Punagi v Pacific Plantation Timber Ltd [2011] PGSC 38; SC1153 (6 December 2011)

SC1153

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 88 OF 2010

BETWEEN:

STEVEN PUNAGI
Appellant

AND:

PACIFIC PLANTATION TIMBER LIMITED
Respondent

Waigani: Cannings, Manuhu, Gabi,
Hartshorn and Yagi JJ
2011: 28th October,
: 6th December

Application for leave to appeal a dismissal of an appeal to the National Court - whether such a decision is an interlocutory judgment pursuant to s. 14 (3)(b) Supreme Court Act thereby requiring leave to appeal –
s. 14 (3)(b) Supreme Court Act considered

Facts:

This is an application for leave to appeal against the dismissal of an appeal to the National Court from a decision of the District Court for want of prosecution. In the course of the hearing of the leave application, the questions that arose for determination are whether such a decision is an interlocutory judgment pursuant to s. 14 (3) (b) Supreme Court Act that requires leave to appeal. If leave is not required, should the application for leave be dismissed as incompetent as it is unnecessary or should it be treated as a notice of appeal because of its merits.

Held:

1. A dismissal of an appeal for want of prosecution, is not an interlocutory judgment within the meaning of s. 14 (3) (b) Supreme Court Act, as it finally determines the matter in the National Court, it finally disposes of the rights of the disputing parties and it finally determines the issue between the parties. Consequently leave to appeal is not necessary.

2. An unnecessary leave application is incompetent and therefore should be dismissed.

Cases cited:
Papua New Guinea cases

Alfred Alan Daniel v. Pak Domoi Ltd (2004) SC 736
Application by John Maddison & Anor (2009) SC984
L. A. Jarden Collector Agency Pty Ltd & Anor v. Masket Iangalio & Anor (1998) SC597
National Capital District Commission v. PNG Waterboard Ltd & Ors (1999) SC624
NCDC v. Namo Trading Ltd (2001) SC663
Oio Aba v. Motor Vehicles Insurance Ltd [2005] SC779
Peter Yama v. PNGBC Ltd (2008) SC922
Philip Takori & Ors v. Simon Yagari & Ors (2008) SC905
PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717
Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145
Raymond Liu & Anor v. Daul Emoto & Ors (2009) SC1032
Rea Joseph v. Manu Sereva & Ors (2011) SC1152
Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119
The Ship "Federal Huron" v. Ok Tedi Mining Ltd [1986] PNGLR 5

Overseas Cases

Bozson v. Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547
Haron bin Mohd Zaid v. Central Securities (Holdings) Bhd [1982] 2 All ER 481
Salaman v. Warner [1891] UKLawRpKQB 85; [1891] 1 Q.B. 734
Salter Rex & Co v. Ghosh [1971] 2 Q.B. 597
Shubrook v Tufnell [1882] UKLawRpKQB 118; (1882) 9 Q.B.D. 621
White v. Brunton [1984] 1 Q.B. 570

Counsel:

Mr. B. Lakakit, for the Appellant

6th December, 2011

1. BY THE COURT: This is an application for leave to appeal against the dismissal of an appeal to the National Court from a decision of the District Court, for want of prosecution.

2. In the course of hearing the leave application, the Chief Justice decided that to resolve conflicts in authorities of this court, its determination should be by the full court constituted by a greater number of judges. Hence, this court was constituted.

3. In his initial hearing of the leave application, the Chief Justice was of the view that the judgment sought to be appealed was not interlocutory and therefore that leave to appeal was not necessary. The issue that then arises is whether a leave application which did not have to be made, as the appellant has a right to appeal, is incompetent or whether such a leave application is competent and should be treated as a notice of appeal.

4. As the Chief Justice did not make a determination on whether the judgment sought to be appealed was interlocutory, it is necessary for us to consider that issue first.

Whether a judgment dismissing a proceeding for want of prosecution is interlocutory

5. Section 14(3)(b) Supreme Court Act, relevantly provides that no appeal lies to the Supreme Court without leave of the Supreme Court, "from an interlocutory judgement made or given by the National Court..."; however, as Sir John Donaldson MR said of the English equivalent in White v. Brunton [1984] 1 Q.B. 570 at 572:

"But, as is well-known, this clarity conceals the obscurity of what is and is not an interlocutory order or judgment."

6. In White v. Brunton (supra), the history of the consideration of what is and is not an interlocutory judgment is detailed by Donaldson MR. There are essentially two approaches. The 'order approach', being the effect in Shubrook v Tufnell [1882] UKLawRpKQB 118; (1882) 9 Q.B.D. 621 and Bozson v. Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547, that is that an order is final if it finally determines the matter in litigation; the issue of final or interlocutory depending upon the nature and effect of the order as made. The other approach is the 'application approach', being the effect of the decision in Salaman v. Warner [1891] UKLawRpKQB 85; [1891] 1 Q.B. 734, in which it was held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. So the issue of final or interlocutory depends upon the nature of the application or proceedings giving rise to the order and not upon the order itself.

7. Donaldson MR stated that the English Court was now clearly committed to the application approach. White v. Brunton (supra) was decided before the English Rules of the Supreme Court were amended in 1988 to include a rule that specifically governed whether an order was final or interlocutory.

8. In our jurisdiction, there have been decisions of this court that favour both approaches. The Supreme Court in Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119 and The Ship "Federal Huron" v. Ok Tedi Mining Ltd [1986] PNGLR 5, favoured the application approach. Other decisions have applied both approaches, for example: National Capital District Commission v. PNG Waterboard Ltd & Ors (1999) SC624; PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717 and Alfred Alan Daniel v. Pak Domoi Ltd (2004) SC 736. By far the majority of decisions however, have favoured the order approach. Some of those decisions are: Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145; L. A. Jarden Collector Agency Pty Ltd & Anor v. Masket Iangalio & Anor (1998) SC597; Philip Takori & Ors v. Simon Yagari & Ors (2008) SC905; Oio Aba v. Motor Vehicles Insurance Ltd [2005] SC779; Raymond Liu & Anor v. Daul Emoto & Ors (2009) SC1032; Peter Yama v. PNGBC Ltd (2008) SC922; NCDC v. Namo Trading Ltd (2001) SC663 and Application by John Maddison & Anor (2009) SC984.

9. The order approach has been described as right in logic: Salter Rex & Co v. Ghosh [1971] 2 Q.B. 597, and as being the sound and convenient test by the Privy Council in Haron bin Mohd Zaid v. Central Securities (Holdings) Bhd [1982] 2 All ER 481.

10. Following a review of the various authorities, we are satisfied that the order approach is the one that should be continued to be adopted in this jurisdiction. We agree with the comment of this court in Oio Aba (supra) that the decision in Shelley's case (supra) does not continue to be good law.

11. Applying the order approach, the decision the subject of this leave application, a dismissal of an appeal for want of prosecution, is not an interlocutory judgment within the meaning of s. 14 (3) (b) Supreme Court Act, as it finally determines the matter in the National Court, it finally disposes of the rights of the disputing parties and it finally determines the issue between the parties. Consequently leave to appeal is not necessary.

Competency of unnecessary leave application

12. The appellant submits that if leave is not necessary it should be treated as a notice of appeal and the appellant allowed to proceed with the appeal as it has merit.

13. This court constituted by the same bench has already considered this issue in Rea Joseph v. Manu Sereva & Ors (2011) SC1152, delivered on the same day as this decision, and determined that an unnecessary leave application is incompetent. This determination was made following a detailed consideration of the relevant authorities. We do not believe it is necessary therefore to embark upon such a further consideration.

14. We are satisfied that as the leave application was unnecessary, it is incompetent and should be dismissed. The parties shall bear their own costs as the respondent did not assist the court in the resolution of this matter.

______________________________________________________
Lakakit & Associates Lawyers: Lawyers for the Appellant
Steeles Lawyers: Lawyers for the Respondent