Garamut Enterprises Limited v Steamships Trading Company Ltd

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Injia J, Kirriwom J
• Judgment Date: 26 November 1999
• Citation: (1999) SC625
• Court: Supreme Court
• Year: 1999
• Judgement Number: SC625

Supreme Court: Hinchliffe J, Injia J, Kirriwom J

Judgment Delivered: 26 November 1999

SC625

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE ]

SCM NO.8 OF 1999

BETWEEN : GARAMUT ENTERPRISES LIMITED

-Appellant-

AND : STEAMSHIPS TRADING COMPANY LTD.

-Respondent

Waigani : Hinchliffe, Injia and Kirriwom, JJ

1999: 24 and 26 November

Practice and Procedure — Application for leave to apply for judicial review — Leave granted — Appeal against grant of leave — O.16 rr.3 & 11 National Court Rules

Leave to appeal against interlocutory order mandatory — Leave neither sought nor obtained — Appeal incompetent, objection upheld — O 16 r.11 National Court Rules, O.10 Supreme Court Rules and ss.14 and 17, Supreme Court Act Ch.35

This is an appeal from a decision of a judge of the National Court granting leave to an applicant to apply for judicial review which was an interlocutory order made in the exercise of discretion by the judge that required leave under the Supreme Court Act for appeal to lie and which the appellant neither sought nor obtained leave. On objection to competency of the appeal

Held:

1. That the appeal is incompetent in that it is clearly an appeal in the context it is meant to be

understood as such combining O 10 of the Supreme Court Rules and O.16.r.11 of the National

Court Rules both which owe their existence to the enabling statute, namely, the Supreme Court

Act Ch.35.

Chan v Ombudsman SSCA No 2 of 1998 Unreported SC 557 distinguished: Yakham and Anor v

Merriam SCA Nos 94 & 95 of 19966 Unreported SC 533 applied.

Counsel:

I Molloy with I. Sherpherd for the Appellant

P.Young for the Respondent

26 November 1999.

BY THE COURT: On an appeal from an order of the National Court of 8 October 1999 granting leave to the respondent named in this matter to apply for judicial review of various decisions made by the Minister for Land and Physical Planning and the Land board over a piece of land in the city of Port Moresby and the subsequent issuing of title to land to the Appellant, the Respondent raised a preliminary point on the objection to the competency of the appeal. The ground of objections are;

1. That the appellant has failed to include the proper parties as respondents to this appeal.

2. That pursuant to Section 14 of the Supreme Court Act no appeal against the order of His Honour Judge Woods lies to the Supreme Court without leave of the Supreme Court as the Order appealed from is an interlocutory judgment and the appellant has failed to seek or obtain leave of the Supreme Court within the time allowed under Section 17 of the Supreme Court Act.

3. That the appellant has no locus standi to appeal against the decision of His Honour Judge Woods. The decision was made on an exparte application a fortiori

the appellant has no interest.

The appellant was named as a party in an application for leave for judicial review under O.16 r.3 of the National Court Rules. The review was sought in relation to a decision by the Minister for Lands and Physical Planning and the Land Board which considered, rezoned and issued a commercial lease to the appellant over a piece of land described Allotment 23, Section 71, Hohola, National Capital District. Both the Minister and the Members of the Land Board were named as Defendants in the proceedings besides the Appellant.

Ordinarily applications for leave for judicial review under O.16.r.3 are pursued ex parte provided however appropriate notice is given to the Secretary for Justice, in reality now the Attorney- General, as required under r.3(3). He is the only person given notice at this stage until the question of leave has been determined. If leave is granted , service of relevant original documents is then effected on those partied who directly, or even indirectly, affected by the proceedings. There is no dispute that the Secretary for Justice was duly put on notice in this case as evidenced by the Notice of Intention of Defend filed by the Solicitor- general dated 21st September, 1999 on behalf of the First and Third Defendants. (ie the Minster and the Members of the land Board). We are told that the Counsel was heard on the leave application on behalf of the Secretary for Justice or to be more precise, the First and Third Defendants. Unfortunately the Appeal Book in the matter does not contain the transcript of the proceedings before His Honour Justice woods so the Court cannot and does not know independently, of the argument advanced fir and on behalf of the First...