Pato v Sir Julius Chan, Prime Minister of Papua New Guinea, Chris Haiveta, Deputy Prime Minister and Minister for Finance, The Independent State of Papua New Guinea and North Fly Highway Development Company Pty Ltd [1997] PGSC 10; SC527 (16 July 1997)

Unreported Supreme Court Decisions

SC527

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO 19 OF 1997
BETWEEN
RIMBINK PATO - APPELLANT
AND
THE HON. SIR JULIUS CHAN, CMG, KTE, MP, PRIME MINISTER OF PAPUA NEW GUINEA - FIRST RESPONDENT
AND
THE HON. CHRIS HAIVETA, MP, DEPUTY PRIME AND MINISTER FOR FINANCE - SECOND RESPONDENT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - THIRD RESPONDENT
AND
NORTH FLY HIGHWAY DEVELOPMENT COMPANY PTY LTD - FOURTH RESPONDENT

Waigani

Kapi DCJ Los Sevua JJ
11 June 1997
16 July 1997

APPEALS - Appeals to Supreme Court - practice and procedure - leave is required to appeal from interlocutory decision - Supreme Court Act section 14 (3) (b) - failure to apply for leave renders appeal incompetent - Test of whether decision is interlocutory - court to look at nature of application - Court also to look at whether judgment made finally disposes substantive action

Cases Cited

Carr v Finance Corporation of Australia (No 1) [1981] CLR 247

Shelley v PNG Aviation Services (1979) PNGLR 119

Counsel

F Damem for First and Third Respondents

M Wilson (with R Delgoda) for Second and Fourth Respondents

R Saulep for the Appellant

16 July 1997

KAPI DCJ LOS SEVUA JJ: The Respondents have objected to the competency of the appeal. The Second and the Second Respondents argue that the appeal is incompetent because the notice of appeal “does not state that an appeal lies without leave or that leave has been granted” which is a mandatory requirement under Order 7 Rule 8 (d) of the Supreme Court Rules. Secondly it is argued that the notice of appeal does not state that part of the judgment appealed against is the decision to award costs which is contrary to the mandatory requirement of Order 7 Rule 8 (b) of the Supreme Court Rules. The First and Third Respondents argue that the decision appealed from is an interlocutory judgment as such leave is required under s. 14 (3) (b) of the Supreme Court Act. As no leave has been sought the appeal is incompetent.

As a mater of logic, at the Courts suggestion Mr Damem presented his clients arguments first because as a matter of law if the National Court decision was interlocutory the appeal would certainly be incompetent as the counsel for the Appellant conceded that as a matter of fact no leave had been sought. This suggestion was taken up and Mr Damem submitted that the National Court decision was interlocutory in that the decision did not resolve the ultimate dispute between the parties. In our view it is important to look closely at the decision appealed from. The trial judges finding and conclusion was:

“Having found that the plaintiff has standing the next question is can the proceedings be maintained as they are. In order for the proceedings to be maintained the plaintiff must assert facts. He is seeking declaratory orders. The orders he seek must be supported by assertion of facts. At this stage all that the plaintiff asserts are speculations.

The fact of the matter is that the plaintiff simply does not have facts upon which he relies on for the court to make order he seeks. It is on this basis that I dismiss this proceedings.” [sic] (Emphasis added).

Mr Saulep argued that the decision was final and proceeded to give an elementary definition of what an interlocutory judgment might be. Mr Damem on the other hand sought to establish that the decision was interlocutory by reference to a number of tests developed in decided cases like Carr v Finance Corporation of Australia (No 1) [1981] CLR 247. These tests were referred to, though briefly, in PNG in Shelley v PNG Aviation Services [1979] PNGLR 119. The tests are first that the court must look at the nature of the application to the court and not the nature of the order the court eventually made. Second the court must look at whether the judgment or order made finally disposes of the rights of the disputing parties.

In our view Justice Salika’s decision gives an appearance of finality because he had dismissed the proceedings. But when we look at the nature of the application before him, it becomes clear. The substantive process filed for determination was for enforcement of certain constitutional rights claimed to have been violated by the National Government by the engagement of foreign mercenaries. While this was on foot, two motions were filed for the Court to decide upon. The judge made it clear in the introduction to his decision as to what matters he was dealing with. He titled his decision as “Ruling”. Then he said “there are two notices of motion in this matter”. The first motion sought to dismiss the proceedings on the ground that the Plaintiff “had no standing” and secondly it did not “disclose” any “reasonable cause of action”. The second motion was to “strike out the proceedings on the basis of abuse of process”.

It is apparent to us that the decision did not resolve the substantive action. The disputes were that the expenditure of moneys on hiring of mercenaries had breached the Constitution and the Finance Management Act. Also the hiring of mercenaries breached the constitutional provisions protecting right to life, freedom from inhuman treatment and protection under the law generally. A further claim is that the hiring of mercenaries had breached the Constitution in that it purported to raise a discipline force outside the PNG Defence Force. In considering these, it is our view that the issues in the substantive proceedings are still outstanding. The decision appealed from therefore is interlocutory. It follows from this conclusion that leave is required to appeal against the decision under s. 14 (3) (b) of the Supreme Court Act. As the appellant has not sought leave the appeal on foot is incompetent.

Mr Wilson has advanced some important arguments to support the objection to competency of the appeal. But they were to meet the appellant’s argument that the decision was final. There is no need to deliberate on the arguments on this aspect because we have taken the view that the decision was interlocutory which practically determines the objection.

We therefore dismiss the appeal with costs.

Lawyers for the First & Third Respondents: Solicitor General

Lawyers for the Second & Fourth Respondents: Warner Shand Lawyers

Lawyers for the Appellants: Pato Lawyers