SC1299

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 110 OF 2013

BETWEEN:

APPLICATION FOR REVIEW PURSUANT TO CONSTITUITION, SECTION 155(2)(b)

RENDLE RIMUA, THE SECRETARY – DEPARTMENT OF PETROLEUM AND ENERGY
First Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Applicant

AND:

JOHN SIUNE
Respondent

Waigani: Kassman, J
2013: 26th September & 26 November

Cases cited:
Papua New Guinea Cases

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
The Honourable Andrew Baing and the Independent State of PNG v PNG National Stevedores Pty Ltd and Bank of South Pacific Limited SC627
Gimble v The State SC 369 [1988-89] PNGLR 271

Overseas cases

R v Barry Ilett (1974) FC69

Legislations cited:

Section 14(3)(b) of the Supreme Court Act

Counsel:

Ms Kimbu, for the Applicants
Mr Napu, for the Respondent

DECISION
(Application for Leave to Appeal)

26th November, 2013 

1.	KASSMAN J: Rendel Rimua ("Rimua") and the State apply for leave to appeal two decisions of the National Court made on 31 July 2013 in proceedings OS No.203 of 2011. The application for leave was filed on 4 September 2013.

Background

2.	The substantive dispute concerned a claim by John Siune ("Siune") for reinstatement and payment of entitlements. He was at the relevant time a public servant with the Department of Petroleum & Energy and Rimua was the departmental head as Secretary. 

3.	On 22 December 2011, the court ordered Rimua reinstate Siune and Rimua "compute and pay" Siune "all his lost salaries and entitlements forthwith".

4.	The orders of the court were not complied with and contempt proceedings were then instituted by Siune. On 23 May 2012, the court "vacated" the contempt proceedings and ordered Rimua pay Suine "all unpaid entitlements due and owing" which "shall be calculated and paid to him by 12.00pm, 25 May 2012". The court also ordered Siune be reinstated by close of business 24 May 2012.

5.	Suine was reinstated the following day but was not paid his entitlements within the time set but in two separate amounts on different days, the first payment was made nine days after the time set and the second payment was made twenty eight days after the time set. 

6.	On 28 March 2013, Rimua was found guilty of contempt of court in deliberately failing to comply with orders to calculate and pay the Respondent's unpaid entitlements within two days. The court held there was "reckless disregard for the need to comply".

7.	On 31 July 2013, the Court delivered two written decisions, both of which are now appealed. 

8.	The first decision appealed is the decision on sentence arising from the conviction for contempt of court. The sentence imposed was twelve months imprisonment which was wholly suspended subject to Rimua personally paying compensation to Siune of Ten Thousand Kina (K10,000.00).

9.	The second decision is the variation of the first order of 22 December 2011 where Rimua was initially ordered to "calculate and pay" Siune his entitlements and where the court subsequently ordered on 28 March 2013 that Rimua pay Siune "all unpaid entitlements due and owing" which "shall be calculated and paid to him by 12.00pm, 25 May 2012". In the court's decision of 31 July 2013 in this regard, the court found Rimua had paid Siune K129,000.82 but that a further amount was payable and so the court ordered Rimua pay Siune the balance of K243,903.04.

10.	In that same decision of 31 July 2013, the court also directed that the matter return to court on 16 December 2013 for Rimua to "demonstrate compliance with order No. 1" being the order for payment by Rimua to Siune of the balance of K243,903.04.

11.	Being aggrieved by those two decisions of the National Court of 31 July 2013, Rimua and the State filed this application for leave to appeal on 4 September 2013.

Application for leave to appeal

12.	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

13.	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.

14.	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. 

15.	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. 

16.	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".

17.	In Gimble v The State SC 369 [1988-89] PNGLR 271, the Supreme Court, Bredmeyer, Los and Hincliffe JJ cited a passage from Kearney J in Norris v The State [1979] PNGLR 605 at 612 – 613 and said we agree that this passage is a classic statement of the relevant principles on considering an appeal against sentence:

 "So the question in practice on a sentence appeal is usually this – has the appellant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion".

18.	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?

19.	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? 

•	There had been no finding and no assessment as to the exact amount payable in final entitlements to the Respondent - It is arguable the process by which the orders were summarily made for calculation and payment of Siune's entitlements were undertaken as if this was a claim for summary judgment on a liquidated sum. The circumstances and affidavit material filed demonstrate there was substantial dispute to the different heads or aspects of claim by Siune and indeed it was strenuously argued certain claims were matters within the discretion of the certain officers in the Department including Secretary Rimua. With respect, it is arguable calculation of Siune's entitlements should have been set down formally for assessment of damages with all parties being required to file and serve proper affidavit material from appropriate officers in the salaries section of the department or even by officers of the department of personal management to substantiate their respective positions. All facts in dispute would have then been determined after a proper hearing of the evidence with the opportunity to test in cross-examination.

•	There was substantial compliance of the Court Orders of 23rd May, 2012 – this is a strong argument. It was stated by the National Court that there was no set amount fixed for Siune's entitlements and no method of calculation was set. Despite this deficiency, payments were made by Rimua and the State and what remained for determination was whether the payments made were properly calculated. That became a matter for proper evidence and argument but the court proceeded to summarily determine the claim. Further, the principal order of reinstatement was complied with by Rimua and the State.

•	The statement of charge supporting the contempt application did not complain of non-compliance to court orders of 23rd May 2012 but was basically demanding more money which was not specially mentioned in the court order – this is also a strong argument. It appears the focus was on forcing a resolution on the parties as opposed to properly case managing the issues to final adjudication. The parties could have take charge of the matter by appropriate measures. 

•	The subject orders had been ambiguous, not properly served on the applicants and further that they had been entered without instructions from the applicants as the evidence bore out – it is clear the initial and subsequent orders to "calculate and pay" were ambiguous and inappropriate as I have discussed above.

•	All of these issues discussed above have a bearing on the circumstance under which the learned trial judge exercised his discretion on sentence and it is arguable the twelve month sentence was a severe punishment regardless of the fact the same sentence was wholly suspended. What remains is the contempt conviction but the circumstances did not warrant a term of imprisonment. Siune is entitled to interest and that would be fair and appropriate compensation for the delay in securing payment of his entitlements. He ended up with a multiple reward in not only being reinstated which is the principal relief sought but also gaining an assessment of his entitlements and orders for payment but also a compensation award of K10,000 to be paid personally by Rimua. 

b)	Does the appellant have recourse in the Court below? The matters return to court on 16 December 2013 for Rimua to "demonstrate compliance with order No. 1" being the order for payment by Rimua to Siune of the balance of K243,903.04. Rimua and the State have no recourse in the National Court.

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? It is arguable the exercise of discretion by the National Court was manifestly unreasonable, exercised on wrong principles and there were mistakes of fact as discussed in (a) above.

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 decisions of 31 July 2013 have a bearing on the final determination of the issue between the parties. 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. 

e)	Will substantial injustice be caused by allowing the decision to stand? I have already expressed the view that injustice will be caused in allowing the decisions of the National Court of 31 July 2013 to stand.

f)	Has cause been shown for the trial process to be interrupted by an appeal? For the reasons discussed above, cause has been shown to interrupt proceedings as they currently stand in the National Court.

20.	For the reasons stated above, the application for leave to appeal is granted.

21.	The formal orders of the court are:

a.	The application for leave to appeal, the decisions of the National Court made on 31 July 2013 in proceedings OS No.203 of 2011, filed on 4 September 2013 is granted.

b.	The costs of the application are in the appeal.

c.	Time for entry of these orders is abridged.

Judgment accordingly:

________________________________________________________________
Greg Manda Lawyers: Lawyers for the Applicant
Napu Lawyers: Lawyers for the Respondent