Yawing v Joku [2023] PGSC 168; SC2526 (22 November 2023)

SC2526

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 159 OF 2023

BETWEEN:
MALATABI KEITH YAWING
Appellant

AND:
GUNTHER JOKU
in his capacity as the Managing Director of Conservation
and Environment Protection Authority
First Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2023: 21^st & 22^nd November

SUPREME COURT – practice and procedure - Application for leave to appeal

Cases Cited

Oberia v. Charlie (2005) SC801

Counsel:
Mr. G. Geroro, for the Appellant
Mr. R. Uware, for the Respondents

Oral decision delivered on
22^nd November 2023

1. HARTSHORN J: This is a decision on an application for leave to appeal an interlocutory decision of the National Court (order appealed) which dismissed a notice of motion which had sought to vary another interlocutory order (first order). (This was the appellant’s second attempt to vary the first order.)

2. I permitted the application for leave to appeal to proceed in the presence of counsel for the State although sufficient instructions had not been received by counsel for detailed submissions to be made, as I was satisfied that sufficient notice had been given to the State of the hearing of the application for leave to appeal.

3. The first order had amongst others, granted leave to judicially review the issuance of Environmental Permit Number EP-L3 (767) for the Wafi Golpu Mining Project to Wafi Mining Limited and Newcrest PNG 2 Limited. The first order also ordered that the matter (JR2 proceeding) be dealt with together with another judicial review proceeding (JR1 proceeding) which is stayed (as it is the subject of a Supreme Court Appeal) and that the JR2 proceeding, “await a lifting of the stay order” in the JR1 proceeding.

4. The appellant submits that leave to appeal should be granted as the primary judge fell into error in his consideration of both fact and law. This included the reasoning process adopted by the primary judge which led to the primary judge rejecting evidence because it was hearsay. Further, the exercise of his discretionary power by the primary judge under Order 12 Rule 8(4) National Court Rules was manifestly excessive, unreasonable or plainly unjust.

Law

5. The principles concerning an application for leave to appeal are set out in the seminal case of Oberia v. Charlie (2005) SC801 and I rely on and follow those principles.

Consideration

6. I proceed on the basis that the appellant has established that he has an arguable case that the primary judge fell into error. I do not consider the merits of the arguable case.

Whether the appellant has other recourse in the National Court

7. The appellant does not have other recourse in the National Court. This is because the appellant has applied twice unsuccessfully to vary the first order and the effect of the first order is to prevent the appellant from prosecuting his application for judicial review until a stay order for the JR1 proceeding is lifted.
Further, the lifting of the stay order is dependent upon a Supreme Court proceeding, which the appellant has been prevented from joining and which has no bearing on the appellants JR2 proceeding.

Does the decision have any bearing on the final determination of the issues between the parties. Will it affect the primary rights of the parties or prevent the determination of the issues?

8. It is not the case that the order appealed has a bearing on the final determination of the issues between the parties. The order appealed does however, prevent the final determination of the issues between the parties in circumstances where the final determination is prevented presently by a stay order occasioned by a Supreme Court appeal which has no bearing on the JR2 proceeding.

9. As to any substantial injustice being caused by allowing the decision to stand, I am not satisfied that such has been shown or that prejudice has been shown. I am however, of the view that it is not in the interests of justice for a litigant to be prevented from prosecuting an application for judicial review for which he has obtained leave by a stay of proceedings which is occasioned by a Supreme Court appeal which has no bearing on the judicial review application.

10. The Courts on many occasions have stated that Judicial Review proceedings should be prosecuted and determined promptly. The effect of the order appealed is to the contrary and not in the interests of justice.

11. I am satisfied therefore, that cause has been shown for the trial process to be interrupted by an appeal.

Orders

a) Pursuant to section 14 (3) (b) of the Supreme Court Act and Order 10 Rule 5 of the Supreme Court Rules, leave is granted to the appellant to appeal against the decision delivered by Justice Miviri in the National Court on 8^th September 2023 in the proceeding entitled OS (JR) No. 112 of 2022 Malatabi Keith Yawing & Ors v Gunther Joku in his capacity as the Managing Director of Conservation and Environment Protection Authority and the State.

b) The appellant has 21 days or such other time as the Supreme Court or a Judge of the Supreme Court allows under Order 7 Rule 6 of the Supreme Court Rules in to file an appeal by way of a notice of motion.

3. The costs of and incidental to this application are costs in the appeal.

4. The appellant is to ensure that a copy of these orders and the appeal is served upon Wafi Mining Limited and Newcrest PNG 2 Limited.
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Geroro Lawyers: Lawyers for the Appellant
Solicitor General: Lawyers for the Respondents