SC1056

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA 40 OF 2010

BETWEEN:

RAMU NICO MANAGEMENT (MCC) LIMITED
First Appellant

AND:

MINERAL RESOURCES AUTHORITY
Second Appellant

AND:

DR WARI IAMO
in his capacity as the Director of the Environment
Third Appellant

AND:

DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Fourth Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Appellant

AND:

EDDIE TARSIE
for himself and in his capacity as Ward Councillor of Ward 3, Sidor LLG
First Respondent

AND:

FARINA SIGA
for himself and in his capacity as Ward Secretary of Ward 3, Sidor, LLG
Second Respondent

AND:

PETER SEL
Third Respondent

AND:

POMMERN INCORPORATED LAND GROUP NO 12591
Fourth Respondent

AND:

SAMA MELAMBO
for himself and as Chairman of Pommern Incorporated Land Group
Fifth Respondent

Waigani: Davani, Hartshorn and Sawong JJ.
2010: 4th & 8th June

SUPREME COURT - Objection to Competency –s.14 (3)(b)(ii) Supreme Court Act – whether leave required to appeal an interlocutory order refusing to set aside an injunction – whether literal or purposive approach to statutory interpretation to be adopted - whether claim of abuse of process raises an objection to competency - whether failure to raise the question of standing in the National Court raises an objection to competency 

Facts:

The Respondents commenced proceedings in the National Court seeking declaratory and injunctive relief in respect of the disposal of tailings from the proposed Ramu Nickel mine, in the Madang Province. The Appellants are appealing against the grant of an injunction and the refusal to set aside that injunction made in those proceedings. The Respondents now object to the competency of the Appeal and the Application for Leave to Appeal and the Appellants apply for leave to appeal the refusal to set aside the injunction. The Appellants also apply for the hearing of the appeal to be expedited.

Held:

1. An interlocutory decision of the National Court that refuses to set aside an order that granted an injunction falls within s. 14 (3) (b) (ii) Supreme Court Act as a purposive approach to the interpretation of that section should be adopted.

2. Leave to appeal is not required in respect of such a decision.

3. A claim of abuse of process is distinct from and does not raise an objection to competency. 

4. If a National Court does not deal with an issue, this does not preclude the matter from being the subject of a ground of an appeal to the Supreme Court. 

5. The Objection to the Competency of the Appeal, the Application for Leave to Appeal and the Objection to Competency of the Application for Leave to Appeal are dismissed and the hearing of the appeal is to be expedited.

Cases cited:

Papua New Guinea Cases

Van Der Kreek v. Van Der Kreek [1979] PNGLR 185
Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185
PLAR No. 1 of 1980 [1980] PNGLR 326
Placer Holdings Pty Ltd v. PNG [1982] PNGLR 16
Singorom v Kalaut [1985] PNGLR 238
Karingu v. PNG Law Society (2001) SC674
Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
Bank of South Pacific Ltd v. PNG Nambawan Trophy Holdings Ltd (2004) N2717
Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812
State v. John Talu Tekwie (2006) SC843
Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853
Jeffrey Turia v. Gabriel Nelson (2008) SC949 

Overseas Cases:

General Television Corporation Pty Ltd v. DPP & Anor [2008] VSCA 49 

Counsel:

Mr. I. R. Molloy and Mr. G. Gileng, for the First Appellant 
Mr. G. M. Egan and Mr. A. Mana, for the Second Appellant
Mr. W. Mapiso, for the Third, Fourth and Fifth Appellants
Mrs. T. G. Nonggorr and Ms. C. Lari, for the Respondents

8th June, 2010

1. BY THE COURT: The Respondents commenced proceedings in the National Court seeking declaratory and injunctive relief in respect of amongst others, the disposal of tailings from the proposed Ramu Nickel mine, in the Madang Province.

2. The Appellants are appealing against the grant of an injunction and the refusal to set aside that injunction made in those proceedings.

3. The Respondents now object to the competency of the Appeal and the Application for Leave to Appeal and the Appellants apply for leave to appeal the refusal to set aside the injunction. The Appellants also apply for the hearing of the appeal to be expedited.

4. We consider the objection to competency of the Appeal first.

Law

5. Pursuant to Order 7 Rule 14 Supreme Court Rules, a respondent who objects to the competency of an appeal or application for leave to appeal shall, within 14 days after service on him of the notice of appeal or application for leave, file the objection and serve a copy on the appellant.

6. Pursuant to Order 7 Rule 16, an objection of which notice has been given shall be determined by the court at or before the hearing of the appeal or of the application for leave to appeal as the court thinks fit.

7. An objection to competency of an appeal or application for leave to appeal "… is really an objection to the jurisdiction of the Court to entertain the point…": Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185. This decision has been referred to with approval in the cases of State v. John Talu Tekwie (2006) SC843 and Jeffrey Turia v. Gabriel Nelson (2008) SC949 amongst others.

Whether the decision to set aside requires leave

8. The first objection to the Appeal is that the second decision of the trial judge that is appealed, being the decision to refuse to set aside the injunctive relief granted in the first decision, is interlocutory and requires leave pursuant to s. 14 (3) (b) Supreme Court Act, but that as no leave has been granted, the Appeal is incompetent.

9. The Respondents submit that a decision that refuses to set aside an order that granted an injunction does not come within, " in cases of granting or refusing an injunction…" in s. 14 (3) (b) (ii) Supreme Court Act. That subsection describes some instances where an appeal from an interlocutory judgment does not require leave.

10. The Appellants submit that although a strict literal interpretation of s. 14 (3) (b) (ii) does not include an order refusing to set aside an injunction, when a purposive approach to the interpretation of s. 14 (3) (b) (ii) is adopted, a decision refusing to set aside an injunction is included.

11. Counsel for the Respondents cited numerous decisions of this Court in support of the submission that it is against settled authority that an appeal against an order refusing to set aside an injunction does not require leave. We found the cases cited not to be on point and it is apparent that this particular issue has not been argued or adjudicated upon in this Court before.

12. Counsel for the Appellants cited numerous decisions of this Court in support of the submission that the Courts in this jurisdiction have abandoned the literal approach to statutory interpretation in favour of the purposive approach: PLAR No. 1 of 1980 [1980] PNGLR 326; Placer Holdings Pty Ltd v. PNG [1982] PNGLR 16; Singorom v Kalaut [1985] PNGLR 238; Karingu v. PNG Law Society (2001) SC674; Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705.

13. To adopt a strict literal approach to s. 14 (3) (b) (ii), submitted counsel for the Appellants, would lead to strange results, such as an appeal from an ex parte injunction not requiring leave, as opposed to an appeal from a subsequent order from an inter partes hearing to determine whether the ex parte injunction should continue, which would require leave.

14. The occasions prescribed in s. 14 (3) (b) (i) and (ii) Supreme Court Act where leave to appeal an interlocutory judgment is not required, are occasions when the relief appealed, although interlocutory, has substantive effect: liberty of a subject, custody of an infant, grant or refusal of an injunction and the appointing of a receiver.

15. As the effect is substantive, lawmakers in various jurisdictions have acted to ensure that there remained an automatic right of appeal for such occasions. In this regard we note that our s. 14 (3) Supreme Court Act has its origins in the English Supreme Court of Judicature (Procedure) Act 1894.

16. To require an appellant to seek leave to appeal an order that sets aside or varies or continues an injunction seems to us to defeat the purpose or the intention of the Subsection. It also places an impediment upon parties one of whom has duly exercised his rights by making application to vary, set aside or continue an injunctive order pursuant to the National Court Rules.

17. We were not assisted by counsel with any authorities specifically on point. Our own research revealed the Victorian Supreme Court decision of General Television Corporation Pty Ltd v. DPP & Anor [2008] VSCA 49 which we found to be of some assistance. This was an appeal from decisions of a Supreme Court Judge who had granted a prohibition order and then days later had widened or varied the order. 

18. Section 17A (4) (i) and (ii) Supreme Court Act 1986 (Vic) is similar to our s. 14 (3) (b) (i) and (ii). In General Television (supra), the question was raised amongst others, whether leave to appeal was required. The Court did not have to specifically decide the point but said:

"We turn to the question of whether or not leave is required. This is not a matter which is necessary to determine. We are of the view that taking into account the injunctive nature of the orders made by her Honour and other circumstances of the proposed appeal we would be inclined to grant leave, if leave to appeal is necessary."

19. By taking into account the injunctive nature of the orders made, it is apparent that the Court followed a purposive approach to the relevant section, an approach which we are of the view, should be adopted here.

20. Consequently, the first objection to the Appeal is refused. The Appellants do not require leave to appeal the Order refusing to set aside the injunction.

Abuse of process

21. The second objection to the Appeal is that it is an abuse of process or the Appellants are estopped from appealing the grant of the injunction as they have already attempted to have the injunction set aside in the National Court. 

22. The Appellants submit that the claim of abuse of process is distinct from and does not raise an objection to competency. The Appeal is not an abuse of process but if it were then an application for a stay or for the proceedings to be struck out may be brought; s. 8 (1) (e) Supreme Court Act.

23. Counsel for the Respondents cites the National Court decision of Bank of South Pacific Ltd v. PNG Nambawan Trophy Holdings Ltd (2004) N2717 in support of their submission. We did not find this decision to be of assistance.

24. We agree with the submission of counsel for the Appellants that a claim of abuse of process is distinct from and does not raise an objection to competency. Given this, it is not necessary to decide if the appeal is an abuse of process or that the appellants are estopped. We add though that we are in agreement with the submission of the Appellants that if an application is made to vacate or reverse the decision, that original decision stands. Any right of appeal from the early decision is not extinguished by a subsequent and successful application. We refuse the second objection to the Appeal.

25. At this juncture we mention that the Respondent argued an objection that was not included in the Notice of Objection to Competency. As it was not included in the Notice of Objection and as the requisite notice has not been given pursuant to Order 7 Rule 16 Supreme Court Act, we do not consider it.

Jurisdiction

26. The third objection to the Appeal is that this Court lacks jurisdiction to make findings on substantive issues when the National Court has not made findings on those substantive issues.

27. The Respondents submit that as the National Court found an arguable case but did not make conclusions or final findings, the Supreme Court can determine whether there was an arguable case but cannot make final findings.

28. The Appellants submit that this objection is without merit. If a National Court does not deal with an issue, this does not preclude the matter from being the subject of a ground of an appeal to the Supreme Court. Indeed, the very thrust of an appeal is invariably that the lower court erred in failing to deal with a relevant issue.

29. We agree with the submissions of the Appellants.

Issue of standing not raised

30. The fourth objection to the Appeal is that Appeal Ground 3 (d) concerning the standing of the Respondents was not raised at the hearing of both or either of the decisions appealed. Consequently the Appellants cannot raise this issue on an appeal. The case of Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853 was cited in support.

31. The Appellants submit that again, this is not a valid objection to competency. It is a matter for the Court hearing the appeal and is not a ground of competency. Secondly, there are authorities of this Court to the effect that on an appeal, the Supreme Court can deal with issues not raised at the court below, Van Der Kreek v. Van Der Kreek [1979] PNGLR 185, Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812.

32. We accept the submission of the Appellants that this is not a valid objection to competency. Consequently, the fourth objection to the Appeal is dismissed.

33. As we found in considering the first objection, that it was not necessary to obtain leave to appeal the order refusing to set aside the injunction, we dismiss the Application for Leave to Appeal. Consequently, it is not necessary for us to consider the Application for Leave or the objections to its competency and these are dismissed.

34. For the avoidance of doubt, our findings do not affect the injunctive relief presently in force granted by the National Court.

Expedited hearing

35. The Appellants apply to expedite the hearing of the Appeal pursuant to s. 5 (1) (a) and (b) Supreme Court Act on the grounds amongst others, that the orders appealed are causing the Appellants amongst others, immense financial loss and that it is in the overall interests of justice that there be an expedited hearing of the appeal.

36. The Respondents submit that the Appellants are not suffering loss and if they are that the losses are exaggerated. We are not of the view that the Respondents will suffer prejudice if the hearing of the appeal is expedited and are satisfied that it is in the overall interests of justice that the appeal be expedited.

Orders

a) the Objection to the Competency of the Appeal, the Application for Leave to Appeal and the Objection to Competency of the Application for Leave to Appeal are dismissed,

b) the Appeal is set down to be heard in the June 2010 sittings of the Supreme Court in Waigani. Counsel for the parties are to attend before the Supreme Court Directions Hearing Judge at 9.30 a.m. Wednesday 9th June 2010 for a Directions Hearing.

c) No order as to costs.

Posman Kua Aisi: Lawyers for the First Appellant 
Allens Arthur Robinson: Lawyers for the Second Appellant 
Solicitor-General: Lawyer for the Third, Fourth and Fifth Respondents 
Nonggorr William Lawyers: Lawyers for the Respondents