SC1786
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 135 OF 2018

BLUEGRASS LIMITED
Appellant

AND
TONY KAGL, in a representative capacity as Lead Plaintiff
First Respondent

AND
SERGEANT H KORA
Second Respondent 

AND
ANDY BAWA
Third Respondent

AND
GARI BAKI
Forth Respondent

AND
ROYAL PAPUA NEW GUINEA CONSTABULARY
Fifth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani:  Dingake J
2019:    22 March & 05th April

Cases Cited

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC 853
Curtain Bros (PNG) Ltd v UPNG (2005) SC 788
Oberia v Charlie (2005) SC801
Sir Julius Chan v Ombudsman Commission of PNG [1999] PNGLR 240

Counsel:

Mr P Lowing and Mr B Sinen, for Appellant
No appearance for Respondents

05th April , 2019

1. 	DINGAKE J:	 This is an application for leave brought in terms of Section 14 (3)(b) of the Supreme Court Act.
2. 	The facts of this case are briefly that the first respondent instituted proceedings in 2016, styled WS 2 of 2016, seeking, inter alia, enforcement of human rights for alleged breaches suffered as a result of an eviction of the second to fifth respondent (inclusive) in or around August 2015, in relation to portions of land described as Section 417 Allotments 11, 12, 13, and 14, Hohola, Port Moresby, National Capital District. 
3. 	On the 29th of December, 2017, first respondents obtained interim restraining orders, restraining Rapid Response Private Security Services and its servants and or associates from issuing threat of eviction and physical assaults against the plaintiffs and their properties in regard to the above mentioned piece of land.  
4. 	The appellant, upon application, was joined as the sixth defendant to the above proceedings on or about the 15th of June, 2018.
5. 	On the 25th of June, 2018, the appellant by way of Notice of Motion sought to dismiss the first respondent’s entire claim, alternatively to set aside the interim orders.
6. 	On the 9th of July, 2018, the first respondent filed a Writ of Summons and Amended Statement of Claim and served same on the appellant. 
7. 	The appellant having been permitted by the court to file its Notice of Motion filed on the 25th of June, 2018 and 18th of July, 2018, unsuccessfully moved its application for dismissal on the 2nd of August, 2018.
8. 	The dismissed application filed on 2nd of August, 2018 is the subject of this leave application.
9. 	In its application for leave to appeal, the appellant sets out the grounds it relies on to be granted leave to appeal. These grounds are that:
a.	the primary judge failed to give good, proper, meaningful and sufficient reasons for making the primary decision;
b.	the primary judge failed to find that the First Respondents’ Amended Statement of Claim disclosed no cause of action against the Appellant;
c.	the primary judge should have found that the Appellant had title to the subject land on the relevant and admissible evidence before the Court;
d.	the primary judge erred in law and fact in finding that the subject land is vacant;
e.	the primary judge erred in law in considering fraud in the grant and transfer of the subject land to the Appellant, when the fraud allegation had not been pleaded in the Amended Statement of Claim or at all; 
f.	the primary judge erred in law and in fact in finding that the Appellant had not complied with lease conditions of the subject land, when such a allegation had not been pleaded in the Amended Statement of Claim or supported by admissible, relevant or cogent evidence;
g.	the primary judge erred in law in finding that the affidavits filed in support of the Notice of Motion filed on 18th July, 2018 and in the proceedings generally were not admissible as evidence in support of the dismissal application notwithstanding they were read by the Appellant in the dismissal application and no objection was taken to their admission by any party to the proceedings; and
h.	the primary judge in making the primary decision, failed to properly exercise the National Courts jurisdiction under Order 12 Rule 40(1) (a), (b), (c) and Order 12 Rule 8 (3)(a) of the National Court Rules.
10. 	I have considered the above grounds with extreme care, in the backdrop and context of the entire evidence filed of record including the transcript and the judgment of the court.
11. 	Before this court and indeed in the lower court, as the record would show, the appellant argued strongly that the plaintiffs in the lower court had not established a cause of action, for the reasons captured in the record and unsuccessfully sought the proceedings to be dismissed in terms of Order 12 Rule 40 (1) of the National Court Rules.
12. 	It is settled law in this jurisdiction that an order to dismiss proceedings on the grounds that no reasonable cause of action has been disclosed will only be granted in the clearest of cases, where it is demonstrated that the claim is plainly unsustainable, not that the plaintiff’s case is otherwise weak and not likely to succeed. The test is a higher one. The defendant who invokes Order 12, Rule 40 (1) of the National Court Rules and seeks to dismiss the proceedings on the basis that no reasonable cause of action is disclosed must show not that the plaintiff’s case as pleaded is weak, but that it is obviously unsustainable. The record shows that the learned judge a quo was alive to the above jurisprudential injunction.
13. 	It is not in dispute that the decision of the National Court handed down on the 22nd of August, 2018, was an interlocutory decision, hence the leave application, pursuant to Section 14 (3) (b) of the Supreme Court Act.
14. 	It is trite learning that the appellate court will not interfere with a discretionary judgment on a procedural matter, except where the exercise of that discretion is clearly wrong, or there is an identifiable error, and or the order is unreasonable or plainly unjust (Curtain Bros (PNG) Ltd v UPNG (2005) SC788.
15. 	The case of Curtains, cited supra, also makes it clear that there is a strong presumption in favour of the correctness of the decision appealed from, and that the appellate court is more likely to affirm the decision, unless it is satisfied that the decision is clearly wrong.
16. 	In the case of Sir Julius Chan v Ombudsman Commission of PNG [1999] PNGLR, 240, at page 258, the Court set the bar quite high when it said: 
“So 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 is patent error, but also that the error affects a party’s substantive rights or will prevent the proper determination of the issues.”
17. 	The considerations/factors that the Court should take into account in an application for leave to appeal were set out in the locus classicus case of Oberia v Charlie (2005) SC801. The test was framed in a form of questions as follows:
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?
18. 	Before applying the above considerations or factors to this case, I remind myself, consistent with the wisdom posited in the case of Chief Collector of Taxes v Bougainville Copper Ltd (2007) 853, that it is not enough that this Court considers that, if it were in the position of the primary judge, it could have taken a different decision. 
19. 	The discretion is not for the appellate court but the primary judge and the appellate court may only grant leave, if the exercise of discretion, among other relevant considerations, was plainly wrong or manifestly unreasonable or unjust.
20. 	At the end of the day, having regard to all the circumstances of the case, I find that the controversy between the parties in this application, is settled by the golden words pronounced by the Court in the Sir Julius Chan case, cited supra, to the effect that to obtain leave to appeal, an interlocutory judgment, it is not just a matter of asserting that there is an arguable case or that some error was committed, because “it is not the case that every error will affect the outcome of substantive proceedings” (emphasis added). It seems to me that if there be any errors they are not of such a nature as to affect the outcome of the substantive proceedings.
21. 	In summation, I do not consider that even if I were to accept (which I don’t) that the learned judge a quo committed errors complained of as indicated in the grounds earlier stated, such would be sufficient to grant the leave sought.
22. 	I am not at all persuaded that the judge a quo committed any error that will affect the substantive rights of the parties to this litigation or will prevent the proper determination of the issues.
23. 	In the result, the application is dismissed with costs.   
___________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Appellant