Wan Global Limited v Luxurflex Limited (2012) SC1199

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (2012) SC1199
• Date: 12 October 2012
• Docket Number: SCA 91 OF 2012
• Year: 2012

Full Title: SCA 91 OF 2012; Wan Global Limited v Luxurflex Limited (2012) SC1199

Supreme Court: Hartshorn, J

Judgment Delivered: 12 October, 2012

Application for leave to Appeal

Facts:

The applicant, Wan Global Ltd, seeks leave to appeal a National Court judgment that refused to dismiss a proceeding for being an abuse of process.

Held:

Wan Global Ltd has established an arguable or prima facie case that the exercise of discretion by the judge at first instance may have been incorrect and the wrong decision made.

Cases Cited:

Papua New Guinea Cases

National Executive Council and Luke Lucas v. Public Employees Association [1993] PNGLR 264;

Michael Gene v. Hamidian Rad [1999] PNGLR 444

Matiabe Oberia v. Police and the State (2005) SC801

Telikom PNG Ltd v. ICCC and Digicel (2008) SC906

Rabaul Shipping Ltd v. Rupen (2008) N3289

Sekesu Sisapi Land Group Inc v. Turama Forest Industries Ltd (2008) SC976

Lyons Putupen v. Enga Provincial Government (2009) SC1035

Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153

Ruing v. Marat (2012) N4672

Overseas Cases

O’Reilly v. Mackman [1982] 3 WLR 1096

1. HARTSHORN, J: The applicant, Wan Global Ltd, seeks leave to appeal a National Court judgment that refused to dismiss a proceeding for being an abuse of process. Leave to appeal is required as the judgment sought to be appealed is interlocutory: s. 14(3)(b) Supreme Court Act; Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153.

Background

2. The respondent, Luxurflex Ltd, has commenced a proceeding in the National Court by originating summons that seeks amongst others, orders in the nature of declarations that it is the registered proprietor of certain property and that the purported cancellation of two State Leases for the property by the Registrar of Titles is null and void and of no effect.

3. Wan Global submitted before the judge at first instance that the relief that Luxurflex was seeking was in essence in the nature of a prerogative writ which required an application for judicial review pursuant to Order 16 National Court Rules. As Luxurflex had sought relief pursuant to Order 4 instead of Order 16, Luxurflex’s proceeding was an abuse of process. The judge at first instance decided otherwise and dismissed Wan Global’s application to dismiss.

4. Wan Global contends that the judge at first instance erred by amongst others:

a) holding that Luxurflex was correctly before the National Court by using the Order 4 procedure to seek declarations and injunctions, when Luxurflex should have commenced proceedings by way of judicial review as the relief sought in essence was in the nature of a prerogative writ.

b) refusing to dismiss the National Court proceeding as the proceeding should have been brought under Order 16 and not Order 4.

c) placing reliance upon certain judgments that could be distinguished and contrasted with the facts of this case.

Leave to appeal

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