SC1747

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 8 of 2018

BETWEEN:
MOSES MEWAYO & MOSES KOSIE, 
Chairman and Deputy Chairman of Kutubu
 LLG Special Purpose Authority
First Appellants

AND:
STEVE MADI & JOE BAGI, 
Board of Directors Kutubu LLG
 Special Purpose Authority
Second Appellants

AND:
HON. KEVIN ISIFU, MP, 
Minister for Inter-Government Relations
Third Appellant

AND:
DICKSON GUINA, 
Secretary for Provincial & Local 
Level Government Affairs
Fourth Appellant

AND:
THE INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Fifth Appellant

AND:
MARK SAKAI
Respondent

Waigani: Hartshorn J.
 2018: 18th May 
       : 2nd July 

Application for Leave to Appeal

Cases Cited:
Papua New Guinea Cases

Oberia v. Charlie (2005) SC801
Wawoi Guavi Timber Company Ltd v. PNG Forest Authority & Ors (2007) SCA 22/07 Waigani, delivered 29th June 2007

Overseas Cases

Sir Frederick Jordan in Re Will of F.B. Gilbert (dec’d) (1946) 46 SR (NSW) 318 Adam P Brown Mail Fashions Pty Ltd v. Phillip Morris Inc (1981) 148 CLR 170 National Mutual Holdings Pty Ltd v. Sentry Corporation (1988) 83 ALR 434

Counsel:

Mr. E. Waifaf, for the First and Second Appellants
Mr. T. Cooper, for the Respondent

2nd July, 2018

1. HARTSHORN J. This is a decision on a contested application for leave to appeal an interlocutory judgment of the National Court that granted leave for judicial review and a stay (appealed decision). The application is made by two appellants who are not parties to the National Court proceeding from which the appealed decision emanates.

Background

2. The National Court by the appealed decision granted leave to the respondent Mr. Mark Sakai, to judicially review:

a)	A decision of the third appellant, Hon. Kevin Isifu (Minister) concerning and or officially recognising one of the first appellants, Mr. Moses Mewayo and one of the second appellants, Mr. Steve Madi, as newly appointed members of the Board of the Kutubu Special Purposes Authority (KSPA) published in his letter of 21st February 2018;

b)	A decision of the Minister giving notice of the endorsement of members of the KSPA dated 5th March 2018, publishing the nominees of the Board of the KSPA to include Messrs. Mewayo and Madi as respective representatives of the Namo’Aporo Landowners Association Inc.

3. The KSPA is a statutory body created under s. 42 Local Level Governments Administration Act 1997.

4. The first and second appellants, although not parties to the National Court proceeding from which the appealed decision emanates, claim to have standing to appeal under s. 14(3)(b) Supreme Court Act by virtue of s. 17 Supreme Court Act as they claim to be directly affected by the appealed decision.

Right to Appeal

5. The appealed decision was made after an ex parte application by the respondent. Notwithstanding this, the first and second appellants submit that they have the right to appeal as they have interests that are affected by the decision. They claim that they are directors of KSPA and that Messrs. Mewayo and Madi are specifically the subject of the decisions in respect of which leave to judicially review was given. This right of appeal is confirmed in Wawoi Guavi Timber Company Ltd v. PNG Forest Authority & Ors (2007) SCA 22/07 Waigani, delivered 29th June 2007 (Injia DCJ, Hinchliffe, Gabi JJ). As to a person or party who may be entitled to appeal a decision granting or refusing an application for leave to apply for judicial review.  The Court said:
	
“Section 17 of (Supreme Court) Act says that “a person who desires to appeal or obtain leave to appeal”. The word “person” was interpreted broadly by Kapi DCJ (as he then was) in the Supreme Court decision in Kitogara Holdings Pty Ltd v. NCDC Interim Commission & Ors [1988-89] PNGLR 346. His Honour stated:
“The word “person” is used as opposed to “parties”.  The word “person” includes all persons whose interests are affected and who might have been joined as parties to proceedings”.
This interpretation gives any person who is not a party to a proceeding but whose interest is otherwise affected by the decision, the right to appeal the decision. We are not invited by the respondents to re-visit this interpretation and we too do not see any reason to depart from this interpretation.”

6. I note also that the respondent does not take issue with the first and second appellants being able to appeal.

Leave to appeal

7. The requirement to seek leave is a procedure that ensures that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgment.

8. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:
	
a)	Is there an arguable or prime 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?

9. I also make reference to the following decisions which are persuasive in our jurisdiction: In Re Will of F.B. Gilbert (dec’d) (1946) 46 SR (NSW) 318, Sir Frederick Jordan stated the following at 323 which was cited with approval in Adam P Brown Mail Fashions Pty Ltd v. Phillip Morris Inc (1981) 148 CLR 170 at 177 and National Mutual Holdings Pty Ltd v. Sentry Corporation (1988) 83 ALR 434 at 440:
“…. I am of opinion that, …. there is a material difference between an exercise of discretion on a point of practice or 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 orders of judges at first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse 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.”
Application for Leave
10. The first and second appellants submit that leave to appeal should be granted as:
a)	The primary judge fell into error by failing to consider that the procedure for a KPSA Board appointment included ministerial directions dated 24th of March 2017 which provides for the appointment of a director to be made in the area of the parent Local Level Government;
b)	The primary judge fell into error by failing to consider that the respondent was appointed in breach of the ministerial directions and therefore did not have sufficient interest;
c)	The primary judge fell into error in holding that the respondent had an 	arguable case;
d)	The primary judge 	was misled to believe that the subject decision of the Minister was unreasonable;
e)	The primary judge was not presented with all of the relevant documentation 	and the respondent approached the Court in bad faith;
f)	The respondent approached the court in bad faith in not naming the first and second appellants as parties;
g)	The primary judge erred in granting leave to operate as a stay, in not 	considering the proper principles for a stay and in failing to adjourn the application for a stay.
11. The respondent submits that leave should not be granted as amongst others:
a)	All of the grounds of appeal contained in the application for leave are not meritorious and fail to establish any arguable grounds;
b)	The respondent disclosed all relevant material that he had to the National Court;
c)	The first and second appellants have other recourse in the National Court proceeding;
d)	The decision to grant leave to judicially review was in the discretion of the Court and it has not been shown that the exercise of that discretion was manifestly unreasonable or exercised on a wrong principle or mistake of fact;
e)	The appealed decision does not have a bearing on the final determination of the issues between the parties;
f)	Substantial injustice will not be caused to the first and second appellants if the appealed decision is allowed to stand;
g)	Cause has not been shown for the trial process to be interrupted by an 	appeal.
Consideration
12. From a consideration of the evidence and the submissions of the first and second appellants, I am not satisfied that the primary judge did fall into error as submitted, in granting leave for judicial review. I am not satisfied that the first and second appellants have shown that the appealed decision was not within the discretion of the Court or that its exercise was manifestly unreasonable. 
13. If the primary judge did fall into error, the appealed decision only grants leave for judicial review. It does not have a bearing on the final issues between the parties and the first and second appellants, and it does not determine any of their substantive rights. The first and second appellants are able to continue with their application to join the National Court proceeding. I am not satisfied that any injustice has been caused to the first and second appellants. Further, cause has not been shown in my view, why the trial process should be interrupted by an appeal.
14. The application for leave to appeal should be refused. Given this it is not necessary to consider the other submissions of counsel.
Orders
15.  It is ordered that:
a)	The application for leave to appeal filed 30th April 2018 is dismissed;
b)	The first and second appellants shall pay the costs of the respondent of and incidental to the said application for leave to appeal.
_________________________________________________________________
Edward M. Waifaf Lawyer:  Lawyers for the First and Second Appellants             
TL Cooper Lawyers: Lawyers for the Respondent