SC1269

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 82 of 2011

Between:

MALCOM CULLIGAN & ANOR
Appellants

And:

PEA & ANOR
Respondents

Waigani: Injia, CJ
2011: 29 March

SUPREME COURT – Appeal – Application for leave to appeal – Interlocutory judgment refusing to set aside ex parte orders- Trial Judge refused the application for the main reason that the appellants or their lawyer failed to attend the hearing - Clear error of law established that raises an arguable case on appeal - Leave granted to appeal

Counsel:

Mr Gorua, for the appellant
Mr Miva, for the respondent 

29th March, 2011

1. INJIA, CJ: This is an application for leave to appeal from an interlocutory judgment given on 11 July 2011 in which the National Court refused to set aside ex parte orders made on 3 June 2011. The orders of 3 June 2011 were substantive in nature in that a permanent order in the nature of mandamus was issued compelling the first appellant who is the Provincial Administrator, to reinstate 92 retrenched public servants employed by the department of Western Highlands Province or the provincial government. Subsequently the appellant filed and sought to move an application by notice of motion seeking orders to set aside the ex parte order. The trial Judge refused the application for the main reason that the appellants or their lawyer failed to attend the hearing on 3 June 2011. 

2. The grounds and reasons relied upon in support of the application are contained in the leave application. The main grounds are that the trial Judge erred in dismissing the application for the wrong reason and that if the application was determined on its merits, the ex parte orders would have been set aside because all the retrenched public servants either accepted and were paid their full retrenchment benefits or were redeployed in the department. The respondents contention is that the appellants failed to attend the hearing as ordered previously and the trial judge was correct in proceeding ex parte on 6 June 2011 and correctly dismissed the application to set aside the ex parte order. The evidence also established that the first appellant failed to implement an instruction issued by the Secretary for the Department of Personnel Management to reinstate the 92 public servants. The appellants contend the instruction could not be implemented because other persons had been employed in those positions vacated by the 92 public servants. 

3. One of the main points or issues raised in the leave to appeal application is the trial Judge's failure to follow proper procedures prescribed by O 16 of the National Court Rules. I am satisfied that although leave to apply for judicial review to apply for an order in the nature was expressly applied for in the Originating Summons, no such application was heard and no leave was granted. The matter proceeded to a substantive hearing and mandamus was granted. As a result, the Court was not in a position to address the matters that were sought to be raised at the hearing of the application to set aside the ex parte order, which matters are the very subject of contention in the present application. Such matters as to delay of 10 years in bringing the application, whether all statutory or administrative remedies to resolve the matter internally had been exhausted and whether the grant of the leave might be prejudicial to the public interest in good administration are matters that are relevant to be considered in a leave application. More importantly and relevantly, matters such as whether the 92 plaintiffs had been paid out in full, the position of SMC on the appeal by a number of plaintiffs and any further prospects for the matter to be resolved by SMC through the appeal process would have been considered at the leave stage. In the end the Court proceeded to determine and grant a substantive order in the nature of mandamus, thereby denying the parties, in particular the appellants, to be heard on these matters, both at the leave stage and in the trial of the substantive application for judicial review if that were to follow the grant of leave. I am satisfied a clear error of law has been established that raises an arguable case on appeal. I grant leave to appeal

4. The formal order of the Court is as follows:

 	Leave to appeal is granted. Costs shall be in the cause of the appeal.
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Legal Services: Lawyer for the Appellant
PAC-Oceania Lawyers: Lawyer for the Respondent