Pius Pundi v Chris Rupen and National Maritime Safety Authority (2015) SC1430

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J, Cannings J, Hartshorn J
• Judgment Date: 25 May 2015
• Court: Supreme Court
• Citation: (2015) SC1430
• Docket Number: SCA NO 98 of 2013
• Year: 2015
• Judgement Number: SC1430

Full Title: SCA NO 98 of 2013; Pius Pundi v Chris Rupen and National Maritime Safety Authority (2015) SC1430

Supreme Court: Kandakasi J, Cannings J, Hartshorn J

Judgment Delivered: 25 May 2015

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...