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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 157 OF 2018
MINERAL RESOURCES CMCA HOLDINGS LIMITED
Appellant
V
OK TEDI FLY RIVER DEVELOPMENT FOUNDATION LIMITED
Respondent
Waigani: Cannings J, Makail J, Polume-Kiele J
2018: 14, 17, 24 December
PRACTICE AND PROCEDURE – objection to competency of appeal on various grounds: vagueness of grounds of appeal; issues raised on appeal not raised in National Court; appellant not a party in National Court; judgment the subject of appeal was interlocutory and leave to appeal not sought; failure to obtain approval of Attorney-General prior to filing appeal: Attorney-General Act 1989, Section 7(i); Public Money Management Regularisation Act, Section 10.
The respondent to an appeal objected to competency of the appeal on six grounds: (1) the notice of appeal did not comply with Order 7, Rule 10 of the Supreme Court Rules 2012 due to vagueness of the grounds of appeal; (2) the issues referred to in the notice of appeal were not raised in the National Court; (3) the appellant did not have a sufficient interest in the subject matter of the appeal; (4) the appellant did not obtain leave to appeal, which was necessary as the order appealed from was interlocutory and the appeal involved questions of fact; (5) the appeal was filed in breach of Section 7(i) of the Attorney-General Act 1989; and (6) the appeal was filed in breach of Section 10 of the Public Money Management Regularisation Act 2017.
Held:
(1) The grounds of appeal adequately complied with Order 7, Rule 10 of the Supreme Court Rules.
(2) The fact that issues raised in the notice of appeal were not raised in the National Court, even if there was adequate opportunity to raise them, is not a matter going to the jurisdiction of the Court. It is a matter for submissions at the hearing of the appeal.
(3) The respondent bore the onus of establishing that the appellant lacked a sufficient interest in the appeal, and failed to discharge the onus.
(4) The judgment appealed against was not interlocutory and leave to appeal was not required. But if it were regarded as interlocutory, it entailed granting an injunction, in which case Section 14(3)(b)(ii) of the Supreme Court Act applied and leave to appeal was still not required. The appeal did not entail questions of fact. It at least entailed questions of mixed fact and law, and by virtue of Section 14(1)(a) or (b) of the Supreme Court Act leave to appeal was not required.
(5) The failure to obtain approval for a brief-out from the Attorney-General is only a matter going to the jurisdiction of the Court if no approval whatsoever is obtained. Here the Attorney-General gave retrospective approval so there was no breach of Section 7(i) of the Attorney-General Act.
(6) There was, for similar reasons provided in relation to Section 7(i) of the Attorney-General Act, no breach of Section 10 of the Public Money Management Regularisation Act.
(7) All grounds of objection failed, and the objection to competency was dismissed, with costs.
Case cited
The following cases are cited in the judgment:
Application by Herman Joseph Leahy (2006) SC855
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105
Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788
Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237
Kitogara Holdings v NCDIC [1988–89] PNGLR 346
Marape v O’Neill (2016) SC1487
Michael Kuman v Digicel (PNG) Ltd (2017) SC1638
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Philip v Makiba (2018) SC1725
Punagi v Pacific Plantation Ltd (2011) SC1153
Sakaraias Akap v Kenneth Korakali (2012) SC1179
Tamali Angoya v Tugupa Association Inc (2009) SC978
Telikom PNG Ltd v ICCC (2008) SC906
Valu v Ngangan (2018) SC1723
Van Der Kreek v Van Der Kreek [1979] PNGLR
Yakham v Merriam [1998] PNGLR 555
OBJECTION
This was an objection to competency of an appeal.
Counsel
A Mana, for the Appellant
G J Sheppard & G Salika, for the Respondent
24th December, 2018
1. BY THE COURT: This is a ruling on an objection to competency of an appeal to the Supreme Court. The objection is made by the respondent, Ok Tedi Fly River Development Foundation Ltd, under an amended notice of objection to competency filed 17 December 2018.
2. The appeal, SCA No 157 of 2018, which the respondent says is incompetent, is brought by the appellant, Mineral Resources CMCA Holdings Ltd, against the extempore decision of Justice Koeget made on 5 September 2018 in the National Court at Waigani in proceedings described as OS No 75 of 2018, Ok Tedi Fly River Development Foundation Ltd v Hon James Marape, Minister for Finance & 6 Others.
NATIONAL COURT CASE: OS 75 OF 2018
3. The appellant was not a party to the case, which was about control of a trust account set up to provide compensation to traditional landowners for environmental pollution associated with the Ok Tedi mine in Western Province. The trust account is the “Western Province Community Mine Continuation Agreement Region People’s Dividend Trust Account”, also known as the “WPPDTA-CMCA”. It has been established by instruments executed and subsequently amended by various Ministers for Finance or the Secretary for Finance under the Public Finances (Management) Act 1995 in the period from 2007 to 2017. The appellant was the trustee of that trust account by virtue of a decision of the National Executive Council dated 5 June 2017.
4. The respondent was the plaintiff in the National Court and filed the proceedings in the Daru Registry. The defendants were:
5. On 5 September 2018 Koeget J, after a series of hearings at Daru, Tabubil and Waigani, made an order, apparently on determining a notice of motion by the plaintiff, in the following terms:
THE COURT ORDERS THAT:
GROUNDS OF APPEAL
6. There is one ground of appeal:
The Judge erred as a matter of law in delivering judgment on 5 September 2018 on the basis that:
GROUNDS OF OBJECTION
7. The respondent objects to the competency of the appeal on six grounds, set out in an amended notice of objection to competency filed 17 December 2018:
We address each ground of objection in turn.
GROUND OF OBJECTION 1: NOTICE OF APPEAL NOT COMPLIANT WITH ORDER 7, RULE 10 OF THE SUPREME COURT RULES
8. The respondent argues that the ground of appeal fails to meet the requirements of Order 7, Rule 10, which provides:
Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.
9. Though it is not stated in the notice of objection it is also argued that the ground of appeal fails to comply with Order 7, Rule 9(c), which provides that a notice of appeal shall:
state briefly but specifically the grounds relied upon in support of the appeal.
10. The respondent argues that the ground of appeal does not specify with particularity or at all:
11. We are not persuaded by these arguments that the ground of appeal fails to meet the test of particularity imposed by Order 7, Rule 9(c).
12. The following facts seem to be uncontentious:
13. We uphold the submission of Mr Mana that those facts are either stated in or reasonably inferred from the terms of the originating summons filed on 15 February, the amended originating summons filed 27 February and the further amended originating summons filed 3 August 2018, in particular in paragraph 4 of those documents. Those facts are also either stated in or reasonably inferred from the terms of various affidavits filed in the National Court (eg in the affidavit of Pastor Steven Bagari, filed 30 June 2018).
14. We also uphold Mr Mana’s submission that those facts are properly regarded as self-evident, and reasonably presumed to have been in the knowledge of the National Court and the primary Judge. It was, in our view, therefore unnecessary for the notice of appeal to:
15. We reject the respondent’s argument that the ground of appeal fails to give specific reasons why the judgment of the National Court is alleged to be wrong in law. The ground of appeal sufficiently alleges that the primary Judge erred in law by failing to give the appellant an opportunity to be heard thereby breaching its right to natural justice.
Ground of objection No 1 is refused.
GROUND OF OBJECTION 2: ISSUES RAISED IN THE NOTICE OF APPEAL WERE NOT RAISED IN THE NATIONAL COURT
16. This ground of objection states:
The issue or questions referred to in the notice of appeal were not raised in the National Court by the appellant, despite there being ample opportunity to do so.
17. The respondent argues that the appellant did not raise the argument about denial of natural justice (that being the essence of its ground of appeal) in the National Court, though it had the opportunity to do so, therefore it cannot raise the argument on appeal.
18. We reject this argument for two reasons. First, the appellant was not a party to the National Court proceedings. It was not joined as a defendant as, arguably, it should have been. Though its present counsel, Mr Mana, appeared before the National Court on behalf of the defendants on the day that the court made the order the subject of the appeal (applying unsuccessfully for an adjournment), the fact remains that the appellant was never a party to the National Court proceedings. Therefore it was not provided with an opportunity to be heard on the argument that it was being denied natural justice.
19. Secondly, there are two competing lines of authority on whether it is permissible for an appellant in the Supreme Court to argue points of law that were not raised in the National Court.
20. One line of cases says it not permissible: Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705, Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788, Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853, Sakaraias Akap v Kenneth Korakali (2012) SC1179 and Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237.
21. Another line of cases says that a party can raise in the Supreme Court a point of law not put before the National Court, if it seeks and obtains the leave of the Court to do so: Van Der Kreek v Van Der Kreek [1979] PNGLR 185, Papua Club Inc v Nusaum Holdings Ltd (2005) SC812, Application by Herman Joseph Leahy (2006) SC855, Telikom PNG Ltd v ICCC (2008) SC906 and Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105.
22. Whichever line of authority is applied, we consider that even if an appellant includes in a notice of appeal a point of law that was clearly not raised in the National Court when there was an opportunity to raise it, this is not a matter that goes to the jurisdiction of the Supreme Court (Philip v Makiba (2018) SC1725). It is a matter for submissions at the hearing of the appeal. It is not a proper ground of objection to competency.
Ground of objection No 2 is refused.
GROUND OF OBJECTION 3: APPELLANT DOES NOT HAVE A SUFFICIENT INTEREST IN THE APPEAL
23. This ground of objection states:
The appellant, who was not a party in the National Court, does not have a sufficient interest in the subject matter of the National Court decision that it seeks to appeal against, in that the orders purportedly appealed from affect only the trustees appointed under the Public Finances (Management) Act 1995 to operate the WPPDT-CMCA bank accounts, and do not concern any other person including the appellant.
24. The respondent argues that as the appellant was not a party to the National Court proceedings it can only appeal against the order of 5 September 2018 if it has a sufficient interest in the proceedings. However, it no longer has any interest in the proceedings by virtue of the order of 5 September 2018.
25. We agree with the first part of the argument. A person does not have to have been a party to National Court proceedings to be able to appeal against a judgment of the National Court. Any person whose interests are affected by or who is genuinely aggrieved by the order of the National Court and who might have been joined as a party to the National Court proceedings has a right of appeal (Kitogara Holdings v NCDIC [1988–89] PNGLR 346, Tamali Angoya v Tugupa Association Inc (2009) SC978).
26. However, we struggle to make sense of the second part of the argument. The effect of the order of 5 September 2018 was to remove the appellant from its position as the entity authorised to control and manage the trust account at the centre of the proceedings, and replace it with the respondent. The appellant’s powers, functions, duties and responsibilities were immediately and directly affected by the order. Its interest in the National Court’s proceedings and in the subject matter of the appeal is real and obvious. And it might have been joined as a party to the National Court proceedings, and arguably should have been joined, by the plaintiff or by the Court of its own motion. It has a sufficient interest in the subject of the appeal.
Ground of objection No 3 is refused.
GROUND OF OBJECTION 4: APPELLANT DID NOT SEEK LEAVE TO APPEAL AGAINST INTERLOCUTORY JUDGMENT
27. This ground of objection states:
The appellant was required pursuant to ss 4(2)(b) and (c) and 14(1) of the Supreme Court Act to first seek leave to appeal within the prescribed period for doing so under s 17 of the Supreme Court Act, before filing this appeal, and consequently, having failed to do so within the prescribed period, the appeal is incompetent, in that:
(i) the orders appealed from are interlocutory orders, for which leave is required and not a final judgment; and
(ii) the grounds of appeal specified in paragraphs 3(a) and (b) [of the notice of appeal] are matters of fact, not law, nor mixed fact and law. The question of fact is whether or not the National Court (and the respondent) had certain knowledge, despite which they acted in a particular way. This is essentially a fact for the trial judge, and the only question of law that arises is whether there was any evidence to support the National Court’s findings that there was no breach of natural justice or whether or not the conclusion is one which could be reasonably drawn from the primary facts.
28. This ground of objection relies on three sections of the Supreme Court Act, 4, 14 and 17, which are in the following terms:
Section 4 (right of appeal from National Court) states:
(1) An appeal in accordance with this Act lies to the Supreme Court from a judgement of the National Court.
(2) An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal—
(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.
Section 14 (civil appeals to the Supreme Court) states:
(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.
Section 17 (time for appealing under division 2) states:
Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.
29. The respondent argues that for two separate reasons, the appellant required leave to appeal before filing its notice of appeal:
(i) the appeal is against an interlocutory judgment of the National Court; and
(ii) the appeal entails questions of fact.
(i) Is the appeal from an interlocutory judgment?
30. The respondent argues that the order of 5 September 2018 is procedural in character, inherently open to be altered as time goes on, and therefore interlocutory. The order did not finally determine the proceedings in the National Court, which are ongoing, which is evident from the fact that not all the orders claimed under the originating summonses have been the subject of judicial consideration. Therefore leave of the Supreme Court is required for an appeal against such an order.
31. We have some difficulty with this argument as the jurisdictional basis of it is not set out in the ground of objection. It should have been stated as Section 14(3). However we have decided to deal with the objection on its merits as the argument was raised in Mr Sheppard’s submissions by setting out the relevant portion of Section 14(3) (though we note that it was incorrectly referred to as Section 12(3)).
32. We agree with the observation that there are some orders claimed in the further amended originating summons that remain to be determined by the National Court. They were not before the Court for its consideration on 5 September 2018. So the proceedings have not, in that sense, been finalised.
33. However we do not consider that that aspect of the National Court proceedings is determinative of the issue of whether the order of 5 September 2018 is an “interlocutory judgment”. It is necessary to focus on the terms and effect of the Court’s order and apply the test for determining whether a judgment is interlocutory or final derived from the leading case of Punagi v Pacific Plantation Ltd (2011) SC1153. If the order finally determines the litigation or if it finally determines certain issues between the parties, it is not interlocutory.
34. We note that the order of 5 September 2018 did not finally determine OS 75 of 2018, but it did finally determine some significant issues. We summarise the order as follows:
35. We find that each of orders 1 to 4 is a final order as it finally determines a claim for relief expressly or impliedly sought in the further amended originating summons. Number 1 finally determines the issue of the respondent’s standing. Number 2 finally determines the question of whether the Board of Trustees had to provide an account of the trust account. Number 3 is a final order that the respondent is at liberty to commence “fresh proceedings”. Number 4 refers to previous orders that are “made permanent”. All orders are final by dint of their terms and their effect. None is interlocutory. The judicial decision by which the order of 5 September 2018 was made is therefore not an “interlocutory judgment”.
36. Furthermore, even if it were regarded as an interlocutory judgment, the order of 5 September 2018 was a case of ‘granting an injunction’, in which case Section 14(3)(b)(ii) would apply and leave to appeal against it was not required.
(ii) Does the appeal entail questions of fact?
37. It is an important procedural requirement that if an appeal is from a decision of the National Court on a question of fact, leave of the Supreme Court is required. It is a related requirement that if an appeal entails some questions of fact and some questions of law or mixed fact and law, an application for leave to appeal must be filed in respect of the questions of fact, separate from the notice of appeal, which must only include questions of law or mixed fact and law (Yakham v Merriam [1998] PNGLR 555, Michael Kuman v Digicel (PNG) Ltd (2017) SC1638).
38. Those requirements apply in the present case. However, we note that the source of the requirements cited in the ground of objection to competency – Section 4(2) of the Supreme Court Act – is incorrect. Section 4(2) only applies to appeals “from a Judge of the National Court sitting on appeal”, such as when a Judge sits on an appeal against a decision of a District Court. In the present case the primary Judge was not sitting on appeal. He was exercising original jurisdiction. The correct source of the requirements is Section 14(1) of the Supreme Court Act, which is contained in Division 3.2 (additional provisions relating to appeals in civil cases).
39. Putting that error aside, the question remains whether the notice of appeal entails questions of fact. The respondent argues that it does and relies on the same sort of arguments underpinning ground of objection 1. It is argued that the ground of appeal in the notice of appeal is dependent on the premise that the National Court had “knowledge” of the appellant’s direct interest in the subject matter of the proceedings and “knowledge” of the fact that the appellant would be adversely affected by a judgment in favour of the respondent; and the question of what “knowledge” the National Court had is a question of fact.
40. We reject that argument, for the same reasons we rejected the similar arguments in ground of objection 1. Knowledge on the part of the National Court of the appellant’s direct interest in the subject matter of the proceedings and knowledge of the fact that the appellant would be adversely affected by a judgment in favour of the respondent are facts which can reasonably be presumed. Or at least it is arguable that the National Court should be presumed to have had such knowledge. Argument about such issues entails questions of law or at least questions of mixed fact and law. In either case, leave to appeal is not required.
Ground of objection No 4 is refused.
GROUND OF OBJECTION 5: APPEAL FILED IN BREACH OF ATTORNEY-GENERAL ACT, SECTION 7(i)
41. This ground of objection states:
That the notice of appeal as filed on 28 September 2018, fails to comply with the requirements of section 7(i) of the Attorney-General Act 1989 in that the Attorney-General, had not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth to appear for the appellant in this matter.
42. It relies on Section 7(i) of the Attorney-General Act, which states:
The duties, functions and responsibilities of the Attorney-General are ...
to instruct lawyers within or outside the country to appear for the State in any matter.
43. Before setting out the respondent’s argument in support of this ground of objection, we state some uncontentious facts:
44. The respondent argues that the Attorney-General’s attempt to retrospectively instruct and authorise Corrs Chambers Westgarth to file the appeal is of no consequence as far as the competency of the appeal is concerned. Mr Sheppard submits that it is necessary that a law firm have express instructions of the Attorney-General before filing an appeal by the State (or an entity tantamount to the State, such as the appellant, which is wholly owned and controlled by a corporation wholly owned by the State). If such instructions are not in place the appeal is incompetent. He relies on two Supreme Court cases in support of that argument: Marape v O’Neill (2016) SC1487 and Valu v Ngangan (2018) SC1723.
45. Both cases go to the question of the circumstances in which it is necessary for a law firm to carry instructions from the Attorney-General to act for the State or an officer of the State or a State-related entity. The decision in Valu, which upheld an objection to competency of an appeal, established that the absence of necessary instructions is a matter going to the jurisdiction of the Supreme Court, and is a sufficient ground on which to rule that an appeal is incompetent.
46. However, the facts in both cases can be distinguished from those in the present case. In both cases the firms and the counsel who sought to appear in court proceedings had no instructions at all from the Attorney-General. Here, the Attorney-General has given instructions, retrospectively. We see nothing in the Attorney-General Act to prohibit that. We regard the retrospective operation of instructions as consistent with the policy and purpose of Section 7(i): to ensure that the Attorney-General is able to control and regulate State brief-outs. This is a matter properly falling within the statutory responsibility and discretion of the Attorney-General.
47. We rule that the effect of the instruction of 3 November 2018, made retrospective to 28 September 2018, was to enliven the jurisdiction of the Supreme Court with effect from 28 September 2018.
Ground of objection No 5 is refused.
GROUND OF OBJECTION 6: APPEAL FILED IN BREACH OF PUBLIC MONEY MANAGEMENT REGULARISATION ACT, SECTION 10
48. This ground of objection states:
That the notice of appeal as filed on 28 September 2018, by reason of the failure referred to in [ground of objection 5], does not comply with the requirements of section 10 of the Public Money Management Regularisation Act 2017 ... for the reason that the Attorney-General, had not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth to appear for the appellant in this matter.
49. It relies on Section 10 of the Public Money Management Regularisation Act, which states:
(1) For the purposes of this Act, a public or statutory body shall not engage legal representation, commence any action or other proceeding in any court or tribunal or procure or contract for legal representation for any purpose other than in compliance with the Attorney-General Act 1989.
(2) Prior to the Attorney-General exercising his powers pursuant to Section 7 of the Attorney-General Act 1989 —
(a) the State Solicitor shall certify to the Attorney-General whether the lawyers to be appointed are, in the opinion of the State Solicitor, experienced and with sufficient professional competence in the area of law to represent a public or statutory body; and
(b) the Attorney-General shall satisfy himself that all procurement laws in Papua New Guinea have been complied with to the extent necessary for him to exercise his powers.
(3) Legal representatives of public and statutory bodies shall not receive or charge for any fees or disbursements other than taxed party-party or solicitor-client costs on the scale of fees of the appropriate Court.
(4) For the purposes of this section and Section 11 —
"public body" means an agency which is part of the State Services established under Part VII of the Constitution and includes a Provincial Government or Local-level Government established under the Organic Law on Provincial Governments and Local-level Government; and
"statutory body" means a body, authority or instrumentality (incorporated or unincorporated) established under an Act of the Parliament or howsoever otherwise for governmental or official purposes, including a subsidiary statutory body that is not a public body, and includes a body, authority or instrumentality (incorporated or unincorporated) established by a Provincial Government or Local-level Government or their subsidiary statutory bodies that are not public bodies.
50. This ground of objection relies on the same argument underpinning ground of objection No 5: the statutory brief-out requirements are prospective and cannot be cured by retrospective articulation, even if obtained. We rejected that argument in refusing ground 5. We reject it again. It would be contrary to the policy and purpose of the statutory provisions to prevent the Attorney-General from exercising his discretion in a retrospective manner.
Ground of objection No 6 is refused.
CONCLUSION
51. All grounds of objection to the competency of the appeal are refused. The objection to competency will be refused. The appeal
will be referred to the Duty Judge. Costs will follow the event.
ORDER
Judgment accordingly.
_________________________________________________________________
Corrs Chambers Westgarth Lawyers: Lawyers for the Appellant
Young & Williams Lawyers: Lawyers for the Respondent
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