Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo in his capacity as the Director of the Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea and Eddie Tarsie for himself and in his capacity as Ward Councillor of Ward 3, Sidor LLG v Farina Siga for himself and in his capacity as Ward Secretary of Ward 3, Sidor, LLG and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for himself and as Chairman of Pommern Incorporated Land Group Waigani (2010) SC1056

• Jurisdiction: Papua New Guinea
• Judge: Davani, Hartshorn and Sawong JJ
• Judgment Date: 08 June 2010
• Court: Supreme Court
• Citation: (2010) SC1056
• Docket Number: SCA 40 OF 2010
• Year: 2010
• Judgement Number: SC1056

Full Title: SCA 40 OF 2010; Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo in his capacity as the Director of the Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea and Eddie Tarsie for himself and in his capacity as Ward Councillor of Ward 3, Sidor LLG v Farina Siga for himself and in his capacity as Ward Secretary of Ward 3, Sidor, LLG and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for himself and as Chairman of Pommern Incorporated Land Group Waigani (2010) SC1056

Supreme Court: Davani, Hartshorn and Sawong JJ

Judgment Delivered: 8 June 2010

SC1056

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 40 OF 2010

BETWEEN:

RAMU NICO MANAGEMENT (MCC) LIMITED

First Appellant

AND:

MINERAL RESOURCES AUTHORITY

Second Appellant

AND:

DR WARI IAMO in his capacity as the Director of the Environment

Third Appellant

AND:

DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Fourth Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Appellant

AND:

EDDIE TARSIE for himself and in his capacity

as Ward Councillor of Ward 3, Sidor LLG

First Respondent

AND:

FARINA SIGA for himself and in his capacity as Ward Secretary of Ward 3, Sidor, LLG

Second Respondent

AND:

PETER SEL

Third Respondent

AND:

POMMERN INCORPORATED LAND GROUP NO 12591

Fourth Respondent

AND:

SAMA MELAMBO for himself and as Chairman of Pommern Incorporated Land Group

Fifth Respondent

Waigani: Davani, Hartshorn and Sawong JJ.

2010: 4th & 8th June

SUPREME COURT - Objection to Competency –s.14 (3)(b)(ii) Supreme Court Act – whether leave required to appeal an interlocutory order refusing to set aside an injunction – whether literal or purposive approach to statutory interpretation to be adopted - whether claim of abuse of process raises an objection to competency - whether failure to raise the question of standing in the National Court raises an objection to competency

Facts:

The Respondents commenced proceedings in the National Court seeking declaratory and injunctive relief in respect of the disposal of tailings from the proposed Ramu Nickel mine, in the Madang Province. The Appellants are appealing against the grant of an injunction and the refusal to set aside that injunction made in those proceedings. The Respondents now object to the competency of the Appeal and the Application for Leave to Appeal and the Appellants apply for leave to appeal the refusal to set aside the injunction. The Appellants also apply for the hearing of the appeal to be expedited.

Held:

1. An interlocutory decision of the National Court that refuses to set aside an order that granted an injunction falls within s. 14 (3) (b) (ii) Supreme Court Act as a purposive approach to the interpretation of that section should be adopted.

2. Leave to appeal is not required in respect of such a decision.

3. A claim of abuse of process is distinct from and does not raise an objection to competency.

4. If a National Court does not deal with an issue, this does not preclude the matter from being the subject of a ground of an appeal to the Supreme Court.

5. The Objection to the Competency of the Appeal, the Application for Leave to Appeal and the Objection to Competency of the Application for Leave to Appeal are dismissed and the hearing of the appeal is to be expedited.

Cases cited:

Papua New Guinea Cases

Van Der Kreek v. Van Der Kreek [1979] PNGLR 185

Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185

PLAR No. 1 of 1980 [1980] PNGLR 326

Placer Holdings Pty Ltd v. PNG [1982] PNGLR 16

Singorom v Kalaut [1985] PNGLR 238

Karingu v. PNG Law Society (2001) SC674

Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705

Bank of South Pacific Ltd v. PNG Nambawan Trophy Holdings Ltd (2004) N2717

Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812

State v. John Talu Tekwie (2006) SC843

Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853

Jeffrey Turia v. Gabriel Nelson (2008) SC949

Overseas Cases:

General Television Corporation Pty Ltd v. DPP & Anor [2008] VSCA 49

Counsel:

Mr. I. R. Molloy and Mr. G. Gileng, for the First Appellant

Mr. G. M. Egan and Mr. A. Mana, for the Second Appellant

Mr. W. Mapiso, for the Third, Fourth and Fifth Appellants

Mrs. T. G. Nonggorr and Ms. C. Lari, for the Respondents

8th June, 2010

1. BY THE COURT: The Respondents commenced proceedings in the National Court seeking declaratory and injunctive relief in respect of amongst others, the disposal of tailings from the proposed Ramu Nickel mine, in the Madang Province.

2. The Appellants are appealing against the grant of an injunction and the refusal to set aside that injunction made in those proceedings.

3. The Respondents now object to the competency of the Appeal and the Application for Leave to Appeal and the Appellants apply for leave to appeal the refusal to set aside the injunction. The Appellants also apply for the hearing of the appeal to be expedited.

4. We consider the objection to competency of the Appeal first.

Law

5. Pursuant to Order 7 Rule 14 Supreme Court Rules, a respondent who objects to the competency of an appeal or application for leave to appeal shall, within 14 days after service on him of the notice of appeal or application for leave, file the objection and serve a copy on the appellant.

6. Pursuant to Order 7 Rule 16, an objection of which notice has been given shall be determined by the court at or before the hearing of the appeal or of the application for leave to appeal as the court thinks fit.

7. An objection to competency of an appeal or application for leave to appeal “… is really an objection to the jurisdiction of the Court to entertain the point…”: Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185. This decision has been referred to with approval in the cases of State v. John Talu Tekwie (2006) SC843 and Jeffrey Turia v. Gabriel Nelson (2008) SC949 amongst others.

Whether the decision to set aside requires leave

8. The first objection to the Appeal is that the second decision of the trial judge that is appealed, being the decision to refuse to set aside the injunctive relief granted in the first decision, is interlocutory and requires leave pursuant to s. 14 (3) (b) Supreme Court Act, but that as no leave has been granted, the Appeal is incompetent.

9. The Respondents submit that a decision that refuses to set aside an order that granted an injunction does not come within, “ in cases of granting or refusing an injunction…” in s. 14 (3) (b) (ii) Supreme Court Act. That subsection describes some instances where an appeal from an interlocutory judgment does not require leave.

10. The Appellants submit that although a strict literal interpretation of s. 14 (3) (b) (ii) does not include an order refusing to set aside an injunction, when a purposive approach to the interpretation of s. 14 (3) (b) (ii) is adopted, a decision refusing to set aside an injunction is included.

11. Counsel for the Respondents cited numerous decisions of this Court in support of the submission that it is against settled authority that an appeal against an order refusing to set aside an injunction does not require leave. We found the cases cited not to be on point and it is apparent that this particular issue has not been argued or adjudicated upon in this Court before.

12. Counsel for the Appellants cited numerous decisions of this Court in support of the submission that the Courts in this jurisdiction have abandoned the literal approach to statutory interpretation in favour of the purposive approach: PLAR No. 1 of 1980 [1980] PNGLR 326; Placer Holdings Pty Ltd v. PNG [1982] PNGLR 16; Singorom v Kalaut [1985] PNGLR 238; Karingu v. PNG Law Society (2001) SC674; Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705.

13. To adopt a strict literal approach to s. 14 (3) (b) (ii), submitted counsel for the Appellants, would lead to strange results, such as an appeal from an ex parte injunction not requiring leave, as opposed to an appeal from a subsequent order from an inter partes hearing to determine whether the ex parte injunction should continue, which would require leave.

14. The occasions prescribed in s. 14 (3) (b) (i) and (ii) Supreme Court Act where leave to appeal an interlocutory judgment is not required, are occasions when the relief appealed, although interlocutory, has substantive effect: liberty of a subject, custody of an infant, grant or refusal of an injunction and the appointing of a receiver.

15. As the effect is substantive, lawmakers in various jurisdictions have acted to ensure that there remained an automatic right of appeal for such occasions. In this regard we note that our s. 14 (3) Supreme Court Act has its origins in the English Supreme Court of Judicature (Procedure) Act 189...