SC2501

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 102 OF 2019

YAPI GIWI
First Appellant

WILLIAM HAGAHUNO TRADING AS WILLIAM ATTORNEYS
Second Appellant

V

JACOB POPUNA AS PUBLIC CURATOR AND OFFICIAL TRUSTEE OF PAPUA NEW GUINEA
First Respondent

GRAHAM ELIPAS
Second Respondent

Waigani: Batari J, Narokobi J, Dowa J
2023:  30th May
2023: 30th November

CIVIL JURISDICTION – Supreme Court Appeals – Practice and Procedure – Application to add a party after initial application refused by single judge of the Supreme Court – Supreme Court Act, s 5(3), Supreme Court Rules 2012, Order 11 Rule 25 and 26 –application considered – Supreme Court lacked jurisdiction – application dismissed.  

Vincent Yapi, the Applicant sought to be added to the appeal as next friend of his late father, the First Appellant, who died pursing the appeal. The application made pursuant to Order 11, rule 11 of the Supreme Court Rules was refused by a single judge of the Supreme Court. The appeal related to his father’s role as the administrator of the estate of a deceased person. He now seeks to discharge the order made by the single judge of the Supreme Court before the full court of the Supreme Court pursuant to s 5(3) of the Supreme Court Act and Order 11 rule 25 of the Supreme Court Rules.

Held

(1)	The requirement to be satisfied to be able to rely upon s 5(3) of the Supreme Court Act and Order 11 rules 25 and 26 of the Supreme Court Rules is that the direction or order sought to be discharged was made under s 5(1) of the Supreme Court Act (Abari v Gumaim (2020) SC1925, followed).

(2)	After carefully examining the order by a single judge of the Supreme Court made on 20 October 2023 refusing the application to join the Applicant as the next friend of the deceased First Appellant, it is determined that it was an order that related to the appropriateness of Order 11 rule 11 of the Supreme Court Rules and not an order that was by its nature:

•	a direction not involving the decision on the appeal; or
•	an interim order to prevent prejudice to the claims of the parties; or
•	an order in any proceedings (other than criminal proceedings) for security for costs; or
•	an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or
•	an order admitting an appellant to bail.

(3)	Having determined that the orders of 20 October 2023 was not one made under s 5(1) of the Supreme Court Act, the Supreme Court lacked jurisdiction to hear the present application. 

(4)	Additionally, once a party elects to rely on a single judge of the Supreme Court under Order 11 rule 11 of the Supreme Court Rules, it is not possible to have the same application heard again before the full court of the Supreme Court (Miriori v Daveona (2019) SC1847, followed). This was a case where the Applicant elected to have his application heard before a single judge of the Supreme Court, and it was not possible to have a similar application heard again before the full Supreme Court.

(5)	Consequently, the application was dismissed with costs in favour of the Respondents. 

Cases Cited:
Abari v Gumaim (2020) SC1925
Miriori v Daveona (2019) SC1847

Statutes Cited:
Supreme Court Act 
Supreme Court Rules

Counsel:
O Dekas, for the Applicant
Second Appellant in person
F Aki, for the First Respondents
J Napu, for the Second Respondent

RULING

30th November 2023

1.	BY THE COURT: Vincent Yapi or “the Applicant” seeks the following orders from the Supreme Court:

(a)	Pursuant to Section 5(3) of the Supreme Court Act and Order 11 Rules 25 and 26 of the Supreme Court Rules, that the order made by Hartshorn J sitting as a single man Supreme Court Judge on 20th October 2022 be discharged and Vincent Yapi be added as next of kin in his capacity as next of kin and administrator of his father, Yapi Giwi’s intestate estate.

(b)	Costs of this application shall be paid by the respondents.

Background

2.	The substantive proceeding is an appeal against the decision of the National Court in WS 984 of 2016 which ruled on 5 July 2019 that the Letters of Administration granted to Yapi Giwi (First Appellant) as the Administrator in 2011 regarding the estate of Anongao Elipas is revoked. Additionally, the court ordered that the Estate of Anongao Elipas and late John Aip are separate estates and that these estates vests in the Public Curator (First Respondent) by operation of law.

3.	While the appeal was on foot the First Appellant, Yapi Giwi died. His son Vincent Yapi, the Applicant, now seeks to be added as next of kin of the First Appellant. Two previous applications to be added to the appeal were dismissed by Justice Hartshorn, sitting as a single judge of the Supreme Court – on 13 January 2022 and 20 October 2022. This is the third application, which stems from the second decision dismissing the application. The grounds of the application are stated in the nature of “appeal grounds” and they are stated here (some parts are paraphrased):

•	The learned judge dismissed the application arbitrarily without giving a fair opportunity to the Applicant to be heard.
•	The Applicant is the first-born son, next of kin by custom and an administrator of the estate of Yapi Giwi (First Appellant), who applied to be added as next of kin or friend to complete the substantive appeal but the Judge erred in law and in fact to dismiss the application.
•	The learned Judge erred in law and in fact when he arbitrarily held that the Applicant has no direct interest in the previous administration of Anongau Elipas which his father was an administrator prior to the revocation by the National Court.
•	The learned judge erred in law when he arbitrarily held that Order 11 Rule 11 was the incorrect provision of the Supreme Court Rules and he should have relied on Order 2(h) and adopt relevant rules of the National Court Rules.

Discharging Orders under s 5(3) of the Supreme Court Act  

4.	The threshold question we determine before considering the merits of the application is whether we have the jurisdiction to hear the application. In order to enliven the jurisdiction of the Supreme Court under Section 5(3) of the Supreme Court Act and Order 11 Rule 25 of the Supreme Court Rules that the Applicant relies on, we have to be satisfied that the order that was made that is sought to be discharged was made under s 5(1) of the Supreme Court Act. This is the position that the Supreme Court took in Abari v Gumaim (2020) SC1925 (per Salika CJ, Hartshorn J, Dingake J) which we adopt.

5.	Section 5 of the Supreme Court Act states:

5. INCIDENTAL DIRECTIONS AND INTERIM ORDERS.

(1) Where an appeal is pending before the Supreme Court–
(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.

6.	Order 11 rule 11 of the Supreme Court Rules reads as follows:

11. The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give consequential directions.  

7.	The question is whether the order of Hartshorn J on 20 October 2023 is an order made under s 5(1) of the Supreme Court Act. To put it simply, we ask whether the order was:

•	a direction not involving the decision on the appeal; or
•	an interim order to prevent prejudice to the claims of the parties; or
•	an order in any proceedings (other than criminal proceedings) for security for costs; or
•	an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or
•	an order admitting an appellant to bail.

8.	After carefully examining the order made on 20 October 2023, we are not satisfied that the order was one that fell under s 5(1) of the Supreme Court Act. The order refused an application made under Order 11, rule 11 of the Supreme Court Rules. It was not an order that was made under s 5(1) such that s 5(3) of the Supreme Court Act and Order 11 Rule 25 and 26 of the Supreme Court Rules can be relied on to discharge or vary the order.

Appeal Application Under O 11 r 11 of the Supreme Court Rules

9.	Another jurisdictional obstacle to the application is the competency of the appeal application. Where an application is made under Order 11, rule 11 of the Supreme Court Rules is refused by a single judge, it is not possible to make a further appeal application to the Supreme Court to vary or discharge the order of a single judge.  We adopt the position taken in Miriori v Daveona (2019) SC1847 (per Yagi, Makail & Koeget JJ). In that case, each of the four applicants applied to be added as a respondent to the appeal, to a single judge of the Supreme Court pursuant to Order 11, rule 11 of the Supreme Court Rules. Each of the four application was refused. After an unsuccessful appeal application to the Supreme Court pursuant to Order 11, rule 25 of the Supreme Court Rules, each applicant filed a further application to join to this Court pursuant to Order 11, rule 11 of the Supreme Court Rules. The Supreme Court held that if an applicant elects to apply to a judge of the Supreme Court under Order 11 rule 11 of the Supreme Court Rules, a further application to the full court of the Supreme Court is not possible, it would be considered an abuse of process. The reason for this is that Order 11 rule 11, refers to an application to the court or a judge, giving a choice to the applicant and when an election is made, there is no further appeal, to the full court. To do so would be an abuse of process. 

10.	In this case, the Applicant has elected to go before a single judge under Order 11 rule 11 of the Supreme Court Rules. After that election, the Applicant has no further recourse to the full court. In other words, he could have filed the same application before the full Supreme Court instead of going to a single judge of the Supreme Court.

11.	Paragraphs 16 and 17 of the Supreme Court’s decision in Miriori v Daveona is apposite to the issue of jurisdiction in the circumstances of this application:

16. In the present case, each of the four applicants elected to apply to a single judge of the Supreme Court and having done that, had elected against bringing their applications to the full Court of the Supreme Court. Each of their applications was denied by the single judge. The consequence is that, it is the end of the matter and they are disentitled from making a further application to this Court using the same Rule (Rule 11). In our view, to bring a further application to this Court is an abuse of process.

17. Even an appeal application under Order 11, rule 25 is not available to an unsuccessful joinder applicant as ruled recently by the Supreme Court: Philip Miriori & Anor v. Lawrence Daveona & Anor: SCA No 27 of 2018 (Unnumbered & Unreported Judgment of 27th February 2019 per Hartshorn, Nablu & Liosi JJ).In our view, Rule 25 and the Court’s ruling reinforces the view that it is not envisaged by  Order 11, rule 11  that an appeal should be delayed because there are multiple applications for joinder by the same party to a judge or Court. It follows that the applicants’ quest to join must reach some finality so that the appeal can progress to a final hearing without delay.
 
12.	In our view, since the present application was already made before a single judge of the Supreme Court, a further appeal application is not available to him to the full Supreme Court. However, in our view, the applicant could apply to the full court for the same orders as were sought before the single judge within 21 days pursuant to Order 11 rule 25 and 26 of the Supreme Court Rules, in a fresh proceeding.  

Conclusion

13.	After taking all these matters into account, we have reached the conclusion that we do not have the jurisdiction to hear the application by way of an appeal against a decision of a single of the Supreme Court outside the procedure stipulated in Order 11 rules 25 and 26. The application should be dismissed with costs against the Applicant on a party/party basis. 

Orders

14.	The court orders that the application to discharge the order made by Hartshorn J sitting as a single man Supreme Court Judge on 20th October 2022 for Vincent Yapi to be added in his capacity as next of kin and administrator of his father, Yapi Giwi’s intestate estate is dismissed with costs in favour of the Respondents, on a party/party basis to be taxed if not agreed.

Dekas Lawyers: 	Lawyers for the Applicant
Napu Lawyers:	Lawyers for the Second Respondent