SC2728

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 37 OF 2022 (IECMS)

JAMES KAKEIYE KAWA 
Appellant

V

ANDREW PUMUYE FOR AND ON BEHALF OF WANGENAI CLAN OF IALIBU, SHP
Respondents

Waigani: SALIKA CJ, YAGI J, COATES J
30 APRIL 2025

INTEPRETATION OF ORDERS – Wording – Orders have specific elements creating duties, liabilities or rights – Orders are enforceable – Court can only make enforceable orders otherwise purported words are not an order. 
Facts

Court orders were made in a land dispute, one of them purportedly giving liberty to apply, the other orders dismissing the matter.  The appeal was bought to quash the liberty to apply order by the appellant.

Held

The purported order made was unenforceable and nothing more than a notation, indicating that the parties should negotiate further if they were still in dispute over customary land, but previous proceedings determined the matter.

Counsel
Mr R Otto for the appellant
Mr J Kolo for respondents

1.	BY THE COURT: In a very long running dispute over customary land, orders were made in the National Court on 2 November 2022, allowing the plaintiff to withdraw a Judicial Review proceeding then before the court.

2.	The matter concerned decisions made in relation to land at Ialibu, in Southern Highlands Province.

3.	The plaintiff in that matter is the respondent to this appeal.

4.	There is no need to go into the particulars of the claims, but a brief history will put the matter into context.

5.	The first legal event in the dispute occurred in 1998, when a Land Kiap mediated and facilitated a settlement.

6.	Disputes continued, and a second mediation occurred in 2007 with a similar outcome to the 1998 conclusion.

7.	Because of the continuing dispute, that matter was referred to the Local Land Court in 2015.

8.	Although there were various disputes as to the parties, in 2016 a Local Land Court magistrate upheld the mediated decisions made in 1998 and 2007. 

9.	This decision then went before the National Court by way of judicial review, and the proceeding was dismissed on 25 September 2018 as being futile and an abuse of process.

FURTHER PROCEEDINGS

10.	The respondent here then filed proceedings in the Provincial Land Court, in proceeding numbered OS (JR) No. 279 of 2020.

11.	That matter then came before the National Court on judicial review.

12.	It was this matter in which the National Court gave leave to withdraw, as there was no arguable case for the purpose of granting leave to proceed.

13.	Giving leave to withdraw was the first order made by the National Court in the matter.

14.	Five other orders were made that day, being:

a.	Order number 2 - the parties shall be at liberty to consider and resolve the issue of ownership of the land the subject of this proceeding in the court below;
b.	Order number 3 - costs of this proceeding are ordered against the plaintiff to be taxed if not agreed;
c.	Order number 4 - these orders conclude this proceeding;
d.	Order number 5 - subject to any enforcement of the costs order, the court file to be closed and archived forthwith, and
e.	Order number six - the time of entry of these orders is abridged to take place forthwith upon the court signing the orders.

THIS APPEAL

15.	Before this bench of the Supreme Court is an appeal against part of those orders.

16.	The appeal is by way of Notice of Motion filed pursuant to Order 10 of the Supreme Court Rules, a Notice of Motion required as it is an appeal the National Court in judicial review proceedings.

17.	If successful, apart from quashing an order, the appellant also seeks a declaration that the award of the land to the respondent (the appellant here) still stands “for all intents and purposes” until it is quashed by a court of competent jurisdiction or otherwise, and in the alternative, the appellant seeks that the decision below be dismissed in its entirety. 

18.	The declaration and alternative order are orders we cannot make as the Supreme and National Court’s do not have power to determine rights and interests attaching to customary land, that being an exclusive jurisdiction given to Local Land Courts and Provincial Land Courts.

19.	Before going to the substantive issue raised, there were objections to competency, argument that the appellant had delayed in filing this appeal, that there had been a failure to annex the final order, that there was not affidavit in support served, that the State should have been joined, that the decision interfered with the jurisdiction of the Local and Provincial Land Courts, that an appeal cannot be made against one order only and that the doctrine of res judicata was not addressed.

20.	We consider that these grounds do not need to be addressed given what we will state here.

21.	On the substantive issue, we have set out all of the orders made by the National Court, because the appeal is only to quash Order 2, which raises before us a singular but important question concerning interpretation of court orders.

22.	To succeed in quashing order 2, the wording of the order must be interpreted to understand its meaning as an order.

23.	Interpretation of court orders, as with legislation, is sometimes undertaken when words used are not necessarily clear.

24.	Mozley & Whiteley’s Law Dictionary, Eleventh Edition, Butterworths, 1993, recognises such in referring to legislation, when there is an interpretation clause that declares how certain words are to be understood. Such interpretation clauses are commonly seen in legal documents and words in an order sometimes require a court decision on interpretation.

25.	Order 2 states “The parties shall be at liberty to consider and resolve the issue of ownership of the land the subject of this proceeding in the court below”.

26.	The words “be at liberty” are usually used as a legal term allowing parties to make application to bring a current matter back to court at short notice, although the traditional expression is “liberty to apply”. The words here are not being used in that legal sense, and do not refer to listing the matter before the court. They are being used as an encouragement to the parties to consider what the decision or the decisions in the proceedings below mean.

27.	We take the words to mean nothing more than an encouragement to consider the issues, because the words do not provide anything that can be enforced, and only orders which can be enforced may be made by a court.

28.	A court order has elements, which create a duty or a liability or some other right in a person or thing subject of the order, and that duty or liability or right can be enforced by whatever means appropriate when enforcement arises.

29.	 When understanding the context of all of the orders made, it is apparent that the court below was aware of the long running dispute and the continuing attempts to obtain a different decision as to rights and interests, which had not changed in two mediations, in a land court decision and on another appeal through judicial review.

30.	The order, or rather purported order, was simply a remark trying to settle the parties by having them talk further and understand the position, but the purported order is not in the form of a court order which may be enforced.

31.	In written submissions before us, the respondent put it this way: “Term  2 of the order was not made in favour of the respondent. It is only optional for parties to consider and resolve the land issue and it can be read no other way”.

32.	We have tried to read it in another way, but no artificial interpretation can or should be applied.

33.	The parties cannot come to court seeking enforcement of the purported Order 2, because the words used created no duty, liability or right which could be enforced.

34.	It was not an order of a case management nature either, as the case had ended, as can be seen from Order 4.

35.	Whether the words stay or not is irrelevant to the other orders, which are proper orders which can be made by the court.

36.	As sometimes occurs in busy court lists in which all sorts of arguments, claims and submissions are made, courts can make statements for a number of reasons, and although this is one such statement, it would have been better to have been stated as a notation to the orders.

37.	What should have occurred is that an application go back before the primary judge to remove the purported order under the slip rule.

38.	Because it is an unenforceable statement, all the other grounds of appeal fall away, but we need to comment on the issues of res judicata and an appeal against individual orders in a set.

39.	That res judicata doctrine, stated in Latin from the old decisions, simply means the matter cannot be litigated further. It is an issue of public policy because there must be an end to litigation.

40.	In fact his Honour had obviously considered the doctrine in relation to this proceeding, because Order 4 stated that the matter was ended.

41.	There does not need to be a long explanation as to how he came to that decision given that the matter was being withdrawn because there was no case to pursue.

42.	As to the ground that an appeal cannot be bought on individual orders of a court below, leaving other orders intact, that is not the case.

43.	Individual orders may be challenged, as the role of the appeal is to correct matters, and it may only be a single order which requires correction.

44.	On that basis, because Order 2, although purporting to be an order is really a set of words which cannot be enforced, it does not need to be quashed and there is no proper appeal before us. Nor does any declaration need to be made for the appellants that they own the land, competent jurisdictions below confirming their position. It follows then that the appeal will be dismissed, with costs.

ORDERS
1.	The appeal stated in Notice of Motion filed 9 December 2022 be dismissed
2.	The Appellant pay the Respondent’s costs on a party/party basis if not agreed to be taxed. 
________________________________________________________________
Lawyers for the appellant: Themis Lawyers 
Lawyers for the respondent: Morgens Lawyers