Rendel Rimua & 2 Others v Simon Ekanda & 31 Others (2011) SC1094

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 19 April 2011
• Court: Supreme Court
• Citation: (2011) SC1094
• Docket Number: SCA NO. 16 OF 2011
• Year: 2011
• Judgement Number: SC1094

Full Title: SCA NO. 16 OF 2011; Rendel Rimua & 2 Others v Simon Ekanda & 31 Others (2011) SC1094

Supreme Court: Injia, CJ

Judgment Delivered: 19 April 2011

SC1094

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 16 OF 2011

Between:

RENDEL RIMUA & 2 OTHERS

-Appellants-

And:

SIMON EKANDA & 31 OTHERS

-Respondents-

Waigani: Injia, CJ

2011: 13, 14, 18 & 19 April

APPEAL – Leave to appeal - Interlocutory decision - Decision to refer 34 LNG-Project related cases to mediation - Judicial case management decision - Terms of Mediation Order still under consideration - No formal Mediation Order in existence to base appeal - Application misconceived - Application dismissed – Supreme Court Act, s 14 (3); National Court Act, s 7B - E; National Court Mediation Rules 2010, rr 5, 6, 9 & 59.

Cases Cited

No cases are cited in the judgment.

Counsel:

Mr Manda with Mr Lome and Mr Pate, for the Appellants

Mr Eagan, for the Seventh Respondent

Mr Haiara, with other counsel, for the First, Fourteenth, Sixteenth & Eighteenth Respondents

Mr Nasil, for the Second, Third, Ninth, Tenth, Seventeenth, Twenty-first & Twenty-eight Respondents

Mr Lakakit, for the Fourth, Thirty-first & Thirty-second Respondents

Mr Kubak, for the Nineteenth Respondent

Mr Wilson, for the Twenty-second Respondent

Mr Henry, for the Fifth Respondent

Mr Dusava, for the Twenty-sixth Respondent

Mr Waranike, for the Thirteenth Respondent

Mr Kolo, for the Twenty-seventh Respondent

RULING ON APPLICATION FOR LEAVE TO APPEAL

1. INJIA CJ: This is a contested application for leave to appeal. The application is made by way of a Supplementary Notice of Application for Leave to Appeal.

2. The application relates to a decision of the National Court that is said to have been made on 21st December 2010, 2nd March or 8th March 2011, to refer various LNG-Project related proceedings commenced in the National Court to mediation under s 7B of the National Court Act (the Act) and National Court Mediation Rules 2010 (Mediation Rules). There is no dispute that the decision is, if so made, interlocutory and leave to appeal is necessary.

3. Arguments of counsel were heard over two days last week. Those arguments were centered on the application of the established principles on grant of leave to appeal to the circumstances of this case.

4. It is convenient to summarize those principles. The grant or refusal of leave to appeal is discretionary. The applicant must persuade the Court that the application has merit. That principle is expounded in a judgment of Lay, J in Matiabe Oberia v Police and the State (2005) SC 801. Justice Lay discussed the main authorities on grant of leave including decisions of the pre-independence Supreme Court: Breckwoldt v Gronoyke [1974] PNGLR 106, Sir Julius Chan v Ombudsman Commission of Papua New Guinea [1999] PNGLR 240, Rimbink Pato v Anthony Manjin [1999] PNGLR 6, Baing v PNG Stevedores Pty Ltd (2000) SC 627, Boyepe Pere v Emmanuel Ningi (2003) SC 711. The main criteria stated in question form are as follows:

(1) Is there an arguable or prima facie case demonstrated that the trial judge was wrong?

(2) Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on wrong principle or a mistake of fact?

(3) Does the decision have any bearing on the final determination of the issues between the parties?

(4) Will it affect the primary rights of the parties or prevent the determination of the issues?

(5) Will substantial injustice be caused by allowing the decision to stand?

(6) Does the appellant have recourse in the Court below?

(7) Has cause been shown that the trial process should be interrupted by an appeal?

5. In civil appeals which involve the trial Judge’s exercise of discretion on a procedural matter within the Court’s jurisdiction, such as the interlocutory judgment given in this case, the test is much higher than in appeals against other types of interlocutory judgments. A passage from the majority view in Chan v Ombudsman Commission is pertinent. I quote from page 258:

“So to obtain leave to appeal an interlocutory judgment, it is not simply a matter (of) asserting there is an arguable case; that there has been some error. It is not the case that every error will effect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but that the error effects a party’s substantive rights or will prevent the proper determination of the issues.”

6. I have given thought to the material and arguments placed before me and discerned the main issues that arise for my determination. I state those issues in question form, as follows:

(1) Is the Supplementary Notice of Application for Leave to Appeal competent?

(2) Did the Court make an order for mediation that is a proper subject of appeal? More specifically, did the Court make a mediation order on 21st December 2010, 2nd March 2011 or 8th March 2011?

(3) If a mediation order was made, is the order valid in that it conforms to the requirements of s 7B of the Act and Rules 5 and 6 and Schedule 2 Form 3 of the Mediation Rules? Has the applicant demonstrated that the Court was prima facie wrong in law in that the mediation order is inconsistent with those statutory requirements?

(4) If a prima facie error of law or error in the exercise of discretion is demonstrated –

(a) is the error patent or manifestly erroneous; that the primary rights of the parties are affected or prevents litigating of the case?

(b) Does the applicant have recourse in the mediation proceedings to opt out of participating in the mediation or terminate the mediation after it has commenced and proceed to litigate the matter?

(c) Has the applicant shown cause that the mediation process should be interrupted?

7. Apart from the issue of competency, the other four issues are inter-related and I propose to deal with them together.

8. On the issue of competency, it is open to this Court to raise issues of competency of the supplementary notice of application for leave at any stage of the appeal proceedings. If a party wish to raise an issue of competency, that party must employ the procedure provided in Supreme Court Rules 0 7 r 14, by filing and serving a notice of objection to competency of the leave application. In the instant case the Court did not raise any such issue and the respondents did not file an objection as to competency. In the circumstances, it is not open to the respondents to raise those competency issues. I accept submissions of counsel for the applicants and the 7th respondent on this point and dismiss the various grounds of objection to competency raised in the submissions of counsel.

9. In respect of the other issues, I deal with the arguments collectively in this manner. First, the scheme of s 7B of the Act is that a mediation order is the sole foundation upon which mediation is conducted by a Mediator. A mediation order is based on three basic conditions having been met, as follows:

(a) The subject matter of the proceedings is appropriate for mediation: s 7B(1)(a), (2) the Act; Rule 5(1),(2) & (3) of Mediation Rules.

(b) A mediator is available to mediate in the matter and is so appointed: s 7B(3) of the Act; Rules 6 and 7 of Mediation Rules.

(c) Mediation is conducted and concluded by the Mediator and reported back to the Court within the time fixed by the Court: s 7B(4) of the Act; Rule 9 of Mediation Rules.

10. For purposes of formulating and issuing a mediation order, the Court may issue such directions or orders including appropriate orders for the costs of the mediation, as are necessary to determine those three basic terms of the mediation order: s 7B(4) of the Act. Those directions or orders form part of terms of the mediation order. An order for mediation once made should identify the proceedings the subject of mediation, the Mediator appointed by the Court and his or her fees and stipulate a time frame for the conduct and completion of mediation: Rule 5 (4). Section 7A-7E of the Act do not prescribe the form and content of a mediation order. However Mediation Rules, r 5 (3) & (4) prescribes the matters to be considered and determined which are then captured in the prescribed form of a Mediation Order appearing in Schedule 2 Form 3. Amongst other things required by s 7B to be spelt out in the mediation order, Form 3 requires specific matters to be set out. Those matters include insertion of the court file reference, description and title of the Court proceedings, the Mediator’s name and the commencement and completion dates of the mediation. There is no suggestion by the parties in the present case that the form and content of the mediation order in Form 3 is inconsistent with the provisions of s 7B of the Act. I too find that Form 3 is consistent with the requirements of a mediation order stipulated in s 7B of the Act.

11. Upon the making of a mediation order, the Mediator takes control of the conduct of the mediation at an appropriate venue outside of the Courtroom and on a date and time set by the Mediator: Section 7C(1)...