SC1689
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 14 of 2017

BETWEEN:
NIUGINI NOMINEES LIMITED
Appellant

AND:
INDEPENDENT PUBLIC BUSINESS CORPORATION OF PAPUA NEW GUINEA
First Respondent

AND:
MOTOR VEHICLE INSURANCE LIMITED
Second Respondent

AND:
NATIONAL SUPERANNUATION FUND LIMITED
Third Respondent

Waigani: Dingake J
2018: 2& 5 July

SUPREME COURT – practice and procedure – application for leave to appeal – relevant tests to consider before leave to appeal is granted – consideration of – onus on applicant to satisfy those tests - applicant has failed to show there is an arguable case, that the decision was wrong in principle or in any way manifestly unreasonable or unjust -  appellant has not shown that any substantial injustice would occur if the application for leave to appeal is refused – leave to appeal refused

Cased Cited:

Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788
Oberia v Charlie (2005) SC 801
Sir Julius Chan v Ombudsman Commission (1999) PNGLR 240

Counsel:

Mr B Sinen, for the Appellant
Mr M Tumul, for the First Respondent
Ms M Tuais, for the Second Respondent
Mr J Brooks, for the Third Respondent

5th July, 2018

1.   DINGAKE J:	 This is an application for leave to appeal pursuant to Section 14 (3) (b) of the Supreme Court Act.

2.   On or about the 9th of October 2015, the appellant filed a Notice of Motion in the National Court in which the appellant sought the consolidation of proceedings WS 1252 of 2010 with proceedings WS No. 1300 of 2013.

3.   The application for consolidation, and dismissal of WS 1300 of 2013, on account that the latter disclosed no cause of action was heard on the 10th of February, 2016.

4.   The Notice of Motion (for consolidation) was dismissed by the National Court on the 6th of January 2017 and the application to dismiss WS 1300 of 2013 was upheld.

5.    On the 15th of February, 2017, the appellant filed an application for leave to appeal the decision of the National Court delivered on the 6th of January, 2017.

6.   The reason given by the National Court for upholding the application to dismiss WS 1300 of 2013 was that the Statement of Claim failed to disclose a cause of action.

7.   Having dismissed proceedings in WS 1300 of 2013, for failing to disclose a cause of action, it became obvious that there was then nothing to consolidate, and by parity of reasoning the application for consolidation had to fail, as it did.

8.   The appellant being unhappy with the decision of the National Court to dismiss WS 1300 of 2013, filed an appeal on or about the 14th of February 2017 (SCA No. 11 of 2017).   This appeal remains pending to date.

9.    On the 27th of March, 2018, the Second Respondent filed an application for the appeal (SCA No. 11 of 2017) to be dismissed for want of prosecution.

10.   The application for leave to appeal was filed on the 15th of February 2016.  It is not clear whether the appellant enlisted it for hearing after receiving the application to dismiss the appeal for want of prosecution.

11.   It is significant to highlight the point that the National Court ruling dismissing the consolidation application and upholding the dismissal of WS No. 1300 of 2013 was an interlocutory judgment, procedural in nature and within the Court’s discretion.

12.    In considering an application for leave to appeal, the relevant tests to guide the Court were stated in the often cited case of Oberia v Charlie (2005) SC 801.

13.   The Court in the above case stated the pre-requisites as including the following:
(a) 	Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?
(b) 	Does the Appellant have other 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 a 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 that the trial process should be interrupted by an appeal.

14.   The onus is on the applicant to show that there is an arguable case or prima facie case that the decision was wrong in principle and that substantial injustice would be done by leaving the erroneous decision unrevised on appeal.

15.   In the case of Sir Julius Chan v Ombudsman Commission (1999) PNGLR 240, in relation to an application for leave to appeal against any interlocutory order, the Court stated as follows:

	“So to obtain leave to appeal an interlocutory judgment, it is not simply a matter 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 is patent error, but also that the error affects a party’s substantive rights or will prevent the proper determination of the issues.  That is, there is error in the interlocutory judgment that goes to jurisdiction.”

16.   There are plenty of authorities that support the proposition that in determining an application for leave to appeal, the Court must take into account the strong presumption of correctness which attaches to the decision involving the exercise of discretion in a civil case  on a procedural matter within the Court’s jurisdiction (Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788).

17.   Upon considering the material placed before me and upon considering the submissions of counsels of the parties, it seems clear that this application cannot succeed for a number of reasons.

18.   Firstly, the appellant conceded that Proceedings, WS 1300 of 2013, disclose no cause of action and liable to be dismissed.  Once the dismissal was granted there clearly was nothing to consolidate.   This much has been confirmed by the Supreme Court, when it remitted this matter (WS 1300 of 2013) to the National Court.

19.   Secondly, there is nothing in the supporting affidavit of the appellant and other supporting material, including submissions, to show that the National Court committed an error of law or procedure, nor was there anything on the face of the record to show that the National Court decision was manifestly unreasonable or plainly unjust.

20.   Thirdly, it seems to me that the appellant has recourse in the Court below.  It is open to the appellant to amend its pleadings to achieve what is sought to achieve by its ill-fated consolidation application.

21.   Fourthly, the decision sought to be appealed against does not affect the rights of the parties at all.

22.    On the whole, I am satisfied that the applicant has failed to show that there is an arguable case, that the decision was wrong in principle or in any way manifestly unreasonable or unjust.  The appellant has not shown that any substantial injustice would occur if the application for leave to appeal is refused.

23.    On costs, I have given anxious consideration to ordering the appellant to pay costs at a higher scale for pursuing an application that appears to me to be wholly unmeritorious, but I have decided to temper justice with mercy and would order that the appellant to pay ordinary party to party costs.

24.  For all the above reasons, I refuse to grant leave to appeal.  The appellant shall pay costs to the Respondents.

__________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers:   Lawyer for the Appellant		
Allens Lawyers:   Lawyers for the First Respondent	
Dentons PNG Lawyers:    Lawyers for the Second Respondent