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Tulapi v Ngangan [2021] PGSC 6; SC2065 (5 January 2021)

SC2065

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 11 OF 2020

BETWEEN:

DANIEL TULAPI
Appellant

AND:
KEN NGANGAN
Secretary Department of Finance
First Respondent

AND:
CAROLINE JARUGA
Principal Legal Officer Department of Finance
Second Respondent

AND:
TAUVASA TANUVASA
Solicitor General
Third Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J,
2020: 20^th October,
2021: 5^th January

SUPREME COURT – practice and procedure - Application for leave to appeal

Cases Cited:
Papua New Guinea Cases

Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774
Bank of South Pacific Ltd v. Anton Sekum and Ors (2011) N4588
Duma v. Puk (2019) SC1754
Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture Ltd (2016)
Green & Co Pty Ltd (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73
Independent Public Business Corporation v. Motor Vehicles Insurance Limited (2017) N6664
K. A. Properties (PNG) Ltd v. Simatab (2017) N7070
Lawrence Kalinoe v. Philip Kereme (2017) SC1631
Madang Development Corporation Ltd v. Rabtrad Niugini Ltd (2013) N5259
Marko Iatinata v. Denison Toiwat [1994] PNGLR 568
National Superannuation Fund Ltd v. National Capital Ltd (2017) N6952
Oberia v. Charlie (2005) SC801
State v. Petroleum Resources Gobe Ltd (2019) SC1900
Totamu v. Small Business Development Corporation (2009) N3702
Yap v Tan [1987] PNGLR 227

Overseas Cases

Evans v. Bartlam [1937] AC 473; 2 All ER 646
Gardner v. Jay (1885) 29 Ch 50
N6785
Hadkinson v Hadkinson [1952] 2 All ER 567
Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17

Counsel

Mr. D. Tulapi, the Applicant
Mr. L. Kandi, for the First and Second Respondents

5^th January, 2021

1. HARTSHORN J: This is a decision on a contested application for leave to appeal a decision of the National Court (decision appealed) which amongst others, dismissed four notices of motion filed by the applicant between 17^th February 2014 and 19^th October 2018.
   

Background

2. On 16^th February 2012 the National Court in proceeding OS 115/10 made certain orders (16/2/12 orders). The applicant herein appealed the 16/2/12 orders to the Supreme Court in SCA 7/12. An application to stay the 16/2/12 orders by the applicant was refused. An order for the applicant to pay security for costs was made against the applicant. The security for costs order was not complied with by the applicant. A full Court of the Supreme Court dismissed SCA 7/12 upon application of the respondents for non-compliance of a court order and for want of prosecution.
   
3. After the dismissal of SCA 7/12 the applicant filed four further notices of motion in OS 115/10. As described by the primary judge, essentially these notices of motion sought to enforce a judgment debt and or interest that the applicant says he is owed by the first respondent. Upon application by the first respondent, the National Court ordered amongst others, the dismissal of these four notices of motion - the decision appealed.
   

Leave to appeal

4. The requirement to seek leave is a procedure that ensures that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgment.
   
5. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:

a) Is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?

b) Does the appellant have other recourse in the court below?

c) Was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

d) Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?

e) Will substantial injustice be caused by allowing the decision to stand?

f) Has cause been shown that the trial process should be interrupted by an appeal?

6. It is to be noted that notwithstanding the development of the case law concerning the grant of leave to appeal by a single judge of the Supreme Court, s.10(1) and s.14(3) Supreme Court Act and Order 7 Rules (3) and (4) Supreme Court Rules, which concern the grant of leave to appeal, do not specifically provide that a judge has the discretion to grant or refuse leave to appeal. It is implied. There is no indication as to how a judge should exercise that discretion.
   
7. Given this, I am reminded of the oft cited statement of Bowen LJ in Gardner v. Jay (1885) 29 Ch 50, at 59:
   

“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?”

8. This passage has been reproduced and approved in numerous cases including the House of Lord’s decision of Evans v. Bartlam [1937] AC 473; 2 All ER 646; Green & Co Pty Ltd (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73; Totamu v. Small Business Development Corporation (2009) N3702; Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774; Independent Public Business Corporation v. Motor Vehicles Insurance Limited (2017) N6664; Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture Ltd (2016) N6785; National Superannuation Fund Ltd v. National Capital Ltd (2017) N6952; K. A. Properties (PNG) Ltd v. Simatab (2017) N7070; Lawrence Kalinoe v. Philip Kereme (2017) SC1631; Duma v. Puk (2019) SC1754 and State v. Petroleum Resources Gobe Ltd (2019) SC1900.
   

Consideration

9. First, I consider whether the applicant has an arguable or prime facie case. It cannot be disputed by the applicant that he appealed the 16/2/12 orders. The appeal was SCA 7/12. That appeal was dismissed for non-compliance with an order for payment of security for costs and for want of prosecution on 29^th August 2013 by the full Supreme Court. The Supreme Court also ordered the applicant to pay the costs of and incidental to the application for dismissal on a solicitor client basis.
10. The 16/2/12 orders appealed by the applicant, according to the applicant, as claimed in his notice of appeal were:

“1. The appellant appeals against ALL the extempore decision, ruling, and orders made by His Honour Sakora J made on 16 February 2012 at the Waigani National Court.

2. The decision, ruling and orders appealed against are:

A. This contempt proceedings is dismissed with costs, as being without merit, vexatious, and, thus, an abuse of the process of the court.

B. Orders of the District Court on Interest were granted without legal justification and thus, unenforceable under section 13 and 14 of the claims by and against the state Act.

C. No further proceedings are to be instituted by the Plaintiff in the courts until all previous court orders on costs, together with today’s costs in this court, have been fully complied with by the plaintiff.

D. The Time for entry of these orders is abridged to the time for settlement of these orders by the Registrar, which shall take place forthwith.”

11. As the appeal was dismissed, the 16/2/12 orders remain in force and must be obeyed even if the applicant believes them to be wrong. I refer in this regard to the ruling of Hinchliffe J in the case of Yap v Tan [1987] PNGLR 227, referred to in amongst others, Marko Iatinata v. Denison Toiwat [1994] PNGLR 568. His Honour agreed at 231 with the view of Romer LJ in Hadkinson v Hadkinson [1952] 2 All ER 567 at 569:

"It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged ... it extends even to cases where the person affected by an order believes it to be irregular or even void."

12. It is not controversial that the applicant has not paid any of the court ordered costs made against him. Consequently, he was not permitted to institute further proceedings “in the courts”.
13. I am satisfied therefore that the applicant was prevented from filing this application for leave to appeal by the 16/2/12 orders and his non-payment of previous court ordered costs. The applicant is in breach of the 16/2/12 orders of the primary judge by filing this application for leave to appeal. Further, it may not be argued that the National Court is not able to interfere with a statutory right of appeal to the Supreme Court, as in this instance, the applicant did not have a statutory right of appeal and had to seek leave, hence this application.
    
14. In these circumstances, the applicant does not have an arguable or prima facie case that his application for leave should succeed because as referred to, he was not permitted to file this application for leave.
    
15. Further, the applicant is applying to appeal orders made in a proceeding, in circumstances where in a previous appeal from different orders in the same proceeding, he did not comply with an order to pay security for costs before the appeal could continue. This non-payment of security for costs contributed amongst others, to the previous appeal being dismissed. It is not in the interests of justice for a person who has not complied with an order of a Supreme Court to pay security for costs before an appeal may continue, to be able to then appeal from the same proceeding again, albeit against different orders. By, in effect, evading compliance with a Supreme Court order to pay for security for costs, to my mind, the applicant’s action in bringing this application may be categorised as constituting:
    

“... an interference with the administration of justice and thus the public interest of vindicating judicial authority is raised .....”: Bank of South Pacific Ltd v. Anton Sekum and Ors (2011) N4588 and Madang Development Corporation Ltd v. Rabtrad Niugini Ltd (2013) N5259 at [7] referring to the judgment of Bromberg J in Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17.

16. As I am satisfied that the applicant does not have an arguable or prima facie case that his application for leave should succeed and as I am satisfied further, that in the circumstances, it is not in the interests of justice that the applicant should be granted leave to appeal, the discretion of this court should be exercised to refuse this application for leave to appeal and the application should be dismissed. Given this, it is not necessary to consider the other submissions of the applicant and counsel.
    

Orders

17. It is ordered that:
    

a) This application for leave to appeal is dismissed;

b) The applicant shall pay the first and second respondents’ costs of and incidental to the said application.

_________________________________________________________________
The Applicant in person
M. S. Wagambie Lawyers: Lawyers for the First and Second Respondents