SC2686

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 102 OF 2019

BETWEEN:
YAPI GIWI
First Appellant

AND:
WILLIAM HAGAHUNO trading as
WILLIAM ATTORNEYS
Second Appellant

AND:
JACOB POPUNA
as Public Curator and Official
Trustee of Papua New Guinea
First Respondent

AND:
GRAHAM ELIPAS
Second Respondent

WAIGANI: HARTSHORN J
19 JUNE, 14 AUGUST 2024

PRACTICE AND PROCEDURE - Application for summary determination of the appeal- whether this proceeding should be summarily determined pursuant to Order 13 Rule 16 (1)(c) Supreme Court Rules -  whether leave is required and an application for leave to appeal was required - application for leave to appeal was not filed and a notice of appeal commenced this proceeding -  notice of appeal and the supplementary notice of appeal are incompetent - proceeding an abuse of process as the procedure required to be followed in the Supreme Court Act has not been followed - appeal summarily determined pursuant to Order 13 Rule 16(1)(c) Supreme Court Rules.

Cases cited
Special Reference pursuant to s.19 by the East Sepik Provincial Executive (2013) SC1236
Rea Joseph v. Manau Sereva (2011) SC1152
Steven Punangi v. Pacific Plantation Timber Ltd (2011) SC1153
Barrick (Niugini) Ltd v. Nekitel (2021) SC2092

Counsel

Mr. O. Dekas for the appellants
Mr. F. Aki for the first respondent
Mr. J. Napu for the second respondent

1. HARTSHORN J:  This is a decision following a contested hearing on whether this proceeding should be summarily determined pursuant to Order 13 Rule 16 (1)(c) Supreme Court Rules - that is on the Court’s or Judges own initiative. 

Background

2. The substantive appeal is against a decision of the National Court which ordered amongst others, the dismissal of a motion seeking removal of the second plaintiff now second respondent as a party, the refusal of motion seeking entry of default judgment, the removal of a grant of letters of administration and the vesting of two estates by operation of law.

3. The first appellant Yapi Giwi died. Two applications to substitute the first appellant in this appeal have been refused.

4. The second respondent had sought for this matter to be referred for summary determination and be dismissed pursuant to Order 13 Rule 16(1)(a) Supreme Court Rules. This Court dismissed that application on the basis that the jurisdiction of the Court was not properly engaged to grant the relief sought. This Court also ordered that there be a hearing on whether this matter should be summarily determined pursuant to Order 13 Rule 16(1)(c) Supreme Court Rules - that is on the Court’s or Judge’s own initiative.

5. At the hearing to determine whether this matter should be summarily determined pursuant to Order 13 Rule 16(1)(c), counsel for the appellants’ opposed the making of such order. Both counsel for the respondents submitted that the appeal should be summarily determined on various grounds.
Preliminary
6. Counsel for the appellants submitted that this Court constituted by a single judge did not have the power to refer a matter to itself for summary determination and did not have the power to summarily determine or dismiss an appeal. Reliance was placed upon the judgment of Cannings J. in Special Reference pursuant to s.19 by the East Sepik Provincial Executive (2013) SC1236. This judgment was delivered in 2013. Order 13 Rule 16(1) has been amended since then by the Supreme Court (Miscellaneous Amendments) Rules 2022, which commenced operation on 1st May 2022. It now reads: “The Court or a Judge may summarily determine a matter …..”. Further, Order 13 Rule 16(1)(c) provides: “on the Court’s or Judge’s own initiative.”
7. I am satisfied that I have the power pursuant to Order 13 Rule 16(1)(c) to summarily determine a matter on my own initiative, sitting as a single Supreme Court Judge. I also mention that Order 13 Rule 1 defines “Summary Determination” to mean an application to dismiss a matter and that the definition of “matter” includes “any appeal”.
Consideration
8. The first ground I consider is whether the appeal should be summarily determined as an abuse of process as it was commenced by a notice of appeal and not an application for leave to appeal. 

9. The appeal was filed on 12th August 2019. A supplementary notice of appeal was filed on 25th October 2019. Putting aside for the present, the issue concerning whether the supplementary notice of appeal was filed in time, both documents appeal the decision of the primary judge delivered on 5th July 2019 which is as follows (decision appealed):

“(1)	The second defendant’s notice of motion filed on the 3rd of August 2017 seeking removal of the second plaintiff as party to these proceedings and other relief contained therein are refused and dismissed.
(2)	The Plaintiffs notice of motion seeking entry of default judgment is refused.
(3)	The grant of Letters of Administration granted to the first defendant, Yapi Giwi, dated 21st January 2011 is revoked.
(4)	The Estate of the late Anongao Elipas and the Estate of the late John Aip are separate estates. These estates vests in the Public Curator by operation of law.
(5)	Costs are in the cause.”

10. The decision appealed dismissed a notice of motion to remove a person as a party, refused a notice of motion seeking entry of default judgment, revoked a grant of letters of administration and stated that two estates were separate and vest in the Public Curator. The decision appealed did not finally determine the National Court proceeding from which the decision appealed emanates.

11. The order of costs in the cause, being an order for costs of interlocutory matters to be awarded according to the final award of costs in the proceeding, is indicative of the primary judge making orders which did not finally determine the National Court proceeding. Section 14(3)(b) Supreme Court Act, relevantly provides that no appeal lies to the Supreme Court without leave of the Supreme Court “from an interlocutory judgment made or given by the National Court.”

12. In Steven Punangi v. Pacific Plantation Timber Ltd (2011) SC1153, the five member Court, after finding that the “order” approach as to interlocutory and final orders should be continued in this jurisdiction, stated at [11]:

“…. a dismissal of an appeal for want of prosecution, is not an interlocutory judgment within the meaning of s. 14(3)(b) Supreme Court Act, as it finally determines the matter in the National Court, it finally disposes of the rights of the disputing parties and it finally determines the issue between the parties.”

13. Here, the decision appealed does not finally determine the matter in the National Court, it does not finally dispose of the rights of the disputing parties and does not finally determine the issues between the parties. The argument that orders three and four of the decision appealed are final in nature does not detract from the fact that they are in orders of a judgment appealed that does not finally determine the matters in the National Court, does not finally dispose of the rights of the disputing parties or finally determine the issues between the parties.

14. Consequently, the decision appealed is an interlocutory judgment. To appeal that interlocutory judgment, as was purportedly done by the notice of appeal and supplementary notice of appeal, leave is required and an application for leave to appeal was required. As an application for leave to appeal was not filed and a notice of appeal commenced this proceeding, the notice of appeal and the supplementary notice of appeal are incompetent. This renders this proceeding an abuse of process as the procedure required to be followed in the Supreme Court Act has not been followed: Punagi v. Pacific Plantation (supra); Rea Joseph v. Manau Sereva (2011) SC1152.

15. In the judgment of Barrick (Niugini) Ltd v. Nekitel (2021) SC2092, relied on by the appellants, at [22] the Court said that:

“The case authorities ….. 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 process of the Court under the rule.”

16. Here, as the filing of a notice of appeal and supplementary notice of appeal is a breach of procedure prescribed in the Supreme Court Act and as the proceeding is an abuse of process as a consequence, the proceeding should be summarily determined pursuant to Order 13 Rule 16(1)(c) Supreme Court Rules. Given this, it is not necessary to consider the other submissions of counsel.

Orders

a)	This appeal is summarily determined pursuant to Order 13 Rule 16(1)(c) Supreme Court Rules.
b)	The appellants shall pay the costs of the respondents of and incidental to this appeal, not already provided for in previous costs orders, on a party party basis to be taxed if not otherwise agreed.
__________________________________________________________________
Lawyers for the Appellants: Ogenson Lawyers
Lawyers for the First Respondent: Public Trustee  
Lawyers for the Second Respondent: Napu and Co Lawyers