Chin-Sik Son and Others v Nick Roniotis as Honorary Consul of the Independent State of Papua New Guinea to the Hellenic Republic of Greece and Others

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 May 2023
• Neutral Citation: SC2397
• Citation: SC2397, 2023-05-15
• Counsel: G J Sheppard & M Numi, for the Applicants,C Zazeng, for the Respondents
• Docket Number: SCA NO 34 OF 2023,SCA NO 35 OF 2023
• Hearing Date: 12 May 2023,15 May 2023
• Court: Supreme Court

SC2397

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 34 OF 2023

SCA NO 35 OF 2023

Chin-Sik Son

First Applicant

Pako F & C Holding (PNG) Ltd

Second Applicant

v.

Nick Roniotis as Honorary Consul of the Independent State of Papua New Guinea to the Hellenic Republic of Greece

First Respondent

Linda Paru

Second Respondent

Pako F & C Holding (PNG) Ltd

Applicant

v.

Nick Roniotis as Director of Cloudy Bay Sustainable Forestry Limited

Respondent

Waigani: Cannings J

2023: 12^th, 15^th May

PRACTICE AND PROCEDURE — application for leave to appeal against interlocutory judgments of National Court that stayed execution of writ of levy of property — Supreme Court Act, s 14(3) — whether leave necessary — whether each interlocutory judgment was a case of granting an injunction — whether s 14(3)(b)(ii) applied, making leave unnecessary — whether an unnecessary leave application is incompetent — criteria to apply when determining an application for leave to appeal.

The applicants applied for leave to appeal against interlocutory judgments of the National Court in two separate originating summons (OS) proceedings. Each judgment ordered a stay of execution of a writ of levy of property issued in other National Court proceedings, which was commenced by writ of summons (WS) in 2014 and concluded, after resolution of an appeal against the decision of the National Court in those WS proceedings. At the hearing of the leave applications, the respondents argued that each application was unnecessary as the interlocutory judgments of the National Court granted an injunction and leave to appeal was not required by virtue of s 14(3)(b)(ii) of the Supreme Court Act, which states: “No appeal lies to the Supreme Court without leave of the Supreme Court … from an interlocutory judgement made or given by the National Court except … in cases of granting or refusing an injunction …”; and that each appeal should be summarily dismissed. The applicants and respondents also put arguments on whether each application should be granted, if the applications were not summarily dismissed.

Held:

(1) The interlocutory judgment of the National Court in each case was not an injunction, but a stay of execution of a judicial process, and did not fall into the exception in s 14(3)(b)(ii) of the Supreme Court Act. Leave to appeal was necessary.

(2) To be granted leave to appeal against an interlocutory judgment of the National Court, the applicant must at least demonstrate an arguable case of error on the part of the National Court.

(3) Once an arguable case is demonstrated, other considerations to take into account include whether there are cogent and convincing reasons or exceptional circumstances or clear legal grounds warranting the grant of leave, whether a patent error or a jurisdictional error on the part of the National Court is apparent, whether there is no other recourse in the National Court available to the applicant, whether any exercise of discretion by the National Court was manifestly unreasonable or based on a wrong principle or mistake of fact, whether the interlocutory judgment has a bearing on the final determination of issues between the parties or causes a substantial injustice to the applicant and whether there is good cause for interrupting the trial process in the National Court.

(4) The applicants in each matter showed that there was an arguable case that to order a stay of execution of the writ of levy of property issued in unrelated and resolved WS proceedings, in circumstances where the rights of appeal of the respondents in connexion with the judgment of the National Court in those WS proceedings had been exhausted, was an error of law.

(5) There appeared to be exceptional circumstances and clear legal grounds warranting the grant of leave. There was a reasonable argument that the National Court had made a jurisdictional error in granting a stay of the writ of levy of property. Though it was open to the applicants to apply to the National Court to set aside the interlocutory judgments, a substantial injustice to the applicants was apparent and good cause was shown for interrupting the trial processes in the National Court.

(6) Furthermore, there appeared to be an arguable case that each OS was an abuse of process.

(7) Leave was granted to appeal against the interlocutory judgments of the National Court.

Cases Cited

The following cases are cited in the judgment:

Chan v Ombudsman Commission [1999] PNGLR 240

Joseph v Sereva (2011) SC1152

Kalinoe v Paraka (2010) SC1024

Kaupa v Poraituk (2008) SC955

Liu v Emoto (2009) SC1032

Makeng v Timbers (PNG) Ltd (2008) N3317

Mirupasi v Bonou (2009) SC1049

Oberia v Charlie (2005) SC801

Pako F & C Holding (PNG) Ltd v Cloudy Bay Sustainable Forestry Ltd (2021) N9141

Pato v Manjin [1999] PNGLR 6

Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92

Ramu Nico Management (MCC) Ltd v Tarsie [2010] 1 PNGLR 88

Counsel

G J Sheppard & M Numi, for the Applicants

C Zazeng, for the Respondents

Young & Williams Lawyers: Lawyers for the Applicants

Lakakit & Associates Lawyers: Lawyers for the Respondents

15^th May, 2023

1. Cannings J: This is a ruling on two applications for leave to appeal against interlocutory judgments of the National Court in two separate originating summons (OS) proceedings:

• OS 3 of 2023: Nick Roniotis as Honorary Consul of the Independent State of Papua New Guinea to the Hellenic Republic of Greece & Linda Paru v Chin-Sik Son & Pako F & C Holding (PNG) Ltd; and

• OS 19 of 2023: Nick Roniotis as Director of Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holding (PNG) Ltd.

2. In each of those proceedings the National Court, constituted by Salika CJ, on 2 March 2023 granted orders sought by notice of motion by the plaintiffs and amongst other things ordered a stay of execution of a writ of levy of property issued in other National Court proceedings that involved directly or indirectly the parties to the OS proceedings.

3. Those other proceedings, WS 794 of 2014, were a breach of contract action for damages brought by Pako F & C Holding (PNG) Ltd against Cloudy Bay Sustainable Forestry Ltd. The National Court upheld the claim and awarded damages and interest of approximately K117.5 million (Pako F & C Holding (PNG) Ltd v Cloudy Bay Sustainable Forestry Ltd (2021) N9141). Cloudy Bay Sustainable Forestry Ltd appealed to the Supreme Court against determination of liability and assessment of damages. Mr Sheppard, for the applicants in the present proceedings, informed the court that the appeal was dismissed and finally resolved with rejection of a slip rule application in 2022. I was given no case citation to reflect dismissal of the appeal or rejection of a slip rule application. However, Mr Zazeng, for the respondents, did not counter the proposition that the appeal against the National Court decision in N9141 was fully resolved in 2022, so I deal with the present applications on the basis that that proposition is correct.

4. A writ of levy of property was issued in WS 794 of 2014 on 25 November 2022. The Sheriff then proceeded to seize property at Nine Mile, National Capital District owned by Cloudy Bay Sustainable Forestry Ltd and has been taking steps to auction the property and apply the proceeds of sale to offset the judgment debt in WS 794 of 2014. It is the execution of that writ of levy of property that has been stayed by the orders of the National Court of 2 March 2023 in OS 3 of 2023 and OS 19 of 2023.

5. There are applications for leave to appeal against the interlocutory judgments of the National Court in each of the OS proceedings:

• SCA 34 of 2023 is an application by Chin-Sik Son & Pako F & C Holding (PNG) Ltd for leave to appeal against the...