Garamut Enterprises Limited v Steamships Trading Company Ltd [1999] PGSC 31; SC625 (26 November 1999)

Unreported Supreme Court Decisions

SC625

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCM NO.8 OF 1999
BETWEEN: GARAMUT ENTERPRISES LIMITED
APPELLANT
AND: STEAMSHIPS TRADING COMPANY LTD.
RESPONDENT

Waigani

Hinchliffe Injia Kirriwom JJ
24 November 1999
26 November 1999

PRACTICE AND PROCEDURE – Application for leave to apply for judicial review – Leave granted – Appeal against grant of leave – O.16 rr.3 & 11 National Court Rules

Leave to appeal against interlocutory order mandatory – Leave neither sought nor obtained – Appeal incompetent, objection upheld – O 16 r.11 National Court Rules, O.10 Supreme Court Rules and ss.14 and 17, Supreme Court Act Ch.35

This is an appeal from a decision of a judge of the National Court granting leave to an applicant to apply for judicial review which was an interlocutory order made in the exercise of discretion by the judge that required leave under the Supreme Court Act for appeal to lie and which the appellant neither sought nor obtained leave. On objection to competency of the appeal

Held

1. That the appeal is incompetent in that it is clearly an appeal in the context it is meant to be understood as such combining O 10 of the Supreme Court Rules and O.16.r.11 of the National Court Rules both which owe their existence to the enabling statute, namely, the Supreme Court Act Ch.35.

Chan v Ombudsman SSCA No 2 of 1998 Unreported SC 557 distinguished: Yakham and Anor v Merriam SCA Nos 94 & 95 of 19966 Unreported SC 533 applied.

Counsel

I Molloy with I. Sherpherd for the Appellant

P.Young for the Respondent

26 November 1999.

HINCHLIFFE INJIA KIRRIWOM JJ: On an appeal from an order of the National Court of 8 October 1999 granting leave to the respondent named in this matter to apply for judicial review of various decisions made by the Minister for Land and Physical Planning and the Land board over a piece of land in the city of Port Moresby and the subsequent issuing of title to land to the Appellant, the Respondent raised a preliminary point on the objection to the competency of the appeal. The ground of objections are;

1. That the appellant has failed to include the proper parties as respondents to this appeal.

2. That pursuant to Section 14 of the Supreme Court Act no appeal against the order of His Honour Judge Woods lies to the Supreme Court without leave of the Supreme Court as the Order appealed from is an interlocutory judgment and the appellant has failed to seek or obtain leave of the Supreme Court within the time allowed under Section 17 of the Supreme Court Act.

3. That the appellant has no locus standi to appeal against the decision of His Honour Judge Woods. The decision was made on an exparte application a fortiori the appellant has no interest.

The appellant was named as a party in an application for leave for judicial review under O.16 r.3 of the National Court Rules. The review was sought in relation to a decision by the Minister for Lands and Physical Planning and the Land Board which considered, rezoned and issued a commercial lease to the appellant over a piece of land described Allotment 23, Section 71, Hohola, National Capital District. Both the Minister and the Members of the Land Board were named as Defendants in the proceedings besides the Appellant.

Ordinarily applications for leave for judicial review under O.16.r.3 are pursued ex parte provided however appropriate notice is given to the Secretary for Justice, in reality now the Attorney- General, as required under r.3(3). He is the only person given notice at this stage until the question of leave has been determined. If leave is granted, service of relevant original documents is then effected on those partied who directly, or even indirectly, affected by the proceedings. There is no dispute that the Secretary for Justice was duly put on notice in this case as evidenced by the Notice of Intention of Defend filed by the Solicitor- general dated 21^st September, 1999 on behalf of the First and Third Defendants. (ie the Minster and the Members of the land Board). We are told that the Counsel was heard on the leave application on behalf of the Secretary for Justice or to be more precise, the First and Third Defendants. Unfortunately the Appeal Book in the matter does not contain the transcript of the proceedings before His Honour Justice woods so the Court cannot and does not know independently, of the argument advanced fir and on behalf of the First and Third Defendants. We do not say that this has any bearing at all on our decision in this application as there is no such requirement for transcript in the Supreme Court Rules, the relevant provision being Order 10 which governs appeals from orders made under Orders 16 and 17 of the National Court Rules. However we note for the record that at the hearing before us Mrs Pauline Mogish appeared on behalf of the State as a party having interest in this matter continuing in the National Court albeit not named in this appeal.

We believe that this objection to competency must necessarily succeed on the question off leave being first obtained as is the requirement under section 14(3)(b) of the Supreme Court Act Ch.35, notwithstanding that this is an appeal under O.16 r.11 of the national Court Rules. And we express our reasons hereunder. The terms of Rule 11 are clear as it says “an appeal; from orders or judgments under O16 must proceed with by way of Notice of motion either to set aside or discharge any order of the national Court or judge granting or refusing an application for leave under Rule 3 or an application for judicial review”. The rule does not say and nor can it be construed that leave must first be obtained to appeal against an order granting leave to apply for judicial review.

But O.16r.11 of the National Court Rules expressly refers to ‘an appeal ‘ under O. 10 of the Supreme Court Rules and construed in that context, it is our view that whilst O16.r.11 of the National Court Rules grants original power, it is directory only in that it is effected through the procedure stipulated in O.10 of the Supreme Court Rules which is the overall regulatory provision. And if one accepts this argument, then it logically follows that both O.16 r.11 of the National Court Rules and O.10 of the Supreme Court Rules are subject to Section 114(3)(b) of the Supreme Court Act . We set out these relevant provisions. Order 16 Rule 11 provides:

“An appeal by way of motion under Order 10 of the Supreme Court Rules to the Supreme Court may be made to set aside or discharge any order of the Court or a judge granting or refusing an application for judicial review”.

And order 10 of the Supreme Court Rules sets out the following:

“ORDER 10 – APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES

Division 1 – Institution of Appeal

1. An appeal under this Part shall be instituted by a notice of motion.

2. The notice of motion and all subsequent proceedings shall be entitled ‘In the Supreme Court of Justice ‘ and shall be entitled between the party as appellant and the party as respondent..

3. The notice of motion shall:

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8;

(b) have annexed:

(i) copies of all documents which were before the Judge of National Court appealed from,

(ii) a copy of the order made, certified by the judge’s associate or the Registrar.

(c) be signed in accordance with Form 15;

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry.

Division 2 – Certain Rules to Apply

4. The following rules shall apply to matters under this part with regard to:

(a) filing and service; Order 7 Division 4;

(b) affidavits; Order 7 Rules 61,62,63,64.

The source of the Appellant’s appeal is in the Supreme Court Act from which the Supreme Court Rules derives it’s power. Rule 11 of O.16 of the National Court Rules and O.10 of the Supreme Court rules respectively merely provide the procedural mechanism and guidelines by which the right given under the Act can be exercise. In this regard we agree with Mr Young that leave is necessary for the appellant to appeal against the decision of Woods, J because the appeal stems from an interlocutory judgment. The order granting leave to apply for judicial review was not a final order that brought the proceedings to end there, in fact the converse is true. It is the beginning of a long process of litigation where all parties including the appellant, could have the opportunity of presenting their respective cases. As the appellant had not argued otherwise we accept that the decision appealed against was and is an interlocutory one which therefore required leave and the notice of motion before us purporting to an appeal under Rule11 of the Order 16 does not even seek leave. We can not stress the significance of non-compliance of section 14(3)(b) any more than what has been stated in Henzy Yakam & national Newspaper v MerriamSC625.html#_edn248" title="">[ccxlviii]¹. The distinction between notice of motion of appeal and notice of application for leave to appeal for purpose of O.7 of Supreme Court Rules and Section 17 of the Supreme Court Act are extensively discussed in Yakham and MerriamSC625.html#_edn249" title="">[ccxlix]² and we endorse the views expressed.

It was submitted that Section 14 (3)(b) ought not apply in apply in this case as it is not an appeal under the Supreme Court Act and the case of Chan v OmbudsmanSC625.html#_edn250" title="">[ccl]³ -was cited as the authority. The issue before the Supreme Court in Chan v OmbudsmanSC625.html#_edn251" title="">[ccli]⁴ was a challenge to jurisdiction of a single judge of the National Court reviewing and setting aside ex parte orders made by another judge of the national Court on an application for leave to apply for judicial review. The Supreme Court held that the review judge lacked jurisdiction to entertain the application under O12r.8 (3)(a) to exercise jurisdiction over the same matter as if he were exercising his discretionary power to set aside an ex parte which ought have been heard by virtue of O.16r.11 to the Supreme Court . Even the Supreme Court in Chan v Ombudsman CommissionSC625.html#_edn252" title="">[cclii]⁵ cautioned that O.16r.11 must not be read in isolation. It must be read and construed in the light of Order 10 of the Supreme Court Rules and the combination of the two ‘provide the exclusive procedure for reviewing application for judicial review or applications for leave’.SC625.html#_edn253" title="">[ccliii]⁶

This is therefore an application properly made to review the decision of Woods J of 8 October 1999 pursuant to O.16.r11 but is clearly defective in that it fails to comply with section 14(3)(b) of the Supreme Court Act which is the enabling legislation that provided under section 41 in addition to the power available under section 184 of the Constitution for the Judges of the Supreme Court to make Rules of the Court. This is the origin of the O.10 of the Supreme Court Rules which in turn regulates O.16.r.11 of the National Court Rules.

We therefore uphold the objection to the competency of this appeal and rule that the appeal on foot is incompetent and order it’s dismissal. We order costs in favour of the Respondent.

Lawyer for the appellant: Carter Newell Lawyers

Lawyers for the Respondent: Allen Arthur Robinson

SC625.html#_ednref248" title="">[ccxlviii] ^{SCA No.944 & 95 of 1996 – November 27, 1997 Unreported Supreme Court SC 533}

SC625.html#_ednref249" title="">[ccxlix] ^ibid
SC625.html#_ednref250" title="">[ccl] ^{SCA NO.201 OF 1998 Chan v Ombudsman Commission Unreported Supreme Court SC 558}
SC625.html#_ednref251" title="">[ccli] ^ibid...
SC625.html#_ednref252" title="">[cclii] ^ibid
SC625.html#_ednref253" title="">[ccliii] ^{Chan v Ombudsman..ibid..at p.7}