SC2597

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 152 OF 2022

BETWEEN:
KULE LAYO in his capacity as a Landowner & member of the Pulumani Ambo Wangia Clan of the Porgera Special Mining Lease
First Appellant

AND
KIMALALEYA ONDALANE in her capacity as a Landowner & member of the Teini-Yangua Clan of the Porgera Special Mining Lease
Second Appellant

AND
RUBEN LOLI NALAPE in his capacity as a as a Landowner & member of the Pulumani Ambo Wangia Clan of the Porgera Special Mining Lease
Third Appellant

AND
HON. ANO PALA, in his capacity as the Minister for Mining
First Respondent

AND
MINERAL RESOURCES AUTHORITY
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND
NEW PORGERA LIMITED
Fourth Respondent

Waigani: Polume-Kiele J, Pitpit J & Dowa J
2023: 28th November
2024: 27th June

SUPREME COURT – practice and procedure – Appeal to full court by way of notice of motion filed on 24 November 2023 to vacate the orders made by the single Judge of Supreme Court – Supreme Court Rules, Order 11 Rules 25 and 26 – application incompetent – lack jurisdictional basis.

PRACTICE AND PROCEDURE- objection to competency of appeal –Order 7 Rule 15 of the Supreme Court Rules 2012 and for abuse of the court’s process on the basis that the grounds of appeal offend Order 7 Rules 9 and 10 of the Supreme Court Rules and Section 14(3)(b) of the Supreme Court Act-a ground of appeal relates to an interlocutory decision requiring leave to appeal-having not sought leave to appeal, the appeal is incompetent pursuant to Section 14 (3) (b) of the Supreme Court Act-offending ground of appeal struck out.

Cases Cited:
Papua New Guinean Cases

Yambaki Surveys Ltd v. Nambawan Super Ltd (2020) SC1901 
The  Independent State of Papua New Guinea v. Kalaut (2021) SC2094
Waghi Savings and Loan to Society Ltd v Bank South Pacific Ltd (1980) SC185
Jeffrey Turia v Gabriel Nelson (2008) SC949
Talibe Hegele v Tony Kila (2011) SC1124
Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221
Bank of Papua New Guinea v. Ruh (2021) SC2124
Michael Kuman & Ors v. Digicel (PNG) Ltd (2013) SC1232
Talibe Hegele v Tony Kila (2011) SC 1124
Turia McKay v Nelson (2008) SC949
PNG Forest Authority v. Securimax Ltd (2003) SC717
Yakham & The National v. Merriam & Merriam(1997) SC533
Lucas Dekena v Nick Kuman (2018) SC1715
Punagi v Pacific Plantation Timber Ltd (2011) SC1153

Overseas Cases

AON Risk Services Australia Limited v Australian National University [2009] HCA 27

Counsel:

Mr. R Saulep, for the Appellants
Mr. T. Tanuvasa, for the First Respondent
Mr. M Varitimos KC, with Mr. L Evore, for the Fourth Respondent

JUDGMENT

27th June 2024

1.	BY THE COURT: This is a decision on the fourth Respondent’s Notice of objection to competency of the appeal in respect of the judgment of the National Court on 7th September 2023 in proceedings OS No 39 of 2023. On 28 November 2023, we heard the application and reserved ruling which we now deliver. 

2.	The objection to competency of appeal is made pursuant to Order 7 Rule 15 and 17 of the Supreme Court Rules 2012 (as amended) and Section 155 (4) of the Constitution on the basis that the grounds of appeal offend Order 7 Rules 9 of the Supreme Court Rules and Section 14(3)(b) of the Supreme Court Act.

Background facts

3.	Essentially, the appellants filed  proceedings in OS No. 39 of 2023 – Kule Layo in his capacity as a Landowner and member of the Pulumani Ambo Wangia Clan of the Porgera Special Mining Lease area & 2 Others -v- Hon. Ano Pala in his capacity as Minister for Mining & 3 Others seeking  disclosure of certain documents and other interim reliefs by way of restraining orders against the first, second and third respondents from conducting the development forum in and entering into compensation agreements relating to the Porgera Gold Mine. The fourth respondent (New Porgera Limited) was not a party to the proceedings, then.

4.	On 7 September 2023, an application was moved by the fourth Respondent, New Porgera Limited (“NPL”) seeking orders for joinder. The trial Judge, his Honour Carey J heard the application and granted orders for joiner. 

5.	Next day, 8th September 2023, the first and third Respondents applied for the dismissal of the proceedings pursuant to Order 12 Rule 40 of the NCR.  The trial judge heard the application and granted the orders sought, dismissing the entire proceedings. 

6.	On 20th September 2023, the Court heard the parties on the issue of costs and awarded costs against the appellants in respect of the first and third respondents on indemnity basis and the fourth respondents on party/party basis. 

The Appeal

7.	The appellants, being aggrieved by those decisions of the Court, filed their Notice of Appeal on 9 October 2023. The Notice of Appeal was served on the fourth respondent on 20 October 2023.On 30 October 2023, the fourth respondent filed a Notice of Objection to Competency of the Appeal. The competency application relates only to the order of the National Court made on 7 September 2023 in respect of orders for joinder of the fourth respondent. 

	Preliminary Matter 

8.	At the commencement of the hearing, Mr. Saulep, counsel for the Appellants, urged the Court to hear a Notice of Motion filed by the appellants first. In the Notice of Motion filed 24th November 2023, the appellants applied for, amongst other reliefs, the setting aside the listing Judge’s directions issued 9th November 2023 and for the vacation of the hearing of the Notice of Objection to Competency.

9.	Mr. Varitimos, counsel for the fourth respondent, objected to the hearing of the Notice of Motion as it is coached in a way where it is an appeal within an appeal which is not properly before the Court and that it should be dismissed.
 
10.	Although the objection to competency was the only matter listed before the Court for hearing and not the Notice of Motion filed on 24 November 2023, on insistence by counsel for the appellants, the Court heard the appellants application.

11.	 Mr Saulep submitted amongst other matters that the listing judge failed to consider the appellants request for:

i)	The objection to competency application to be dealt with at the substantive hearing of the appellant’s appeal, and 

ii)	ii) the adjournment of the hearing of the objection to competency as the matter was listed without giving them an opportunity to properly prepare for the hearing.

iii)	Thus, the directions given on 9th November 2023 be set aside, the hearing be vacated or otherwise adjourned.

12.	Mr. Tanuvasa, counsel for the State supported the objections raised by Mr. Varitimos. Mr. Tanuvasa submits further that the application failed to cite or invoke the Court’s jurisdiction to hear the Notice of Motion. He submits that Order 11 Rules 25 and 26 of the Supreme Court Rules is the relevant provision available to the appellant, but they failed to cite it. The lack of citing the correct jurisdictional provision of the Supreme Court Rules renders the Notice of Motion incompetent and therefore it be dismissed with costs.

13.	 After considering the submissions of parties and the material filed, we ruled that the Notice of Motion was incompetent as it did not invoke the jurisdictional basis of the Court, under Order 11 Rules 25 and 26 of the Supreme Court Rules and dismissed the application. The issue of costs was reserved in the hearing of the objection to competency. 

	The objection to the Competency of the Appeal 

14.	The Notice of Objection to Competency of the appeal was filed on 30 October 2023.It is supported by the affidavit of Eroni Lili sworn on 27 October 2023 and filed on 30 October 2023 [AB Tab 2, pages 3-5; AB Tab 3, pages 6-50] and the Application Book filed on 15 November 2023 which contains all materials relevant to the Objection to Competency. 

15.	The grounds for objection to the competency of the appeal are set out at pages 4 to 5 of Application Book, and these are:

(1)	The judgment of the Honourable Justice Carey made on 7 September 2023 in National Court proceeding OS No. 39 of 2023 adding New Porgera Limited as a defendant and naming it as the fourth defendant in that National Court proceedings, is an interlocutory judgement.

(2)	Pursuant to section 14 (3) (b) of the Supreme Court Act (Chapter 37) an appeal does not lie from the judgment of 7 September 2023 without leave of the Court.

(3)	The appellant has not filed, sought, or been granted leave to appeal against the 7 September 2023 judgement.

(4)	In the premises, the Notice of Appeal against the 7 September 2023 judgement should be struck out or dismissed as being incompetent.

	Issues

16.	The main issue for consideration is whether the notice of appeal against the decision of 7th September 2023 is incompetent pursuant to Section 14 (3) (b) of the Supreme Court Act. 

The Relevant Law

17. 	The Notice of Objection to Competency is filed pursuant to Order 7 Rule 15 of the Supreme Court Rules.  The objections raised are for non-compliance of Order 7 Rule 9 (a) of the Supreme Court Rules and Section 14 (3) (b) of the Supreme Court Act. 

18.	The provisions of Order 7 Rules 9 (a) of the Supreme Court Rules is reproduced for convenience:

“9 	The notice of appeal shall-

(a) 	state that the appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and

(b)	state whether the whole or part only and what part of the judgment is appealed from; and

(c)	state briefly but specifically the grounds relied upon in support of the appeal; and

(d)	state what judgment the appellant seeks in lieu of that appealed from; and

(e)	be in accordance with Form 8; and

(f)	be signed by the appellant or his lawyer; and

(g)	 be filed in the Registry”.

19.	Section 14 of the Supreme Court Act is relevant, and it reads: 

“(1) 	Subject to this section, an appeal lies to the Supreme Court from the National Court–
(a) on a question of law; or
(b) on a question of mixed fact and law; or
(c) with the leave of the Supreme Court, on a question of fact.

(2) 	An appeal does not lie from an order of the National Court made by consent of the parties.

(3)	 No appeal lies to the Supreme Court without leave of the Supreme Court–

(a)	from an order allowing an extension of time for appealing or applying for leave to appeal; or
(b) 	from an interlocutory judgement made or given by the National Court except–

(i) 	where the liberty of the subject or the custody of infants is concerned; or
(ii)	 in cases of granting or refusing an injunction or appointing a receiver; or
(iii)	 in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c)	 from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4)	An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

General Principles 

20.	An objection to competency to appeal challenges the jurisdiction of the Court to hear and determine the appeal as allowed by law.
	
21.	Hence, a proper ground of objection to competency is one that goes to the Court’s jurisdiction as stated in the case of The  Independent State of Papua New Guinea v. Kalaut (2021) SC2094: see also Waghi Savings and Loan to Society Ltd v Bank South Pacific Ltd (1980) SC185; Jeffrey Turia v Gabriel Nelson (2008) SC949), Talibe Hegele v Tony Kila (2011) SC1124; Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221 and Yambaki Surveys Ltd v Nambawan Super Ltd (2020) SC1901  Bank of Papua New Guinea v. Ruh (2021) SC2124 

22.	In Bank of Papua New Guinea v. Ruh (2021) SC2124, the Supreme Court stated at [15]:

“15.	 a proper ground of objection to competency  is one that demonstrates that the Court has no jurisdiction to deal with the matter before it (Talibe Hegele v Tony Kila (2011) SC1124, Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221).”

23	 In Yambaki Surveys Ltd v Nambawan Super Ltd (2020) SC1901 (per Salika CJ, Polume-Kiele J and Shepherd J), the Supreme Court while discussing the divergent approaches on objections to competency of appeal and the general principles applicable, concluded that the objection must go to the competency of the appeal and not just the grounds of the appeal. We adopt what the Court in that case stated:

“18.	We do note that there are currently two divergent approaches of the Supreme Court governing objections to competency of proceedings. The first approach requires strict compliance with Order 7 Rules 9 and 10 of the Supreme Court Rules and s. 14 of the Supreme Court Act.  However a more liberal approach to objections to competency was recognized in the decision of Coca Cola Amatil v Kennedy (2012) SC1221, which provides a concession to the effect that if a notice of appeal or application for review contains at least one ground by which the Court’s jurisdiction is validly invoked, all of the grounds survive the objection to competency although those grounds can still be open to challenge at the substantive hearing of the appeal or review application.

19.	The strict approach of the Supreme Court to competency objections has been considered in many reported cases including, among others, Michael Kuman & Ors v. Digicel (PNG) Ltd (2013) SC1232; Talibe Hegele v Tony Kila (2011) SC 1124; Turia McKay v Nelson (2008) SC949; Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185; PNG Forest Authority v Securimax Ltd (2003) SC717; Yakham & The National v Merriam & Merriam (1997) SC533, James Marape v Peter O’Neill (2016) SC1486, Lucas Dekena v Nick Kuman (2018) SC1715; James Lovika v Carl Mapo as Commander of PNG Defence Force & The State (2019) SC1895. 
          ……………..

24. The decision of the Court in Coca Cola Amatil with respect is consistent with a line of prior decisions of 3-member benches of the Supreme Court. It has not subsequently been overtaken by any contrary decision of a 5-member bench of the Supreme Court.  Both approaches have their merits. However, we emphasize the importance of the distinction between the two approaches but recognize that objections must always go to the competency of the appeal, not to the grounds of appeal per se.  (Underlining added)” 

Submissions of parties

24.	 Turning to the present case, the fourth respondent argues, supported by first second and third respondents, that the appeal is incompetent because: 

•	Firstly, the judgment of 7 September 2023 of the primary judge granting the fourth respondent’s application to be joined as a party to the proceedings, is an interlocutory judgement; and leave of court is required to appeal pursuant to section 14(3) (b) of the Supreme Court Act (Chapter 37).

•	And the appellant having not filed, sought or been granted leave to appeal against the decision of 7th September 2023 renders the appeal against the decision of 7th September 2023 incompetent.

•	And the appeal is not properly before the appellate Court and thus be dismissed 

25.     In response, the Appellant submits that the appeal grounds for decisions of 7th and 8th September 2023 must be dealt with together as they fall under Section 14 (1) (a) and (b) of the Supreme Court Act for which the jurisdiction of the appellate Court is properly invoked. The decision of 7th September 2023 should not be isolated for the purposes of Section 14 (3) (b) of the Supreme Court Act. Counsel submits that this was a special case where an objection to competency could have been set down for hearing together with the substantive appeal in the interest of justice as provided for under Order 7 Rule 17 (2) of the Supreme Court Rules. Counsel submits further that the listing judge gave no consideration to the request for adjournment for the appellants to properly apply for the hearing of the objection to competency together with the substantive appeal. To put it into context, counsel for the appellants submits, the reasons for and against the joinder application on 7th September and the application for dismissal the next day, 8th September 2023 were the same and  for that reason, the decisions of 7th September and 8th September are inseparable and the appeal grounds sufficiently set forth the jurisdictional basis for the appellate Court under section 14 (1) (a ) and (b) of the Supreme Court Act. To that extent counsel submits that the appeal meets the qualification test laid down by the Supreme Court in Coca Cola Amatil v Kennedy (2012) SC1221.

Consideration 

26.  The objection to competency relates only to the appeal against the whole of the judgment of the lower Court given on 7 September 2023 granting the fourth defendant’s application for joinder. The appellant pleaded that the appeal lies without leave pursuant to Section 14 (1) (a) and (b) of the Supreme Court Act which has now become the subject of the competency application filed by the fourth respondent.  

27.   The fourth respondent’s argument is that the judgment of 7 September 2023 is interlocutory in nature and hence the appellants required leave of the Supreme Court under Section 14 (3) (b) of the Supreme Court Act to appeal against that judgment, for which leave has not been sought nor obtained by the appellants.

28. 	 There are three orders made on 7th,8th and 20th September 2023, in the proceedings. In our view each of the three decisions are distinct and separate from each other although they are related to the same proceedings. We note and accept that the reference to the judgment made on 8 September 2023 and 20 September 2023 referred to in the Notice of Appeal is given for context and therefore, are not strictly relevant to the Notice of Objection to Competency as the Objection to Competency relates only to the decision of 7th September 2023, although the counsel for the appellants argues otherwise.

29. 	In respect of the decision of 7th September 2023, the immediate question is whether the judgment granting leave to join New Porgera Limited as the fourth defendant to the proceeding OS No. 39 of 2023 is interlocutory.

30. 	Although there is concession from counsel for the appellants, we consider it necessary to determine this issue for completeness. Section 14 (3) (b) of the Supreme Court Act provides that no appeal lies to the Supreme Court without leave of the Supreme Court from an interlocutory judgement made or given by the National Court except in certain situations which this case does not fall into.

31. 	The test of whether an order is final or interlocutory in nature is settled by the Supreme Court in Punagi v Pacific Plantation Timber Ltd (2011) SC1153. In that case, the Court stated in paragraphs 5-10 of the judgement as follows:

“5. 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 judgement made or given by the National Court..."; however, as Sir John Donaldson MR said of the English equivalent in White v. Brunton [1984] 1 Q.B. 570 at 572:

"But, as is well-known, this clarity conceals the obscurity of what is and is not an interlocutory order or judgment."

6. In White v. Brunton (supra), the history of the consideration of what is and is not an interlocutory judgment is detailed by Donaldson MR. There are essentially two approaches. The 'order approach', being the effect in Shubrook v Tufnell [1882] UKLawRpKQB 118; (1882) 9 Q.B.D. 621 and Bozson v. Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547, that is that an order is final if it finally determines the matter in litigation; the issue of final or interlocutory depending upon the nature and effect of the order as made. The other approach is the 'application approach', being the effect of the decision in Salaman v. Warner [1891] UKLawRpKQB 85; [1891] 1 Q.B. 734, in which it was held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. So the issue of final or interlocutory depends upon the nature of the application or proceedings giving rise to the order and not upon the order itself.
7. Donaldson MR stated that the English Court was now clearly committed to the application approach. White v. Brunton (supra) was decided before the English Rules of the Supreme Court were amended in 1988 to include a rule that specifically governed whether an order was final or interlocutory.

8. In our jurisdiction, there have been decisions of this court that favour both approaches. ……..( referring to various decided cases)

9. The order approach has been described as right in logic: Salter Rex & Co v. Ghosh [1971] 2 Q.B. 597, and as being the sound and convenient test by the Privy Council in Haron bin Mohd Zaid v. Central Securities (Holdings) Bhd [1982] 2 All ER 481.

10. Following a review of the various authorities, we are satisfied that the order approach is the one that should be continued to be adopted in this jurisdiction. We agree with the comment of this court in Oio Aba (supra) that the decision in Shelley's case (supra) does not continue to be good law.”

32. 	In our view, the order approach, (White v. Brunton) supra, adopted and applied in Punagi v Pacific Plantation Timber Ltd (supra) is sound and good law and are inclined to adopt and apply same in the case before this Court. 

33.	 Applying the “order approach”, the order for joinder, the decision the subject of this competency application, is not a final order disposing of the rights of the disputing parties. Rather, it is interlocutory judgment within the meaning of Section 14 (3) (b) Supreme Court Act, Consequently, leave to appeal is required.

34.	We note the contention of the appellants that the joinder order is intrinsically connected to the dismissal order of 8thSeptember 2023 such that they are inseparable, resulting in the final disposition of the case and disposing the rights of the disputing parties. It is therefore not necessary for leave to appeal as required by   Section 14 (3)(b) of the Supreme Court Act.

35.	The appellants argue further that the grounds of appeal pleaded in respect of the joinder decision of 7th September 2023 is part and parcel of other grounds of appeal in respect of the dismissal decision of 8th and costs decision of 20th September 2023 forming part of the Notice of Appeal. The appellants submit that the objection to competency is materially challenging the whole competency of the Notice of Appeal, and to that extent, it should fail as there are many other grounds of the appeal that are competent and have properly invoked the jurisdiction of the Court in line with the decision in  Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221 which stand for the proposition that if the notice of appeal contains at least one ground by which the Court’s jurisdiction is validly invoked, all the grounds survive the objection to competency application. 

36.	Whilst we are recognizant of the fact that the decision in Coca Cola Amatil (supra) provides leeway to appellants who would otherwise have their appeals struck out midway for competency reasons, the present case is not one that can be easily saved by the proposition of law in Coca Cola Amatil.  As stated in Yambaki Surveys Ltd v Nambawan Super Ltd (supra) the objection must go to the competency of the appeal and not just the grounds of the appeal per se.

37.	There are nine (9) grounds of appeal. The grounds of appeal are in respect of the three different decisions. The fourth respondent is challenging Ground 3(1) in respect of the joinder order of 7th September 2023 only. We reiterate that the decisions of 7th and 8th September 2023 are distinct and independent, both in terms of time and nature of the orders issued.

38.	The joinder order of 7th September 2023 stands alone. It is an interlocutory order requiring prior leave under Section 14 (3) (b) of the Supreme Court Act.  Our view is strengthened by  a plethora of judicial pronouncements in this jurisdiction that stand for the proposition that an order granting leave to a party to be added as a party to a proceeding is an interlocutory order and where a party decides to appeal the joinder decision as in this case, leave to appeal is required: See  Bougainville Copper Ltd v Central Me’ekamui Exploration Ltd (2020) SC1917, Pokawin v The State (1995) SC515, Tsang v Credit Corporation (PNG) Limited (1993) PNGLR 112.

39.	It follows that the appeal against the joinder decision of 7th September 2023 requires leave. We find that the leave of the Supreme Court has not been granted nor obtained to appeal from the Supreme Court and consequently, no appeal lies to the Supreme Court. The appellants have not invoked the Court’s jurisdiction to deal with their appeal.

	Conclusion

40.	 The fourth respondent’s notice of objection to competency of the appeal is a challenge to the Court’s jurisdiction to hear the appeal. We find, following the “order approach” the decision of the trial judge given on 7th September 2023 is interlocutory because the decision is not final in disposing the rights of the disputing parties. We reject the appellant’s contention that the decisions of 7th and 8th September 2023 are so intrinsically connected that they cannot be separated in the appeal. This is because the decision of 7th September 2023 is distinct and stands alone.  The argument that the grounds of appeal (raising errors of mixed law and facts falling within the ambit of Section 14 (1) (a) and (b) of the Supreme Court Act) are to be considered in the context of the inseparable decisions of 7th and 8th September 2023 is a misconception.

41.	 On the other hand, the appeal against the decision of 7th September 2023 is interlocutory and requires leave pursuant to Section 14 (3) (b) of the Supreme Court Act. As the appellants have not sought leave to appeal, the appeal against the decision of 7th September 2023 is incompetent.

42.	For the foregoing reasons, the fourth Respondent’s objection to competency of appeal against the decision of 7th September 2023 is granted, that is the relevant ground of appeal against the decision of 7th September 2023 be struck out with costs.

ORDERS

43.     The Court orders that:

(1)	The fourth respondent's objection to the competency of the appeal is upheld.

(2)	Grounds 3.1 of the appeal is struck out.

(3)	The matter is returned to the listing judge for directions in respect of the remaining grounds of appeal

(4)	The appellants shall pay the respondents’ costs of and incidental to the hearing of the objection to the competency of the appeal, to be taxed if not agreed.

Saulep Lawyers: 		Lawyers for the Appellant
Solicitor General		Lawyers for First, Second and Third Respondents
Ashurst Lawyers: 		Lawyers for the Fourth Respondent