Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Kennedy v Cheah [2021] PGSC 80; SC2157 (6 September 2021)

SC2157

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 161 OF 2020

BETWEEN:

JEFFERY DEAN KENNEDY

Appellant

AND:

ADAM CHIN CHEAH

First Respondent

AND:

MARILYN ESPOLONG

Second Respondent

AND:

ALEXIS SAMUEL ALAISTAIR TAM

Third Respondent

AND:

JULIAN PETER BIANKO

in his capacity as the Liaison
Officer of the Australian Federal
Police in Papua New Guinea
Fourth Respondent

Waigani: Hartshorn J

2021:1^st, 6^th September

SUPREME COURT APPEAL– practice and procedure - Application for leave to appeal

Cases Cited:

Sir Julius Chan v. Ombudsman Commission (1998) SC607
Oberia v. Charlie (2005) SC801

Counsel:

Mr. M. Nale and Ms. B. Kumo, for the Appellant
Mr. G. Sheppard and Ms. L. Painap, for the First, Second and Third Respondents

Oral decision delivered on
6^th September 2020

1. HARTSHORN J: This is a decision on a contested application for leave to appeal. The interlocutory judgment in respect of which leave to appeal is sought is a judgment of a National Court which refused an application to amend an originating summons.

Background

2. The appellant/applicant (applicant) filed an originating summons in the National Court in which he seeks to enforce his constitutional rights. The subject matter of the originating summons concerns amongst others, whether the Australian Federal Police Force have jurisdiction to receive criminal complaints or information and to conduct investigations in Papua New Guinea. The relief sought includes various declaratory orders and permanent, mandatory and interim injunctive relief.

3. The first, second and third respondent’s (respondents) oppose the application for leave as it is submitted that the applicant has not satisfied the relevant tests established in Oberia v. Charlie (2005) SC801 and that it has not been demonstrated by the applicant that the decision appealed prevents him from ventilating an issue which is critical to his case in the National Court.

Leave to appeal

4. 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.

5. 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?

Preliminary

6. The respondents object to the applicant relying upon annexure JK7 of his affidavit as proof of the order which is sought to be appealed. This is because s. 44 Evidence Act has not been complied with. JK7 purports to be a transcript of certain proceedings.

7. The respondents submit that as this application is made against an interlocutory order, that order has to be proved pursuant to s. 44 Evidence Act. If there is difficulty obtaining the order, then evidence of this difficulty must be given.

8. Section 44 Evidence Act provides that:

“44. Judicial proceedings.

Evidence of—

(a) a judgement, decree, rule, order or other judicial proceeding of—

(i) a court of Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia; or

(ii) a Judge, justice or magistrate of any such court; or

(b) an affidavit, pleading or legal document filed or deposited in any such court,

may be given in a court by the production of a document purporting to be a copy of it, and—

(c) proved to be an examined copy of it; or

(d) purporting to be sealed with the seal of the court; or

(e) purporting to be certified as a true copy by a registrar or chief officer of the court.”

Consideration

9. First, as to compliance with s. 44 Evidence Act, from a reading of s. 44, its operation is not mandatory. It provides that “Evidence of ..... may be given in a court”. The court then, in its discretion, is able to receive evidence of a judgment, decree rule or order, in other ways than those set out, in s. 44.

10. In this instance, what is before the court is a document which the applicant has sworn to be a true copy of the transcript of the subject court hearing on 21^st October 2020. The interlocutory judgment for which leave is sought to appeal was made on 21^st October 2020. I am satisfied that the court should permit the applicant to rely on that transcript.

11. Secondly, following the wording of s. 44 Evidence Act, a judgment or order may be given in a court by the production of a document purporting to be a copy of it and (d), purporting to be sealed with the seal of the court.

12. In this instance, on the first page of annexure JK7, there is a copy of a certificate of correctness. The Director of Court Reporting Service, Pavora Marupi, certifies that the 37 pages of transcript of proceedings comprises a true and correct record of the recordings of the matter heard on 21^st October 2020. Moreover, there is a copy of the Supreme and National Court seal affixed.

13. I am satisfied that JK7 complies with s. 44 Evidence Act as it is a judgment given in a court by the production of a document purporting to be a copy of it and purporting to be sealed with the seal of the court.

14. Leave is sought to appeal an interlocutory judgment. A copy of that interlocutory judgment is in evidence pursuant to s. 44 Evidence Act. Part of that interlocutory judgment are the orders made by the primary judge. The objection to JK7 by the respondents is refused.

Merits of Application for Leave

Consideration

15. In ground one, the applicant claims that the primary judge fell into error by stating that he was not bound by the Supreme Court decision in Malewo v. Faulkner (2009) SC960 and refusing to grant leave to amend the originating summons.

16. The respondents submit that the primary judge did not fall into error as he was not bound by the Malewo judgment. This is because the Malewo judgment did not carefully consider the issue of amending an originating summons under Order 8 Rule 50 National Court Rules.

17. Notwithstanding that the Supreme Court in Malewo did not specifically consider the question “whether an originating summons may be amended under Order 8 Rule 50 National Court Rules”, it is implicit in the Court’s consideration of the issues concerning Order 8 Rule 50 before it, that the Court was of the view that Order 8 Rule 50 permits the court at any stage of proceedings whether commenced by writ of summons or originating summons, to order any document in the proceeding to be amended and said so.

18. It is arguable therefore, that the primary judge fell into error in not following the decision in Malewo. Further, it is arguable on its face and from the clear and ordinary meaning of Order 8 Rule 50 that it permits amendment of an originating summons as an originating summons is a document.

19. In ground two, the applicant claims that the primary judge fell into error in the exercise of his discretion in not following the principles in Malewo v. Faulkner and five National Court decisions. The respondents submit that the applicant only relied upon Malewo’s case before the primary judge and so cannot now rely on the five National Court decisions.

20. It is clear from a perusal of the transcript that the primary judge did permit counsel for the applicant to hand up a list of authorities upon which the applicant relied. It is arguable therefore, that the applicant did rely upon those other decisions which are for the proposition that Order 8 Rule 50 does permit the amendment of an originating summons. Further, as mentioned, it is arguable on its face and from the clear and ordinary meaning of Order 8 Rule 50, without recourse to other authority, that Order 8 Rule 50 permits the amendment of an originating summons, as an originating summons is a document. Consequently, I am satisfied that the applicant has established that he has an arguable case.

21. The applicant submits that he does not have recourse in the court below. The respondents submit that the applicant does have such recourse as the applicant may make a separate application for the enforcement of Constitutional Rights after the determination of the issues in the court below.

22. To my mind, what is meant by recourse in the court below, refers to recourse in the National Court proceeding from which the interlocutory judgment sought to be appealed emanates and not recourse in the National court generally. I refer to Sir Julius Chan v. Ombudsman Commission (1998) SC607 in this regard. The applicant has already made an application to amend in the National Court which was refused. He cannot make a further application in the same proceeding. The applicant does not have recourse in the court below.

23. The next consideration is whether the ruling in respect of which leave to appeal is sought was within the discretion of the Court? It was. Was it manifestly unreasonable? It may be argued that it was. Was it exercised on a wrong principle? It is arguable that the primary judge did exercise his discretion on a wrong principle.

24. Does the decision have any bearing on the final determination of the issues between the parties and will it affect their primary rights or prevent a determination of the issues? The decision does not affect the primary rights of the respondents. To my mind, however, if the decision is left to stand it will affect the primary rights of the applicant in the subject National Court proceeding. This is because he will most likely not be able to seek the relief he wishes by virtue of the amendments which he sought, as the amendments have been refused.

25. In my view, substantial injustice may be caused to the applicant in the context of the National Court proceeding, as he will not be able to seek the relief which he desires in that National Court proceeding.

26. I am satisfied in all of the circumstances, that cause has been shown to interrupt the trial process and that leave to appeal should be allowed.

Orders

27. It is ordered that:

1. The Applicant is granted leave to appeal the interlocutory judgment and Court order dated 21^st October 2020;
   
2. The costs of and incidental to the application for leave to appeal are costs in the appeal.
   

Jema Lawyers: Lawyers for the Appellant/Applicant
Young & Williams Lawyers: Lawyers for the First, Second and Third Respondents