SC2361

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 111 OF 2020[IECMS]

BETWEEN:
GREEN WOOD (PNG) LIMITED
Appellant

AND:
PULIE ANU TIMBER COMPANY LIMITED
First Respondent

AND:
G.R. LOGGING LIMITED
Second Respondents

Waigani:  Yagi J, Dingake J, Miviri J.
2022:  13th December
2023: 28th February

SUPREME COURT – Practice and Procedure – An application to summarily determine appeal on the grounds of abuse of Court process pursuant to Order 13 Rule 16(1)(a) of Supreme Court Rules - where an appellant losing standing when the appeal is afoot but insist on same being heard - that amounts to abuse of Court process is covered by Order 13 Rule 16(1)(a) of Supreme Court Rules. 

Cases Cited:

Barrick (Niugini) Limited v Stanley Nekited & Others (2021) SC2092
Department of Works v International Construction (PNG) Ltd (2011) SC1122
The Independent State of Papua New Guinea and Chief Migrations Officer, Rabura Mataio v the Transferees and Amnesty International (2016) SC1488
Benny Ilai v Michael Yasma (2019) SC1857
Aisi Iuma Bore v Elias Wakore (2015) SC410
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2013) SC1230
Kitogara Holdings Pty Ltd v National Capital District Interim Commission & the Independent State of Papua New Guinea and Kala Swokin, Minister for Lands and Karipe Pitzz, Secretary for Lands and Chairman, PNG Town Planning Board [1988–89] PNGLR 346

Counsel:

Mr. Meli Muga, for the Appellant
Mr. Timil Tape, for the First Respondent

28 February, 2023

1. 	BY THE COURT:   This is an appeal lodged by Green Wood (PNG) Limited, the Appellant, in which it appeals against Consent Orders of National Court, issued on the 21st of September 2020 in OS No. 121 of 2020 – Puli Anu Timber Company Limited v G. R. Logging Limited.

2. 	The parties in the National Court are landowner companies.

3. 	The appeal was filed on the 7th of October 2020.

4. 	The Appellant was not a party to the proceedings before the National Court. However, at all material times hereto the Appellant had a Logging and Marketing Agreement (LMA) with the second respondent.

5. 	It is common cause that the said “LMA” expired on the 12th of November 2021.

6. 	It is also common cause that based on the aforesaid LMA, the Papua New Guinea Forest Authority (PNGFA) granted the Appellant a Logging License, which license expired on the 19th of August 2021.

7. 	Sometime in July 2021, the Appellant sought an extension of the license from PNGFA, but the application was refused.

8. 	As indicated earlier, when the appeal was pending, the LMA expired – and it was the expiry of the license that triggered the application, before us, by the First Respondent, to dismiss the appeal, strike it out, or permanently stay the proceedings.

9. 	The crux of the First Respondent’s submission is that the appeal has been overtaken by events (the expiry of the LMA and the License) and therefore liable to dismissal, being struck out or permanently stayed.

10. 	The First Respondent contends that maintaining the appeal after the expiry of the LMA and the License amounts to an abuse of Court as the Appellant no longer has standing to pursue the matter and that accordingly the appeal is incompetent and liable to be dismissed or struck out in terms of Order 13, Rule 16(1)(a) of the Supreme Court Rules and/or Section 155(4) of the Constitution.

11. 	It was held in the case of Barrick (Niugini) Limited v Standley Nekitel & Others (2021) SC2092 that the types of applications that may be made under Order 13 Rule 16 in connection with a matter are:

(a)	Where there has been a failure to prosecute a matter with due diligence resulting in delay: Department of Works v International Construction (PNG) Ltd (2011) SC1122.
(b)	Where there is want of prosecution of the matter: Department of Works v International Construction (PNG) Ltd (2011) SC1122, The State v the Transferees (2016) SC1488, Benny Ilai v Michael Yasma (2019) SC1857, Aisi Iuma Bore v Elias Wakore (2015) SC410.
(c)	Where there is default and failure to comply with the Court’s directions: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2013) SC1230.
12. 	At paragraph 22 of the aforesaid Judgment their Lordships rendered themselves as follows:

“The case authorities mentioned above demonstrate that Order 13 Rule 16 should only be invoked in dealing with procedural matters. In that context, we would also add to the above list that a matter can be summarily determined for abuse of the process of the Court under the rule.”

13. 	The Appellant opposes the First Respondent’s application and argues that Order 13 Rule 16(1) of the Rules of Court does not contemplate summary determination of an appeal on substantive grounds and that it cannot be used as a vehicle to contest substantive issues raised in an appeal.

14. 	According to the Appellant, Supreme Court Judgments in relation to Order 13 Rule 16 have established that summary determination is applicable where a party has not complied with Court directions or where a party has not prosecuted an application.

15. 	We have considered the submissions of the parties and are satisfied that:

(a)	The jurisdictional basis upon which the First Respondent seeks to dismiss the appeal, being Order 13 Rule 16(1) of the Supreme Court Rules is proper.
(b)	That the Appellant lost the standing to pursue the appeal when the LMA and Logging License expired.
(c)	That a party who pursues an appeal with respect of which it has no standing engages in abuse of the Court.

16. 	Having regard to the view we hold that the Appellant lost standing before this appeal could be heard, means that the appeal was essentially overtaken by events and therefore liable to be dismissed.

17. 	Given our conclusion above, we do not consider it necessary to determine whether the other reliefs other than dismissal, prayed for by the First Respondent ought to be granted or not.

18. 	For completeness, with respect to whether the Appellant, not having been a party to the National Court proceedings could appeal against the Consent Orders obtained by the parties, we are of the view that to the extent that at the time of the appeal was filed the Appellant had a valid LMA and a Logging license, and the Consent Orders affected his rights, he had the right to appeal, but the said LMA and Logging license expired, the Appellant lost the standing to pursue the appeal.

19. 	During the course of hearing the First Respondent’s application, we engaged the parties on the impact of Section 14(2) of the Supreme Court Act. The section provides as follows:

“14.2	An appeal does not lie from an order of the National Court made by consent of the parties.” (My emphasis).

20. 	This Court decided in the case of Kitogara Holdings Pty Ltd v National Capital Interim Commission & the Independent State of Papua New Guinea and Kala Swokin, Minister for Lands and Karipe Pitzz, Secretary for Lands and Chairman, PNG Town Planning Board [1988 – 89] PNGLR 346 that the word “parties” refers only to parties in the action and that to interpret parties to include others who could have been made parties, would make Section 14(2) unfair  and oppressive, as that would mean that any two parties to a dispute could, by consent order, deprive other persons from appealing against the decision. We associate ourselves with this view.

21. 	Based on our conclusion that the Appellant lost standing to pursue this appeal when the LMA & Logging License expired we hold that continuing with the appeal amounts to an abuse of Court process and consequently the application by the First Respondent ought to succeed.

22. 	In the result, the application succeeds, and the following Orders are granted.

a)	Pursuant to Order 13, Rule 16(1)(a) of the Supreme Court Rules and/or Section 155(4) of the Constitution, the entire appeal be dismissed for want of standing of the Appellant to continue with this appeal. 

b)	Costs to be paid by the Appellant, such costs to be taxed if not agreed.
________________________________________________________________
Simpson Lawyers: Lawyers for the Appellant    
Kandawalyn Lawyers: Lawyers for the First Respondent