[1999] PNGLR 240

PAPUA NEW GUINEA

[supreme court of justice]

THE RIGHT HONOURABLE SIR JULIUS CHAN

v

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

waigani: kapi dcj.; sheehan, jalina jj
28 June; 2 October 1998; 25 June 1999

Appeal – Objections to competency – Whether a direction on evidence is a judgment within the meaning of s 1(1) of Supreme Court Act. 

Appeal – Application for leave to appeal under Supreme Court Act, s 14(3)(b) – Proper principles for exercise of discretion.

Judicial review – Direction on nature of evidence for substantive hearing of judicial review under Order 16 of National Court Rules.

Facts

The Ombudsman Commission (the Commission) commenced investigations into the circumstances surrounding the purchase of "The Observatory" in Cairns, Australia, by the Board of the Public Officers Superannuation Fund under Part IV of the Organic Law on Ombudsman Commission (Organic Law). The Commission compiled a "Preliminary Report" (report) on its investigations. 

In its report, reference is made to various individuals in connection with the subject matter of the investigations. These persons included Sir Julius Chan (the appellant) who was the Prime Minister of Papua New Guinea at the time the property referred to above was purchased. He was served with a copy of the report and was invited to respond to parts of the report that made reference to his involvement. This was done in accordance with s 17(4)(b) of the Organic Law.

Instead of responding, the appellant filed judicial review proceedings against the compilation of the report pursuant to O 16 of the National Court Rules (Rules) on the grounds, which include allegations that there have been breaches of the principles of natural justice. 

Leave for judicial review has been granted. In preparation for the substantive hearing of the review, parties came before Woods J. for directions in various matters such as discovery, the form in which evidence may be admitted and cross examination of any witnesses. The trial judge expressed the desire to hear full arguments on these directions. The parties made submissions on 6 July and His Honour gave his ruling in a reasoned decision on 15 July 1998, and gave the following directions:

"This review will be done on the basis of the Statement made in support of the application and the affidavit of the applicant filed at the time the application was filed and when presumably the applicant indicates where and how he believes he has been denied natural justice and a right to be heard. And the preliminary report will also be available for the review. It is not appropriate to order any more discoveries. I gave a limited discovery at the time leave was granted and that discovery was to allow to acquaint himself with the relevant leases or transfers or proposals to remind himself of any matters where he may be implicated or where he may have knowledge. Anything else must be purely within the knowledge and memory of the applicant. There is no need for any further subpoenas, and most of the matters already under subpoena are not necessary for the hearing of this review. Of course if they may help the applicant remind himself of matters where he may have been able to assist the investigation then so be it or alternatively if he felt that an investigation had overlooked them to his advantage then of course it was open to him to draw the Commission’s attention to them or request that such be included in their final report, via Section 17(4) of the Organic Law.

I will schedule the review for hearing on Monday 31st August 1998".

The appellant filed application for leave to appeal against this ruling pursuant to s 14 (3)(b) of the Supreme Court Act. 

Held

1.	The restriction on appeal of such judgements provided by s 14(3)(b) of the Supreme Court Act, and the need for leave are essentially for two reasons though both are related. The first reason is the need to uphold the function of the Courts of the National Judicial System, to ensure that the tribunal empowered by law with the jurisdiction to hear and determine a matter, is able, within the scope and discretion of that jurisdiction, to conduct and order its own proceedings. The second reason is a corollary of the first namely that interlocutory judgements, not being final orders may be vacated or varied by the court that issued them. Plainly a Court in making interlocutory decisions is not functus officio i.e. unable to reconsider an order afresh. Rulings so made, are open, upon application pursuant to the rules of that Court to vacate or vary them. (See R. Lands Tribunal exp. City of London [1982] 1 All ER 892).

2.	That there are ample provisions under the National Court Rules and Order 16 in particular to ensure a party has every opportunity to present its case and there has been nothing before the Court to show, to indicate that the applicant has been refused any application made pursuant to those Rules.

3.	That course being already and always open to the applicant in the National Court, this application for leave amounts to an abuse of process and is therefore dismissed.

4.	Respondent’s costs to be paid by the applicant.

Papua New Guinea cases cited

Avia Aihi v The State [1981] PNGLR 81.
Avia Aihi v The State [1982] PNGLR 92.
Balakau v Torato [1983] PNGLR 242.
Henzy Yakham and the National Newspaper v Dr Stuart Merriam and Carrol Merriam [1998] PNGLR 555.
Ila Geno & Others v PNG [1993] PNGLR 22.
In re Moresby North East Election Petition, Paterson Lowa v Goasa Damena [1977] PNGLR 429.
Moi Avei v Electoral Commission; Charles Maino (1998) SC584 unreported.
Olasco Niugini v Kaputin [1986] PNGLR 244.
Pato v Chan & Ors [1998] PNGLR 449.
PNG v Albert [1988] PNGLR 138.
Rimbink Pato v Anthony Manjin & Others [1999] PNGLR 6.
Shelley v PNG Aviation Services [1979] PNGLR 119.

Other cases cited

Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc. (1981) 148 CLR 170.
Antaios Compania Navipra S.A. v Salen Rederiena AB [1985] AC 191.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Boake v Stevenson (1895) 1 Ch.D. 358.
Bradford Building Society v Borders [1939] 3 All ER 29.
Carr v Finance Corp. for Australia (No. 1) (1988) CLR 297.
French Caledonia Travel Service Pty Ltd v Elatri (Full Court of the Federal Court, unreported judgment dated 22nd May 1992).
Garrard v Email [1993] 32 NSWLR 662.
Geogas SA v. Trammo Gas Ltd [1991] 2 WLR 794.
Hadmor Productions v Hamilton [1982] 2 WLR 322.
In Re the Will of Gilbert (1946) (NSW) LR 318.
Landsal v REI Building Society (1993) 41 FCR 421.
Metropolitan Properties Co Ltd v Purdy [1940] 1 All ER 188 CA.
Pioneer Shipping Ltd & Others v BTP Tioxide Ltd [1982] AC 724.
R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739.
R. Lands Tribunal exp. City of London [1982] 1 All ER 892.

Counsel

N M Cooke, QC with M M Varitimos for the appellant.
D Cannings, for the respondent.

25 June 1999

Kapi dcj. The Ombudsman Commission (the Commission) commenced investigations into the circumstances surrounding the purchase of "The Observatory" in Cairns, Australia, by the Board of the Public Officers Superannuation Fund under Part IV of the Organic Law on Ombudsman Commission (Organic Law). The Commission compiled a "Preliminary Report" (report) on its investigations. In this report, reference is made to various individuals in connection with the subject matter of the investigations. These persons included Sir Julius Chan (the appellant) who was the Prime Minister of Papua New Guinea at the time the property referred to above was purchased. He was served with a copy of the report and was invited to respond to parts of the report that made reference to his involvement. I presume that this was done in accordance with s 17 (4) (b) of the Organic Law. To date the appellant has not responded.

Instead, he filed judicial review proceedings against the compilation of the report pursuant to O 16 of the National Court Rules (Rules) on the grounds, which include allegations that there have been breaches of the principles of natural justice. I will come back to the grounds of review later in the judgment. 

Leave for judicial review has been granted. In preparation for the substantive hearing of the review, parties came before Woods J. for directions in various matters such as discovery, the form in which evidence may be admitted and cross examination of any witnesses. The trial judge expressed the desire to hear full arguments on these directions. The parties made submissions on 6 July and His Honour gave his ruling in a reasoned decision on 15 July 1998, and gave the following directions:

"This review will be done on the basis of the Statement made in support of the application and the affidavit of the applicant filed at the time the application was filed and when presumably the applicant indicates where and how he believes he has been denied natural justice and a right to be heard. And the preliminary report will also be available for the review. It is not appropriate to order any more discoveries. I gave a limited discovery at the time leave was granted and that discovery was to allow to acquaint himself with the relevant leases or transfers or proposals to remind himself of any matters where he may be implicated or where he may have knowledge. Anything else must be purely within the knowledge and memory of the applicant. There is no need for any further subpoenas, and most of the matters already under subpoena are not necessary for the hearing of this review. Of course if they may help the applicant remind himself of matters where he may have been able to assist the investigation then so be it or alternatively if he felt that an investigation had overlooked them to his advantage then of course it was open to him to draw the Commission’s attention to them or request that such be included in their final report, via Section 17 (4) of the Organic Law.

I will schedule the review for hearing on Monday 31st August 1998"

The appellant filed application for leave to appeal against this ruling pursuant to s 14(3)(b) of the Supreme Court Act (Act). There is no dispute that this is an interlocutory ruling and therefore leave is required. The application for leave to appeal has come before us for determination. This is the first matter that should be dealt with (see Henzy Yakham and the National Newspaper v Dr Stuart Merriam and Carrol Merriam; [1998] PNGLR 555.

At the hearing of the application on 28 August 1998, counsels for both parties made full submissions on whether or not we should grant leave to appeal. During submissions, counsel for the appellant sought to rely on a formal order entered subsequent to the ruling on 15th July 1998. It is not necessary to set out the terms of the order, as it will become apparent later in my judgment that it will not be necessary to refer to it in the determination of the issues in the present case. 

This order was not drawn to the attention of counsel for the Commission until the hearing of the application for leave. Counsel for the Commission submitted that this order presents an obstacle to a legal submission he proposes to make with regard to the competency of the application for leave to appeal, namely, that the directions given by the trial judge is not a judgment or an order within the meaning of the provisions of the Supreme Court Act and therefore there cannot be an application for leave to appeal. 

The Court retired briefly to consider it’s ruling in view of the fact that the trial of the matter was set down for Monday, 31 August 1998. Upon perusal of the formal order, the Court took note of the fact that some of the terms of the formal order were not identical to the ruling given by the trial judge. This was drawn to the attention of the parties and the Court sought to clarify the terms of the order and whether or not this order was entered with the knowledge and authority of the trial judge. The parties were unable to settle these matters. In the circumstances, the Court indicated that it would not give its decision on the application for leave to appeal until the nature and the terms of the formal order was clarified. The Court directed that the parties should go before the trial judge on 31 August 1998, and clarify the order. In the circumstances, the Court had no alternative but to adjourn the determination of application for leave to appeal to another date and consequently stayed the commencement of the trial scheduled for 31 August 1998.

The matter came back for further hearing on 2 October 1998, and counsel advised the Court as to what transpired on 31 August before the trial judge. It is not necessary to set out the full details of the proceedings before the trial judge. The trial judge after hearing submissions from counsels simply set aside the formal order and stated that the ruling on the 15 July 1998 speaks for itself. 

Counsel for the appellant complained about the correctness of this ruling and he indicated that the appellant may appeal this decision. Counsel for the appellant sought a further adjournment of the application for leave to enable such an appeal to be pursued. We dismissed the application and proceeded to complete the hearing on application for leave to appeal. 

The position is that the formal order is now no longer in existence. Counsels for the parties made further submissions on the merits of the application for leave to appeal.

I now consider the merits of the application for leave to appeal. This application raises the issue of the nature of evidence that may be required to determine the merits of such a review. 

Before I consider these issues, it is necessary to determine the preliminary issue, which has been raised, namely, whether the application for leave to appeal is competent. Counsel for the Commission submits that the present application is incompetent in that the directions given on 15 July 1998 do not come within the meaning of "judgment" under s 1(1) Supreme Court Act and therefore no application for leave may be brought. He relies on cases from Australia (Landsal v REI Building Society) (1993) 41 FCR 421; French Caledonia Travel Service Pty Ltd v Elatri (Full Court of the Federal Court, unreported judgment dated 22nd May 1992)). Counsel also relies on Moresby North East Election Petition [1977] PNGLR 429) for the proposition that an "interlocutory judgment" is a decision given upon a particular motion or summons before the Court. In the present case, he submits that there was no such formal motion or summons before the Court. 

Counsel for the appellant on the other hand submits that there is no merit in the submissions by counsel for the Commission. He submits that reliance should not be based on the Australian cases in that they are based on a restricted definition of "judgment" in the relevant legislation. He submits that definition of "judgment" under the Supreme Court Act is wider and would include a ruling given in the present case.

I agree with submissions by Mr Cooke QC that the Australian cases are not applicable in that the definition of "judgment" in the relevant legislation is limited. The definition of judgment is wider under our legislation. It includes a ruling. 

Counsel for the Commission also relies on Moresby North East Election Petition (supra). Prentice DCJ., with whom Pritchard J agreed, held the view that an interlocutory judgment is one, which is given upon a particular motion or summons. In the present case, he submits that there was no formal application either by motion or summons for the directions. However, the fact that there is no such formal motion or summons does not affect the validity or the nature of the ruling given. A court is entitled to hear a motion or summons without such formal application being filed. The Court may dispense with such formal requirements under the Rules. 

The Deputy Chief Justice distinguished a ruling and an interlocutory judgment on a different consideration:

"The distinction the two types of decision, an interlocutory judgment on the one hand and a ruling on the other, may be illustrated by the fact that a ruling might be vacated or altered during the course of a hearing."

I do not wish to express an opinion on the correctness of this statement, as this is not a point raised before us. Following the passage referred to above, the Deputy Chief Justice continued:

"I am satisfied that an effective ‘review’ of the National Court’s proceedings, within the meaning of s 155 of the Constitution, can be obtained on appeal."

That was an indication that the ruling was subject to appeal under the provisions of the Supreme Court Act. He did not to refer to the definition of "judgment" under the Act. That statement is consistent with the view that the interlocutory ruling may be appealed.

The Deputy Chief Justice was primarily concerned about interrupting the course of the trial of the election petition, which had already commenced. In the present case, the trial has not yet commenced.

I reject the submission that the application for leave to appeal is incompetent.

Now I return to the merits of the application for leave to appeal. Since the case of Henzy Yakham and National Newspaper v Dr Merriam and Carrol Merriam (supra), the Supreme Court has directed that an application for leave to appeal is to be treated separately from a notice of appeal. An application for leave to appeal should be dealt with first. In the past, an application for leave was always heard together at the same time as a notice of appeal and therefore there is no precedent, which has determined the proper principles that should guide the exercise of the discretion when considering an application for leave to appeal. The Supreme Court Act, s 10 provides that a single judge of the Supreme Court may determine an application for leave to appeal. It is desirable that this Court should lay down same guidelines for exercising this discretion. The Supreme Court Act does not define the manner in which the discretion for leave to appeal may be exercised. This discretion is left to be developed by the Court.

It is helpful to have regard to the manner in which courts have dealt with the requirement of leave in other judicial proceedings.

Order 16 of the National Court Rules require leave for judicial review. 

The purpose for requiring leave in an application for judicial review is explained by Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739:

"Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative errors, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative actions while proceedings for judicial review of it were actually pending even though misconceived."

Lord Scarman said at page 749:

"The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief-makers."

These passages have been approved by this Court (see Olasco Niugini v Kaputin [1986] PNGLR 244 at 245; Ila Geno & Others v PNG [1993] PNGLR 22 at 24). 

In England, the House of Lords has considered the question of leave to appeal against a decision of an Arbitrator to the High Court under the Arbitration Act. In Pioneer Shipping Ltd & Others v BTP Tioxide Ltd [1982] AC 724, the House of Lords discussed the intention of the Parliament with regard to leave to appeal to the High Court. The idea of leave was to preserve the finality of decision of arbitrators; that an appeal should be allowed only on leave. This decision was followed in Antaios Compania Navipra S.A. v Salen Rederiena AB [1985] AC 191. It is clear from these decisions that the requirement for leave is a process of filtering cases to prevent many cases going to the higher tribunal without any merit.

I have no doubt that the requirement for leave to appeal under our Act has the same purpose. The question is; what is the appropriate test for granting leave? In the English cases referred to above, the House of Lords developed the test that in an appeal from an Arbitrator to the High Court, the test is whether there is a prima facie case that the Arbitrator was wrong in his decision on a point of law.

On the question of leave to appeal from High Court to the Court of Appeal, I prefer the test adopted by the majority in Geogas SA v Trammo Gas Ltd [1991] 2 WLR 794 which is comparable to establishing an arguable case. 

In considering an application for leave to appeal, due consideration must be given to the fact that an appellant has had an opportunity of a hearing and determination by the National Court. That no person who has a right to appeal should abuse the right to appeal by wasting the Court’s time in bringing cases without any merit. In my view the test should not be any different to application for leave for judicial review where the applicant is required to demonstrate an arguable case only (see Ila Geno & Others v PNG (supra)). 

In the course of preparing my opinion in this matter, the decision of the Supreme Court in Rimbink Pato v Anthony Manjin & Others; [1999] PNGLR 6 has been drawn to my attention. The Court formulated a different principle to the one I have adopted. The Court adopted the criteria for leave for judicial review pursuant to s 155(2)(b) of the Constitution (Avia Aihi v The State [1981] PNGLR 81). With respect I am not persuaded that this is the appropriate test that should be applied. The jurisdiction for judicial review under s 155(2)(b) is unique and it has its roots in the circumstances, which are not comparable to application for leave to appeal or application for judicial review under O 16 of the Rules. For these reasons I would not follow this decision.

The question is whether there is an arguable case against the ruling made by the trial judge in limiting any further discovery and limiting the evidence at the substantive hearing to the affidavit of the appellant filed at the hearing for leave. The enquiry at this point is a limited one. Whether or not the argument will succeed in the substantive appeal is another matter.

The appellant in his O 16 statement claims orders in the nature of certiorari, prohibition, declaration and injunction against the compilation of the report. The appellant relies on several grounds for judicial review. They may be summarised as follows:

1.	Lack of jurisdiction to make any report;

2.	Breach of principles of natural justice;

(a)	failure to provide minimum standards of procedural fairness; or

(b)	allegations of bias; and

3.	The conclusions reached are unreasonable (see Associated Provincial Future Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

Whether or not the judicial application review has any merit is not an issue before us. That will be a matter for the trial judge at the substantive hearing.

In so far as it is relevant to the issue in the present case, O 16 r 1 (2)(c) provides that orders under this rule may be made having regard to "all the circumstances of the case". O 18 r 8 makes provision for discovery, interrogation and cross-examination. These rules clearly envisage that parties are entitled to bring all relevant materials connected with the grounds of review contained in the O 16 statement. It is clear that all parties are entitled to lead all relevant evidence (see the right of applicant to reply to any new material brought by the other party O 16 r 6 (2)). Where the issues are simple and facts are straight forward, a direction for parties to file affidavits will suffice. However, where the relevant facts are complicated and voluminous, appropriate directions such as affidavits, cross examination of deponents and compilation of relevant documents in some acceptable form is called for. The indication in the present case is that from the limited discovery, there will be many documents. Assuming that all these documents are relevant, directions will need to be given as to the manner in which they should be admitted in evidence.

The ruling by the trial judge limited further discovery and confined the evidence the appellant may call to the affidavit filed in support of the application for leave for judicial review. Junior Counsel for the appellant, Mr Varitimos sought clarification of this ruling in respect of evidence that may be led at the trial and the trial judge confirmed in no uncertain terms that the appellant will be confined to the affidavit filed earlier. This ruling necessarily confines the appellant to the evidence set out in the affidavit in support of the application for leave for judicial review. By necessary implication the appellant is prevented from filing additional affidavits as he may wish to file (O 16 r 6 (4) of the National Court Rules) in support of matters already deposed in the affidavit in support of application for leave and also in relation to other matters arising out of the discovered documents. It is arguable that the ruling by the trial judge affects the ability of the appellant to prove his case at the substantive judicial review hearing thereby resulting in injustice. As I have indicated before, whether or not this ground will succeed in the substantive appeal is another matter.

I am satisfied that there are arguable grounds to be argued on appeal.

I have had the opportunity of reading the majority opinion and I am unable to join them for two reasons. First, they have dealt with the full merits of the grounds and not the question of leave to appeal. Secondly they have adopted the approach taken in Moi Avei v Electoral Commission; and Charles Maino (1998) SC584 unreported. This case involves consideration of principles peculiar to s 155(2)(b) of the Constitution and is not applicable to question of leave to appeal under the Supreme Court Act.

As the appellant has also filed notice of appeal I would treat this as the notice of appeal in this matter and the appeal should now be set down for hearing on the full merits. I further direct that the judicial review should not be set down for hearing until the appeal in this matter is determined. 

I further order that the appellant will have the costs of this application.

Sheehan and Jalina jj. This is an application for leave to appeal against an interlocutory judgement of National Court pursuant to s 14(3)(b) of Supreme Court Act Ch 37. Final decisions of the National Court may be appealed, for cause, as of right. But decisions that do not finally determine rights do not carry the same, as-of-right appeal process. As shown by s 14(3)(b) of the Supreme Court Act leave of the Court is necessary for an appeal from interlocutory judgements. The relevant part of that section state: 

"14(3) No appeal lies to the Supreme Court without leave of the Supreme Court:

(a)	….. 

(b)	from an interlocutory judgement made or given by the National Court except – 

(i)	where the liberty of the subject or the custody of infants is concerned; or 

(ii)	in cases of granting or refusing an injunction or appointing a receiver; or 

(iii)	in such other cases prescribed by the rules of Court as are in the nature of final decisions."

Section 1 (1) of the Act defines "judgment" as including:

"a finding, decree, order, rule, conviction, verdict and sentence, a decree, order or rule nisi, and a refusal to make a finding, decree, order or rule;"

That is such a catchall definition as to cover all decisions of a court, interlocutory or final, and we believe it must be seen as the intention of the legislation to do so. The range of "judgements" open to review is shown in the decision of Kapi DCJ in Balakau v Torato [1983] PNGLR 242 which states:

"The power to review is an all embracing one to review all judicial acts of the National Court without exception. This includes all acts of the National Court under the sun, whether they relate to matters of fact, law, criminal, civil or whatever. There is nothing that the National Court can do which does not come under the power of review of the Supreme Court under s 155(ii)(b)."

Thus not withstanding the arguments of Counsel for the respondent we are satisfied the order challenged should be treated as a judgement, an interlocutory judgement.

Interlocutory judgments are orders, directions, decisions or rulings as above made prior to or during the course of a trial or action but which do not decide the issues between the parties. They may be made either for the purpose of maintaining the status quo, or for purposes of practice and procedure assisting parties to prosecute or defend an action. Generally, they are directives concerning all matters relating to the conduct of the trial but, importantly; do not constitute final orders determining the rights of the parties. The citation by Counsel for the respondent from the decision of the Federal Court of Australia in Landsal v REI Building Society (1993) 41 FCR 421 at 430 if not appropriate in showing the full breadth of a PNG definition of "judgment" is apposite in describing the essence of an interlocutory judgement where it said: 

"Unless the case is one in which the judge has pronounced a judgement or order or can be seen to have intended to do that, we do not think it is open to a litigant to appeal from a determination made in the course of a hearing, which does not necessarily dispose of any question in the litigation, irrespective of the finality with which the judge may have expressed himself in making the determination. If it can be seen that the judge did not intend to make an order reflecting conclusions he has reached part way through conducting the trial of a matter." (It is not a final order).

(Brackets added).

That is reflected in the Supreme Court decision that states the tests applicable to define an interlocutory judgement. In Pato v Chan & Ors; [1998] PNGLR 449 which followed on earlier Supreme Court decision Shelley v PNG Aviation Services [1979] PNGLR 119 and the Australian High Court in Carr v Finance Corp. for Australia (No. 1) (1988) CLR 297, Kapi DCJ said;

"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". 

The restriction on appeal of such judgements provided by s 14 (3) (b), this need for leave is essentially for two reasons though both are related. The first reason is the need to uphold the function of the Courts of the National Judicial System, to ensure that the tribunal empowered by law with the jurisdiction to hear and determine a matter, is able, within the scope and discretion of that jurisdiction, to conduct and order its own proceedings. 

In terms of the Latin maxim in interest reipublicae ut sit finis litium… . It is in the interest of the State that lawsuits not be protracted. There has to be cause shown therefore why the ordinary process of trial and determination of the issues should be interrupted by appeal procedures. Simply put there has to be good reason that the Court empowered by law to try the issues between the parties should not be allowed to do so and that notwithstanding an order made in the National Court is interlocutory only, it is of such a nature that it requires the intervention of the Supreme Court. 

Australian decisions show that an appellate court will exercise particular caution in reviewing interlocutory decisions of lower courts particularly those involving exercises of discretion in matters of practice and procedure. A statement often cited is that of Jordan, J. In Re the Will of Gilbert (1946) …..(NSW) LR 318: 

"I am of the opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercise of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."

The High Court of Australia in Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc. (1981) 148 CLR 170 said: "A Court must remain in control of its interlocutory orders." It went on to point out that application before the same Court may result in the disputed order being vacated or varied. "Further orders may well be made whenever inter alia, new facts come into existence or are discovered which make the order unjust."

In Garrard v Email [1993] 32 NSWLR 662 at p 668. Kirby ACJ notes that appellate Courts "must pause long and hard before disturbing interlocutory orders and especially in matters of practice and procedure and costs". He went on to say that what is required is a manifestly unreasonable exercise of discretion before the Appellate Court should intervene.

English decisions reflect this concern. Appellate courts do not intervene in the exercise of discretion within jurisdiction unless it can be shown that such discretion was exercised on wrong principle pursuant to a mistake of fact or law or that the order would result in injustice: Hadmor Productions v Hamilton (1982) 2 WLR 322 (HL), Metropolitan Properties Co Ltd v Purdy (1940) 1 All ER 188 CA., Bradford/Building Society v Borders (1939) 3 All ER 29 at 33.

The second reason is a corollary of the first namely that interlocutory judgements, not being final orders may be vacated or varied by the court that issued them. 

Plainly a Court in making interlocutory decisions is not functus officio i.e. unable to reconsider an order afresh. Rulings so made, are open, upon application pursuant to the rules of that Court to vacate or vary them. In R. Lands Tribunal exp. City of London [1982] 1 All ER 892 where the Court of Appeal with Lord Denning presiding decided that having regard to the fact that there was other machinery available within jurisdiction that it would be unusual for a litigant to have the right to go straight to the Court of Appeal on an interlocutory matter. 

In Boake v Stevenson (1895) 1 Ch.D. 358 the Court ruled that a party aggrieved by an adverse interlocutory ruling had the option of either moving to discharge or vary the order, or to seek leave to appeal. There is a further statement in Garrad v Email (supra) illustrative of the matters that should be considered when challenges to directions on matters of practice and procedure are made. Mahoney, J. (at page 679) states that: 

"Rules of Court should be observed, and a party may be penalised for not obeying them… . This is not merely because parties to litigation must obey the law. It derives from the interest of the parties and the public generally in the efficient, effective and timeous disposal of litigation …with proper qualifications, it is the function of the Court to ensure that the Rules are obeyed that this may be achieved. The achievement of justice is the end of litigation, but the timeous disposal of a case may be an important part of the justice parties seek to obtain."

Thus there may well be opportunity for relief open to a party without the need of recourse to the appeal procedure. To argue that such a course may end in the same result is inappropriate because such assertion makes an unwarranted presumption on the Courts integrity which demands that all applications made at any time – be considered judicially. 

The Supreme Court had its previous decisions and these principles in mind in SCA 584 Moi Ave & The Electoral Commission v Charles Maino when it said: 

"An integral part of matters that the Court must bear in mind its exercise of that discretion is the integrity of the judicial process itself. The National Judicial System with the Supreme Court at is head provides for the orderly disposal of the business of the Court… .

Each Court in the System has full authority within its own jurisdiction. Such jurisdiction of course remains subject to supervision of a higher court but supervision does not mean interference, nor does it mean intervention in matters of procedure or discretion within jurisdiction. Simply stated, each court is intended to consider and deal with matters before it to completion. Parties who are dissatisfied may then progress to a higher court. When a court is properly seized of a matter only in exceptional circumstances should there be need for intervention before it makes a final determination, citation was made from… . In re Moresby North East Election Petition, Paterson Lowa v Goasa Damena [1977] PNGLR 429 where Prentice DCJ said: 

‘that as a general rule the Supreme Court should not interfere with a National Court hearing until it had reached a conclusion … finality should normally be obtained in the National Court before appeal were sought therefrom’

The Learned Judge went on to point out ‘the potentially catastrophic effects’ too ready intervention during trial, can have on the processes of lower Courts, and it may also be said, on any other authority entrusted with judicial powers, and the parties before them. Clamours for review of any adverse ruling can not only stall and stultify courts or tribunal proceedings, they can also work injustice by frustrating the purposes of the legislation authorising a particular enquiry … .

Accordingly this Court must be sure that there is serious jurisdictional error before intervening prior to a Court or Tribunal making its final determination of the issues before it."

In light of the Supreme Court’s prior decisions which in fact confirm the practice in overseas jurisdictions, leave to appeal is therefore unlikely to be given in circumstances where the judgment challenged may have little or no bearing on the final determination of the issues between the parties; leave should not be given where by through the rules of the court there is obvious recourse for further application on the matter, nor should leave be given where the ruling is within the discretion of the Court and discloses no obvious breach of principle.

Just how this Court will exercise its discretion in granting of leave to appeal or for review varies according to the relevant circumstances. These range from the need to show "exceptional circumstances" in time barred appeal cases starting with Avia Aihi v State [1982] PNGLR 92 and PNG v Albert [1988] PNGLR 138 to the showing of an arguable case, that is one of "cogent convincing reasons on clear legal grounds" in judicial review (Moi Avei & Election Commission & Charlies Maino SCA 584). Of course the judicial review criteria nonetheless relates to substantive decisions effecting parties rights, and even then, remains subject to there being no other remedy open, that is equally effective and convenient.

So to obtain leave to appeal an interlocutory judgment, it is not simply a matter asserting there is an arguable case; that there has been some error. It is not the case that every error will effect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but also that the error effects a party’s substantive rights or will prevent the proper determination of the issues. That is, there is error in the interlocutory judgment that goes to jurisdiction. 

Such is the contention of the applicant in respect of the interlocutory judgement of 15 July 1998. 

It reads as follows:

"This review will be done on the basis of the Statement made in support of the application and the affidavit of the applicant filed at the time the application was filed and when presumably the applicant indicates where and how he believes he has been denied natural justice and a right to be heard. And the preliminary report will also be available for the review. It is not appropriate to order any more discovery. I gave a limited discovery at the time leave was granted and that discovery was to allow to acquaint himself with the relevant leases or transfers or proposals to remind himself of any matters where he may be implicated or where he may have knowledge. Anything else must be purely within the knowledge and memory of the applicant. There is no need for any further subpoenas, and most of the matters already under subpoena are not necessary for the hearing of this review. Of course if they may help the applicant remind himself of matters where he may have been able to assist the investigation then so be it or alternatively if he felt that an investigation had overlooked them to his advantage then of course it was open to him to draw the Commission’s attention to them or request that such be included in their final report, via Section 17(4) of the Organic Law."

Mr Varitimos Counsel for the applicant deposed to comment’s made by the trial judge after its delivery and an order was sealed pursuant to those comments. But that order (now set aside) and the Judges comments post ruling are not the subject of this application. Simply the ruling itself.

Very obviously it is an interlocutory ruling. It makes no final order on matters of procedure nor on any of the issues the subject of the judicial review application. If anything it may be said to be inconclusive on the very matters the Applicant wants to complain about. 

Mr Cooke submitted that those orders "are likely to have a very detrimental effect on the outcome of the review, by reason of the prohibition on the applicant to be able to refer the court to all relevant issues raised in the Order 16 statement filed by him".

He went on to say: 

"The learned judge restricted the grounds which he would consider on the review to the Order 16 statement made in support of the application for review and restricted the material to that contained in the affidavit of the applicant filed when leave to issue judicial review proceedings were sought ex parte and the preliminary report referred to in the affidavit but not filed." 

It is of course not appropriate in this application to embark or an enquiry to determine the merits of the appeal. But there must be at least an examination of the contentions and the evidence supporting them to establish whether there is obvious error going to jurisdiction that warrants leave. 

As may be seen the ruling starts with the direction that the "review will be done on the basis of the Statement made in support of the application and the affidavit of the Applicant filed at the time the application was filed". There are no words of restriction or limitation there, simply a statement that directly follows Order 16 Rule 6 (i), which states: 

"(1) Copies of the statement in support of an application for leave under Rule 3 must be served with the notice of motion and, subject to Subsection (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement." 

It goes on to say "and when presumably the applicant indicates where and how he believes he has been denied natural justice and a right to be heard."

Is this second phrase conjunctive or disjunctive? It is a part of the same first sentence. Further the word "and" indicates addition rather than exclusion. It leaves the first sentence open to an interpretation that other information (and or other affidavits in this case) may be put in evidence. The appellant has told this Court, that leave for the review was granted on the basis of the Statement and several affidavits including the applicant’s own. It would be strange if leave granted on the basis of those several assertions of fact were to proceed with some of them excluded. There would need to be some clear statement of the Court to that effect. There is none obvious here. 

There is complaint that though discovery was given, the ruling "in effect" prohibits reference to already discovered material. Again there is nothing apparent from the ruling, to indicate that the trial judge has overturned the normal consequences of discovery, that relevant evidence so disclosed is admissible and therefore available at the hearing. 

There is also complaint that further discovery is prohibited and that the applicant is therefore prevented from reviewing "the Ombudsman Commission file" to enable the applicant to make an evaluation of base materials which may disclose bias. But the ruling only comments that the trial judge sees no need for further discovery. Is that a prohibition or simply a statement that no reason has been shown for further discovery. This complaint also appears to contradict an earlier statement by Counsel for the Applicant when he referred the Court to the Ombudsman Commission advice that "the documents the Commission had regard to" were already. 

It is unnecessary to cite further examples from the ruling. It suffices for purpose of this application a note that while the ruling may be subject for further clarification of the directions there is no obvious error of principle showing non compelling reason to fear that injustice will be caused. 

There are ample provisions under the National Court Rules and Order 16 in particular to ensure a party has every opportunity to present its case and there has been nothing before us to show, to indicate that the Applicant has been refused any application made pursuant to those Rules. An unsupported statement of wish or intention regarding lines of enquiry an applicant wishes to pursue is not enough to warrant orders. There must be at least sufficient notice and reason given to take any application for further particulars, discovery or the like beyond mere speculation.

Order 16 Sub rule 6 (2) for example provides: 

"(2) The Court may on the hearing of the notice of motion allow the applicant to amend his statement, whether by specifying different or additional grounds for relief or otherwise, on such terms if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application. 

There are of course the requirements under Order 16 Rule 6 (3) and (4): 

"3.	When the applicant intends to ask to be allowed to amend the statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.

4.	Each party to the application must supply to every other party on demand and on payment of the proper charges copies of every affidavit which he proposes to use at the hearing, including in the case of the applicant, the affidavit in support of the application for leave under Rule 3."

These require due notice of substance of new or additional material, being given to other parties.

There is a further consideration. That is by asking what this Court would do if it were to accede to the request for leave. It would most likely find that the ruling required clarification. The appropriate solution would not be an enquiry by this Court as to whether the matter is ready for trial, and upon what evidence. The matter would be referred back to the National Court to resolve matters presently unresolved. 

Therefore while the ruling may be unsatisfactory from the applicant’s point of view, while it may require further clarification or enquiry, that enquiry is not matter for this Court.

That course being already and always open to the applicant in the National Court this application for leave amounts to an abuse of process and is to be dismissed. 

The respondent’s costs shall be paid by the applicant.

Lawyers for the appellant: Warner Shand.
Lawyers for the respondent: David Cannings.