Paga Hill Development Co (PNG) Ltd v Zhongqin Shi [2025] PGSC 136; SC2846 (19 December 2025)

SC2846

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP NO. 105 OF 2025

BETWEEN:
PAGA HILL DEVELOPMENT
COMPANY (PNG) LTD
Appellant

AND:
ZHONGQIN SHI
First Respondent

WAIGANI: HARTSHORN J
18, 19 DECEMBER 2025

SUPREME COURT – APPEAL – practice and procedure - Objection to competency of application for leave to appeal

Cases cited:
General Television Corporation Pty Ltd v. DDP and Anor [2008] VSCA 49
Ramu Nico Management (MCC) Ltd v. Eddie Tarsie [2010] 1 PNGLR 88,
SC1056
Rea Joseph v. Manau Sereva (2011) SC1152
Steven Punagi v. Pacific Plantation Timber Ltd [2011] 2 PNGLR 92
Michael Kuman v. Digicel (PNG) Ltd (2017) SC1638
Bryan Kramer v. Peter O’Neil (2020) SC1940
Tjandranegara v. TST 4 Mile Ltd (2025) SC2696

Counsel

D. Gavara-Nanu for the appellant
T. Injia for the respondent

1. HARTSHORN J: This is a decision on a contested notice of objection to competency. The respondent objects to the application for leave to appeal filed 11^th November 2025. It is contended that the application for leave to appeal is incompetent as the judgment or order sought to be appealed is an interlocutory judgment which grants an injunction. Leave is therefore not required pursuant to s. 14 (3) (b) (ii) Supreme Court Act.
   
2. The appellant concedes that the first of the orders for which leave is sought does not require leave but submits that the other two orders require leave.
   

Background

3. The appellant commenced National Court proceedings against the respondent in which damages and injunctive relief are sought. This is in respect of alleged unlawful actions, conduct and interference with the management and operations of the appellant company by the respondent.
   
4. Certain restraining orders have been granted in favour of each of the parties.
   
5. The respondent obtained further restraining orders on 3^rd October 2025. (order appealed). The order appealed restrains the appellant and the Police in certain respects and are the subject of this application for leave to appeal.
   

Consideration

6. The respondent submits that the order appealed is an interlocutory judgment which grants an injunction and does not require leave pursuant to. s. 14 (3) (b) (ii) Supreme Court Act.
   
7. The appellant concedes that the first paragraph of the order appealed does not require leave. It seeks to amend the application for leave to appeal by withdrawing the paragraph.
   
8. The respondent objects to the proposed amendment as it is submitted that there is no application before the Court for such an amendment and it is out of time.
   
9. As to the proposed amendment by the appellant, counsel for the appellant sought to move the amendment in his response to the objection to competency which had been moved. There is no filed application for amendment, no evidence in support and no specific legislation or rule was relied upon to engage the jurisdiction of the Court to make the amendment sought. Consequently, the oral application for amendment by the appellant is refused.
   
10. As to the objection to competency, the respondent relies upon judicial authority for the contention that the order appealed is the granting of an injunction and is encapsulated in the words of s. 14 (3) (b) (ii) Supreme Court Act. These authorities include Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) 1 PNGLR 88, SC1056 and Bryan Kramer v. Peter O’Neil (2020) SC1940.
    
11. In Ramu Nico Management v. Tarsie (supra) the Court, of which I was a member, said:

“14. The occasions prescribed in s. 14 (3) (b) (i) and (ii) Supreme Court Act, where leave to appeal an interlocutory judgment is not required, are occasions when the relief appealed, although interlocutory, has substantive effect: liberty of a subject, custody of an infant, grant or refusal of an injunction and the appointing of a receiver

15. As the effect is substantive, lawmakers in various jurisdictions have acted to ensure that there remained an automatic right of appeal for such occasions. In this regard we note that our s.14 (3) Supreme Court Act has its origins in the English Supreme Court of Judicature (Procedure) Act 1894.

16. To require an appellant to seek leave to appeal an order that sets aside or varies or continues an injunction seems to us to defeat the purpose or the intention of the Subsection.”

11. The Court then referred to the case of General Television Corporation Pty Ltd v. DDP and Anor [2008] VSCA 49 and its interpretation of a similar legislative provision to s. 14 (3) (b) (i) and (ii) Supreme Court Act and stated at [19]:

“19. By taking into account the injunctive nature of the orders made, it is apparent that the Court followed a purposive approach to the relevant section, an approach which we are of the view, should be adopted here.”

12. Ramu Nico Management v. Tarsie (supra) was referred to in Kramer v. O’Neil (supra) at [17]. In Kramer v. O’Neil, Cannings J found that orders which were termed restraining orders and all of the ten items contained in orders sought to be appealed, were an injunction. His Honour stated at [9]:

“9. As to whether the orders of 5 March 2020 are an injunction, I consider that they are. Though the ten items comprising the orders contain a discrete declaration, as distinct from an order, (order No 1), and two directions to a non-party (Nos 7 and 8), and two procedural directions (Nos 9 and 10, the bulk of the orders are in the nature of an injunction: in particular orders 2, 3, 4, 5 and 6.”

13. In the instance, the first paragraph of the order appealed states amongst others, that the plaintiff and certain others “shall not take any action or decision”.
    
14. The applicant has conceded that the 1^st paragraph of the order appealed does not require leave.
    
15. The second paragraph of the order appealed provides for “a stay”.
    
16. Adopting the approach taken in Ramu Nico Management v. Tarsie (supra), the effect of paragraphs 1 and 2 of the order appealed is of substantive effect. They prevent and stop certain actions or conduct.
    
17. I am satisfied therefore that paragraphs 1 and 2 of the order appealed are orders that are captured in s. 14 (3) (b) (ii) Supreme Court Act. They are orders which are in the nature of a grant of an injunction.
    
18. As to paragraph 3 of the order appealed, it provides for the release from Police custody. Again, although interlocutory, the effect of this order is substantive: see Ramu Nico Management v. Tarsie (supra). Paragraph 3 of the order appealed is also captured in s. 14 (3) (b) (ii) Supreme Court Act. It affects the liberty of a person: Ramu Nico Management v. Tarsie (supra) and is in the nature of a refusal of an injunction.
    
19. As all of the paragraphs of the order appealed are captured in s. 14 (3) (b) (ii) Supreme Court Act, leave to appeal is not required. As leave to appeal is not required, but has been applied for, the application for leave to appeal is incompetent and should be dismissed: Kramer v. O’Neil (supra) at [21], Rea Joseph v. Manau Sereva (2011) SC1152, Michael Kuman v. Digicel (PNG) Ltd (2017) SC1638 at [11]. See also Tjandranegara v. TST 4 Mile Ltd (2025) SC2696 and Steven Punagi v. Pacific Plantation Timber Ltd [2011] 2 PNGLR 92.
    

Order

1. The notice of objection to competency filed 1^st December 2025 is upheld.
   
2. The application for leave to appeal is dismissed.
   
3. The appellant shall pay the costs of the respondent of and incidental to the said application for leave to ppeal on a party party basis to be taxed if not otherwise agreed.

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Lawyers for the appellant: Liria Lawyers
Lawyers for the respondent: SLM Legal Practice