SC1430

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 98 OF 2013

PIUS PUNDI
Appellant

V

CHRIS RUPEN
First Respondent

NATIONAL MARITIME SAFETY AUTHORITY
Second Respondent

Waigani: Kandakasi J, Cannings J, Hartshorn J
2015: 30 March, 25 May

REMEDIES – declarations – whether a party has standing to seek declarations – whether a real controversy exists – whether legal rights at issue – whether the issues involved are real, and not merely of academic interest or hypothetical

PRACTICE AND PROCEDURE – commencement of civil proceedings seeking declarations and orders in relation to issues in criminal proceedings – whether an abuse of process

The appellant appealed against the decision of the National Court to dismiss, for lack of standing, abuse of process and lack of merit, civil proceedings he commenced against the respondents, the National Maritime Safety Authority and its General Manager. Prior to commencement of those proceedings the appellant, allegedly the operations manager of a shipping company, had been committed for trial in the National Court on a charge of sending an unseaworthy ship to sea contrary to Section 331(1)(a) (sending or taking unseaworthy ships to sea) of the Criminal Code. In civil proceedings commenced against the respondents he sought declarations that the General Manager, as distinct from the Board of the Authority, had no power under the Merchant Shipping Act, to deem a ship to be unsafe or detain it and that the notices issued by the General Manager deeming the ship that was the subject of the criminal proceedings to be unsafe and detaining it were null and void. The appellant argued that the National Court erred in fact and law by finding that: (1) he had no standing to seek the declarations; (2) he had 'split' his criminal case and was guilty of an abuse of process; and (3) his proposition that the General Manager had no power to issue the notices had no merit.

Held: 

(1)	A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court's jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff's claim and the issues involved are real, and not merely of academic interest or hypothetical.

(2)	An accused person facing trial in criminal proceedings who commences civil proceedings in the same court for the purpose of obtaining a determination of questions of law or fact that are at issue in the criminal proceedings will almost invariably be regarded as having engaged in an unnecessary proceeding, giving rise to an abuse of process.

(3)	Here, the National Court civil proceedings commenced by the appellant involved no real controversy between him and the respondents, the appellant's legal rights were not in issue, the appellant had no proper or tangible interest in seeking the declarations and the issues were hypothetical. The National Court rightly concluded that this was an inappropriate case in which to consider granting the declarations sought and, for that reason, the appellant lacked standing.

(4)	The appellant, having commenced civil proceedings for the purpose of obtaining declarations that would determine issues in his favour in the criminal proceedings, had engaged in unnecessary proceedings and was guilty of an abuse of process.

(5)	The National Court did not err in concluding that the appellant lacked standing and that the civil proceedings were an abuse of process. All grounds of appeal alleging error in those respects were dismissed.

(6)	It was unnecessary for the Supreme Court to address the grounds of appeal alleging error in the National Court's finding that the General Manager had power to issue notices to detain a ship or to deem it to be unsafe.

(7)	The appeal was dismissed, with costs.

Cases cited

The following cases are cited in the judgment:

Donigi v The State [1991] PNGLR 376
Eremas Wartoto v The State (2015) SC1411
Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425
Pius Pundi v Chris Rupen and National Maritime Safety Authority (2013) N5306
Supreme Court Reference No 2 of 1981 [1982] PNGLR 150
The State v Central Provincial Government (2009) SC977
Zachary Gelu v Francis Damem (2004) N2762

APPEAL

This was an appeal against the decision of the National Court to dismiss civil proceedings in their entirety.

Counsel

B Frizzell, for the Appellant
L Manua, for the Respondents

25th May, 2015 

1. BY THE COURT: Pius Pundi appeals against the decision of the National Court to dismiss civil proceedings he commenced against the respondents, the National Maritime Safety Authority and its General Manager.

2. Prior to commencement of those proceedings the District Court had committed the appellant for trial in the National Court on a charge of sending an unseaworthy ship to sea contrary to Section 331(1)(a) (sending or taking unseaworthy ships to sea) of the Criminal Code. It was alleged that the appellant, in his capacity as Operations Manager of Bismark Maritime Ltd, sent the MV Gulf Glory to sea, from Port Moresby to Lae, despite that ship being subject to notices issued by the General Manager of the National Maritime Safety Authority under Sections 94 and 96 of the Merchant Shipping Act Chapter 242, under which it was "deemed to be unsafe" and "detained". The National Court granted a stay of the criminal proceedings, CR No 278 of 2010, pending the outcome of the civil proceedings, which remains in place.

CIVIL PROCEEDINGS

3. In the National Court civil proceedings, OS No 375 of 2010, the appellant sought declarations that the General Manager, as distinct from the Board of the Authority, had no power under the Merchant Shipping Act to deem a ship to be unsafe or detain it, and that the notices the General Manager issued, deeming the MV Gulf Glory to be unsafe and detaining it, were null and void.

4. The National Court, constituted by Justice Davani, dismissed the proceedings in their entirety, for three reasons:

(1)	the appellant had no standing to seek the declarations;

(2)	the appellant had 'split' his criminal case and was guilty of an abuse of process; and

(3)	the appellant's fundamental proposition that the General Manager had no power to issue the notices and that the notices were null and void, had no merit (Pius Pundi v Chris Rupen and National Maritime Safety Authority (2013) N5306). 

5. It is that decision which is the subject of this appeal.

GROUNDS OF APPEAL

6. The notice of appeal contains 19 grounds of appeal ((a) to (s)) which fall into three categories. The appellant argues that the National Court erred in fact and law by finding that:

(1)	he had no standing to seek the declarations (grounds (b) to (i));

(2)	he had 'split' his criminal case and was guilty of an abuse of process (ground (j)); and

(3)	his proposition that the General Manager had no power to issue the notices and that the notices were therefore null and void, had no merit (grounds (a) and (k) to (s)).

1	STANDING

7. The primary Judge ruled that the appellant lacked standing as he was merely seeking a series of declarations as to the powers of the General Manager of the National Maritime Safety Authority and the legality of the notices the General Manager issued regarding the MV Gulf Glory. Her Honour emphasised that a declaration is a discretionary remedy. It is not granted as a matter of right. It is a unique type of remedy in that it is not self-executing. It has no sanctions attached to it. Her Honour repeated what she stated in Zachary Gelu v Francis Damem (2004) N2762:

A declaration also known as declaratory judgment is a discretionary order made by a high court declaring what the law is. It merely defines and declares the rights of parties and their legal relationship and is not accompanied by any sanction or means of enforcement. The declaration will be granted only if the claim relates to some legal right or interest recognised by law.

8. Her Honour drew on the leading case of Supreme Court Reference No 2 of 1981 [1982] PNGLR 150 to explain that because of its special character a declaration will only be granted, and a Court should only regard a plaintiff as having standing to seek such relief, if a number of criteria are satisfied, namely:

(i)	there exists a real controversy between the parties to the proceedings,

(ii)	a legal right is at issue,

(iii)	the party seeking it has a proper or tangible interest in obtaining it,

(iv)	the controversy is within the court's jurisdiction,

(v)	the defendant has a proper or tangible interest in opposing the plaintiff's claim, and

(vi)	the issues involved are real, and not merely of academic interest or hypothetical.

9. Her Honour held that although (iv) and (v) were satisfied the other criteria were not, in that:

(i)	there was no controversy between the appellant and the respondents, as the real controversy was, or should have been, between the respondent's and the appellant's employer, Bismark Maritime, the owner of the MV Gulf Glory, which should have, if it was aggrieved by the issue of the notices (which involved the exercise of public, as distinct from private, law powers), commenced proceedings by way of judicial review;

(ii)	no legal rights of the appellant were at issue in the civil proceedings;

(iii)	the appellant had no proper or tangible interest in obtaining, in the civil proceedings, any declarations; the fact that he was seeking the declarations for the purpose of his defence of the criminal proceedings was irrelevant as the criminal proceedings in the National Court were entirely separate from the civil proceedings as their commencement and continuation depended on the exercise of power by the Public Prosecutor;

(vi)	the issue of whether the General Manager, as distinct from the Board of the National Maritime Safety Authority, had power to issue the notices, was of academic interest and only a hypothetical issue.

10. Her Honour concluded that the civil proceedings commenced by the appellant were of no practical utility. It was an inappropriate case in which to consider making the declarations sought. Hence the appellant lacked standing.

Appellant's arguments

11. The appellant argues that her Honour erred in drawing those conclusions, by:

•	finding that there was no controversy or dispute between the parties, when the appellant was the subject of criminal proceedings, which gave rise to a controversy or dispute between him and the respondents (ground (b));

•	finding that the appellant's rights were not involved in the civil proceedings (ground (c));

•	failing to find that the criminal proceedings against the appellant "overrode the public element of the administrative process" and gave him standing to seek the declarations (ground (d));

•	failing to find that the appellant did not have standing to commence judicial review proceedings (ground (e));

•	finding that the aggrieved persons should have been Bismark Maritime Ltd or its 'owner' Hamish Sharp, as the evidence before the Court showed that the MV Gulf Glory actually sailed from Port Moresby and was no longer deemed by the National Maritime Safety Authority upon its arrival in Lae (ground (f)); 

•	failing to find that the criminal proceedings had been stayed for the purpose of the Court considering the declarations sought in the civil proceedings (ground (g));

•	finding that the appellant had no tangible interest in obtaining the relief he sought in the civil proceedings, when that relief, if granted, would have disposed of the criminal proceedings (ground (h));

•	finding that the appellant did not have standing to issue OS No 375 of 2010 (ground (i)).

12. We now determine each of those grounds of appeal.

Ground (b): finding no controversy between parties

13. We find that her Honour took proper account of the fact that the appellant was the subject of criminal proceedings, and correctly concluded that this did not give rise to any controversy or dispute between him and the parties he joined as defendants, the National Maritime Safety Authority and its General Manager. Those parties were joined unnecessarily.

14. A controversy, to the extent that there was any, would only have arisen in the event that the Public Prosecutor decided under Section 525 of the Criminal Code to lay a charge against the appellant and present an indictment to the National Court. Until that happened no real controversy or dispute existed between the appellant and anyone. If and when the Public Prosecutor decided to lay a charge and present an indictment, the controversy or dispute would not have been between the appellant and the respondents, but between the appellant and the Public Prosecutor. We dismiss ground (b).

Ground (c): finding no rights of the appellant were involved

15. We find no error in her Honour's finding that none of the appellant's rights were involved in the civil proceedings. If her Honour had proceeded to determine the proceedings on their merits and concluded that the General Manager of the National Maritime Safety Authority had no power to issue the notices deeming the MV Gulf Glory to be unsafe or detaining the ship, that would have had no bearing on the appellant's rights.

16. The granting of the relief he was seeking would not have provided him with any protection against prosecution or with a defence to the charge. Nor would his rights as an accused person to the full protection of the law under Section 37 of the Constitution have been affected by the granting of the relief. If the National Court had refused to make the declarations he was seeking, none of his rights would have been affected or clarified. We dismiss ground (c).

Ground (d): failing to find that the criminal proceedings overrode the public element of the administrative process

17. The appellant argues that that the criminal proceedings against him "overrode the public element of the administrative process". He had personal and private rights that he was seeking to have made the subject of declarations, and those rights gave the proceedings a private law character, which "overrode" the public law elements of the proceedings. It is argued that it was therefore not necessary for him or any other person, such as his employer, to seek the declarations he was seeking by the process of judicial review (which is what the primary Judge suggested should happen).

18. We reject this argument for the reasons given for dismissing ground (c): none of the appellant's private rights were involved in the civil proceedings. Granting or refusing to grant the declarations sought by the appellant was not going to have a bearing on any of his rights. Ground (d) is dismissed.

Ground (e): failing to find that the appellant did not have standing to seek judicial review

19. We find this ground of appeal abstruse. It states:

The National Court erred in law and in fact and law in failing to find that the plaintiff/appellant did not have standing to issue proceedings in judicial review concerning the actions of the defendants/respondents when the National Court apparently found that it ought to have been Bismark or Hamish Sharp who had authority or sufficient interest to issue such judicial review proceedings and further that the plaintiff/appellant could not be viewed as a person aggrieved by the actions of the first respondent.

20. We think the appellant is trying to argue that her Honour erred by forming the view that it was Bismark Maritime Ltd or its beneficial owner Mr Sharp who, if anyone, should have been challenging the legality of the notices issued by the first respondent regarding the MV Gulf Glory.

21. If that is the argument, we reject it. We agree with the primary Judge that if anyone were to challenge the first respondent's decisions it ought to have been the owner or operator of the ship that was the subject of the allegedly unlawful notices. We dismiss ground (e).

Ground (f): finding that the aggrieved persons should be the appellant's employer

22. This ground of appeal is also difficult to understand. It states:

The National Court erred in law and in fact and law in apparently finding that the plaintiff/appellant, as an employee of Bismark, could not have standing as he was not aggrieved by the actions of the defendants/respondents and rather that the aggrieved persons should be Bismark and/or Hamish Sharp when the material showed that the motor vessel was no longer unsafe in accordance with the NMSA when it arrived in Lae and no proceedings had been taken by either Bismark or Hamish Sharp and when the plaintiff/appellant was the subject of the criminal proceedings based on the actions of the defendants/respondents.

23. This is a rehash of ground (e). The appellant appears to be again trying to argue that her Honour erred by forming the view that it was Bismark Maritime Ltd or its beneficial owner Mr Sharp who, if anyone, should have been challenging the legality of the notices issued by the first respondent regarding the MV Gulf Glory. It seems to be argued that that was an erroneous view as the evidence showed that the MV Gulf Glory actually sailed to Lae, despite the notices issued by the first respondent purporting to deem it unsafe and detain it, and that upon its arrival in Lae it was no longer unsafe according to the National Maritime Safety Authority. It was therefore unsurprising that neither Bismark Maritime nor Mr Sharp commenced legal proceedings and that it was the appellant who commenced the proceedings as he was the one who had been charged with a criminal offence.

24. We do not consider that the introduction of evidence of the ship sailing to Lae and of the Authority taking no further action adds anything of substance to the argument underpinning grounds (e) and (f). We maintain our agreement with the view of the primary Judge that if anyone were to challenge the first respondent's decisions it ought to have been the owner or operator of the ship that was the subject of the allegedly unlawful notices, not the person charged with an offence for sending the ship to sea. We dismiss ground (f).

Ground (g): failing to find that the criminal proceedings had been stayed

25. This ground of appeal states:

The National Court erred in law and in fact in failing to find that the criminal proceedings had been stayed for the purpose of the court considering the declarations sought in OS 375/10.

26. The appellant seems to be saying that her Honour should have proceeded to make a final and binding determination on the issues raised in the civil proceedings as the criminal proceedings had been stayed specifically to await the outcome of the civil proceedings. This had been done so that the case against the appellant could be decided with the benefit of the Court's findings in the civil proceedings. The argument appears to be that her Honour erred by not finding that the criminal proceedings had been stayed for those purposes.

27. This is a novel argument in which we find no merit. Her Honour could not be expected to make a finding as to the purpose for which the criminal proceedings had been stayed when the reasons for the stay being granted were not before her. We find no evidence that her Honour was asked to make a finding on such a matter. It was not a contentious issue. Even if it were contentious, the stay order was made by another Judge in the National Court. Her Honour was not bound by it. Her Honour alluded to the existence of the stay order at paragraphs 52 and 53 of her judgment in the course of explaining the difference between the criminal proceedings and the civil proceedings and how the outcome of the criminal proceedings did not depend on the outcome of the civil proceedings. Her Honour stated:

In my view, the criminal proceedings are not dependent on the civil proceedings. The criminal court is under no obligation to delve into the manner in which the Inspection Report or Detention Report were issued because all the criminal court needs to be satisfied with is that the boat was unseaworthy and that the unseaworthy state meant that the life of persons on the boat was likely to be endangered. ...

I assume the plaintiff's lawyers made similar submissions they now make, before the criminal court, that led to the making of the decision to stay the criminal proceedings. However, that does not mean that the ... Judge considered and accepted all that the plaintiff's lawyers said, as having any merit. It could be that the ... Judge adjourned sine die because it was the proper thing to do. I can only guess without the benefit of transcripts or published reasons.

28. Her Honour committed no error in her approach to the stay order. She was under no obligation to make any finding as to its purpose. Ground (g) is dismissed.

Ground (h): finding that the appellant had no tangible interest in relief sought

29. This ground of appeal states:

The National Court erred in law and in fact and law in finding that the plaintiff/appellant had no tangible interest in obtaining the orders sought in OS 375/10 when if the orders sought had been granted the effect of those orders would have been to dispose of the criminal proceedings against the plaintiff/appellant as the evidence in those criminal proceedings against the plaintiff/appellant was correspondence declaring the motor vessel unsafe signed by the first respondent purportedly with authority of the NMSA and the National Maritime Safety Authority Act.

30. The argument is that if her Honour had allowed the civil proceedings to continue and decided the case in favour of the appellant, by granting the relief he sought and declaring that the first respondent had no power to issue the notices deeming the MV Gulf Glory to be unsafe and detaining it, that would have 'disposed of' the criminal proceedings. The appellant would have had no case to answer. He would have been found not guilty. He therefore had a real and tangible interest in obtaining the declarations in the civil proceedings. Her Honour erred in drawing the opposite conclusion.

31. The premise on which these arguments are based is that obtaining the declarations sought in the civil proceedings would have disposed of the criminal proceedings. That is not the case. To appreciate why, we cite the provision of the Criminal Code creating the offence on which the appellant was committed for trial. Section 331 (sending or taking unseaworthy ships to sea) states:

(1)	Subject to Subsections (2) and (3), a person who—

(a)	sends or attempts to send a ship to sea in such an unseaworthy state that the life of any person is likely to be endangered; or

(b)	being a master of a ship, knowingly takes or attempts to take the ship to sea in such an unseaworthy state that the life of any person is likely to be endangered,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2)	It is a defence to a charge of an offence against Subsection (1) to prove that the going of the ship to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable.

(3)	It is a defence to a charge of an offence against Subsection (1)(a) to show that the accused person used all reasonable means to ensure the ship being sent to sea in a seaworthy state.

32. We presume that if the Public Prosecutor decides to lay a charge and present an indictment, this will be done in relation to the offence under Section 331(1)(a) of sending a ship to sea etc. The elements of this offence are:

•	sending,
•	a ship,
•	to sea,
•	in an unseaworthy state,
•	such that the life of any person is likely to be endangered.

33. Two specific defences are available:

•	the going of the ship to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable (s 331(2));

•	the accused person used all reasonable means to ensure the ship being sent to sea was in a seaworthy state (s 331(3)).

34. We now compare those elements and defences with the provisions of the Merchant Shipping Act under which the first respondent issued the notices regarding the MV Gulf Glory.

35. Section 94 (ships deemed to be unsafe) states:

(1)	A ship shall be deemed to be unsafe where the Authority is of the opinion that, by reason of—

(a)	the defective condition of the hull, machinery or equipment; or

(b)	undermanning; or

(c)	improper loading; or

(d)	any other matter,

the ship is unfit to go to sea without danger to life having regard to the voyage which is proposed.

(2)	In deeming a ship to be unsafe under Subsection (1) the Authority shall, where the ship is a Load Line Convention ship or a Safety Convention ship, have regard to the provisions of the Load Line Convention or of the Safety Convention, as the case may be.

36. Section 96 (detention of unsafe ships) states:

(1)	An unsafe ship may be detained until, in the opinion of the Authority, she ceases to be an unsafe ship.

(2)	Where an unsafe ship is detained, the Authority shall give written notice to the owner or to the master setting out the reasons for the detention.

(3)	Where a ship that is registered in a country other than Papua New Guinea is detained under Subsection (1), the Authority shall, as soon as practicable, cause the Consul or other diplomatic representative of the country in which the ship is registered to be informed of the detention and of the reasons for the detention.

37. It will be observed that the fourth and fifth elements of a Section 331(1)(a) offence are that the ship was in "an unseaworthy state" and "that the life of any person is likely to be endangered". These are questions of fact which must be proven beyond reasonable doubt by the prosecution. It would no doubt be beneficial to the prosecution to present evidence that the ship had been deemed to be unsafe and detained and subject to such notices under Sections 94 and 96 of the Merchant Shipping Act. But such evidence is not necessary.

38. The offence created by Section 331(1)(a) is not sending a ship to sea contrary to a Section 94 notice deeming it to be unsafe or to a Section 96 notice detaining it. The prosecution can prove the elements of the offence without proving that the ship was subject to a Section 94 or 96 notice. It can prove the elements without proving that a Section 94 or 96 notice was issued by the person authorised to issue such notices. It could also prove the elements of the offence notwithstanding the existence of a declaration in civil proceedings that the notices issued were as a matter of law null and void. It could for example adduce evidence of the safety and inspection report that led to the notices being issued.

39. If the appellant had succeeded in the civil proceedings in obtaining declarations that the first respondent had no power to issue the notices and that the notices were as a matter of law null and void, it would still be open to the prosecution to prove the elements of the Section 331(1)(a) offence. It should also be noted that Sections 94 and 96 of the Merchant Shipping Act use the term "unsafe" to describe the ship whereas the critical elements of the Section 331(1)(a) offence use different terminology: the ship must be in "an unseaworthy state", such "that the life of any person is likely to be endangered". Proof that a ship has been deemed "unsafe" and has been detained for that purpose will not necessarily establish the elements of the offence.

40. All of this goes to show that the learned primary Judge correctly concluded that the civil proceedings commenced by the appellant had no practical utility. No purpose was to be achieved other than resolution of academic and hypothetical issues. Courts have a long-standing reluctance to entertain plaintiffs who come to court seeking only declarations without seeking consequential orders (Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425, Donigi v The State [1991] PNGLR 376, The State v Central Provincial Government (2009) SC977). The primary Judge's approach was a proper application of that reluctance.

41. Her Honour properly concluded that the appellant had no tangible interest in obtaining the relief he sought in the civil proceedings. In no way would obtaining the declarations sought by the appellant in the civil proceedings dispose of the criminal proceedings. We dismiss ground (h).

Ground (i): finding that the appellant did not have standing

42. This is a catch-all ground of appeal that adds nothing to the other grounds challenging her Honour's finding that the appellant lacked standing. We have found no merit in any of those grounds and therefore dismiss ground (i). We reiterate that it has not been established that the primary Judge made any error in deciding that this was an inappropriate case in which the Court should consider granting the declarations sought and that the appellant lacked standing and that the proceedings should for those reasons be dismissed.

2 	ABUSE OF PROCESS

43. Ground (j) states:

The National Court erred in law and in fact and law in finding that in issuing OS 375/10 the plaintiff/appellant was splitting his case when the criminal proceedings had been stayed pending the outcome of the declarations sought in OS 375/10.

44. The term "splitting his case" comes from paragraph 35 of the National Court judgment, where her Honour stated:

As to whether the vessel was in an 'unseaworthy' state, is a matter for evidence. The plaintiff should not 'split up' a criminal proceeding by filing separate civil proceedings for the civil court to determine the critical elements of a criminal offence. In my view, that is clearly an abuse of the Court's process. The inspection report and detention notice are decisions made by the first defendant in his capacity as General Manager of the second defendant and persons tasked with the responsibility of overseeing and carrying out the functions of the Authority.

45. We endorse her Honour's labelling of the civil proceedings as an abuse of process as correct. An accused person facing trial in criminal proceedings who commences civil proceedings in the same court for the purpose of obtaining a determination of questions of law or fact that are at issue in the criminal proceedings will almost invariably be regarded as having engaged in an unnecessary proceeding, giving rise to an abuse of process. This principle was recently affirmed by the Supreme Court in Eremas Wartoto v The State (2015) SC1411. 

46. Here, the appellant, having commenced civil proceedings for the purpose of obtaining declarations that he hoped would determine issues in his favour in the criminal proceedings, did not exhaust the avenues for ventilating and determining those issues in the criminal proceedings. He engaged in unnecessary proceedings and this was an abuse of process.

47. The fact that the National Court granted a stay of the criminal proceedings, evidently for the purpose of allowing the issues agitated by the appellant in the civil proceedings to be resolved, does not neutralise the abuse of process committed by the appellant. With respect, we consider that the stay order should not have been granted. The criminal proceedings should have been allowed to run their natural course. Be that as it may, the learned primary Judge did not err in finding that the civil proceedings were an abuse of process and in dismissing them for that reason. Ground (j) is dismissed.

3	GENERAL MANAGER'S POWERS

48. Grounds (a) and (k) to (s) of the notice of appeal contain detailed arguments to support the merits of the appellant's fundamental claims in the civil proceedings, that the first respondent had no power to issue the notices under Sections 94 and 96 of the Merchant Shipping Act and that therefore the notices he issued were null and void. It is argued that the primary Judge erred by drawing the opposite conclusion.

49. Her Honour devoted a considerable portion of her judgment to these issues but did so only after pointing out that it was not necessary to do so in view of her finding that the appellant lacked standing. Her Honour decided to address them as the issues had been the subject of extensive submissions by counsel.

50. We have also received submissions on these issues. However, we have decided that it is unnecessary to address them at all. None of the other grounds of appeal have succeeded and this means that the primary Judge's decision to dismiss the proceedings will stand. In the event that we were to find error in the primary Judge's determination of these issues, that would have no bearing on the outcome of the appeal.

CONCLUSION

51. All grounds of appeal that challenge the primary Judge's findings that the appellant had no standing to seek the declarations and that the appellant had 'split' his criminal case and was guilty of an abuse of process, have been dismissed. Her Honour did not err in dismissing the National Court civil proceedings. It follows that this appeal must be dismissed, that the decision of the National Court will be affirmed and that the stay of the criminal proceedings will be dissolved. We see no reason that costs should not follow the event.

ORDER 

(1)	The appeal is dismissed.

(2)	The judgment of the National Court of 19 July 2013 in OS No 375 of 2010 is affirmed.

(3)	The stay of the National Court proceedings, CR No 278 of 2010, is dissolved.

(4)	The appellant shall pay the respondents' costs of the appeal on a party-party basis which shall if not agreed be taxed.

Judgment accordingly.
________________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant 
Rageau Manua & Kikira Lawyers: Lawyers for the Respondents