL [2026] PGSC 66; SC2910, the Court repeating that a lawyer’s inaction is no excuse. MVIL has also obtained security for costs of K25,000 against appellants of limited means where special circumstances were shown: Lapet v MVIL [2024] PGSC 160; SC2744, with the order surviving a later application to set it aside. See security for costs on appeal.

Review and the slip rule

Where the right of appeal has been lost, an application for review under section 155(2)(b) of the Constitution requires leave; without it the application is an abuse of process and is dismissed (Igime v MVIL [2021] PGSC 37; SC2111). Leave was refused to MVIL in MVIL v Opeta [2020] PGSC 45; SC1954, where it sought to review an award of K34,000 plus nine years’ interest. An objection to competency must go to jurisdiction, not to whether leave should be granted (MVIL v Susana [2022] PGSC 8; SC2194). The slip rule allows the Supreme Court to reopen its own decision only for a clear misapprehension of fact or law not caused by the applicant; MVIL’s attempt to reopen a K4.4 million judgment failed in MVIT v Yama Security Services [2009] PGSC 23; SC1004 because the mistake was largely its own.