Choosing the wrong form to start an appeal in Papua New Guinea is not a technicality that can be fixed later. This five-judge decision explains why.
Rea Joseph v Manau Sereva, Diari Sereva, Gabi Diari and Billy Diari and others [2011] PGSC 37; SC1152
Supreme Court, Waigani — Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ, 6 December 2011. SCA 72 of 2009. The Attorney-General appeared as amicus curiae.
What happened
Mr Joseph had appealed to the National Court from the District Court. The National Court dismissed that appeal for want of prosecution. He then filed an application for leave to appeal to the Supreme Court. During the hearing the Chief Justice directed that, because the Supreme Court’s own decisions conflicted on what should happen to an unnecessary leave application, the question be decided by a bench of five.
What was argued
All parties accepted that leave was not required: a dismissal for want of prosecution is not an interlocutory judgment under section 14(3)(b) of the Supreme Court Act. The remaining question was whether the application should be dismissed as incompetent because it was unnecessary, or, given the merits of the proposed appeal, treated as a notice of appeal under Order 7 rule 5 of the Rules or the Court’s powers under sections 155(2)(b) and 155(4) of the Constitution.
What the Court decided
As the leave application was unnecessary, it is incompetent and should be dismissed.
The Court preferred the line of authority represented by Bari v Raim (2004) SC768 and Pere v Ningi (2003) SC711 over decisions that had allowed an unnecessary leave application to stand as a notice of appeal. The same bench, on the same day, decided Punagi v Pacific Plantation Timber Ltd (2011) SC1153 to the same effect. Neither Order 7 rule 5 nor the Constitution’s general powers permit the Court to convert one form of proceeding into another after the 40-day period has run.
Did it make new law?
The five-judge bench settled a conflict in the Supreme Court’s own decisions; no National Court ruling was affirmed. The rule now is symmetrical: an appeal filed without leave where leave was required is incompetent, and an application for leave filed where no leave was required is equally incompetent. The characterisation of a decision as final or interlocutory, on which the choice depends, is governed by cases such as Takori v Yagari (2007) SC905.
Why it matters
Decide the character of the judgment first. Orders that finally dispose of proceedings, including dismissals for want of prosecution and summary dismissals, are appealed by notice of appeal as of right, subject to the separate leave needed for questions of fact.
Where the position is uncertain, practitioners file a notice of appeal and a separate application for leave in the alternative, within the 40 days, so that whichever is correct survives.
The 40 days are unforgiving. By the time an unnecessary leave application is dismissed, the time for a fresh notice of appeal has usually expired.
What it does not decide
Rea Joseph does not decide whether the Court may, in an exceptional case, extend time for a fresh notice of appeal after an unnecessary leave application has been dismissed; the 40-day limit in section 17 has consistently been held incapable of extension once it has run, so the practical answer is no. Nor does it deal with the review jurisdiction under section 155(2)(b), which a party who has lost the right of appeal may still attempt to invoke on the strict criteria in Avia Aihi. It concerns the wrong form of originating process. It does not address a notice of appeal that includes both grounds of law and grounds of fact for which leave has not been obtained, a situation dealt with in Lama v NDB Investments (2015) SC1423. Nor does it decide when a dismissal is interlocutory rather than final.
Recent cases applying it
- ANZ Banking Group (PNG) Ltd v Equipment Hire Ltd [2024] PGSC 46; SC2579 — leave to appeal on questions of fact was not required, so the application for leave was dismissed, applying Rea Joseph.
- Puruno v Karaie [2022] PGSC 144; SC2348 — the same result on the same reasoning.
- Kramer v O’Neill [2020] PGSC 31; SC1940 — the Court described how the five-judge bench in Rea Joseph and Punagi resolved the conflicting lines of authority.
- Lovika v Malpo [2019] PGSC 114; SC1895 — Rea Joseph among the authorities reviewed on competency of Supreme Court proceedings.
Sources
- Rea Joseph v Sereva [2011] PGSC 37; SC1152 (Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ, 6 December 2011)
- Supreme Court Act (Chapter 37) — ss 14, 17; Supreme Court Rules 2012 — Order 7
- Takori v Yagari [2007] PGSC 48; SC905; Lama v NDB Investments Ltd [2015] PGSC 15; SC1423
- ANZ Banking Group (PNG) Ltd v Equipment Hire Ltd [2024] PGSC 46; SC2579; Puruno v Karaie [2022] PGSC 144; SC2348; Kramer v O’Neill [2020] PGSC 31; SC1940; Lovika v Malpo [2019] PGSC 114; SC1895
Bari v Raim (2004) SC768, Pere v Ningi (2003) SC711 and Punagi v Pacific Plantation Timber Ltd (2011) SC1153 are cited as they appear in the judgment and were not separately opened for this brief.
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.