Unreported Supreme Court Decisions
SC556
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA APPEAL NO 2 OF 1998
BETWEEN
THE RIGHT HONOURABLE SIR JULIUS CHAN - APPELLANT
AND
THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA - FIRST RESPONDENT
AND
SIMON PENTANU - SECOND RESPONDENT
AND
JOE N. WAGULA - THIRD RESPONDENT
AND
NINCHIB TETANG - FOURTH RESPONDENT
AND
GREGORY TOOP - FIFTH RESPONDENT
Waigani
Amet CJ Sakora Sevua JJ
25 February 1998
4 March 1998
AMET CJ SAKORA SEVUA JJ: This is an objection to the competency of the appeal by the Respondents.
The initial matters before the National Court were as follows:
The Appellant first made an application under Order 16 Rule 3 of the National Court Rules for leave to apply for judicial review of the Investigation and Report of the Respondents into the purchase of the Cairns Conservatory by the Public Officers Superannuating Fund Board.  This Application was made ex parte as permitted by Order 16 Rule 3, and leave was granted.  The Respondents subsequently made application before another National Court pursuant to Order 12 Rule 8 (3) & (5) of the National Court Rules to set aside the orders granting leave and the other incidental orders.  In that Notice of Motion the Respondents also purported to apply for leave to appear on the hearing of the Appellants application for leave to seek judicial review and sought an order that the Appellants application be refused.  The National Court made orders that the orders of the National Court made earlier on 10th November 1997 be set aside and that leave for judicial review be refused, amongst other orders.
The Appellant has filed appeal by Notice of Appeal, the principal ground for which is that:
(i)       The learned judge erred in law in setting aside the order of the Honourable Justice Woods made on 10th November 1997 granting leave to apply for judicial review.
The Respondents have filed objection to the competency of the appeal on three separate grounds, which are as follows:
1.       Non-compliance with Order 10 of the Supreme Court Rules and Order 16 Rule 11 of the National Court Rules.
2.       Non-compliance with Sections 4 (2) (C) and 14 (1) (C) of the Supreme Court Act.
3.       Non-compliance with Section 14 (3) (b) of the Supreme Court Act.
GROUND 1
The principal ground of objection to the competency of the appeal is that because the Appellant has inter alia purported to appeal against the refusal of the National Court to grant leave to apply for Judicial Review, the appeal should have been instituted by Notice of Motion in compliance with the requirements of Order 10 of the Supreme Court Rules and Order 16, Rule 11 of the National Court Rules and not by Notice of Appeal under Order 7 of the Supreme Court Rules.
Order 16, Rule 11 of the National Court Rules states that:
“An appeal by way of motion by Order 10 of the Supreme Court Rules to the Supreme Court may be made to set aside or discharge any order of the Court or a judge granting or refusing an application for leave under Rule 3 or an application for Judicial Review.”
Order 10 of the Supreme Court Rules is headed:
“ORDER 10
Appeal from orders made under Orders 16 and 17 of the National Court Rules.”
It was submitted that the combined effect of these Rules is that an appeal against the refusal of leave to seek judicial review must be made pursuant to Order 10 of the Supreme Court Rules.
The Appellant has responded to this principal objection to the competency of the form of the Notice of Appeal by reference to the fact that the application by the Respondents to Justice Salika principally to set aside all the orders made by Justice Woods was pursuant to Order 12, Rule 8 of the National Court Rules.  Justice Salika made orders, inter alia, setting aside all the orders made by Justice Woods, relying on Order 12, Rule 8 (3) & (5) of the National Court Rules.  It is these orders that have been appealed against.
The Appellant submitted that pursuant to Sections 14 and 17 of the Supreme Court Act and Part 3, Order 7 of the Supreme Court Rules the appeal has been properly lodged by Notice of Appeal.
We consider that the objection to the competency of the appeal under this ground is misconceived.  The principal ground of appeal quoted above is against Justice Salika’s order setting aside the order of Justice Woods granting leave to apply for judicial review.  The application by the Respondents to set aside those orders of Justice Woods were made pursuant to Order 12, Rule 8 of the National Court Rules as pleaded in the Respondents’ Notice of Motion before Justice Salika.  The Appellant has not appealed against the Order of Justice Salika purporting to refuse leave for judicial review.  The appeal by the Appellant is therefore not pursuant to Order 16, Rule 11 of the National Court Rules which is required to be by way of motion under Order 10 of the Supreme Court Rules.  It is an appeal from the orders of Justice Salika made pursuant to Order 12, Rule 8 (3) (5) of the National Court Rules setting aside the orders made by Justice Woods.
That being the case, the appeal to the Supreme Court is correctly by way of the ordinary Notice of Appeal as enabled by Sections 14 and 17 of the Supreme Court Act and Part3, Order 7 of the Supreme Court Rules in Form 8 of the Supreme Court Rules.
The Respondents had made application to the National Court seeking orders under Order 12, Rule 8 and the National Court specifically granted the order setting aside the initial order granting leave for Judicial Review, pursuant to Order 12, Rule 8 (3).  The Appellant filed Notice of Appeal quite properly pursuant to the provisions of the Supreme Court Act and Rules.  The Respondents cannot now come contending that the Appellant ought to have filed appeal pursuant to Order 16, Rule 11 when the respondents did not make application or appeal to set aside the original order pursuant to Order 16, Rule 11.
The objection to competency on this ground is misconceived and is therefore dismissed.
GROUND 2
Under this ground it was contended on the part of the Respondents that to the extent that this appeal is based on questions of fact, the leave of the Supreme Court must first be obtained under Sections 4 (2) (c) and 14 (1) (c) of the Supreme Court Act.  The following grounds of appeal were specifically referred to as ones involving questions of fact, for which leave to appeal should have been applied for and first obtained; Ground (XV), (XVI), (XVII), (XVIII) and (XIX).
It was contended that because leave has not been separately sought and obtained in relation to these proposed grounds of appeal, the whole appeal should be struck out as being incompetent.  It was not conceded that, the large number of proposed grounds of appeal that are properly pleaded as alleging errors of law, and for which leave is not required to appeal, that they could nevertheless survive this objection to competency.  It was suggested that on the strength of recent Supreme Court authorities the whole appeal could be rendered incompetent.  In particular reference was made to an excerpt of the judgement of the Deputy Chief Justice Kapi in the unreported Supreme Court judgement of 27 November 1997 SC533 - Yakham & Others v Merriam & Merriam.
The Appellant has responded that the appeal squarely raises questions of law only.  He was not appealing from any questions of fact, as there were no facts in dispute before Salika J.  At worst, it was submitted for the Appellant that, the appeal involves questions of mixed fact and law for which leave is not required.
The Respondents have not taken issue with the remaining proposed grounds of appeal except on the general submission that because no leave was sought in respect of proposed grounds involving questions of fact, all the proposed grounds of appeal pleading errors of law are incompetent.  We do not accept the suggestion that was made by the respondents that notwithstanding that those grounds of appeal are properly pleaded as being against errors of law, that they should be rendered incompetent because no leave was sought in respect of any grounds that involved questions of fact.
In relation to the several proposed grounds of appeal enumerated above, it is submitted they involve questions of fact and therefore leave should have been applied in relations to them, we are not persuaded that they are in fact raising questions of fact alone for which leave is necessary.  The proposed grounds (XVII), (XVIII) and (XIX) are in our judgement clearly grounds involving questions of law only.  The remaining two proposed grounds (XV) and (XVI), although they do not plead error of law, we are satisfied also that they involved issues of mixed fact and law if not strictly law only.
For these reasons, this ground of appeal should be dismissed.
GROUND 3
The third ground of objection to the competency of the appeal is that the judgement and orders of the National Court are interlocutory and Leave of the Supreme Court must be obtained under Section 14 (3) (b) of the Supreme Court Act.  As leave has not been sought, the appeal is incompetent.
An order setting aside an order granting leave to apply for judicial review, is in our view a final order and not an interlocutory one.  As envisaged by Order 16, Rule 11 of the National Court Rules where an appeal is to be made to set aside or discharge any order of the court or a judge granting or refusing an application for leave under Rule 3, the appeal is to be by way of motion under Order 10 of the Supreme Court Rules to the Supreme Court.  The Order setting aside an order granting leave to apply for judicial review is substantive and final and not an interlocutory one requiring leave.
This ground of appeal is also dismissed.
SECTION 35 OF THE ORGANIC LAW ON THE OMBUDSMAN COMMISSION
The Respondents have submitted that the appeal is incompetent and should be dismissed in toto, in that it contravenes Section 35 of the Organic Law on the Ombudsman Commission by improperly joining the members of the Ombudsman Commission and the Counsel to the Commission, who is the fifth named Respondent.  It was submitted that Section 35 which provides for privilege of members of the Commission or an officer or employee of the Commission precludes the joining of the second, third, fourth and fifth Respondents as parties to this appeal.
We do not consider that Section 35 extends so far as to preclude joining of the persons of the second, third, fourth and fifth Respondents as parties to an action against the Ombudsman Commission corporately.  Section 35 by subsection (1) precludes the liability of a member of the Commission or an officer or an employee of the Commission for any act or omission done or made bona fide and without negligence, and subsection (2) precludes the calling of a member of the Commission or an officer or an employee of the Commission to give evidence in any Court or in any proceedings of a judicial nature in respect of anything coming to his knowledge in the exercise of his functions.  As we understand, the joining of the four Respondents is simply as parties who have signed documents and have participated in the investigations.
There have been precedents before this Court in similar appeals and applications for judicial review before the National Court and ultimately before this Court where the corporate institution of the Ombudsman Commission only was made the party and not the individual members of the Commission and or officers of the Commission.   We do not believe that it would advance the application for judicial review against the Ombudsman Commission to join the members of the Commission or the fifth named Respondent who is Counsel for the Commission, nor would it detract from the substance of the appeal or the substantive judicial review if the appeal were successful.  For these reasons, we uphold this this ground of objection to the competency of the Notice of Appeal and the ground of appeal that pertains to the four named respondents.  We would therefore rule that the names of the second, third, fourth and fifth Respondents be deleted from the Notice of Appeal and the proposed ground of appeal 13 be struck out as being incompetent.
In conclusion therefore, apart from this last ground of objection to the competency of the appeal, the objection to the competency of this appeal is dismissed with costs.
Lawyers for the Appellant:  NM Cooke QC, MM Varitimos
Lawyer for the 1st, 2nd, 3rd, & 4th Respondents:  D Cannings
Lawyer for the 5th Respondent:  G Toope in person