SC1734
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 73 OF 2018

BETWEEN:
VANIMO JAYA LIMITED
Appellant

AND:
EAST NEW BRITAIN PROVINCIL GOVERNMENT
First Respondent

AND:
WILSON MATAVA in his capacity as Chairman of the East New Britain Provincial Forest Management Committee
 Second Respondent

Waigani:  Batari, J
 	        2018:  10, 19th October

APPEAL – Application for leave to appeal interlocutory order of National Court – Proposed grounds – standing of Provincial Government – Public interest – standing of Provincial Government and Agents of to raise public interest matter – Application dismissed for want of merit.

Counsel:

Mr.  Nelson Saroa, for the Appellant
Ms. J. Marubu, for the Respondents

Cases Cited:
Papua New Guinea Cases

Ambi Kamberan v Placer (PNG) Ltd (2004) N2740
Oberia v Charlie (2000) SC 801
Pais Wingti-v-Kala Rawali, & 2 Ors (2008) N3285
PNG Air Pilots Association v. Director of Civil Aviation &Anor [1983] PNGLR 1
Sandy Talita v Peter Ipatas (2016) SC1603
SCM 8 of 2018, Moses Mewayo & Ors v Mark Sakai (unnumbered SC Judgment) (2018)
Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959

Overseas Cases

Adam P Brown Mail Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170
National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 83 ALR 434 

19 October, 2018

1. 	BATARI J:	  This application is made pursuant to s.14(3)(b) of the Supreme Court Act 1975 seeking leave to appeal against an interlocutory ruling of the National Court (the primary Court). The application is contested.

Background

2. 	On 7th May, 2018 the plaintiffs (now respondents), obtained ex parte restraining orders against the third respondent, Vanimo Jaya Limited (now appellant/applicant) in the primary court following filing of Originating Summons seeking declarative orders in connection with renewal of a Timber Permit to the third respondent (now appellant).

3. 	The ex parte interlocutory orders returned on 18th May, 2018 for inter partes hearing. At the time of the hearings, the primary court also entertained an objection against competency of the proceedings, the question of standing of the East New Britain Provincial Government and Chairman of East New Britain Forest Management Committee, Mr. Wilson Matava to bring an action against the third respondent. His Honour, Higgins J ruled against the competency challenge and extended the plaintiffs’ interlocutory restraining orders against the third respondent pending determination of the substantive cause. The primary court then made directive orders requiring parties to file and serve relevant affidavits to be relied on for trial by 25th May, 2018. The substantive hearing was fixed for Monday, 28th May, 2018.

4. 	But on 25th May, 2018 the third responded filed for leave to appeal the interlocutory ruling of the primary court. So, the hearing of the substantive issues was aborted pending the proposed appeal outcome.

Leave to Appeal

5. 	Section 14 (3)(b) of the Supreme Court Act prohibits an appeal by way right against an interlocutory ruling, order or judgment that does not bring the proceedings to finality. Leave to appeal must first be sought from the Supreme Court or a single judge of the Supreme Court. The essence of this process is to ensure that the Supreme Court is not clogged with appeals from every interlocutory ruling of the Court made before final judgment. It is a check and balance process against busy bodies and a safeguard against those with the resources fighting every conceivable issues, substantive or minor, real or perceived, every step of the way resulting in costly and prejudicial delays to the substantive hearing of the principle cause.

6. 	In Oberia v Charlie (2000) SC 801, his Honour, Lay J suggested the following tests following a comprehensive review of precedent cases to be applied to the facts of each application for leave to appeal:
(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 principles 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 substantive injustice be caused by allowing the decision to stand?
(f)	Has cause been shown that the trial process should be interrupted by an appeal?
7. 	I also find the recent judgment of his Honour, Hartshorn J in SCM No. 8 of 2018: Moses Mewayo & Moses Kosie & 4 Ors v Mark Sakai (unnumbered) SC Judgment) of 2nd July, 2018, helpful. His Honour referred to the following principle from Re Will of F. B. Gilbert (dec’d) (1946) 46 SR (NSW) 318 stated by Sir Frederick Jordon at 323 and cited with approval in Adam P Brown Mail Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177 and National Mutual Holdings Pty Ltd v Sentry Corporation (988) 83 ALR 434 at 440:
	“I am of the opinion that,…… there is a material difference between an exercise of discretion on a point of practice and procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the others of judges at first instance, the result would be disastrous to the administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long pause or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in Chambers to a Court of appeal.”
8. 	With respect, I agree with Hartshorn J, and adopt this proposition as having persuasive effect in our jurisdiction.

Application for Leave to Appeal

9. 	The primary contention the applicant proposes to raise in the grounds of appeal for determination by the Supreme Court is, that the respondents have no legal standing to challenge the decision/authority of the National Forest Authority to review and renew Timber Permit to the applicant. Mr Saroa submits that the primary judge erred in dismissing his client’s objection to competency when the records show the respondents were not parties to the Timber Permit agreement and hence, they lack standing. The applicant relies on Ambi Kamberan v Placer Highlands Gold Ltd. (2004) N2740 where his Honour, Salika DCJ stated:
	“Persons who are not parties to the agreement have no locus standi to enforce terms of an agreement.”
10. 	Mr Saroa argued it is a condition precedent, that the plaintiff is a genuine plaintiff and not a purported plaintiff or a stranger to commence an action. Standing, counsel submitted would sanction jurisdiction on the Court to deal with the matter as a genuine and valid claim.

11. 	I accept the submissions by Ms Marubu for the respondents that her clients have particular standing in a public interest issue before the Court. The question of standing invariably referred to as, locus standi or having sufficient interest in the cause before the Court is well settled in this jurisdiction in the cases I will shortly refer to.

12. 	The argument by Mr Saroa propagates an unnecessary restrictive proposition on the issue that has been settled in this jurisdiction.  One must have sufficient interest in the matter before the court before he is heard. The right to be heard is based on the Constitution, by operation of law and the rule of practice for enforcement of some private or public rights subject to sufficient interest being reasonably shown to the satisfaction of the court. For instance, in judicial review matters under O. 16 r. 3(5) of the National Court Rules, the Court will not grant leave for judicial review unless it considers that an applicant has sufficient interest in the matter the subject of the judicial review application.

13. 	Whether a party has sufficient interest in the matter before the court essentially, depends on the degree of the relationship between the plaintiff and the subject matter of his complaint. The plaintiff has the onus show standing if he can demonstrate a reasonably arguable claim, that some rights whether private or public has been affected or he has suffered some prejudice from an excess administrative or judicial decision making process. A useful guide is found in, Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, where Sheehan, J stated;

“Generally a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.”

14. 	A person having sufficient interest in the matter before the court is entitled to be heard. In Sandy Talita v Peter Ipatas (2016) SC1603 the Supreme Court stated;

“The issue of standing or locus standi is concerned with the right of persons having sufficient interest in the matter before the court to be heard and being given the opportunity to be heard. An applicant must have sufficient interest in that to which the application relates. The test of sufficient interest is an objective one based on the facts of each case: SCR 4 of 1980; the Petitioner M.T Somare [1981] PNGLR 265.”

15. 	The right to be heard is an essential element of natural justice. It is settled, that any person whose rights or interests are likely to be affected by an administrative decision or judicial decision has a right to be heard by the decision-maker prior to making the decision: Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285.

16. 	It is also settled that the nature of injury or damage suffered, whether actual or perceived can be wide-ranging.  In PNG Air Pilots Association v. Director of Civil Aviation and Air Niugini [1983] PNGLR 1, the Supreme Court stated at page 3;

“The plaintiff will have locus standi where he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and, perhaps, to his social or political interests.”

17. 	I am not satisfied the primary judge fell into error in dismissing the applicant’s objection to competency of the entire proceedings for lack of standing of the plaintiffs in the Court below. The applicant has not shown that the primary court erred in exercising its discretion against the application to dismiss the entire proceedings.

18. 	The issues of standing were raised at different times in the court below in exchanges between the bench and bar. The reasoning for the refusal of the applicant’s application are inherent in those exchanges.

19. 	At pages 29, 31, 40 and 44 of the transcript, the following are recorded:

(page 29) “MR SAROA: Exactly, your Honour. And eventually makes recommendations to the board which is referred to here as the National Forest Board under the Forestry Act. The National Forest Board then has the power to commence either enforcement or corrective measures or other necessary measures under the Act which it is empowered to through the PNG Forest Authority, your Honour. And as your Honour had correctly pointed out yesterday, the National Forestry Board is more the administrative arm that implements the PNG Forest Authority, its powers and duties. So essentially, your Honour, we are saying that these proceedings should be dismissed on the basis of: (1) the legal standing, plaintiffs’ capacity to sue, and (2) the lack of provision under the Forestry Act, and (3) the privity, I should say. The privity in terms of the timber of the timber permit holder and the State.
	Insofar as the East New Britain Provincial Government is concerned, it is not privy to that arrangement and agreement insofar as a permit being issued as a result of the State’s consideration.
	HIS HONOUR:   There is a question of standing which arise from public interest?
(page 31)  MR SAROA:  In terms of its role in terms of its import, we say that it comes through the provincial management committee. If there are forestry plans and resources areas that the provincial government has a role to play, it will come through that, your Honour.
	HIS HONOUR:  Well, if the provincial government had a role, it would have a role in protecting the interests of East New Britain, would it not?
	MR SAROA:	 Of course, of course, yes.
	HIS HONOUR:  So if, now, I am saying if the forest authority was exceeding its remit, even if in favour of the third defendant or not, would not the East New Britain Provincial Government have standing to bring that to the attention of the court?
	MR SAROA:	 In the sense it is arguable, your Honour, and we say that ….
	HIS HONOUR:  Well, if it is arguable, that it is enough, is it not?
	MR SAROA:	 Well, your Honour, we say that according to the provisions of the Forestry Act which encompasses the resources area of forest, we are submitting, your Honour, that in that Act, there is no provision which the provincial government can be conferred a power and so of its administrative area. It has that by virtue of its very existence.
	(page 40)  HIS HONOUR:  As to the latter, I need to get a clearer picture on it. As to the former, it seems to me that the government of a province has the power to stay proceedings in the interests of the province irrespective of whether there is any power under any particular act to do so. And in particular, where they do not obtained; only a court can do that. So, I understand that. The question though is firstly whether the provincial government has any prima facie case for saying that the permit extension was invalidly granted and then, if you have then got the balance of convenience which you have already referred to.
	And I must say I have not got a clear picture on any of those at this stage but I certainly understand that the landowners who support the issue of the forest clearing authorities and the grant to Vanimo Jaya would have an interest in ensuring that the flow of royalties or whatever you call it, would continue; that clearly is their interest. There is also the wider national interest and State and provincial interest in ensuring the forest is preserved.
	HIS HONOUR:  So, what do you say? That there is no apparent defect or no validly claimed defect in the authorities?
	MR SAROA:	Your Honour, that would be the gist of our argument. Insofar as our client is concerned at this stage, the pressing issue is the ex parte orders that were taken up; that is the pressing issue. Insofar as perhaps the substantive issue which your Honour has raised in terms of the public interest and what public policy requires, of course, that is a matter that can be addressed in the event that the matter does go to full hearing. But, our capacity - - - -
	HIS HONOUR:  Well, actually it would be – if you have assumed that the provincial government and the management committee have no standing, then that would hinder that.
	(page 44)  MS MARUBU:  Thank you, your Honour. Your Honour, we submit that – on behalf of the plaintiffs that we have legal standing, your Honour; that is by virtue of section 6 of the Organic Law on Provincial and Local Level Government which says, Provincial Government may sue and be sued and may make provision for and in respect of the manner and form in which each respective government may do so. Your Honour, so therefore we submit that we have the legal capacity to sue and be sued.
	HIS HONOUR:  Well, I can say this that there is plenty of authorities certainly in the High Court of Australia that State government for example, which is not quite the same as the provincial government – government is not a sovereign government. But, if it is a body corporate having that area of interest, it would have standing to bring an action to restrain the other government authorities from doing that which is unlawful. The question is why is this unlawful?”
	
20. 	In those exchanges, counsel for the applicant conceded, the issue of standing and the public interest considerations are matters for deliberation at the substantive hearing. That concession makes the application before this Court a frivolous and vexatious cause. The applicant has not shown an arguable or prima facie case or demonstrated the trial judge was wrong. The question of standing is a jurisdictional issue that can be raised at any stage of the proceedings at the primary court or before the Supreme Court. The applicant has these recourses still open to pursue at the substantive hearing. This is the kind of situation that a tight rein should be kept against spurious and time wasting applications for leave to appeal against a decision of the primary court which on the face of the records, does not show the exercise of discretion to be manifestly unreasonable, or exercised on a wrong principle or a mistake of fact. I am not satisfied that any injustice has been caused to the applicant. Besides, cause has not been shown why the trial process should be interrupted by an appeal.

21. 	In the upshot, the application for leave to appeal should be refused. It is not necessary to consider the other submissions by counsel.

22. 	The orders of the Court are:

(a)	The application for leave to appeal filed on 25th May, 2018 is dismissed.
(b)	The applicant shall pay the costs of the respondents and of incidental to the application for leave to appeal on party-party basis to be taxed if not agreed.
___________________________________________________________
Nelson Lawyers: Lawyers for the Applicant
Marubu Lawyers: Lawyers for the Defendant