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Kong v Cakara Alam (PNG) Ltd [2019] PGNC 424; N8155 (30 July 2019)

N8155

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 19 OF 2019

BETWEEN:
THOMAS KONG also known as HENG SIONG KONG, GREEN WOOD PNG LIMITED & OTHERS
First Appellant

AND:
GREEN WOOD PNG LIMITED
Second Appellant

AND:
GRAND SHINE PNG LIMITED
Third Appellant

AND:
CAKARA ALAM (PNG) LIMITED & OTHERS
First Respondent

AND:
PULIE ANU TIMBER COMPANY LIMITED
Second Respondent

Waigani : Gavara-Nanu J
2019 : 11^th & 30^th July

PRACTICE AND PROCEDURE – Appeals – District Courts Act, Chapter No. 40; ss. 146, 152; 219 & 225 – Whether an appeal can lie against an interlocutory order

PRACTICE AND PROCEDURE – District Courts Act, Chapter No. 40 – Appeals – Interlocutory orders – Lack of statutory procedure – Scheme of the District Courts Act – Development of the underlying law – Duty of the Court – Constitution; Sch. 2.9 – General common law principles – Doctrine of judicial precedent - Stare decisis - Development of jurisprudence

Cases Cited:

Asoka Seneviratne v. Graham Chaffey (2000) N2014
Paul Paraka v. Senior Constable Pius Peng & Ors (2015) N6120
Paul Paraka v. Senior Constable Pius Peng & Ors (2015)SC1780

Counsel:

D. Aigilo, for the Appellants/Respondents
S. Kati, for the Respondent/Applicants

30^th July, 2019

1. GAVARA – NANU J: This is an application by the respondents made pursuant to a notice of motion filed on 5 July 2019. The application is made under Order 18 r 7 (12) (4) of the National Court Rules, seeking dismissal of this appeal in its entirety for being incompetent.
   
2. The respondents argued that no appeal can lie against an interlocutory order of the District Court. It was argued that this appeal is incompetent because it has no statutory basis as the District Courts Act, Chapter No.40, only provides for appeals against final orders.
   
3. The respondents relied on a number of National Court decisions, one of which is Asoka Seneviratne v. Graham Chaffey (2000) N2014. In that case Injia J (as he then was) said:
   

“An appeal from an interlocutory ruling of a District Court is not competent because the District Courts Act does not provide a procedure for appeals against interlocutory orders”.

4. His Honour also said the District Court is a creature of a statute, thus its practices and procedures are prescribed by the District Courts Act, and the Court cannot look outside of the District Courts Act, for procedures for appeals from the District Court. His Honour referred to s.146 of the District Courts Act, as a provision which he said clearly provides that appeals can only lie against final orders.
5. Section 146 is in these terms:

146 Court to decide cases

The court, having heard what each party had to say and the evidence adduced by each, shall consider and determine the whole matter and shall make an order against the complainant or dismiss the set-off as the case requires.

6. His Honour said s. 146 has to be read together with s. 219, which provides for appeals against an order or an adjudication of the District Court to the National Court. His Honour said these provisions make it abundantly clear that such orders or adjudications are intended by the Parliament to be final.
   

7. Another case relied upon by the respondents is Paul Paraka v. Senior Constable Pius Peng (2015) N6120. This case concerns a District Court proceeding. The appellant filed an appeal against the decision of the District Court, which was interlocutory in nature under s. 219 of the District Courts Act. His Honour, Makail J presiding over the appeal held among others that the District Courts Act, does not provide for appeals against interlocutory orders. The appellant appealed the decision to the Supreme Court, the Supreme Court dismissed the appeal. See, Paul Paraka v. Pius Peng (2016) SC1780.

8. Pursuant to the doctrine of judicial precedent or stare decisis, the Supreme Court decision in Paul Paraka v. Pius Peng (supra) is binding on this Court. See, Schedules 2.8; 2.9 and 2.10 of the Constitution. See, also Titi Christian v. Rabbie Namaliu (1996) SC1583 and Ref. by the East Sepik Provincial Executive (2011) SC1154.

9. Doctrine of judicial precedence or stare decisis should be applied save in exceptional cases, especially where the earlier ruling or precedent was manifestly wrong in law. See, Cain & Another v. Malone [1942] C.L.R 10 at 15 per Latham CJ or was clearly inconsistent with the established principles and other authorities. See, Scruttons Ltd v. Midland Silicones Ltd [1992] 2 W.L.R 186 at 199, per Lord Reid. Although the observations in these two cases were made in the context of the decisions of the same Courts of the higher jurisdiction, in this jurisdiction the observations can and do apply to the decisions of the National Court as to the Supreme Court decisions. See, Motor Vehicles Insurance Limited v. Roy Manduru (2018) SC1750; Application by Paul Tiensten (2014) SC1343 and Titi Christian v. Rabbie Namaliu (supra).

10. In this instance though, the issue of judicial precedent or stare decisis does not arise because I have, as did the Supreme Court in Paul Paraka v. Pius Peng (supra), which I have followed, found that the District Courts Act, does not provide for appeals against interlocutory orders.

11. The orders appealed in this instance were given on 26 February 2019, by the Kimbe District Court in respect of a civil complaint. The Kimbe District Court ordered that its decision on the civil complaint be reserved pending full determination of the National Court proceeding in OS 116 of 2017. The District Court also made certain restraining orders against the appellants. The appellants argued that the District Court should have given its decision on the civil complaint instead of reserving it and should not have granted the restraining orders. Given the types of orders given by the Kimbe District Court, it is plain that the proceeding in OS 116 of 2017 had a direct bearing on the District Court proceeding.

12. Mr. Desmond Aigilo of counsel for the appellant argued that the District Court erred in giving a narrow interpretation to s.219. He argued that the word “adjudication” in s.219 should be given wider interpretation to include interlocutory orders. Mr Aigilo in the alternative argued that there were exceptional circumstances which warrant an appeal against the interlocutory orders, thus the appeal is competent.

13. This issue has in fact been settled by the Supreme Court in Paul Paraka v. Pius Peng (supra) where the Supreme Court said:

"The arguments asking for a wider meaning to be given to the word "adjudication" as used in s. 219 (1) of the District Courts Act, are not supported by any case or authority".

14. When one looks closely at the scheme of the relevant provisions of the District Courts Act, which deal with or govern the appeals, especially the provisions under PART XI, they quite plainly relate to final decisions or orders.

15. There are sound legal and public policy reasons for this view. If appeals were allowed against interlocutory orders of the District Court, it will result in long delays in cases being disposed of. This will lead to build up in case backlog and reserve and outstanding decisions. Such practice will also, more than likely open floodgates to all manner of appeals from ill conceived orders and cause disruptions to the smooth flow of District Court proceedings. The practice will work against the cardinal rule that every litigation should as a matter of public policy and interest be brought to finality with due despatch.

16. Given the absence of a statutory procedure in the District Courts Act, specifically governing appeals from interlocutory orders of the District Court, it is the duty of this Court to fill the gap by interpreting the relevant provisions of the District Courts Act, that deal with appeals and give effect to and enforce the intention of the Parliament in those provisions. The duty of the Court is to look at upholding the clear intention of Parliament when interpreting and applying those provisions. In The State v. The Independent Tribunal Ex Parte Moses Sasakila [1976] PNGLR 491 at 506 and 507, per Kearney J (as he then was), in stressing this principle said:

“The ‘dynamic character’ of the Constitution is emphasized; in interpreting the laws the judges are urged to use ‘judicial ingenuity’ in appropriate cases, to do justice. One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or ‘plain meaning’ test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search throughout is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not legislation, and one in which the best guide remains the provisions of the Act itself.”

(My underlining)

17. Consequently, for the reasons given, I find the provisions of the District Courts Act, which govern the appeals are intended by the Parliament to relate only to final orders.

18. For the forgoing reason, I find that this appeal is incompetent and has no merit.

19. As I alluded to earlier, the interlocutory orders were made pending the outcome of the National Court proceeding in OS 116 of 17; this decision should now pave the way for the parties to finalise that proceeding.

20. The appeal is dismissed with costs.
____________________________________________________________
Simpson Lawyers: Lawyers for the Appellants
Kandawalyn Lawyers: Lawyers for the Respondents