SC1283

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 05 OF 2013

BETWEEN:

BUI MINIG
Applicant

AND:

JOYCELYN MINIG
First Respondent

AND:

KINA FINANCE LIMITED
Second Applicant

Waigani: Kassman, J
2013: 22 & 28 May

Cases Cited:

Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240
Boyep Pere v. Emanuel Ningi (2003) SC711
The State v. John Talu Tekwie (2006) SC843
Hii Yii Ann v. Canisius Kami Caringu (2003) SC718
Matiabe Oberia v. Chief Inspector Michael Charlie and Ors (2005) SC801
Oberia v Charlie (2005) SC801
The Honourable Andrew Baing and the Independent State of PNG v PNG National Stevedores Pty Ltd and Bank of South Pacific Limited SC627

Legislation Cited: 

Section 10(1) of the Supreme Court Act c.37
Section 14(3)(b) of the Supreme Court Act

Counsel:

Jeffery Abone, for the Applicant
Rickson Pokea, for the First Respondent
Michael Goodwin, for the Second Respondent

DECISION

(Application for Leave to Appeal)

1.	KASSMAN J; Bui Minig, ("Bui") applies for leave to appeal a decision of the National Court made on 7 December 2012 in proceedings OS No. 750 of 2011. The application for leave was filed on 16 January 2013.

Jurisdiction as a single judge 

2.	I have the jurisdiction to hear and determine an application for leave to appeal as I am exercising a power as a single judge of the Supreme Court. Section 10(1) of the Supreme Court Act c.37 provides "Any power of the Supreme Court under this or any other Act ... to give leave to appeal ... may be exercised by a judge in the same manner as it may be exercised by the Court." Section 1 defines "Judge" as " ... a judge of the Supreme Court".

Preliminary

3.	When this proceeding was filed, Bui named himself the "First Applicant", Kina Finance Limited ("Kina") as the "Second Applicant" and Joycelyn Minig ("Joycelyn") as the "Respondent". At commencement of argument, I heard the parties as to this description of the respective parties. It was accepted the application for leave to appeal was filed by Bui and Kina was named by Bui as Second Applicant without Kina's knowledge and authority. Bui's lawyer referred to consistency with the respective positions of the parties in the National Court with Joycelyn as the Plaintiff and Bui and Kina as First and Second Respondents respectively. No other reason or argument was raised. It was also accepted a party should not be named as an applicant without that party's consent. Kina also raised concern with being held responsible for costs should the application for leave or application for review be refused. For those reasons, I directed the descriptions of the respective parties in the proceedings be amended to show that Bui is the "Applicant", Joycelyn is the "First Respondent" and Kina is the "Second Respondent".

Background

4.	For the purpose of this application, the relevant facts are that in the period when Bui and Joycelyn were married, Bui acquired certain properties. The marriage of Bui and Joycelyn was dissolved in accordance with custom in July 2009. Joycelyn then commenced proceedings in the National Court in September 2011 filing an Originating Summons and claiming declarations, among others, that the property acquired by Bui are "matrimonial property" within the meaning of certain laws and that Joycelyn has an equitable interest in those properties and the actions of Kina in purportedly exercising power of sale over such properties is illegal and unreasonable.

5.	Those proceedings in the National Court were advanced to the stage in October 2011 when a trial date was allocated in December 2011. When the matter returned for status conference, the court vacated the trial date on finding the matter was not ready for trial and there was a need for filing pleadings to properly identify issues for determination. The Court also directed Joycelyn file and serve a Statement of Claim by a certain date and a return date was also allocated in March 2012. When the matter returned on 6 March 2012, the Court was advised that Joycelyn had yet to file and serve her Statement of Claim. The Court then directed the matter return for summary determination and Joycelyn was granted liberty to file and swerve an Affidavit showing cause why the proceedings should not be summarily determined. 

6.	When the matter returned for summary determination, Affidavits had been filed by both Joycelyn and Bui. Submissions were made by Joycelyn claiming she had filed her Statement of Claim on 20 February 2012 and Bui claimed dismissal of the proceedings for the repeated non-compliance with directions of the Court by Joycelyn. The Court was not impressed with the conduct of counsel for both Joycelyn and Bui who appear to have made serious claims and counter-claims of non-compliance and misconduct against the other. The Court found both parties had "reneged" with compliance with directions of the Court. The Court then ordered on 7 December 2012 that the matter would not be summarily determined. The Court also ordered, in the event Mr Abone and Mr Pokea make further scandalous, ill conceived and misleading allegations against each other, the National Court Registry and their clients, they will both be referred to the Lawyers Statutory Committee for misconduct. The Court then directed Bui and Kina file their defences by a certain date. Following that, any party was at liberty to list the matter for directions. All parties were ordered to pay their own costs of the application. 

7.	Being aggrieved by that decision of the National Court, Bui filed this application for leave to appeal on 16 January 2013.

Application for leave to appeal

8.	The application is made pursuant to Section 14(3)(b) of the Supreme Court Act which provides "No appeal lies to the Supreme Court without leave of the Supreme Court ... from an interlocutory judgment made or given by the National Court." There was no dispute that leave was required. It is agreed the decision appealed was interlocutory in nature and not a final judgment.

Principles applicable

9.	The grant or refusal of leave is discretionary. The applicant must show that there is an arguable case, that the decision was wrong and if not reviewed or corrected on appeal, will result in substantial injustice. Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240; Boyep Pere v. Emanuel Ningi (2003) SC711; The State v. John Talu Tekwie (2006) SC843

10.	In some instances the applicant may be required to show exceptional circumstances and compelling reasons for leave being granted. Hii Yii Ann v. Canisius Kami Caringu (2003) SC718; Matiabe Oberia v. Chief Inspector Michael Charlie and Ors (2005) SC801. 

11.	Justice Lay in the unreported judgment in the case of Oberia v Charlie (2005) SC801 said "leave to appeal is therefore unlikely to be given in circumstances where the judgment challenged may have little or no bearing on the final determination of the issues between the parties; leave should not be given where by the rules of the court there is obvious recourse for further application on the matter, nor should leave be given where the ruling is within the discretion of the Court and discloses no obvious breach of principle. 

12.	In the case of The Honourable Andrew Baing and the Independent State of PNG v PNG National Stevedores Pty Ltd and Bank of South Pacific Limited SC627 (Sheehan, Sawong & Kirriwom JJ) at page 21 the Court held "...to obtain leave to appeal an interlocutory judgment, it is not simply a matter of asserting there is an arguable case; that there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is, not only that there has been some patent error, but that the error affects a party's substantive rights or will prevent the determination of the issue. That is, there is an error in the interlocutory judgment that goes to jurisdiction".

13.	As to whether an applicant has demonstrated such a prima facie case, the following factors are to be considered:

a)	Is there an arguable or prima facie case demonstrated that the trial judge was wrong?

b)	Does the appellant have 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 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 for the trial process to be interrupted by an appeal?

14.	I now discuss and apply the guiding principles and factors to the facts and circumstances of this case.

a)	Is there an arguable or prima facie case demonstrated that the trial judge was wrong? In essence, Bui says the National Court should have dismissed the proceedings as Joycelyn had failed to comply with directions of the Court on two occasions and the Rules of the National Court provide the power to dismiss for such non-compliance and the National Court erred in failing to exercise that power to dismiss. No prima facie case is made out.

b)	Does the appellant have recourse in the Court below? Bui was not denied his rights when the National Court refused to summarily determine the proceedings. Bui remains a party in the proceeding and was allowed time to file his Defence to the claim by Joycelyn. Pleadings have not closed and parties may proceed to discovery and other interlocutory steps before seeking directions towards obtaining a date for trial. 

c)	Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on wrong principle or a mistake of fact? The ruling to refuse to summarily determine the claim by Joycelyn was within the discretion of the National Court. This was not disputed by Bui. No argument was made out to show that the exercise of discretion by the National Court was manifestly unreasonable, exercised on 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? The decision to refuse to summarily determine the claim by Joycelyn has no bearing on the final determination of any issue between the parties. Once Bui files his Defence to the Statement of Claim by Joycelyn, the issues in dispute will start to crystallise. There may be a need for further particulars of the claim and defence and the discovery of documents may have a bearing on the respective arguments of each party. Each party's primary rights to be heard and to be given the opportunity to be heard are very much intact. The decision to refuse to summarily determine the claim by Joycelyn has not prejudiced the parties in any manner that would prevent the determination of the issues. 

e)	Will substantial injustice be caused by allowing the decision to stand? I have already discussed this in the preceding sub-paragraphs and restate my view that no injustice will be caused in allowing to stand the decision of the National Court to refuse to summarily determine the claim by Joycelyn.

f)	Has cause been shown for the trial process to be interrupted by an appeal? No cause has been shown to interrupt proceedings as they currently stand in the National Court.

15.	For the reasons stated above, the application for leave to appeal is refused.

16.	The formal Orders of the Court are:

a.	The application for leave to appeal, the decision of the National Court made on 7 December 2012 in proceedings OS No. 750 of 2011, filed on 16 January 2013 is refused.

b.	The Applicant shall pay the Respondents' costs of the application, to be taxed if not agreed.

Judgment accordingly:
_______________________________________________________________
Parkil Lawyers: Lawyers for the Applicant
Pokea & Associates: Lawyers for the First Respondent
O'Briens Lawyers: Lawyers for the Second Respondent