Petroleum Resources Moran v Moran Oil Ltd [2023] PGSC 66; SC2417 (23 June 2023)

SC2417

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 33 OF 2022

BETWEEN:
PETROLEUM RESOURCES MORAN
Appellant

AND:
MORAN OIL LIMITED
First Respondent

AND:
EDA OIL LIMITED
Second Respondent

AND:
KUMUL PETROLEUM DEVELOMENT LIMITED
Third Respondent

AND:
KUMUL PETROLEUM HOLDINGS LIMITED

Fourth Respondent

Waigani: Dingake J
2023: 23^rd June

SUPREME COURT – practice and procedure – application to set aside ex parte order of supreme court – supreme court rules make no provision for setting aside ex parte orders – reliance placed on s185 Constitution and Order 11 Rule 9 as jurisdictional basis to seek set aside order – as an alternative reliance is placed on Order 12 Rules 8 (3) (a) of the National Court Rules with necessary modifications - court exists to serve substantive justice for all parties to a dispute before it - Both parties deserve to be heard on matters concerning the real controversy between them - there are no provisions in the Supreme Court Rules regarding the instituting of an application to set aside Ex-parte orders of the Supreme Court - Applicant granted leave to adopt the procedures in the National Court under the National Court Rules under Order 12 Rules 8(3)(a) of the National Court Rules with necessary modifications in its application to set aside the Ex-parte Order

Cases Cited:
Tulapi v Niggins) 2011, SC1111
Madang Timbers Ltd v Kambori (2009) PGSC 18; SC992
Jack Kariko in his capacity as Secretary for National Judicial Staff Services (NJSS) v Dr. Ken Ngangan in his capacity as Secretary for Department of Finance & Department of Finance [2023] PGSC 34; SC2379

Counsel:
Mr. Charles Kopunye, for the Plaintiff
Mr. Nathan Pilamb, for the Second, Third & Fourth Defendants

RULING

23^rd June, 2023

1. DINGAKE J: INTRODUCTION: The Applicant filed an application with the Court on the 26^th of April 2023, seeking ad hoc directions, pursuant to Section 185 of the Constitution and Order 11 Rule 9 of the Supreme Court Rules (SCR), with respect to setting aside an Ex-Parte Order of the Supreme Court, since the Supreme Court Rules makes no provision for setting aside Ex-Parte Orders.
   
2. In the alternative, the Applicant prays that leave be granted to adopt the procedures in the National Court under the National Court Rules under Order 12 Rules 8 (3) (a) of the National Court Rules with necessary modifications.
   
3. The Application is supported by the affidavit of Charles Kopunye, filed on the 26^th of April 2023.
   
4. It is not in dispute that a single Judge of the Supreme Court does have jurisdiction to hear the Application for Directions and leave in accordance with Section 162 (2) and or Section 185 of the Constitution and Order 11 Rule 9 of the Supreme Court Rules.
   

BACKGROUND

5. On the 13^th of December 2022, the Applicant filed a Leave Application to review, with this Court, pursuant to Section 155 (2) (b) of the Constitution, the decision of the National Court made on the 30^th of September 2022.
   
6. It is common cause that the Leave Application was filed on the basis that the Applicant had failed to exercise its right of appeal in terms of Order 7 of the Supreme Court Rules.
   
7. The matter before the National Court, on the main, related to alleged breaches of the Oil & Gas Act 1998 that allegedly affected the Applicant’s right to receive participating interest.
   
8. On the 30^th of September 2022, the National Court dismissed the claim, holding that it was time barred.
   
9. The Leave Application was by consent of both parties fixed for hearing on the 21^st of April 2023 at 1:30pm.
   
10. When the matter was called for hearing at 1:30pm the Applicant counsel was not present in Court and the matter was dismissed for Want of Prosecution, with costs.
    
11. The Applicant avers in his supporting affidavit that he was running late by about five (5) minutes because he had mechanical issues with his vehicle and had to use a cab to come to Court. It has not been suggested that his averment that he was running late by 5 minutes on account of mechanical issues with his vehicle was untruthful.
    
12. The Application is opposed on two grounds:
    
    • (a) That the Application is not compliant with Form 4 of the Rules (Order 13 Rule 15 of the Supreme Court Rules) as it does not contain Form 17 at the end of the Application.
      
    • (b) That the Application is incompetent as the Supreme Court Rules do not provide for an application to set aside Orders of the Supreme Court that have brought the proceedings to finality.
      
13. Based on the above two reasons the Second Respondent prays that the Application for Directions be refused with costs.
    
14. It is convenient to discuss the grounds of opposition in the order discussed above.
    

Whether the Application is incompetent for not being compliant with Form 4 of the Rules (Order 13 Rule 15 of the Supreme Court Rules).

15. Order 13 Rule 15 of the Supreme Court Rules provides that:
    

All applications for interlocutory orders must contain a concise statement of the court’s jurisdiction to grant the orders being sought.

With the exception of urgent applications, all other applications for interlocutory orders shall be made to the duty judge or a schedule motions day. All applications must be made in Form 4.

16. In this case, the Applicant has clearly set out the basis of the Court’s jurisdiction being Section 185 of the Constitution and Order 9 Rule 11 of the Supreme Court Rules. The application states the nature of the application, the grounds, and it is signed. It indicates that it was filed by Legal Services Unit/Division of Mineral Resources Development Company Limited. The general form of service as required by Form 17 appears on the face of Doc. 15 filed of record dated the 24^th of April 2023.
    
17. The Application may not be fully compliant only to the extent that it says the “Application will be made to the Supreme Court”, instead of “a Judge of the Supreme Court”.
    
18. I have considered the argument that the current application offends Form 4 of the Rules of the Supreme Court, for the reasons stated above. I agree that the application is not strictly in compliance with Order 4, in some respects as indicated above. However, I find that it is substantially in compliance, and the absence of strict compliance occasions no prejudice to the Second Respondent and none was claimed.
    
19. I will dismiss the above ground as without merit.
    
20. I turn now to the second ground of the opposition, namely that the Supreme Court Rules do not provide for an application to set aside the Order of the Supreme Court that has brought proceedings to finality.
    
21. The Application such as the present, to issue ad hoc directions is not novel. It has been brought and granted before (See Tulapi v Niggins) 2011, SC1111, Madang Timbers Ltd v Kabori (2009) SC 992 and Jack Kariko in his capacity as Secretary for National Judicial Staff Services (NJSS) v Dr. Ken Ngangan in his capacity as Secretary for Department of Finance & Department of Finance (2023) PGSC34; SC2379.
    
22. Section 185 of the Constitution provides that:
    

“185. Lack of procedural provision.

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

23. Section 185 of the Constitution provides that this Court may give directions to remedy the lack of provisions on matters of procedure of practice.
    
24. The cases cited above suggest that this Court in deciding whether to grant an application to give Directions would consider several factors including whether the application for Directions has been filed and served expeditiously; whether it has been prosecuted expeditiously and whether the interest of justice warrants that the Application be granted leave.
    
25. The Applicant filed and served this application expeditiously. It did not delay prosecuting the application.
    
26. Whether the interest of justice favour the application being granted or refused is a judicial evaluation that, in my view should lean in favour of the need to deal with matters that serve before this Court on the merits rather than technicalities.
    
27. In evaluating where the interests of justice lie the subject matter of the substantive application is a relevant consideration and so is the conduct of the parties, especially the party who seeks the indulgence of the Court. I consider the matters with respect to the substantive application for leave weighty and important to be considered on the merits rather than to shut the door in a final fashion against a party who was five (5) minutes late not on account of any fault on his part.
    
28. In my considered opinion, the Applicant properly invoked Section 185 in seeking directions as the SCR does not make provision for the setting aside of Ex-parte Orders of this Court.
    
29. As for the argument that such an application is incompetent because proceedings have been ended by the Court, I point out that there is no such restriction from the terms of Section 185 of the Constitution. Section 185 is couched in broad terms, and it is not hedged about with conditions such as those suggested by the Second Respondent.
    
30. I find that Section 185 is one of the correct avenues to bring an application for Directions where no procedure is provided by the Rules. The other avenue, of course, is Order 11 Rule 19. In my view it is not necessary to invoke both avenues, as anyone of them is sufficient.
    
31. In this case I find that Section 185 is sufficient to dispose of this Application and I need not discuss whether Order 11 Rule 19 has been satisfied or not. In any event, on a proper and generous interpretation of Order 11 Rule 19 of the Supreme Court Rules, the Applicant’s application meets the pre-requisites of the said Order.
    
32. In the result, it seems to me that the Second Respondent’s argument has no merit given the wording of Section 185 of the Constitution that gives this Court jurisdiction to give ad hoc directions to remedy lack of adequacy of a matter of practice and procedure.
    
33. In my mind there is another reason why the argument that the current Application is incompetent because proceedings have been brought to finality is without merit. The reason is that the application for leave to review which was dismissed for want of prosecution was not dismissed on the merits; that explains why there is no judgment on record, only an Order.
    
34. A judgment and an Order do, of course, have several common features. They are both a formal adjudication by a court of competent jurisdiction in the course of litigation which carries the force of law. Both the Judgment and Order represent the court’s ruling or determination on a matter in dispute. Both establish legal consequences. And, in both cases, those legal consequences may be enforced through the coercive power of the state.
    
35. Despite these common features, there remains a fundamental distinction between a judgment and an Order. It is trite law that at common law, a judgment is an adjudication by a court of competent jurisdiction upon a cause of action, which: (a) terminates the litigation or a defined part of it in relation to that cause of action; and (b) determines the cause of action or a defined part of it conclusively as between the parties to the litigation, ie in a manner which the parties cannot thereafter dispute or reopen before that court. An Order is any formal adjudication by a court of competent jurisdiction which is not a judgment.
    
36. It is trite learning that only a judgment can render its subject-matter res judicata. A res judicata gives rise to both cause of action estoppel and issue estoppel. Those two estoppels preclude re-litigation of the rights which have merged into the judgment and also re-litigation of the issues necessary for the court’s adjudication upon those rights. Having said the above, I must indicate that it is true that a future attempt to relitigate the subject matter of an order may be an abuse of process, particularly if there has been no change in the relevant underlying circumstances. But it remains the fact that a mere order cannot and does not give rise to any form of res judicata.
    
37. It follows from the above that I do not agree that an application for Directions, is not competent, in circumstances where a matter was dismissed for Want of Prosecution and was not heard on the merits. The reason the leave application was dismissed is because the Applicant was not in Court at the time the matter was set to proceed. The Applicant has shown sufficient cause why he was not in court. His absence was not on account of any negligence, or inaction or want of bona fides.
    
38. It is true that dismissal for Want of Prosecution brings proceedings so dismissed to an end, although fresh proceedings would not be subject to the defence of res judicata.
    
39. In summation, it seems to me that the Second Respondent’s arguments are technical in nature. I am of the considered view that this court should not be too quick to embrace technicalities at the expense of the merits of a case. The Court should always insist on substantive justice. Afterall, on occasions, excessive legal sophistry manifest in embracing technicalities at all costs may undermine the confidence of the people in the ability of this Court to administer substantive justice.
    
40. In my opinion this court exists to serve substantive justice for all parties to a dispute before it. Both parties deserve to be heard on matters concerning the real controversy between them.
    
41. Based on the foregoing, I am persuaded that the application dated 26^th of April 2023, has merit and consequently it is hereby allowed.
    
42. In the result it is Ordered as follows:
    
    • (1) Pursuant to Section 185 of the Constitution, as there are no provisions in the Supreme Court Rules regarding the instituting of an application to set aside Ex-parte orders of the Supreme Court, the Applicant is granted leave to adopt the procedures in the National Court under the National Court Rules under Order 12 Rules 8(3)(a) of the National Court Rules with necessary modifications, if it wishes to set aside the Ex-parte Order of this Court dated 21^st April 2023.
      
    • (2) Costs be in the cause.
      
    • (3) Time be abridged.
      

________________________________________________________________
Legal Services Unit MRDC: Lawyers for the Plaintiffs
Mel & Hennry Lawyers: Lawyers for the Second, Third & Fourth Defendants