Maps Tuna Limited v Manus Provincial Government (2005) SC793

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 29 July 2005
• Citation: (2005) SC793
• Docket Number: SCA No 77 of 2005
• Court: Supreme Court
• Year: 2005
• Judgement Number: SC793

Full Title: SCA No 77 of 2005; Maps Tuna Limited v Manus Provincial Government (2005) SC793

Supreme Court: Kirriwom, J

Judgment Delivered: 29 July 2005

SC793

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 77 OF 2005

BETWEEN:

MAPS TUNA LIMITED

-Appellant-

AND:

MANUS PROVINCIAL GOVERNMENT

-Respondent-

LAE: KIRRIWOM, J.

2005: 23, 25 & 29 July

Cases cited:

SCR No.1 of 1998 Reservation Pursuant to s.15 of the Supreme Court Act [2001] SC672

Koi Antonius v. Fantson Yaninen [2004] N2774

Caspar Kondi v. Provincial Administrator, Department of Western Highlands Province [2004] N2755

Treid Pacific (PNG) Limited v. Eastern Highlands Provincial Government WS No. 1052/2000 Unreported Judgment of 24th June 2004

Counsel:

A Pryke for the Applicant/Appellant

P. Kuman for the Respondent

JUDGMENT

29th July 2005

KIRRIWOM, J.: This matter came before me as a Supreme Court motion on Friday 23rd July 2005 very late in the day seeking the following orders:

1. The order of the National Court in OS 425 of 2003 ordered 18/07/ 2005 and entered on 19/07/ 2005 be stayed pursuant to section 19 & 8(1)(e) of the Supreme Court Act

2. The Respondent return the vessel MV Manus 1 to the Appellant’s wharf forthwith.

3. Costs be in the cause.

4. Such other or further orders as the court deems just.

There was no Supreme Court appeal on foot as none had yet been filed. The Applicant however expressed its desire to file its appeal as soon as the registry was opened but the urgency of the matter required an order of the court to secure the return of a vessel that was removed from its possession by virtue of the court order of 18/07/05.

The Applicant was aggrieved by the Order of the National Court made on 18th July 2005 which dismissed its action against the Respondent seeking certain declaratory orders and recovery of a substantial amount of money as debts. It appears that no appeal was lodged against or an application was made to have the order stayed or set aside immediately after the order was made until the Respondent moved to enforce the judgment of the Court by taking physical possession of the boat M.V. Manus 1 on the day the application was pursued before me. The Applicant was seeking essentially two reliefs, firstly, a stay of the enforcement of the order by Justice Davani on 18th July 2005 and secondly for the return of the vessel M.V Manus 1 which had already been removed from the Appellant’s wharf by servants or agents of the Respondent after the orders were made.

I advised Mr. Pryke who was appearing for the Applicant that I could not sit as a Supreme Court Judge to deal with his application without there being a Supreme Court appeal on foot and that the Supreme Court registry is only located in Waigani and not in any other centres. That is the standing policy unless it is otherwise determined either administratively or by an Act of Parliament. I also pointed out the possibility that the National Court could well be functus officio having already determined the matter.

However given the urgency of the matter and for the sake of preserving the status quo while the parties took their dispute to the higher court, I proceeded to exercise my inherent powers under section 155 (4) of the Constitution, sitting as a National Court Judge and heard the application. In the back of my mind I was confident that I still had jurisdiction to deal with the matter as it had not been heard substantively and decided which would then render the National Court functus officio thereby preventing further adjudication of the matter by the same court except on appeal. However, in an effort to do justice in the circumstances of the case, based on the court’s residual powers after judgment to have same set aside prior to enforcement where appropriate (and I have since discovered that under O.13 rr.11 and 21 NCR the applicant was entitled to make its application and seek similar relief) and also by virtue of the Court’s inherent powers under the section 155(4) of the Constitution I gave the following interim orders:

1. That MV Manus 1 be forthwith returned to the Maps Tuna Wharf pending further orders of the court.

2. That the application for stay of execution of the Order of the National Court made on 18/07/05 and entered on 19/07/05 be adjourned and be argued fully before me on the return date of this motion on Tuesday 26th July 2005.

3. That MV Manus 1 is hereby ordered not to leave Lae Port until further order of this court.

4. The Applicant Maps Tuna shall serve all documents filed in this application on the Defendant/Respondent, Manus Provincial Government.

5. That the Applicant shall file an undertaking as to damages.

6. That the parties shall appear before the Court at 9:30am Tuesday 26th July 2005 for any variation or further Orders of this Court.

7. Costs be in the cause.

These Orders were made, although the documents filed do not reflect that, under no misconception on my part as to my jurisdiction or authority to grant those orders as I pointed out to Mr. Kuman for the Respondent. The document heading showing as emanating in the Supreme Court was counsel’s misconception which I accept some responsibility for not correcting once I satisfied myself of my jurisdictional limitation as a Supreme Court Judge. The only way I could hear the application was to proceed with it as a National Court Judge. My confidence was also fortified by the fact that the July Circuit in Lae had not yet ended and I still had discretion to recall the matter and entertain application for a stay of execution of an order made in the National Court during the currency of the circuit or sitting for the month of July. I now note that the course I took was appropriate in the circumstances, and indeed ought to have been the avenue pursued by the Applicant while it considered taking the matter by way of appeal to the Supreme Court. Be that as it may, that is all now water under the bridge because the Applicant had since lodged its appeal on 25th July 2005.

Today, on the return date, for the interim orders I made on 23/07/05, I sit in a dual capacity to deal with the Applicant/Appellant’s Motion that is returnable before me on this date in my capacity as a National Court Judge and at the same time dealing with the same matter as a single Judge of the Supreme Court since the status of the proceeding changed on 25th July 2005 with the lodgment of appeal to the Supreme Court.

It is noteworthy that the procedural niceties of the proceedings had not clouded the real issues in the matter between the parties and I thank counsel for their assistance in this regard.

Mr. Kuman had quite correctly summed up the Court’s role today which is really two-fold:

i today is the return date for the interim orders made on 23rd July 2005 when the Court hears the respondent and determine whether all or some of these orders lapse or are continued;

ii to hear submissions on whether the Judgment of the Court on 18th July 2005 be stayed until the appeal has been determined.

As to the first matter, I am satisfied that the interim orders have been complied with fully except to determine now whether all or some of the Orders either lapse now or be continued. The only relevant interim orders are Orders 1 and 3 which are subjects of further submissions by the parties. The Court has not been advised if the vessel MV Manus 1 had already returned to the Appellant’s wharf.

The issue before me now is whether the respondent be allowed to enjoy the benefit of the judgment ordered in its favour on 18th July 2005 notwithstanding the appeal against that judgment.

The appellant has challenged the judgment on the issue of Section 5 notice under Claims By And Against the State Act 1996 (CBAASA) on the premise that Section 5 requirement under the Act did not apply to Provincial Governments. This is one of the Appellant’s grounds of appeal. The rest of the Appellant’s grounds of appeal against Davani, J’s orders are:

1. The learned trial judge erred in law in making orders that were not sought in the Notice of Motion, that is dismissal of the proceedings in their entirety and return of the vessel to Manus Provincial Government.

2. The learned trial judge erred in law in failing to consider that Maps Tuna Limited had a common law lien on the vessel for a debt owed to it by the Manus Provincial Government in respect of monies expended on the vessel for repairs and...