Kila v Nano Webo Land Group Inc. [2007] PGSC 5; SC885 (9 October 2007)

SC885

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 8 OF 2006

BETWEEN

TONY KILA for himself and behalf of the members of the
NANO WEBO CLAN
First Appellant

AND

NANO WEBO LAND GROUP INC.
Second Appellant

AND

TALIBE HEGELE for himself and on behalf of the members of the YUMBI CLAN
Respondent

Waigani: Gavara-Nanu, Manuhu, and Gabi, JJ.
2006: 30th October
2007: 9 October

PRACTICE AND PROCEDURE – Appeal – Whether appeal filed out of time – Supreme Court Act; s. 17 – Computation of time – Interpretation Act; s. 11 – Fortieth day falling on a Sunday - Appeal filed on forty first day.

PRACTICE AND PROCEDURE – Appeal – National Court Rules; O 16 r 11 – Supreme Court Rules; O 10 – Appeal – Objection to competency – Supreme Court Act; s. 14 (3)(b) – Whether leave required –Interlocutory ruling – Grant of leave for judicial review – Whether ruling final.

Case Cited

Garamut Enterprises Limited v Steamships Trading Company Ltd (1999) SC 625
Julius Chan v Ombudsman Commission [1999] PNGLR 240
North Solomons Provincial Government v Pacific Architecture [1991] PNGLR 145
Malipu Balakau v Paul Torato [1983] PNGLR 242
Rimbink Pato v Sir Julius Chan and Others (1997) SC 527
Shelley v PNG Aviation Services Ltd [1979] PNGLR 199

Counsel

K Frank, for the appellants
M Nasil, for the respondent

1. BY THE COURT: The respondent objects to the competency of the appellants’ appeal filed on 3 July 2006.

Background

2. The dispute between the appellants and the respondent concerns the customary ownership of the land known as "Mount Palana Range." On 2 May 2002, the Local Land Court declared the appellants as the owners of the land. Aggrieved by that decision, the respondent appealed to the Provincial Land Court. On 6 March 2006, the Provincial Land Court awarded ownership of the land to the respondent. On 20 March 2006, the appellants applied for judicial review of the decision of the Provincial Land Court. The appellants set out some 16 grounds of review. On 23 May 2006, His Honour, Salika J. granted leave to the appellants only on a very specific point of law and that is whether the amended grounds of appeal filed by the respondent in the Provincial Land Court on 7 November 2005 complied with section 54 of the Land Dispute Settlement Act. Leave was refused in respect of the other grounds of review. The appellants then appealed against that ruling, without leave, by way of a Notice of Motion pursuant to O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rules. On 14 July 2006, the respondent filed a Notice of Objection to Competency.

Grounds of Objection

3. The grounds of objection are:

"1. The Appeal filed herein on the 3rd of July 2006 is outside of the 40 days time limit within which to file in the Appeal pursuant to Section 17 of the Supreme Court Act and therefore the Appeal is incompetent.

2. The National Court decision of 23rd May 2006 granting leave for Judicial Review appealed at is an interlocutory judgment and leave has not been obtained first before appealing pursuant to Section 14(3)(b) of the Supreme Court Act and therefore the Appeal is incompetent.
   
3. Grounds 3.5, 3.6, 3.7, 3.8 and 3.9 of the Appeal relates to questions of fact and leave has not been obtained before proceeding on with the appeal as required by Section 4(2)(c) and 14(1)(c) of the Supreme Court Act rendering the Appeal incompetent." (sic)
   

Ground 1

4. The issue is whether the appeal was filed outside the 40 day limit. The decision was handed down on 23 May 2006 and the 40th day fell on Sunday 2 July 2006. The appeal was filed on Monday 3 July 2006. Section 11 of the Interpretation Act provides:

"11. Computation of time.

(1) In computing time for the purposes of a statutory provision, a period of time from –

• (a) a certain day; or
• (b) the happening of an event; or
• (c) the doing of an act or thing,

shall be deemed to be exclusive of the certain day or of the day on which the event happens or the act or thing is done.

(2) If the last day of a period prescribed or allowed by a statutory provision for the doing of an act falls on a Sunday or a public holiday, the act may be done on the day next following that is not a Sunday or public holiday.

(3) Where a statutory provision directs or allows an act or proceeding to be done or taken on a certain day, then if that day happens to be a Sunday or public holiday, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the day next following that is not a Sunday or public holiday.

(4) Where a statutory provision directs or allows an act or proceeding to be done or taken within a time not exceeding eight days, Sundays and public holidays shall not be taken into account in the computation of the time." (Emphasis added)

5. The last day fell on a Sunday and so the appeal was filed on Monday. We agree with counsel for the appellants that the appeal was filed within time. We dismiss this ground of objection.

Ground 2

6. Whether leave is required? It is convenient to outline briefly the submissions of the parties.

Submissions

7. Counsel for the respondent submitted that the order of 23 May 2006 granting leave is an interlocutory order in that it has not finally disposed of the rights of the parties and that the substantive matter is still pending for determination. As the order is interlocutory order leave is required under s.14 (3) (b) of the Supreme Court Act (Garamut Enterprises Limited v Steamships Trading Company Ltd (1999) SC 625).

8. Counsel for the appellants argued that leave is not required because the order is final and that the question of whether or not to grant leave is a question of law. He submitted that the application for leave is an application for a grant of right to review and upon grant of leave the right of review is created. The grant completes the process of creating the right. If it is refused, the proceedings are at an end. He suggested that the question of whether an order for leave is final or interlocutory has not been fully argued and examined in this jurisdiction and urged the Court not to follow Garamut Enterprises Limited v Steamships Trading Company Ltd (supra) and NEC & Others v David Nelson (2004) SC 766.

The Law

9. Section 14 (3) of the Supreme Court Act provides:

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

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except –

• (i) where the liberty of the subject or the custody of infants is concerned; or
  
• (ii) in cases of granting or refusing an injunction or appointing a receiver; or
  
• (iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or
  

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

10. Leave is required if the order of 23 May 2006 is an interlocutory judgment. The order of 23 May 2006 reads:

"1. The Leave is only granted to the applicant only on the very narrow point of whether the amended grounds of appeal complied with the section 54 of the Land Disputes Settlement Act."

11. An interlocutory judgment is an order, decision or ruling made prior to or during the course of a trial which does not determine the issues between the parties. In Julius Chan v Ombudsman Commission [1999] PNGLR 240, the Supreme Court said at page 253:

"Interlocutory judgments are orders, directions, decisions or rulings ... made prior to or during the course of a trial or action but which do not decide the issues between the parties. They may be made either for the purposes of maintaining the status quo, or for purposes of practice and procedure assisting parties to prosecute or defend an action. Generally, they are directives concerning all matters relating to the conduct of the trial but, importantly; do not constitute final orders determining the rights of the parties."

12. The Supreme Court has also established two tests in this jurisdiction to determine an interlocutory judgment. The two tests are first, the Court must look at the nature of the application to the Court and not the order eventually made, and the second, the Court must look at whether the judgment or order made finally disposes of the rights of the disputing parties (see Shelley v PNG Aviation Services Ltd [1979] PNGLR 199; Rimbink Pato v Sir Julius Chan and Others (1997) SC 527; and North Solomons Provincial Government v Pacific Architecture [1991] PNGLR 145).

13. We do not accept the argument that the application for leave create the right of review. That right is created by section 155 of the Constitution. Kapi DCJ (as he then was) said in Malipu Balakau v Paul Torato [1983] PNGLR 242 at page 251:

"The power to review is an all embracing one to review all judicial acts of the National Court without exception. This includes all acts of the National Court under the sun, whether they relate to matters of fact, law, criminal, civil or whatever. There is nothing that the National Court can do which does not come under the power of review of the Supreme Court under s 155(2)(b)."

14. We also reject the argument by Counsel for the appellants that the question of whether leave is final or interlocutory has not been fully argued in this jurisdiction. In NEC & Others v David Nelson (supra), the Supreme Court reviewed the authorities on the issue of whether or not leave is required to appeal from a decision to grant leave pursuant to O.16 r.3 of the National Court Rules. The issue has been argued before the Supreme Court on no less than five occasions previously. We do not intend to go into another review of the authorities. Suffice to say that an order granting leave is an interlocutory judgment.

15. In Garamut Enterprises v Steamships Trading Co. Limited (supra), the appellants appealed against a grant of leave for judicial review of decisions made by the Minister for Lands and Physical Planning and Land Board. The respondent objected to the competency of the appeal. The Supreme Court said:

"We believe that this objection to competency must necessarily succeed on the question of 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 O 16 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 16 r 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 O 16 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 14(3)(b) of the Supreme Court Act."

16 The Court went on to say:

"The source of the Appellant’s appeal is in the Supreme Court Act from which the Supreme Court Rules derives its 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."

17. This case was applied and followed in NEC & Others v David Nelson (supra). In that case, the respondent was granted leave by the National Court for judicial review of the decision by the appellants to terminate his appointment as Managing Director. The appellants sought to appeal against that decision by filing an application for leave to appeal. The Court held that leave is required to appeal from grant of leave under O.16 r.3 of the National Court Rules. The Court said:

"We therefore conclude that Garamut Enterprises v Steamship Trading Co. Limited is the only clear and binding statement of principle on the issue and it holds that leave is required to institute an appeal pursuant to O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rule against the grant of leave. We re-affirm that finding and apply it in this case."

18. We also re-affirm the finding in Garamut Enterprises v Steamships Trading Co. Limited and apply it in this case. The order of 23 May 2006 is an interlocutory order and leave is required. The appeal is therefore incompetent.

19. It is not necessary to deal with ground 3 of the objection on the basis that the appeal is incompetent.

20. The appellants will pay the respondent’s costs.

__________________________________

Young & Williams: Lawyers for Appellants
Nasil Lawyers: Lawyers for Respondent