SC1773
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 42 OF 2018

BETWEEN
SECRETARY, DEPARTMENT OF MINERAL POLICY AND GEOHAZARD MANAGMENT
First Applicant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Applicant

AND
MANTON GROUP LIMITED
First Respondent

AND
SIAM NIUGINI LIMITED
Second Respondent

AND
SOUTH FLY DISTRICT DEVELOPMENT AUTHORITY
Third Respondent

Waigani:  Dingake J
2018:	11th April

PRACTICE AND PROCEDURE – Application for leave to appeal pursuant to Section 143(b) of Supreme Court Act and Order 7 Rule 3 of the Supreme Court Rules 2012 – held the applicants to appeal as of right under Section 14(1) (b) of the Supreme Court Act.
 
Cases Cited:

Kappo No. 5 Pty Ltd v. Wong and Wong (1997) SC520
Nominee Niugini Limited v Independent Public Business Corporation & 2 Others (2017) SC1646
Sir Julius Chan v Ombudsman Commission [1999] PNGLR 240
Rama Construction Pty Ltd v Christopher Hill (1999) SC560
Alfred Alan Daniel v Pak Domoi Ltd (2004) SC736
Boyepe Pere v Emmanuel Ningi and Oia Aba v MVIL (2005) SC779

Counsel:

Mr. Frank Imako, for Applicants
Mr. Brendan Lai, for Respondents

11th April, 2018

1.	DINGAKE J:	This is an application for Leave to Appeal filed by the applicants on the 5th of April, 2018.
2.	The application is made pursuant to Order 14 (3) (b) of the Supreme Court Act, and Order 7 Rule 3 of the Supreme Court Rules 2012. The applicant seeks leave to appeal the judgment of the National Court dated the 2nd of April, 2018, in terms of which the Court entered Summary Judgment in favour of the First and Second Respondents, in a liquidated sum, inclusive of interest and costs.
3.	The Court also ordered that if there were any further damages to be claimed by the First and Second Respondents then they were at liberty to have those damages assessed.
4.	The First and Second Respondents have objected to the competency of the Application for Leave to Appeal, without complying with Order 7 Division 5, Rule 15 of the Supreme Court Rules, on the basis that the National Court Order, dated the 2nd of April, 2018, is not interlocutory in nature, but final, and that the applicant ought not to have made an application for leave to appeal, but to appeal as of right, and in doing so file a notice of appeal and not Application for Leave to Appeal.
5.	The first and second Respondents aver that the applicants’ application is an abuse of Court process and must be dismissed with costs on the basis of the incompetency alleged above.
Background
6.	The proceedings before the National Court relate to non payment of services provided to the people of South Fly by the First and second Respondents from monies held in trust for the Western Province people by the First Applicant. 
7.	The proceedings brought by way of notice of motion filed on the 5th of March, 2018, sought summary judgment against the applicants, inter alia, in the sum of K13,538,218.32, which was granted on the 3rd of April, 2018, by the National Court.
8.	The applicants aggrieved by the decision of the National Court now seek Leave to Appeal against the decision of the National Court aforesaid.
9.	The Applicant submit that the judgment sought to be appealed is an interlocutory judgment requiring leave of this Court.
Grounds of Appeal
10.	The applicants grounds of appeal are ranging and include the following:
a)	The learned Judge erred when he refused to acknowledge that the Applicants has filed an application on 26th March, 2018, seeking his disqualification on the basis of perceived or actual bias and also leave to file a defence out of time.
b)	The learned Judge erred when he stated that the Applicants had made an application to disqualify him when in fact he refused to acknowledge the application was before him and refused to hear the application at all.
c)	The learned Judge erred by advising the Respondents to move their application for summary judgment when he was put on notice that the Applicants had filed an application seeking, inter alia, leave to file their defendant out of time.
d)	The learned Judge erred by refusing to hear the Applicant’s Notice of Motion filed on 26th March, 2018.
e)	The learned Judge erred when he relied on an affidavit of Glen Jerry sworn on 26th March, 2018, and filed on 27th March, 2018, which annexed a copy of a purported s.5 Notice dated 14th April, 2014. This affidavit was sworn and filed after parties argued the application on 26th March, 2018. This affidavit was never served on the Applicants. No opportunity was given to the Applicants to test the veracity of the contents of the affidavit.
f)	The learned Judge erred when he erroneously accepted that the purported s.5 Notice had been filed within six (6) months of the cause of action accruing, when it is clear from the pleading and the evidence of the Respondents that the cause of action arose on 1st December, 2010 – approximately ten (10) months after the time period to file a s.5 Notice had lapsed (1st June, 2013);
g)	The learned Judge erred when he misapplied the Supreme Court authority of Kappo No. 5 Pty Ltd v. Wong and Wong – SC520 in supporting an assertion that “where there is admission on liability and amount owing, the Court may award Summary Judgment”. The Supreme Court in that case stated “Where there is admission of facts, there is separate procedure to enter judgment under O.9 R.30 of the Rules. The respondents could have obtained the same judgment using this procedure”.
h)	The learned Judge erred by ignoring the Supreme Court’s finding in Kappo No. 5 Pty Ltd v. Wong and Wong – SC520 “that the plaintiff must show in absence of any defence or evidence from the defendant that, in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant, as in this case, the plaintiff must how that, upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict on questions of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each case. However, the authorities show that the summary jurisdiction should only be invoked in a clear case”.
i)	The learned Judge erred by finding that the purported admission by the SFDDA legally bound the Applicants when the effect of that admission was a liability to be borne by the SFDDA.
j)	The learned Judge erred by failing to consider or ignoring the effect of s.12 (3) of the Claims By and Against the State Act 1996, which makes it legally impossible for a judgment in a liquidated sum to be issued against the State.
k)	The learned Judge erred by accepting unsubstantiated evidence of the Respondent’s expenses when deciding to order summary judgment in a liquidated sum, notwithstanding the effect of s.12 (3) of the Claims By and Against the State Act 1996.
l)	The learned Judge erred in failing to consider s.12 (2) of the Claims By and Against the State Act 1996 when ordering that Summary Judgment in the liquidated sum be paid “forthwith”.
11.	In my mind a close assessment of the above rounds makes it clear that the applicant’s contemplated appeal involves questions of mixed fact and law.

Preliminary Issue
12.	The Respondents have raised the issue of the competency of the Application for Leave to appeal during the course of argument and without complying with Order 7 Division 5 Rule 15 that requires that objection to competency should be filed within 14 days of service of notice of appeal and file an objection in accordance with Form 9.
13.	The Respondents rely on the authority of Nominee Niugini Limited v Independent Public Business Corporation & 2 Others (2017) SC1646 in contending that objection to competency of an application for leave to appeal can be heard and determined at any stage of the proceedings. 
14.	Order 7, Division 5, Rule 15 of the Supreme Court Rules provides as follows:
	“Division 5.—Objection to competency of appeal
15.	A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal—
(a)	file an objection in accordance with form 9; and
	(b)	serve a copy of the objection on the appellant.”
15.	In the case for Nominee Niugini Limited v Independent Public Business Corporation & 2 Others (2017) SC1646 at paragraph 27, the Court stated that:
“27.	The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any state of proceedings. In Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:
	“It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.
16.	It seems plain to me that the above quotation essentially renders Order 7, Division 5 Rule 15 of the Supreme Court Rules in operative or redundant, when the objection relates to the jurisdiction of the Court. I imagine that being the decision of the full Court of the Supreme Court such a decision is binding on a single judge of the Supreme Court.
17.	To the extent that the decision is binding on a single judge of the Supreme Court, it is imperative, in order to answer the preliminary issue of competency of the Application for Leave to answer the question whether the judgment sought to be appealed is an interlocutory decision.
18.	It is trite learning that an interlocutory judgment is an order, decision or ruling made prior to or during the course of the trial which doesn’t determine the rights of the parties (Sir Julius Chan v Ombudsman Commission 1999 PNGLR 240).
19.	It is now well settled that in determining that a judgment is interlocutory or not, such a decision must be subject to two tests: Firstly, the Court must look at the nature of the application to the Court and not the order eventually made. Secondly, the Court must assess whether the judgment or order made finally disposes of the right of the disputing parties. (Rama Construction Pty Ltd v Christopher Hill (1999) SC560).
20.	In the case referred to above the Supreme Court held that summary judgment was not an interlocutory judgment and leave was not necessary because the judgment fully disposed of the issues before the Court and no further issues were left that could be further litigated and determined.
21.	On the basis of the authorities cited above, I hold that to the extent that the order of the National Court on the 2nd of April, disposes of the issues before the Court in final fashion with the result that there are no issues that could be further litigated the judgment is not interlocutory but final. This entitles the applicant to appeal against that decision as of right. 
22.	I am mindful of paragraph 5 of the Court Order that states that if any outstanding amounts that are not included in the other Orders, the plaintiffs are at liberty, under Order 12 Rule 38 (2), to have those damages assessed.
23.	The above paragraph does not make the judgment interlocutory. It was held by the Supreme Court that where part of a claim was finally disposed of by declaratory orders and the other part of the claim was subject to an order for assessment of damages no leave was required to appeal from declaratory orders but leave was required to appeal from the interlocutory judgment for damages to be assessed. (Alfred Alan Daniel v Pak Domoi Ltd (2004) SC736).
24.	In my judgment the applicants do not need leave and may proceed to lodge their appeal in terms of the rules of this Court. The applicants may if they so wish apply for leave with respect to the interlocutory part of the judgment relating to damages to be assessed.
25.	It is not desirable or in the interest of justice that a party who mistakenly believed that he requires leave when he doesn’t actually need leave must be shut out and frustrated from appealing a decision that he believes to be erroneous.
26.	The Court in the case of Boyepe Pere v Emmanuel Ningi (2003) SC711 dealing with a situation where the applicant seeks leave when he has a right of appeal remarked: 
	“It should reasonably follow from this that, where a person has a right of appeal but seeks leave, he should be allowed to proceed with his appeal. We consider this important because in some cases there may be instances in which it might not be clear as to whether an appeal lies as of right or with leave. In such a case, it would be advisable to seek leave in order to avoid the risk of an appeal being found incompetent for leave not being first sought and obtained. Henzy Yakham & Anor v Meriam & Meriam case. In other cases, an appellant may inadvertently seek leave when it is strictly not required.”
27.	I therefore hold that the applicants should be allowed to file an appeal against the National Court decision of the 3rd of April, 2018 granting Summary Judgment against them and to file separate leave with respect to the interlocutory aspect(s) of the judgment.
28.	It remains for me to consider the matter of costs.
29.	In my mind each party must bear its own costs because both share the blame for allowing the matter to progress to this stage.
30.	On a careful consideration the applicant could have realised that it is not necessary to seek leave in matter that determines the rights of the disputing parties in final fashion. Similarly, the respondents could have consented to leave given the position they correctly adopted that leave was not necessary. Why, given the above position of the respondents, that leave is not required, they couldn’t allow the applicants to proceed with the appeal and instead of escalating costs by arguing the matter in the manner they did.
31.	In the result this Court finds and orders that:
1. 	The application for leave was not necessary;
2. 	That the applicants are entitled to appeal as of right with respect of final orders granted against them; and to apply for leave, if so minded with respect to the order relating to assessment of damages;
3. 	That the appellant must be allowed to file their appeal in terms of the rules of this Court;
4. 	Each party to pay its own costs.
___________________________________________________________
Corrs Chambers Westgarth: Lawyers for the Applicant	
BS Lai Lawyers: Lawyers for the Respondents