Independent State of Papua New Guinea v Toka Enterprises Ltd [2012] PGSC 54; SC1246 (20 December 2012)

SC1246

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 19 of 2012

Between:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

And:

PEPI KIMAS, SECRETARAY FOR LANDS & PHYSICAL PLANNING
Second Appellant

And:

DR PUKA TEMU, MINISTER FOR LANDS & PHYSICAL PLANNING
Third Appellant

And:

TOKA ENTERPRISES LIMITED
Respondent

Waigani: Injia CJ; Batari & Kariko JJ
2012: 29th October, 20th December

SUPREME COURT - APPEAL – Appeal based on decision to dismiss an application to set aside an award of damages in judicial review case –An appeal from that decision must be commenced by Notice of Motion under SCR O 10 and NCR O 16 r 11 - Appeal incompetent and is dismissed

Counsel:

A Manase, for the appellants
W Bigi, for the respondent

20th December, 2012

1. BY THE COURT: The decision the subject of this appeal is one dismissing an application to set aside an award of damages in a judicial review matter brought under O 16 of the National Court Rules (NCR).

2. The National Court, Sakora J presiding, refused to set aside an award of K27,784,536.00 in proceedings OS No 240 of 2007 (JR) Toka Enterprises Ltd v Dr Puka Temu & two others ( the OS proceedings), made ex parte by the National Court presided over by Salika J (as he then was). In the judicial review proceedings Salika J granted an order in the nature of mandamus compelling the State to grant leases to the respondent over certain parcels of land in Port Moresby. His Honour then proceeded to conduct a trial on assessment of damages conducted and made the said award. The appellants then moved a Motion under NCR O 12 r 8 (b) seeking orders to set aside the ex parte order. The application came before Sakora J who dismissed the application. That decision is the subject of this appeal.

3. The appellant filed a notice of appeal under s 17 of the Supreme Court Act (the Act). However the Court rules require an appeal against a decision made in a proceeding brought under NCR O 16, to be brought by a Notice of Motion: SCR, O 10 & NCR O 16 r 11. The Supreme Court has held that an appeal from a decision in a judicial review matter (an order granting or refusing an application for leave to apply for judicial review or an application for review) brought by notice of appeal is incompetent: Kukari v Polye 92008) SC907 (Kukari case). The respondent objects to the competency of the appeal and relies on the principles in Kukari

4. Mr Manase of counsel for the appellants submits that an award of damages in a judicial review matter is a civil remedy that is distinct from remedies in judicial review that are specified in NCR, O 16 r 1 (mandamus, certiorari, prohibition and quo warranto). An award of damages an order granting or refusing to set aside an ex parte award on damages on quantum of damages do not fall within the ambit of the types of orders set out in NCR O 16 r 1. He submits O 16 r 11 limits the types of orders that must be appealed against under SCR O 10 to 'any order of the Court or a Judge granting or refusing an application for leave under rule 3" or "any order of the court or Judge granting or refusing an application for Judicial review". Therefore, an appeal from an award of damages or a decision refusing to set aside an ex parte award of damages, though made in a judicial review proceeding, lies by way of notice of appeal under s 17 of the Act. The principles in Kukari should be confined to the facts of that case. In Chan v Ombudsman Commission [1998] PNGLR 171 (Chan case), an order setting aside an ex parte order granting leave for review was permitted to be appealed under s 17 of the Act; a situation similar to the present case. For those reasons he submits the appeal is competent.

5. Mr Bigi of counsel for the respondent submits the procedure for an appeal against a decision made under NCR, O 16 is contained in NCR O 16 r 11 and SCR O 10; those procedures are exhaustive and mandatory. The award of damages and subsequent refusal to set aside the judgment were made within the judicial review proceedings. For those reasons, this Court should follow the decision in Kukari and dismiss the appeal for want of competency.

6. We have read the Chan and Pukari decisions and find no difference of opinion in those cases on the point in question. In Pukari the Supreme Court adopted the decision in Chan to hold that an appeal from a decision in judicial proceedings brought under NCR O 16 must be instituted by notice of motion by virtue of NCR O 16 r 11 and SCR 10. In Chan, Woods J made an ex parte order granting leave to apply for judicial review under NCR O 16 r 3. The respondent applied to set aside the ex parte order under NCR O 12 r 8 (3) which was granted by Salika J. On appeal from that decision, the Court considered the application of NCR O 12 r (8)(3)(a) to an ex parte order under NCR O 16 r 3. The Supreme Court said:

Order 12 r 8(3)(a) is applicable "where the order has been made in the absence of a party .... ." It also envisages that the matter would have a proper party which could have been expected to have been given notice of the motion for the order, and that the party would have been expected to give notice of intention to defend.

In our opinion, O 12 r 8(3)(a) does not apply to an ex parte order made pursuant O 16 r 3, because an application made pursuant to O 16 r 3 does not have any other parties. It cannot properly be said by any person that the order under O 16 r 3 was made in their absence, to bring an application under O 12 r8 (3)(a), to set it aside.

We believe this opinion is reinforced by the specific terms of O 16 r 11 which provides for appeal by way of motion to the Supreme Court to set aside or discharge any order granting or refusing an application for leave under Rule 3 or indeed an application for judicial review. This right of appeal is given further effect in the Supreme Court Rules Order 10.

We consider that O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rules do provide the exclusive procedure for reviewing application for judicial review or applications for leave. Indeed when O 16 rs and 11 and O 12 r 8 (3)(b) are read together it becomes clear that it was not intended the O 12 r 8(3)(a) should apply as an alternative that O 16 r 11. We believe O 12 r 8(3)(b) apply to ordinary inter partes actions when one of the parties was not present. An application for leave is not such an inter partes action.

We consider therefore that, in the face of a very specific appeal provision in O 16 r 11, the application by the Respondent pursuant to O 12 r 8 (3)(b) was misconceived and led Justice Salika into error. In principle we do consider it good policy and practice to be able to apply to set aside an order under O 12 r 8 (3)(a) as well as the option to appeal to the Supreme Court by O 16 r 11.

We find therefore that Justice Salika lacked jurisdiction to entertain the applications by the Respondent, pursuant to O 12 r 8 (3)(a). The Respondents recourse was to appeal by virtue of O 12 r 11, to the Supreme Court."

7. In Chan, the appellant filed a notice of appeal under s 14 (b) of the Act. The Court adopted the Chan decision and dismissed the appeal. The Court said:

"In the instant case, we are considering non-compliance with the mandatory requirements of Order 10 of the Rules by the appellants. There is no dispute that the appellants have invoked a wrong provision in instituting their appeal. It follows that the failure by the appellants to comply with the mandatory requirements of Order 10 of the Rules is fatal to the appeal...

Once the appeal was instituted under a wrong provision the appeal was incompetent. That being so, there is no appeal on foot before us"

8. The principles in those cases adequately canvass the procedural law governing appeals from decisions made in a judicial review proceeding and see no need to develop any principles. Those principles apply to decisions that come within the terms of O 16 r 11. That is 'any order of the Court or a Judge granting or refusing an application for leave under rule 3" or "any order of the court or Judge granting or refusing an application for Judicial review". Rule 11 does not cover other orders, interlocutory or otherwise, that may be made under O 16. For instance, an award in damages claimed as a consequential remedy and other consequential interlocutory orders associated with it. However, unless the judicial review proceedings are converted to proceedings by writ under r 9(5), the substantive proceedings under which consequential orders are made remain judicial review proceedings and so too are those consequential orders. The types of orders appearing in r 11 are used generically to include consequential relief such as those ordinarily consequent upon grant of an application by way of grant of the prerogative writs. These include declaratory orders and damages if they are claimed in the Statement. SCR O 10 applies generally to "Orders made under Order 16"; SCR O 10 does not restrict appeals only to 'any order of the Court or a Judge granting or refusing an application for leave under rule 3" or "any order of the court or Judge granting or refusing an application for Judicial review".

9. In the course of argument, we referred counsel to NCR O 16 r 9 (5) which makes express provision for the Court to order the O 16 judicial review proceedings to continue as if they have been begun by writ in appropriate cases. Rule 9 (5) states as follows:

"(5) Where a relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making the application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ."

10. We would think that if damages claimed in a judicial review were inappropriately done, the Court of its own motion or on application by a party, could by order convert the proceedings into a Writ of Summons. The proceeding then will turn into a civil proceeding and orders made therein are subject to the civil appeal process.

11. In the present matter, the matter can proceed to trial on assessment of damages without recourse to O 16 r 9 (5). Therefore the proceedings and the decisions made by Salika J and Sakora J remained judicial review proceedings. An appeal from those decisions must have been commenced by Notice of Motion under SCR O 10 and NCR O 16 r 11

12. For the foregoing reasons, we are of the view that the appeal is incompetent and it should be dismissed with costs to the respondent.
____________________________________________________
Manase & Co Lawyers: Lawyers for the Appellants
Henaos Lawyers: Lawyers for the Respondent