SC2237

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 154 OF 2021

BETWEEN:
SUKIRI INVESTMENT LTD
Applicant

AND
PAPUA NEW GUINEA FOREST AUTHORITY AND OTHERS
Respondents

Waigani: Logan J
2022: 16th March

PRACTICE & PROCEDURE – application for leave to appeal interlocutory decision of National Court – where appeal against substantive decision of National Court already on foot – where arguable case that National Court did not have power to stay orders issuing writ of possession – leave to appeal granted 

Facts:

Sukiri Investment Limited (Sukiri) was granted a State Lease in relation to certain land in Lae on 7 February 2012. Prior to that grant, the land had been occupied by various people, including officers of the Forest Authority (Authority).  The Authority occupied the land by virtue of s 139A(1) of the Forestry Act 1991, which relevantly provided that, upon that Act coming into effect, all land set aside for use of the Authority vested in the Authority.

The Authority was initially unaware that Sukiri had been granted a State Lease.  Upon becoming registered proprietor, Sukiri commenced proceedings in the National Court seeking vacant possession of the relevant land.  Sukiri was granted a writ of possession on 4 February 2020.  It was upon Sukiri taking steps to execute that writ that the Authority first became aware of the grant of the State Lease. Upon becoming aware of that grant, the Authority commenced judicial review proceedings seeking to challenge the decision made within the Lands Department to award the State Lease. 

The Authority was granted leave to apply for judicial review by the National Court. That decision was in turn appealed to the Supreme Court by Sukiri.  

In granting leave to appeal, the learned primary judge made ancillary orders, including staying the writ of possession. Sukiri instituted a separate application for leave to appeal against the orders granting a stay of the writ. 

The parties jointly promoted orders staying enforcement of the writ of possession and the administrative review proceedings in the National Court pending determination of the substantive appeal. 

Held:

1.	Leave to appeal should be granted where there is an arguable case that a National Court judge did not have power to issue a stay of orders of another National Court judge issuing a writ of possession. 

Cases Cited:
Papua New Guinean Cases

Nil

Overseas Cases:

Port of Melbourne Authority and Anshun Pty Ltd (1981) 147 CLR 589

Legislation:

Forestry Act 1991
Land Act 1996
Land Registration Act 1981

Counsel:

Mr. J Aku, for the Applicant
Mr. A Chillion, for the First Respondent
Mr. R Uware, for the Second, Third and Fourth Respondents

Oral decision delivered on
16th March 2022

1.	LOGAN J: These proceedings concern land in Lae, the State leasehold in respect of which Sukiri Investment Limited (Sukiri) is the registered proprietor pursuant to a grant on 7 February 2012.  The land concerned had been exempted from advertisement under section 69 of the Land Act 1996.  Prior to 2012, the parliament had enacted the Forestry Act 1991.  By s 139A(1) of the Forestry Act, all land set aside for the use of the Forest Authority (Authority), on coming into effect of the Forestry Act, is vested in the Authority.  Upon its becoming registered proprietor, Sukiri, noting that there were occupants, including officers of the Authority on the land, commenced proceedings in the National Court at Lae for vacant position of the land – WS 703 of 2013.

2.	The absence of advertisement apparently had the consequence that the Authority was unaware of the granting of a State Lease.  It seems the first time that grant came to the Authority’s attention was when Sukiri, having secured a writ of possession on 4 February 2020, took steps to execute that writ of possession in respect of the subject land.  The Authority’s response was prompt.  It filed a judicial review proceeding in the National Court in November 2020 to challenge the decision made within the Lands Department to award the leasehold to Sukiri.  That judicial review proceeding became OS (JR) 74 of 2020.

3.	Leave to the Authority to apply for judicial review was granted.  In turn, Sukiri secured a grant of leave on 22 November 2021 in SCA 54 of 2021 to appeal against the grant of leave for judicial review.  The appeal subsequently instituted is SCM 66 of 2021 (IECMS).  On the strength of the granting of leave to apply for judicial review, a National Court judge made stay orders which materially included the staying of the taking of any further steps to execute the writ of possession.  Sukiri now applies for leave to appeal against that stay order.

4.	As I put to counsel in the course of submissions, it is a very moot point as to whether a learned National Court judge had power to stay an order made as sequel to judgment in an earlier National Court proceeding; the order being the order for the issuing of the writ of possession.  The controversy was nicely exposed in the carefully prepared extracts of submissions filed on behalf of Sukiri and the Authority.  The various other State party respondents adopted the Authority’s submissions.

5.	The more argument progressed in respect of the leave application, the more it became apparent to all counsel concerned that there was at least an arguable case raised by the application for leave.  That was certainly a sentiment which I voiced.  Thus, whilst not conceding the ultimate merits of the points sought to be agitated by Sukiri, the respondents came to accept that there was an arguable case, at least in respect of the power of the National Court judge to make that particular stay order.  

6.	It is quite obvious having regard to the affidavit in support of the leave to appeal application made by Mr Morgan Sukiri, the managing director of the applicant, Sukiri, that there is a very real and genuine controversy on the ground, quite literally, in Lae in relation to who as a matter of law has the right to possession of the land.  Sukiri can point to it being the registered proprietor and, in turn, the particular indefeasibility of title conferred on a registered proprietor by s 33 of the Land Registration Act 1981. For its part and as already mentioned, the Authority points to the terms of the Forestry Act which as enacted and commenced, preceded the granting of a State Lease to Sukiri.  

7.	That particular substantive controversy is already the subject of the Supreme Court appeal mentioned.  I was informed that earlier this month that appeal has been set down for hearing on 27 June 2022.  It is overwhelmingly desirable, in my view, a view shared by counsel for each of the parties, that the appeal instituted as a consequence of the grant of leave in this proceeding, be heard together with the earlier instituted appeal on 27 June 2022.  The interests of justice require that all controversial issues be resolved at the one time.  

8.	The point concerning the power of a National Court judge to stay an earlier order made by a National Court judge is truly one worthy of consideration in the Supreme Court on appeal.  In a sense, it is peripheral to the substantive appeal, concerning whether the interest of Sukiri as registered proprietor is indeed truly indefeasible.  However that may be, it is a question that needs resolving and ideally in conjunction with the substantive appeal.

9.	So, one direction which I propose to make in addition to granting leave to appeal is that the appeal commenced upon the grant of leave be heard together with the existing appeal in SCM number 66 of 2021 (IECMS).  Because I am persuaded that there is an arguable case, in respect of the issues identified in the application for leave to appeal, I grant the applicant leave to appeal, the order of the National Court made on 12 October 2021 in OS (JR) 74 of 2020 (IECMS).  

10.	Recognising, as they did, the desirability that pending the hearing and determination of the appeal consequential to the grant of leave, there being no question of any disturbance of a status quo, pending the hearing and determination of that consequential appeal, as well as the existing appeal.  The parties promote consensually that pending determination of the new appeal and SCM 66 of 2021 (IECMS): 

(a)	the applicant (Sukiri) shall not enforce or execute the writ of possession issued in WS 703 of 2013; and 
(b)	that proceedings OS (JR) 74 of 2020 (IECMS) be stayed.
11.	An issue which may emerge on the hearing of the substantive appeal is the extent to which, if at all, the Authority is in any event bound by the earlier National Court judgment which saw the issuing of the writ of possession.  I make that observation because the State was a party to those proceedings.  Prima facie at least, each of the present respondents, including the Authority, is or is but an emanation of the State. So, in taking into account whether the issues sought to be raised are arguable, I have also taken into account whether in light of who were defendants to the writ proceeding, the Authority was in any event bound by the outcome in that proceeding because the State was a party to that proceeding.  It may be relevant in that context for the full court of the Supreme Court to consider questions of estoppel of the kind considered by the High Court of Australia in Port of Melbourne Authority and Anshun Pty Ltd (1981) 147 CLR 589.

12.	I do no more than highlight a consideration which has intruded also in my reaching the conclusion that Sukiri has raised in an arguable case.  If, truly, the State, including all of its emanations, are bound by the outcome in that writ proceeding there is a very nice question indeed raised about what effect, even apart from the status of Sukiri as a registered proprietor, the orders in the writ proceeding have vis-a-vis the Authority. And that is so even though the Authority may not have been aware of the issuing or the proposal to issue the State Lease.

13.	The other directions which I propose to make are directed to the end of ensuring that the appeal books and the appeal to be commenced do not unnecessarily reproduce material which necessarily will already be in the appeal book for the existing appeal.  So, the further direction I make is that in the preparation of the appeal book, documents already reproduced in the appeal SCM 66 of 2021 (IECMS) be referenced in the index, not reproduced.

14.	The parties are agreed that the costs of the application for leave to appeal should be costs in the appeal commenced upon the grant of leave. That is, with respect, a most appropriate order as to costs indeed, and I shall so order.  

Orders

1)	Leave be granted for the filing in Court of the submissions on leave handed up by the first respondent. 

2)	The applicant be granted leave to appeal against the order of the National Court made on 12 October 2021 in OS (JR) No. 74 of 2020 (IECMS).

3)	Pending determination of the appeal by leave granted today and SCM No. 66 of 2021 (IECMS):

(a)	the applicant (Sukiri Investment Limited) shall not enforce or execute the writ of possession issued in WS 703 of 2013; and

(b)	the proceeding OS (JR) No. 74 of 2020 (IECMS) be stayed.

4)	The appeal commenced on grant of leave be heard together with SCM 66 of 2021 (IECMS).

5)	In the preparation of the appeal book, documents already reproduced in the appeal SCM 66 of 2021 (IECMS) be referenced in the index, not reproduced. 

6)	Costs of and incidental to the application for leave to appeal be costs of the appeal. 

7)	These orders be entered forthwith. 
__________________________________________________________________
Manase & Co Lawyers:  Lawyers for the Applicant
O’Briens Lawyers:  Lawyers for the First Respondent
Office of the Solicitor General:  Lawyers for the Second, Third and Fourth Respondents