[1998] PNGLR 449

PAPUA NEW GUINEA

[supreme court of justice]

RIMBINK PATO

v

THE HON. SIR JULIUS CHAN, CMG, KT, MP, PRIME MINISTER OF PAPUA NEW GUINEA;
THE HON. CHRIS HAIVETA, MP, DEPUTY PRIME AND MINISTER FOR FINANCE;
THE INDEPENDENT STATE OF PAPUA NEW GUINEA; and
NORTH FLY HIGHWAY DEVELOPMENT COMPANY PTY LTD

waigani: kapi dcj; los, sevua jj
11 June and 16 July 1997

APPEALS - Appeals to Supreme Court - Practice and procedure - Leave is required to appeal from interlocutory decision - Supreme Court Act section 14(3)(b) – Effect of failure to apply for leave - Test of whether National Court decision is interlocutory or a final judgment.

Facts

The appellant had instituted proceedings in the National Court challenging the constitutional validity of certain decisions of the respondents. Whilst there were two other motions pending, the National Court ruled that the plaintiff/respondent did not assert and plead facts upon which certain findings and the declaratory orders sought could be made and proceeded to dismiss the proceedings. The main issue before the Supreme Court then was: Is the National Court decision under the circumstances an interlocutory or a final judgement?

Held

1.	The National Court decision did not resolve the substantive action. The decision appealed from therefore is interlocutory. Hence the mandatory requirements of s 14(3)(b) of the Supreme Court Act requiring leave to appeal has to be complied with. Since leave has not been obtained, the appeal is therefore incompetent.

Papua New Guinea case cited

Shelley v PNG Aviation Services [1979] PNGLR 119.

Other case cited

Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 247.

Counsels

F Damen, for first and third respondents.
M Wilson, (with R Delgoda) for second and fourth respondents.
R Saulep, for the appellant.

16 July 1997

Kapi dcj; Los, Sevua jj. The respondents have objected to the competency of the appeal. The first and the third respondents argue that the appeal is incompetent because the notice of appeal "does not state that an appeal lies without leave or that leave has been granted" which is a mandatory requirement under Order 7 Rule 8(d) of the Supreme Court Rules. Secondly it is argued that the notice of appeal does not state that part of the judgment appealed against is the decision to award costs, which is contrary to the mandatory requirement of Order 7 Rule 8 (b) of the Supreme Court Rules. The first and third respondents argue that the decision appealed from is an interlocutory judgment as such leave is required under s 14(3)(b) of the Supreme Court Act. As no leave has been sought the appeal is incompetent.

As a mater of logic, at the Courts suggestion Mr Damen presented his clients’ arguments first because as a matter of law if the National Court decision were interlocutory the appeal would certainly be incompetent as the counsel for the Appellant conceded that as a matter of fact no leave had been sought. This suggestion was taken up and Mr Damen submitted that the National Court decision was interlocutory in that the decision did not resolve the ultimate dispute between the parties. In our view it is important to look closely at the decision appealed from. The trial judges finding and conclusion was:

"Having found that the plaintiff has standing the next question is can the proceedings be maintained as they are. In order for the proceedings to be maintained the plaintiff must assert facts. He is seeking declaratory orders. The orders he seek must be supported by assertion of facts. At this stage all that the plaintiff asserts are speculations.

The fact of the matter is that the plaintiff simply does not have facts upon which he relies on for the court to make the order he seeks. It is on this basis that I dismiss this proceedings." [sic] 

Mr Saulep argued that the decision was final and proceeded to give an elementary definition of what an interlocutory judgment might be. Mr Damen on the other hand sought to establish that the decision was interlocutory by reference to a number of tests developed in decided cases like Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 247. These tests were referred to, though briefly, in PNG in Shelley v PNG Aviation Services [1979] PNGLR 119. The tests are first that the court must look at the nature of the application to the court and not the nature of the order the court eventually made. Second the court must look at whether the judgment or order made finally disposes of the rights of the disputing parties.

In our view Justice Salika’s decision gives an appearance of finality because he had dismissed the proceedings. But when we look at the nature of the application before him, it becomes clear. The substantive process filed for determination was for enforcement of certain constitutional rights claimed to have been violated by the National Government by the engagement of foreign mercenaries. While this was on foot, two motions were filed for the Court to decide upon. The judge made it clear in the introduction to his decision as to what matters he was dealing with. He titled his decision as "Ruling". Then he said, "there are two notices of motion in this matter". The first motion sought to dismiss the proceedings on the ground that the Plaintiff "had no standing" and secondly it did not "disclose" any "reasonable cause of action". The second motion was to "strike out the proceedings on the basis of abuse of process".

It is apparent to us that the decision did not resolve the substantive action. The disputes were that the expenditure of moneys on hiring of mercenaries had breached the Constitution and the Public Finance Management Act. Also the hiring of mercenaries breached the constitutional provisions protecting right to life, freedom from inhuman treatment and protection under the law generally. A further claim is that the hiring of mercenaries had breached the Constitution in that it purported to raise a discipline force outside the PNG Defence Force. In considering these, it is our view that the issues in the substantive proceedings are still outstanding. The decision appealed from therefore is interlocutory. It follows from this conclusion that leave is required to appeal against the decision under s 14(3)(b) of the Supreme Court Act. As the appellant has not sought leave the appeal on foot is incompetent.

Mr Wilson has advanced some important arguments to support the objection to competency of the appeal. But they were to meet the appellant’s argument that the decision was final. There is no need to deliberate on the arguments on this aspect because we have taken the view that the decision was interlocutory which practically determines the objection.

We therefore dismiss the appeal with costs.

Lawyers for the first and third respondents: Solicitor General.
Lawyers for the second and fourth respondents: Warner Shand Lawyers.
Lawyers for the appellants: Pato Lawyers.