SC1152

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 72 OF 2009

BETWEEN:

REA JOSEPH
Appellant

AND:

MANAU SEREVA
First Respondent

AND:

DIARI SEREVA
Second Respondent

AND:

GABI DIARI
Third Respondent

AND:

BILLY DIARI and Others
Fourth Respondents

Waigani: Cannings, Manuhu, Gabi,
Hartshorn and Yagi JJ
2011: 28th October,
: 6th December

Application for leave to appeal a dismissal of an appeal to the National Court - application for leave not necessary as decision to be appealed is not an interlocutory judgment - whether application for leave to be treated as a notice of appeal or dismissed as incompetent – Order 7 Rule 5 Supreme Court Rules and sections 155(2)(b) and 155(4) Constitution considered
 
Facts:

This is an application for leave to appeal against the dismissal of an appeal to the National Court for want of prosecution. Following concessions by all parties that leave to appeal is not necessary as the decision to be appealed is not an interlocutory judgment pursuant to s.14(3)(b) Supreme Court Act, the remaining issue for determination is whether the leave application is incompetent as it is unnecessary, or because of the merits of the proposed appeal, it should be treated as a notice of appeal. 

Held:

As the leave application was unnecessary, it is incompetent and should be dismissed.

Cases cited: 
Paul Bari v. John Rain (2004) SC768
State v. Tekwie (2006) SC843
Boyepe Pere v. Emmanuel Ningi (2003) SC711
Oio Aba v. Motor Vehicles Insurance Ltd (2005) SC779
Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153

Counsel:

Mr. R. Uware, for the Appellant
Mr. M. Titus, for the Respondents
Mr. T. Tanuvasa, for the Attorney-General as amicus curiae

6th December, 2011

1. BY THE COURT: This is an application for leave to appeal against the dismissal of an appeal to the National Court, for want of prosecution.

2. In the course of hearing the leave application, the Chief Justice decided that to resolve conflicts in authorities of this court, its determination should be by the full court constituted by a greater number of judges. Hence, this court was constituted.

3. The respondents and counsel for the Attorney-General appearing as amicus curiae, submit that the leave application is not necessary as the decision sought to be appealed is not an interlocutory judgment. At the hearing before us, counsel for the appellant conceded that the decision sought to be appealed was not an interlocutory judgment and consequently leave to appeal is not necessary. This in our view is a correct concession and in this regard we refer to the decision of this court constituted by the same bench in Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153, delivered on the same day that this decision is being delivered. This decision considers in detail the question of when a judgment is interlocutory for the purposes of s. 14(3)(b) Supreme Court Act.

4. Given the above, the remaining issue for determination is whether the leave application is incompetent as it is unnecessary, or because of the merits of the proposed appeal, it should be treated as a notice of appeal.

Competency of unnecessary leave application

5. The appellant submits that as leave is not necessary, the leave application should be treated as a notice of appeal, and the appellant be allowed to proceed with the appeal as it has merit.

6. The appellant relies upon the decision of State v. Tekwie (2006) SC843 in support of his submission. In Tekwie's case (supra), the court referred to the decisions of Boyepe Pere v. Emmanuel Ningi (2003) SC711 and Oio Aba v. Motor Vehicles Insurance Ltd (2005) SC779 in which similar orders were made in similar circumstances. In Boyepe Pere's case (supra), the decision in which was followed in Oio Aba's case, the court was of the view that as the requirement to obtain leave in certain circumstances meant that only meritorious cases were permitted to be appealed, that in an instance where it was not clear whether leave to appeal was required, and where leave was unnecessarily sought, the proposed appeal should be considered on its merits and leave granted for the appeal to proceed by the leave application being treated as a notice of appeal. The court did not consider it fair and reasonable that such an application should be declared incompetent. The court stated that there is ample authority including s. 155 (4) Constitution, "…. in this Court in the interest(s) of doing justice on the merits of the case, to make such orders as a(re) necessary in the interest of doing justice."

7. In the case of Paul Bari v. John Rain (2004) SC768, this court dismissed an application for leave to appeal on an objection to competency as leave was not required and so the leave application was incompetent. A notice of appeal had not been filed, the appellants were out of time to file one and the appeal was struck out. Pere's case (supra) was not considered in Bari's case (supra).

8. In considering the merits based approach adopted in Pere (supra), we have not been made aware of any provision in the Supreme Court Act or Rules that specifically permits a leave application to be treated as a notice of appeal on merit or otherwise, when it was not necessary for the leave application to be made.

9. Order 7 Rule 5 Supreme Court Rules, relevantly provides that where leave to appeal has been granted, the Supreme Court may treat the notice of application for leave to appeal as notice of appeal. This does not apply when a leave application is unnecessarily made as in such a circumstance there is no leave to be granted.

10. As to s. 155 (4) Constitution, it is settled that s. 155 (4) is able to be relied upon to enforce a primary right in the absence of other law. Here, there is not an absence of other law. The Supreme Court Act specifically provides for a right of appeal and in other circumstances provides when leave to appeal is required. With respect, we are not satisfied that s. 155 (4) can give comfort as referred to in Pere's case (supra).

11. Further, one of the concerns of the Supreme Court in Pere's case (supra) was that if a leave application was found incompetent as it was not necessary and a notice of appeal had not been filed in time, the appellant's rights would be at an end with no other recourse available. We are of the view however that in such a circumstance, an appellant may have the recourse of seeking a review pursuant to s. 155 (2) (b) Constitution.

12. Given the above, we are of the view that while the Pere (supra) approach enables an appellant with a meritorious appeal who unnecessarily seeks leave the chance to proceed notwithstanding that his leave application is incompetent and the relevant legislation has not been complied with, as there is no provision that permits the Pere (supra) approach, such an approach is not to be preferred. Further, if an appellant, represented or not, mistakenly interprets the Supreme Court Act or Rules and unnecessarily applies for leave to appeal, he may have further recourse by seeking a review pursuant to s. 155 (2) (b) Constitution.

13. We are satisfied that as the leave application was unnecessary, it is incompetent and should be dismissed. As to costs, as this case is able to be described as a test case and the appellant should not be made to bear the costs necessitated by his lawyer's lack of diligence, each party shall bear their own costs.

___________________________________________________________
Office of the Public Solicitor: Lawyers for the Appellant 
Titus Lawyers: Lawyers for the Respondents