SC949

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 126 0F 2006

JEFFREY TURIA
First Appellant

MICHAEL MCKAY
Second Appellant

V

GABRIEL NELSON
First Respondent

NATIONAL HOUSING CORPORATION
Second Respondent

Waigani: Kirriwom J, Cannings J, Yagi J
2008: 28 October, 6 November

PRACTICE AND PROCEDURE – objection to competency of application for leave to appeal – whether it is a proper ground of objection to competency that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary. 
 
The appellants filed an application for leave to appeal against an interlocutory judgment of the National Court. The respondents objected to the competency of the application for leave, on various grounds, viz that the proposed grounds of appeal lacked merit and were frivolous or vexatious; that the second appellant was not a party to the proceedings; that the appellants failed to name proper parties; that the proposed grounds of appeal are not stated with sufficient particularity; and that the application for leave was unnecessary.

Held:

(1)	A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction.

(2)	It is not a proper ground of objection to competency of an application for leave to appeal that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary. 
 
(3)	It might, depending on the circumstances, be a proper ground of an objection to competency of an application for leave to appeal, that incorrect parties are named as appellants or that proposed grounds of appeal are not stated with sufficient particularity.

(4)	In this case, all grounds of objection arguing that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary were not properly before the court and were refused.

(5)	All other grounds of objection were also refused as not being sustainable in the circumstances of this case. 

(6)	Consequently the objection to competency was dismissed, with costs against the respondent. 

Case cited

The following cases are cited in the judgment:

Boyepe Pere v Emmanuel Ningi (2003) SC711
Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882
Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Gigmai Awal v Salamo Elema [2000] PNGLR 288
Gregory Puli Manda v Yatala Limited (2005) SC795
Hii Yii Ann v Canisius Kami Karingu (2003) SC718
Ipili Porgera Investments Ltd v Bank South Pacific Ltd SCA 15 of 2006, 27.06.07
Kitogara Holdings v NCDIC [1988–89] PNGLR 346
Matiabe Oberia v Chief Inspector Michael Charlie and Others (2005) SC801
Oio Aba v MVIL (2005) SC779
Paul Bari v John Raim (2004) SC768
Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894
Porgera Joint Venture v Joshua Siapu Yako (2008) SC691
Sir Julius Chan v Ombudsman Commission (1998) SC607
The State v John Talu Tekwie (2006) SC843
The State v John Tuap (2004) SC675
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
Yakham & The National v Merriam & Merriam (1997) SC533

OBJECTION

This was an objection to the competency of an application for leave to appeal against a judgment of the National Court. 

Counsel
N Kubak & N Aisi, for the appellants
E Geita & G Misina, for the first respondent

6th November, 2008 

1. BY THE COURT: This is a ruling on an objection to the competency of an application for leave to appeal against a judgment of the National Court.

2. The judgment was by Justice Salika. It concerns a dispute over ownership and possession of a property at Gerehu in the National Capital District. His Honour ordered amongst other things that the person then in possession of the property, Michael McKay, give up vacant possession to Gabriel Nelson within 14 days and that Mr McKay be removed as a party to the proceedings. It was an interlocutory judgment, ie the orders were made subject to a pending trial.

3. Mr McKay and another person aggrieved by the orders, Jeffrey Turia, filed an application for leave to appeal against His Honour’s judgment. This was done under Section 14(3)(b) of the Supreme Court Act, which generally provides that (with some exceptions) if a person wishes to appeal against an interlocutory judgment of the National Court, leave to appeal must first be granted by the Supreme Court. Division 7.1 of the Supreme Court Rules sets out the manner and form in which an application for leave must be made.

4. Mr Nelson, the first respondent, subsequently filed an objection to competency of the application for leave. The objection was filed under Division 7.5 of the Supreme Court Rules.

THE GROUNDS OF OBJECTION

5. By an amended notice of objection filed on 5 April 2007, Mr Nelson relied on 20 grounds of objection, set out in four paragraphs and multiple sub-paragraphs. Many of the grounds are repetitious or overlap. We summarise them by saying that they fall into five major categories:

1.	that the proposed grounds of appeal lack merit or are frivolous or vexatious; 

2.	that the second appellant, Mr McKay, was not a party to the proceedings in the National Court; 

3.	that the appellants failed to name proper parties; 

4.	that the proposed grounds of appeal are not stated with sufficient particularity; 

5.	that the application for leave to appeal was unnecessary.

GENERAL PRINCIPLES

6. Before we address those five matters we will summarise the principles emerging from cases where the Supreme Court has considered objections to competency, especially of applications for leave to appeal. 

7. A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185). For example, where the objection is based on one or more of the following grounds, the objection will, normally, properly be before the Supreme Court:

•	That the application for leave to appeal was not filed as a separate document, in cases where some of the grounds of appeal require leave and some do not (Yakham & The National v Merriam & Merriam (1997) SC533).

•	That the application for leave does not adequately state the nature of the case, the questions involved and the reason that leave should be given, as required by Order 7, Rule 2(c) of the Supreme Court Rules (Gigmai Awal v Salamo Elema [2000] PNGLR 288, Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894).

•	That the application for leave was, without leave, filed outside the 40-day period allowed by Section 17 of the Supreme Court Act (The State v John Tuap (2004) SC675).

•	That the application for leave refers to questions of law or fact not raised in the National Court (Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882).

•	That the applicant for leave does not have a sufficient interest in the subject matter of the National Court decision that it wishes to appeal against (Porgera Joint Venture v Joshua Siapu Yako (2008) SC691).

8. The above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court as they raise the question of jurisdiction. 

9. Examples of grounds of objection that would not properly be before the Court are:

•	That the application for leave has been filed unnecessarily, ie where the objecting party points out that leave to appeal was not actually required. It is now settled law that an unnecessary application for leave to appeal is not necessarily incompetent (Boyepe Pere v Emmanuel Ningi (2003) SC711, Oio Aba v MVIL (2005) SC779, The State v John Talu Tekwie (2006) SC843; note that Paul Bari v John Raim (2004) SC768, decided oppositely to Boyepe Pere).

•	That the application for leave to appeal was not served on the respondent (see Gigmai Awal v Salamo Elema [2000] PNGLR 288, where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties). 

•	That the proposed grounds of appeal referred to in the application for leave to appeal, lack merit (The State v John Talu Tekwie (2006) SC843).

10. The objection to competency must itself be competent. If it does not comply with the Supreme Court Rules it will be dismissed, eg if filed outside the 14-day period allowed by Order 7, Rule 14 (Gregory Puli Manda v Yatala Limited (2005) SC795).

11. We now consider the objections raised by the first respondent, Mr Nelson, under the five categories we referred to earlier. 

CATEGORY 1: THE PROPOSED GROUNDS OF APPEAL LACK MERIT OR ARE FRIVOLOUS OR VEXATIOUS

12. Most of the 20 grounds of objection fall into this category. For example, ground 1.1 states:

The appellants’ leave to appeal is incorrect in that the appellants appealed against the court’s use of its discretionary powers for the second appellant to grant vacant possession of the property to the first respondent.

13. Ground 3.1 states:

The appellants’ contention that the first respondent did not claim vacant possession of the subject property in his cross-claim is wrong in that the first respondent did claim vacant possession in the substantive relief. The application for leave to appeal is therefore incompetent by virtue of the fact that vacant possession is sought in the substantive relief.

Other similar grounds are: Nos 1.2, 1.3, 1.4, 1.5, 2.1(a), 3.2 to 3.8, 4 and 4.1. 

14. All of these grounds of objection invite us to consider the merits of the application for leave to appeal. They are not properly before the court as they do not relate to the jurisdiction of the court to entertain the application for leave (The State v John Talu Tekwie (2006) SC843). Such grounds raise arguments that should be left to the hearing of the application for leave to appeal, where the primary issue is normally whether the proposed grounds of appeal are arguable (Sir Julius Chan v Ombudsman Commission (1998) SC607, Boyepe Pere v Emmanuel Ningi (2003) SC711, The State v John Talu Tekwie (2006) SC843); and sometimes whether the appellant can show exceptional circumstances and compelling reasons for leave being granted (Hii Yii Ann v Canisius Kami Karingu (2003) SC718, Matiabe Oberia v Chief Inspector Michael Charlie and Others (2005) SC801).

15. We refuse all these grounds of objection.

CATEGORY 2: THAT THE SECOND APPELLANT, MR MCKAY, WAS NOT A PARTY TO THE PROCEEDINGS IN THE NATIONAL COURT

16. This is ground 2.1. It is argued that Mr McKay was removed as a party from the National Court proceedings by the order of Salika J, so he has no right to apply for leave to appeal against Salika J’s order. 

17. This argument is flawed as the right to appeal or seek leave to appeal is not restricted to persons who were parties to the National Court proceedings. Any person whose interests are affected by or who is aggrieved by a judgment of the National Court and who might have been joined as a party to the National Court proceedings can appeal or seek leave to appeal, as the case may be, under Section 17 of the Supreme Court Act (Kitogara Holdings v NCDIC [1988–89] PNGLR 346).

18. Mr McKay was the occupier of the property at the centre of the present case and by order of the National Court he was ordered to vacate the property and be removed as a party from the proceedings. His interests were directly affected by the National Court’s orders, he was genuinely aggrieved by the orders and he could properly have been joined as a defendant to the National Court proceedings. He has a sufficient interest in the matter and his inclusion as an appellant is proper.

19. This ground of objection is refused. 

CATEGORY 3: THAT THE APPELLANTS FAILED TO NAME PROPER PARTIES

20. This is ground 2.1(b). The argument is that the appellants should have also named as appellants other parties who were defendants in the National Court proceedings, Etap Dimba and the Department of Lands and Physical Planning.

21. This ground of objection makes little sense. Parties to National Court proceedings make their own decision whether they want to appeal or seek leave to appeal against the National Court decision. It is not up to other parties to include as appellants a party that does not wish to be joined as an appellant. 

22. This ground of objection is refused. 

CATEGORY 4: THAT THE PROPOSED GROUNDS OF APPEAL ARE NOT STATED WITH SUFFICIENT PARTICULARITY

23. This is ground 2.1(c). It is argued that the application for leave does not state with sufficient particularity the reasons that the orders of the National Court were wrong in law or fact. 

24. This ground of objection is misconceived as it seeks to impose the requirements of a notice of appeal on an application for leave to appeal. 

25. An application for leave to appeal only has to state the nature of the case, the questions involved and the reason that leave should be given (Gigmai Awal v Salamo Elema [2000] PNGLR 288, Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894). The proposed grounds of appeal do not have to be included; but, if they are included, that will not render the application incompetent. 

26. In this case, the application for leave meets the requirements of the Rules. It includes (though it did not have to) the proposed grounds of appeal, which appear to state with sufficient particularity the reasons that the orders of the National Court were wrong in law or fact. (As to the requirements of a notice of appeal, as distinct from an application for leave to appeal, under Rules 8(c) and 9 of Order 7 of the Supreme Court Rules, see Ipili Porgera Investments Ltd v Bank South Pacific Ltd SCA 15 of 2006, 27.06.07.)

27. This ground of objection is refused. 

CATEGORY 5: THAT THE APPLICATION FOR LEAVE TO APPEAL WAS UNNECESSARY

28. This is ground 2.1(d). It is argued that under Section 14 of the Supreme Court Act leave was not necessary as the appeal involved both questions of fact and law. The appellants should have filed a notice of appeal but they did not do that and the time for doing so has expired, so the application for leave is incompetent.

29. Section 14 (civil appeals to the Supreme Court) of the Supreme Court Act states:

(1)	Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a)	on a question of law; or

(b)	on a question of mixed fact and law; or

(c)	with the leave of the Supreme Court, on a question of fact.

(2)	An appeal does not lie from an order of the National Court made by consent of the parties.

(3)	No appeal lies to the Supreme Court without leave of the 
Supreme Court—

(a)	from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b)	from an interlocutory judgement made or given by the National Court except—

(i)	where the liberty of the subject or the custody of infants is concerned; or
(ii)	in cases of granting or refusing an injunction or appointing a receiver; or
(iii)	in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c)	from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4)	An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

30. Mr Nelson’s argument is that the proposed appeal is on questions of mixed fact and law. Therefore under Section 14(1)(b), leave to appeal is not required. Even if leave is required, it is argued that a notice of appeal should have been filed, to accord with Yakham & The National v Merriam & Merriam (1997) SC533, where the Supreme Court ruled that if some grounds of an appeal require leave and some do not, an application for leave and a notice of appeal should be filed separately. 

31. These arguments are flawed as they overlook Section 14(3)(b), which provides that, generally, leave is required to appeal against an interlocutory judgment of the National Court. In this case, Salika J’s judgment was interlocutory, so even if the proposed appeal involves questions of mixed fact and law, leave is required. Section 14(1) begins with the words "subject to this section", so Section 14(1)(b) is qualified by – ie it must be read subject to – Section 14(3). Leave is required for all grounds of appeal against an interlocutory judgment, even questions of law or questions of mixed fact and law. 

32. The first respondent could perhaps have argued that the effect of Salika J’s judgment was to grant an injunction (as his Honour ordered Mr McKay to vacate the property within 14 days and permitted Mr Nelson to move in); and that being the case, leave was not required, by virtue of Section 14(3)(b)(ii). It is clear that an appeal from an interlocutory judgement granting an injunction does not require leave (Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279).

33. However, even if that argument had been raised and we had upheld it, it would still not have made the application for leave incompetent. Nor would it have rendered the appeal incompetent. If an appellant files an application for leave to appeal within 40 days, it does not necessarily matter if it is later realised by the parties or ruled by the court that leave was not required. In the ordinary course of events the court will not order that such an application or any subsequent notice of appeal is incompetent. Rather, the court would grant leave to file a notice of appeal outside the 40-day period (Boyepe Pere v Emmanuel Ningi (2003) SC711, Oio Aba v MVIL (2005) SC779, The State v John Talu Tekwie (2006) SC843).

34. This ground of objection is refused. 

ORDER

1	The objection to competency is dismissed.

2	The appellants shall pay the first respondent’s costs on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

Norbert Kubak & Co Lawyers: Lawyers for the Appellants 
Public Solicitor: Lawyer for the First Respondent