Kennedy v PNG Ports Corporation Ltd [2018] PGSC 47; SC1704 (6 June 2018)

SC1704

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 51 of 2018

BETWEEN:
JEFFREY KENNEDY
Appellant

AND:
PNG PORTS CORPORATION LIMITED
First Respondent

AND:
HANE KILA-CHIEF MARITIME COMPLIANCE OFFICER OF PNG PORTS CORPORATION LIMITED
Second Respondent

AND:
KEPO POMAT as the Chairman of the PNG Land Board
Third Respondent

AND:
BENJAMIN SAMSON as the Registrar of Titles
Fourth Respondent

AND:
HON. JUSTIN TKATCHENKO as the Minister for Lands
and Physical Planning
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Dingake J
2018: 9^th May, 23^rd May, 6^th June

PRACTICE AND PROCEDURE – Application for Leave to apply for Stay – Applicant met all the requirements held – Application granted.

Cased Cited:

Dynasty Estates Ltd v Nambawan Super Ltd (2015) SC1427
Matiabe Oberia v Police and the State (2005) SC801
Helifix Group of Companies v Papua New Guinea Land Board (2012) PNGSC 10, SC1150
Mc Hardy v Prosec Security & Communications Ltd (2002) PNGLR 279

Counsel:

Mr.McRonald Nale, for the Appellant.
Ms. Gretel Kogora, for the First & Second Respondents
Mr. Ephraim Bua, for the Third – Sixth Respondents

6^th June, 2018

1. DINGAKE J: This is an application for leave to appeal and stay of the decision of the National Court in OS (JR) No. 915 of 2017, PNG Ports Corporation and Another v Leo Pomat as Chairman of Land Board and Others & the State pending the hearing and the determination of the appeal.
2. The decision, the subject matter of appeal, which is also sought to be stayed was made on the 27^th of March, 2018, in which the Court granted first and second respondents leave to apply for judicial review of the decisions of the third, fourth and fifth respondents in granting a State Lease to the applicant.
3. Although the applicant was not a party in the Court below, it would seem that he is entitled to make this application by virtue of the authority of (Dynasty Estate Ltd v Nambawan Super Ltd (2015) SC1427). I accept, without deciding, that this authority is binding on a single judge of the Supreme Court.
4. The subject matter of the appeal is the property described as Portion 3524 Milinch Granville Fourmil Moresby, NCD, Portion 3524, which the applicant avers no longer exists because it was subdivided into 142 smaller portions ranging from Portions 3737 to 3881.
5. In the National Court proceedings, PNG Ports challenged the decision to grant, register and issue the title to the above property to the Applicant.
6. The applicable principles for granting or refusal of leave were stated in the well-known case of Matiabe Oberia v Police and the State (2005) SC801.
7. The principles are as follows:
   • (i) Is there an arguable or prima facie case demonstrated that the trial judge was wrong?
   • (ii) Does the appellant have recourse in the Court below?
   • (iii) Was the ruling within the discretion of the Court?
   • (iv) Has it been shown that its exercise was manifestly unreasonable, exercised on wrong principle or a mistake of fact?
   • (v) Does the decision have any bearing on the final determination of the issues between the parties?
8. I turn now to consider each of the applicable principles.
9. On a perusal of the evidence, it seems incontrovertible that the Court below did not consider that the first and second respondents as aggrieved parties have recourse to appeal to the Minister in terms of Section 62(1) of the Land Act, and failed to utilize that route available to them.
10. In my mind leave for judicial review may have been refused on the sole ground of failure to exhaust available remedies. (Helifix Group of Companies v Papua New Guinea Land Board (2012) PNGSC 10, SC1150).
11. The appellant/applicant has clearly demonstrated that he has an arguable case.
12. I have also considered whether the first and second defendants have tendered sufficient evidence to establish their interest in this matter and I have found the evidence on this point not sufficiently clear. It is entirely possible that, at the trial of this matter, the Court may well find that no sufficient interest was disclosed.
13. There is an issue of the delay in bringing the application for judicial review. It is common cause in this matter that first and second defendants delayed in bringing the application by over ten (10) months.
14. In terms of Order 16 Rule 4 of the National Court Rules an undue delay in making the application for judicial review may be a basis for the refusal to grant leave.
15. I am persuaded that the failure to exhaust the administrative appeal process, the possible inadequacy of evidence establishing the interest of first and second defendants, compounded by the delay in bringing the review application sufficiently grounds the application for leave to appeal and the application ought to succeed.
16. In all the circumstances of this case, I am of the considered view that although the ruling was within the discretion of the Court, that discretion may have been exercised in violation of the governing principles.
17. As for the application to stay, the applicable principles were traversed in the well known case of Mc Hardy v Prosec Security & Communications Ltd (2002) PNGLR 279.

These principles are the following:

• The principle that judgment creditor is entitled to the benefits of judgment.
• Whether leave to appeal is required and whether it has been obtained;
• Whether there has been any delay in making the application;
• Possible hardship, inconvenience or prejudice to either party;
• The nature of the judgment sought to be stayed;
• The financial ability of the application;
• Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
• Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;
• The overall interest of justice;
• Balance of convenience;

18. I have considered the above principles in totality. The applicant has not delayed in making this application. The application is meritorious. The applicant avers that Portion 3524, no longer exists as it has been sub-divided; and it seems to me that if the relief sought is not granted, the right of the applicant and those of third parties may be violated. This means that if the relief sought is not granted, this may occasion some hardship, inconvenience and prejudice to the applicant.
19. The financial ability of the applicant is not an issue.
20. I have already indicated that my preliminary assessment is that the applicant has an arguable case on the proposed appeal. I am satisfied that on the face of the record there may well be an error of law, with respect to Section 62 of the Land Act, as but one example.
21. On the whole, the balance of convenience and the overall interest of justice favour that the judgment appealed against be stayed.
    
22. In the result:
    • (a) Application for leave to appeal the interlocutory judgment of the National Court dated 27^th of March, 2018 in proceedings OS (JR) No. 915 of 2017 is granted.
    • (b) The aforesaid proceedings (OS (JR) No. 915 of 2017, PNG Ports Corporation & Another v. Leo Pomat as Chairman of Land Board and Ors & the Sate) are stayed pending hearing and determination of the appeal filed by the Appellant.
    • (c) Costs in the cause.

______________________________________________________________
Jema Lawyers: Lawyer for the Appellant
Dentons PNG: Lawyer for the First & Second Respondents
Office of the Solicitor General: Lawyers for the Third to Sixth Respondents