SC976 

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 123 OF 2007

BETWEEN:

SEKESU SISAPI LAND GROUP (INC) ILG No. 2121
Appellant

AND:

TURAMA FOREST INDUSTRIES LIMITED
First Respondent

AND:

MR. PEPI KIMAS, SECRETARY OF DEPARTMENT
OF LANDS & PHYSICAL PLANNING
Second Respondent

AND:

MR. RAGA KAVANA, THE REGISTRAR OF TITLES,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent

Waigani: Hartshorn J.
2008: 13th October,
: 17th November

PRACTICE AND PROCEDURE –APPEAL - Application for Leave to Appeal to the Supreme Court a National Court decision granting leave for Judicial Review – Application for a stay pending the hearing of the Appeal - Tests to be applied to the facts of each application for leave to appeal- Exercise of discretion by trial Judge based on incorrect submissions on law and mistaken facts - Arguable case established - sufficient cause shown – Leave to appeal granted 

PRACTICE AND PROCEDURE – Staying a decision of National Court – Factors to consider - Interests of justice favour grant of stay of proceedings – stay order granted

Facts:

The appellant seeks leave to appeal and to stay a decision of the National Court. The decision granted the first respondent leave to apply for judicial review of a decision of the Secretary of the Department of Lands and Physical Planning to grant a State Lease to the appellant over land that the appellant contends is its customary land.

Held:

1. The appellant has established that it has an arguable case. Sufficient cause has been shown to interrupt the trial process by an appeal. Leave to appeal is granted.

2. The overall interests of justice favour the grant of a stay of proceedings pending the determination of the appeal.

Cases cited: 

Kitogara Holdings Pty Ltd v. NCDC Interim Commission & Ors [1988-89] PNGLR 346 
Raffin v. Richard Gault Industries Pty Ltd [1998] PNGLR 394 
Kuberi Epi & Ors v. Turama Forest Industries Ltd and The State (1998) N1761 
Gary McHardy v. Prosec Security [2000] PNGLR 279 
Oberia v. Charlie (2005) SC801 
Wawoi Guavi Timber Company Ltd v. PNG Forest Authority & Ors (2007) SCA 22/07 Waigani, delivered 29th June 2007 
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 

Counsel: 

Mr. J.M. Brooks, for the Appellant
Mr. A. Mana, for the First Respondent 

17 November, 2008

1. HARTSHORN J: The appellant, Sekesu Sisapi Land Group (Inc) ILG No. 2121 (SSLG), seeks leave to appeal and to stay a decision of the National Court. The decision granted the first respondent, Turama Forests Industries Ltd (Turama), leave to apply for judicial review of a decision of the Secretary of the Department of Lands and Physical Planning to grant a State Lease to SSLG over land that SSLG contends is its customary land.

2. SSLG contends that the judge at first instance erred in granting leave to Turama to apply for judicial review:

a) 	because of the substantial delay by Turama in bringing the review proceedings and the consequent prejudice to SSLG and others,

b) 	in finding that Turama had sufficient standing to apply for judicial review,

c) 	in finding that Turama had an arguable case.

3. Further, SSLG contends that:

a) 	Turama misled the National Court during its application for leave for judicial review as to many relevant facts and as to the meaning and relevance of the applicable legislation,

b) 	it’s proposed appeal raises issues of substantial importance to customary landowners who seek to secure tenure over their own land.

4. I will consider the application for leave to appeal first.

Right to Appeal

5. The decision that SSLG seeks to appeal was made after an ex parte application by Turama. Notwithstanding this, SSLG has the right to appeal as it has an interest affected by the decision - it owns the State Lease the subject of the proposed judicial review application by Turama. This right of appeal is confirmed in Wawoi Guavi Timber Company Ltd v. PNG Forest Authority & Ors (2007) SCA 22/07 Waigani, delivered 29th June 2007 (Injia DCJ, Hinchliffe, Gabi JJ). As to a person or party who may be entitled to appeal a decision granting or refusing an application for leave to apply for judicial review. The Court said:

Section 17 of (Supreme Court) Act says that "a person who desires to appeal or obtain leave to appeal". The word "person" was interpreted broadly by Kapi DCJ (as he then was) in the Supreme Court decision in Kitogara Holdings Pty Ltd v. NCDC Interim Commission & Ors [1988-89] PNGLR 346. His Honour stated:

"The word "person" is used as opposed to "parties". The word "person" includes all persons whose interests are affected and who might have been joined as parties to proceedings".

This interpretation gives any person who is not a party to a 	proceeding but whose interest is otherwise affected by the decision, the right to appeal the decision. We are not invited by the 	respondents to re-visit this interpretation and we too do not see any reason to depart from this interpretation.

Leave to appeal

6. The requirement to seek leave is a procedure that ensures that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgment.

7. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities listed the following tests that are to be applied to the facts of each application for leave to appeal:

a) 	is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?

b) 	does the appellant have other recourse in the court below?

c) 	was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

d) 	does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?

e) 	will substantial injustice be caused by allowing the decision to stand?

f) 	has cause been shown that the trial process should be interrupted by an appeal?

8. Then in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 (Kapi CJ, Sevua, Kandakasi JJ), the Court stated:

As this Court said in Boyepe Pere v. Emanuel Ningi the purpose of the requirement for leave to appeal under s.14 of the Supreme Court Act is to ensure only meritorious cases go to the Court on appeal. It is clear law now that in order to obtain leave of this Court, an appellant must satisfy the Court that there is a meritorious and arguable case.

Arguable case

9. SSLG contends that the judge at first instance was materially misled by counsel for Turama as to the question of delay. In answer to questions by the judge as to why Turama had waited 6 years to bring the application, counsel for Turama submitted that based on the evidence, Turama only became aware of the State Lease issued to SSLG in June 2007, hence the late application.

10. The evidence however, indicates that Turama had been aware of the State Lease since at least June 2001. Counsel for Turama in this court conceded that Turama was aware of discussions concerning the State Lease earlier than had been indicated by counsel for Turama in the National Court.

11. As to the question of Turama having sufficient standing to apply for judicial review, SSLG contends that the only interest that Turama acquired through its timber permit is a licence to log trees. It is not an interest in land and gives no title to land. 

12. The cases of Kuberi Epi & Ors v. Turama Forest Industries Ltd and The State (1998) N1761 and Raffin v. Richard Gault Industries Pty Ltd [1998] PNGLR 394 are authorities to the effect that a timber permit does not give title in law to land at all, not to the State or logger and particularly so when the customary owners have not authorised the timber permit on their land, as in this instance.

13. SSLG contends that counsel for Turama again misled the judge at first instance by submitting that:

"By the signing of the FMA the State acquires the land and it now 	becomes Government land. So it is not customary land that is subject to section 11 of the Land Act, your Honour."

14. This submission it is contended, is not correct and is misleading to the Court. There are further examples of counsel for Turama submitting incorrectly that the subject land had ceased to be customary land and had become Government land. There is also confusion evident in the submissions made by counsel for Turama concerning the provisions of the Forestry Act and the Land Act, the provisions relating to the acquisition of customary land by agreement and the acquisition of customary land for Lease-lease back purposes.

15. After giving due consideration to the above, I am satisfied that SSLG has established that it has an arguable case. 

16. As to the other considerations to be taken into account.

Other recourse

17. SSLG does have other recourse in the Court below. It can argue its case on the judicial review application.

Exercise of discretion

18. Given that incorrect submissions were made as to the knowledge of Turama concerning the existence of the State Lease and also it appears, as to the law concerning timber permits, FMA’s and Lease-leaseback arrangements amongst others, it can be argued that the exercise of discretion by the judge at first instance, was exercised after a consideration of incorrect submissions concerning the law and as to mistaken facts.

Bearing on final determination

19. The parties are both able to argue their cases on the application for judicial review.

Substantial injustice

20. As to substantial injustice that may be suffered by SSLG. The costs of the hearing of the application for judicial review would be required to be met but that does not constitute substantial injustice.

Should the trial process be interrupted?

21. As I have already determined that SSLG has established that it has an arguable case and that the exercise of discretion by the judge at first instance may have been exercised after a consideration of incorrect submissions concerning the law and as to mistaken facts, I am of the view that sufficient cause has been shown to interrupt the trial process by an appeal. Accordingly leave to appeal is granted.

Application for stay

22. Section 19 Supreme Court Act provides that unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings.

23. In Gary McHardy v. Prosec Security [2000] PNGLR 279 the Supreme Court found that it had unlimited jurisdiction to do justice and should exercise its discretionary power depending on the factors and circumstances of the particular case. Factors to consider when deciding whether to stay a decision of the National Court, include:

a) 	whether leave to appeal is required and whether it has been obtained;

b) 	whether there has been a delay in making the application;

c) 	possible hardship, inconvenience or prejudice to either party;

d) 	the nature of the judgment sought to be stayed;

e) 	the financial ability of the applicant;

f) 	a preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

g) 	whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;

h) 	the overall interests of justice;

i) 	the balance of convenience;

j) 	whether damages would be a sufficient remedy.

24. In this instance, leave to appeal is required and it has now been granted. There has been no material delay by SSLG in bringing this application. Pursuant to a direction from Injia DCJ (as he then was), the parties had to deal with other proceedings before this appeal could be progressed. A decision was delivered in those proceedings on 19 June 2008 and SSLG took steps to progress the appeal thereafter.

25. It is contended by SSLG that it is inconvenienced in having its State Lease challenged after it was granted more than 7 years ago and in addition SSLG is having to incur the expense of defending these proceedings. Similarly Turama will be inconvenienced and will have to incur expense in arguing the appeal.

26. The judgment that SSLG applies to stay is only a grant of leave to seek judicial review and as such it is contended by SSLG, no substantive rights will be affected by the granting of a stay. 

27. It is contended by SSLG that it has significant assets and is able to pay any damages resulting from a stay. An undertaking as to damages has been given. It is noted also that logging on the subject land continues to be stayed by an order of the National Court in other proceedings.

28. As to a preliminary assessment of the strength of SSLG’s appeal, SSLG contends that its appeal has very significant merit and is highly likely to succeed. In this regard, I note that I have already determined that SSLG has an arguable case and that it can be argued that the exercise of discretion by the judge at first instance, was exercised after a consideration of incorrect submissions concerning the law and as to mistaken facts. 

29. After taking all factors into account, I am satisfied that the overall interests of justice favour the grant of a stay of proceedings OS 537 of 2007. I am not satisfied that Turama would be unduly prejudiced by the imposition of a stay.

Orders

30. The application for leave to appeal against the decision of the National Court given on 13th November 2007 at Waigani in proceedings OS (JR) No. 537 of 2007 granting the First Respondent leave to apply for judicial review and making consequential orders and directions, is granted.

31. The decision referred to in paragraph 30 above is stayed pending the determination of the appeal.

32. Costs of this application are costs in the cause and time is abridged.

__________________________________________________

Gadens Lawyers: Lawyers for the Appellant
Allens Arthur Robinson Lawyers: Lawyers for the First Respondent