SC2731

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 27 OF 2024

BETWEEN:
BIRE KIMISOPA
Applicant

AND:
JASON KOLO
Respondent

WAIGANI: HARTSHORN J
13, 20 MARCH 2025

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

Cases cited:
Boyepe Pere v. Emmanuel Ningi (2003) SC711
 Bozson v. Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547
Eleana Tjandranegara v. TST 4 Mile Limited (2025) SC2696
Rea Joseph v. Manau Sereva [2011] 2 PNGLR 88 
Shubrook v. Tufnell [1882] UKLawRpKQB; (1882) 9 Q.B.D. 621 
Steven Punagi v. Pacific Plantation Timber Limited [2011] 2 PNGLR 92

Counsel
K. Makeu for the applicant
J. Kolo the Respondent, in person

Oral decision delivered
on 20th March 2025

1. HARTSHORN J: This is a decision on a contested objection to competency of this application for leave to appeal.

Background

2. The applicant applies for leave to appeal the judgment of the Deputy Chief Justice given on 7th March 2024 (7/3 Order).  The decision appealed ordered that:

“a)	The Respondent’s Application to set aside filed on 1st December 2023 is dismissed.
b)	The Final Court Orders dated 6th November 2023 is affirmed.
c)	Costs on solicitor and own client basis is awarded against the Respondent to be agreed if not taxed.
d)	For clarity, these orders finally conclude this proceeding subject to any enforcement proceeding.
e)	Time for entry of these orders is abridged to take place forthwith upon the Court signing the Orders.”

3. The respondent objects to the competency of the application for leave to appeal on the basis that the (7/3) Order is a final judgment and so leave is not required.  As leave is not required, but has been sought, the application for leave to appeal is incompetent and should be dismissed, it is submitted.

4. The applicant submits that the (7/3) Order is not final and even if it is the applicant should be allowed to proceed with the appeal.

Consideration

5. The issue is whether the judgment of 7th March 2024 is an interlocutory or final judgment. The Supreme Courts in Eleana Tjandranegara v. TST 4 Mile Limited (2025) SC2696 and Punagi v. Pacific Plantation Timber Limited [2011] 2 PNGLR 92, each Court consisting of five members, amongst others, held that the “order approach” is to be applied to determine the question.  The “order approach” is that an order is final if it finally determines the matter in litigation; the issue of final or interlocutory depending upon the nature and effect of the order as made. In Tjandranegara v. TST 4 Mile Limited (supra) the majority stated at [8]:

“The ‘order approach’, being the effect in Shubrook v. Tufnell [1882] UKLawRpKQB 118; (1882) 9 Q.B.D. 621 and Bozson v. Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547, that is that an order is final if it finally determines the matter in litigation; the issue of final or interlocutory depending upon the nature and effect of the order as made.”

6. It is clear from a perusal of the wording of the 7/3 Order that it is a final Order.

7. The appellant submits that the “application approach” should be adopted in this instance.  This Court is bound by the Supreme Court judgments to which reference has been made.  They have held that the “order approach” is to be applied.  No reasons have been given such that this Court should, or is able to, depart from applying the “order approach”.

8. The submission that as the order made on 6th November 2023 was final, therefore the 7/3 Order was not, assumes that there cannot exist more than one final order.  The fact that a final order is challenged does not ipso facto, lead to the conclusion that the answer to such a challenge cannot be a final order.  Further, the effect of the 7/3 Order is that it finally determines the matter in litigation.

9. As to the submission that the National Court Rules permit an ex parte judgment in default to be set aside, and if the National Court judgment had been set aside, then an application for leave to appeal would have been necessary, the submission does not assist the applicant as the fact scenario as posed did not occur.

10. In regard to submissions that applications for leave to appeal were warranted as the orders of 1st November 2023 and 7th March, 2024 were part final and part interlocutory, there is no merit in the submission when regard is had to the majority judgment in Tjandranegara v. TST 4 Mile Limited (supra). 

11. As referred to, it is clear from the wording and the effect of the 7/3 Order that it is a final order. This determination is as a result of following the “order approach”.  This Court is bound to follow the judgments which have held that the “order approach” is to be followed.  Consequently, to appeal the 7/3 Order, leave was not required.

12. As to whether the application for leave to appeal should be dismissed, the applicant submits that the application for leave to appeal should not be dismissed and the approach taken in Boyepe Pere v. Emmanuel Ningi (2003) SC711 should be adopted.  In that case the Court granted leave to appeal even though it had found that leave was not necessary.

13. As to this approach in Boyepe Pere v. Emmanuel Ningi (2003) SC711, the approach of that Court was not preferred in Rea Joseph v. Manau Sereva (2011) SC1152 and numerous Supreme Court judgments since Boyepe Pere (supra) have not followed the approach in Boyepe Pere’s (supra).

14. Following judgments in Joseph v. Sereva (supra) and Punagi v. Pacific Plantation Timber Limited (2011) SC1153, as the application for leave was unnecessary, it is incompetent and should be dismissed.

15. As to the question of costs, the respondent seeks costs on a solicitor and own client basis.  There is in evidence a letter forewarning the applicant that such costs would be pursued.  I am satisfied that such costs are warranted, particularly given the case authority on point. 

ORDERS

a)	The Objection to Competency filed 11th October 2024 is upheld.

b)	The application for leave to appeal is dismissed.

c)	The Applicant shall pay the costs of the proceeding on a solicitor and client basis to the respondent to be taxed if not otherwise agreed.

________________________________________________________________
Lawyers for the applicant:	Makeu Legal Services	
Lawyers for the respondent:	Kolo and Associates