SC992

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCM NO 16 0F 2008

MADANG TIMBERS LIMITED
Appellant

V

VALENTINE KAMBORI, WARI IAMO, BONNIE NINAI, AQUILA TUBAL, 
PHILIP UPEGUTO, KANAWI POURU, AND KIVI & ANTHONY HONEY, 
MEMBERS OF THE PAPUA NEW GUINEA FOREST BOARD
First Respondent

BELDEN NAMAH, MINISTER FOR FOREST
Second Respondent

PAPUA NEW GUINEA FOREST AUTHORITY
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

TIMBERS (PNG) LIMITED
Fifth Respondent

PATRICK PRUAITCH, MINISTER FOR FINANCE
Sixth Respondent

Waigani: Davani J, Cannings J, Kariko J
2009: 4th, 11th September

SUPREME COURT PRACTICE AND PROCEDURE – whether an objection to competency can be lodged in an appeal under Order 10 of the Supreme Court Rules – application for direction that respondents be granted leave to file and serve notice of objection to competency – considerations to be taken into account when deciding whether to grant application.

Facts:

An appeal was filed under Order 10 of the Supreme Court Rules against the refusal by the National Court to uphold an application by the appellant for judicial review. Some respondents to the appeal wanted to object to the competency of the appeal and, there being no express provision in the Rules for such objections, applied for a direction that they be granted leave to file and serve a notice of objection to competency. The appellant opposed the application. 

Held:

(1) The respondent to an appeal under Order 10 of the Supreme Court Rules does not have a right to object to the competency of that appeal but can apply for directions and be given leave to do so. 

(2) When deciding whether to give a direction granting leave the Supreme Court should consider whether the application for directions has been filed and served expeditiously, whether it has been prosecuted expeditiously, whether the proposed grounds of objection raise issues that would obviously render the appeal incompetent and the interests of justice. 

(3) Here, the application was not filed and served expeditiously, and, though prosecuted expeditiously, did not raise issues that would obviously render the appeal incompetent. Further the respondents would not be unduly prejudiced by refusal of the application as the hearing of the appeal can proceed expeditiously. Therefore, it was not in the interests of justice to uphold the application. 

(4) The application was accordingly refused. 

Cases cited

The following cases are cited in the judgment:

Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699
Gregory Puli Manda v Yatala Limited (2005) SC795
Jeffery Balakau v Ombudsman Commission [1996] PNGLR 346
Joshua Kalinoe v Paul Paraka (2007) SC874
Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886
Korak Yasona v Castan Maibawa (1998) SC552
Patterson Lowa v Wapula Akipe [1991] PNGLR 265
The State v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448

APPLICATION

This was an application for a direction that the respondents be granted leave to file and serve a notice of objection to competency of an appeal. 

Counsel

R J Webb, M Varitimos & R Bradshaw, for the appellant
I R Shepherd, for the 1st, 2nd and 3rd respondents
J Shepherd, for the 5th respondent

1. BY THE COURT: Madang Timbers Limited has appealed against the refusal by the National Court of their application for judicial review of decisions of the first respondent, who are the members of the Papua New Guinea Forest Board (‘Forest Board’), regarding a timber rights purchase area in the Madang Province. 

2. The first, second and third respondents (Forest Board, the Minister for Forest and the Papua New Guinea Forest Authority) wish to file a notice of objection to competency of the appeal but the Supreme Court Rules does not provide for such an application. 

3. The appeal is against the refusal of an application for judicial review under Order 16 of the National Court Rules. It has therefore been filed under Order 10 of the Supreme Court Rules – not under Order 7, the order under which most civil appeals are filed. In Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886 the Supreme Court held that objections to competency should not be filed in Order 10 appeals as there is no equivalent in Order 10 to Order 7, Rule 14, which is the provision which expressly allows for objections to competency of Order 7 appeals. 

4. The first, second and third respondents are therefore making an application for a direction that they be granted leave to file and serve a notice of objection to competency. They are supported by the fifth respondent, Timbers (PNG) Limited, the company in whose favour the decisions of the Forest Board were made. 

5. This is the Court’s ruling on that application. 

6. The appellant opposes the application and says that no objection to competency of an Order 10 appeal can be made and that the objection has no merit. In the course of hearing the application we heard argument on the merits of the objection and indicated that in the event that the application is upheld, we would rule on the objection. 

ISSUES

7. The issues we must determine are:

(i) Can a direction be given, granting leave to a respondent to file and serve a notice of objection to an Order 10 appeal?

(ii) If so, should a direction and leave be given in this case? That is, should the respondents’ application be upheld?

(iii) If leave is granted, should the objection to competency of the appeal be upheld? 

1 CAN A DIRECTION BE GIVEN, GRANTING LEAVE TO A RESPONDENT TO FILE AND SERVE A NOTICE OF OBJECTION TO AN ORDER 10 APPEAL?

8. Mr Webb, for the appellant, submitted that the failure of the Supreme Court Rules (‘SCR’) to make provision for an objection to competency of an Order 10 appeal was deliberate, given the special nature of such appeals. He suggested that once judgment is given in a review of administrative action under Order 16 of the National Court Rules (‘NCR’) an appeal to the Supreme Court will have a valid jurisdictional foundation and there is no point in entertaining objections to competency of such appeals. 

9. Certainly, it appears that the absence of provisions for objections to competency against Order 10 appeals is deliberate. This means that unless the Court directs that an objection be made or grants leave for making an objection, avenue available to an applicant under s.185 of the Constitution, or O.11 r.9 of the SCR, which we will discuss further below, it should be refused. That is how we interpret the Supreme Court’s decision in Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886. We are of the view that the Supreme Court was not suggesting that there could never be an objection to the competency of an Order 10 appeal. 

10. There are a number of situations in which a respondent to an Order 10 appeal could raise valid objections to the competency of the appeal and the jurisdiction of the Supreme Court, e.g if the appeal is filed beyond the 40-day time limit set by Section 17 of the Supreme Court Act (Jeffery Balakau v Ombudsman Commission [1996] PNGLR 346) or if the notice of motion by which the appeal is instituted fails substantially to comply with Order 10, Rule 3 of the SCR (Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699). 

11. Requiring the respondent to obtain directions and/or the leave of the Court to make an objection to competency would be consistent with the approach taken by the Supreme Court in Korak Yasona v Castan Maibawa (1998) SC552. That case concerned an objection to competency of an application under Section 155(2)(b) (the National Judicial System) of the Constitution for review of a National Court judgment. It was not an appeal instituted under Order 7 of the SCR, yet the respondent filed a notice of objection under Order 7, Rule 14 of the Rules. The notice of objection to competency was itself ruled incompetent. The Court said that what the respondent should have done was apply under Section 185 (lack of procedural provision) of the Constitution for directions as to the procedure to be adopted. Section 185 states:

"If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy."

12. To similar effect is Order 11, Rule 9 (lack of procedural provision) of the SCR, which states:

"Where a person desires to take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a Judge for directions."

13. Order 11, Rule 9 is the provision under which the respondents are applying for directions. We note that the application is made before the Supreme Court as distinct from a Judge of the Supreme Court but we see no difficulty with the Court considering the application. The Rule by necessary implication allows applications for directions to be made to the Court as well as to a Judge, given the relationship between Judges of the Supreme Court and the Court itself prescribed by Section 162(2) (Jurisdiction of the Supreme Court) of the Constitution. 

14. We find that the respondents have done the right thing by applying for a direction that they be granted leave to file and serve a notice of objection to competency. They have applied to the Court for a direction under Order 11, Rule 9 of the Supreme Court Rules. They could have applied to a single Judge for such a direction. Or they could have applied to the Court under Section 185 of the Constitution. Any of those three avenues of approach is acceptable. 

15. Whichever avenue is used, it is open to the Court to give a direction, granting leave to a respondent to file and serve a notice of objection to competency of an Order 10 appeal.

2 SHOULD A DIRECTION AND LEAVE BE GIVEN IN THIS CASE? 

16. This is a matter of discretion. In deciding how it should be exercised we consider that there are four matters that should be taken into account:

(a) Was the application for directions filed and served expeditiously?

17. We find that this is a relevant consideration because what the respondents want to do is file and serve a document analogous to an Order 7, Rule 14 notice of objection, which is subject to a 14-day time limitation. Order 7, Rule 14 states:

"A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal—

(a) file an objection in accordance with form 9;

(b) serve a copy of the objection on the appellant."

18. The time limit has been applied strictly. In a number of Order 7 appeal cases the Court has disallowed objections because they were not filed and served within 14 days after service of the Notice of Appeal (The State v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448; Patterson Lowa v Wapula Akipe [1991] PNGLR 265; Gregory Puli Manda v Yatala Limited (2005) SC795). Likewise, in an Order 10 appeal case, the Supreme Court strictly applied the 14-day limit. (Joshua Kalinoe v Paul Paraka (2007) SC874).

19. We consider that that time limit should apply to an application for directions of the sort made by the respondents in the present case. So the question becomes: did they file and serve their application for directions within 14 days after being served with the notice of appeal? They were served with the notice of appeal (ie the notice of motion under Order 10) on 28th November, 2008. Their application for directions was filed 14 days later, on 12th December, 2008, but not served on the appellant until 17 days later, on 15th December, 2008. The requirement for filing and service within 14 days was not met. This means that the respondents did not file and serve their application expeditiously. 

(b) Has the application been prosecuted expeditiously?

20. At first glance the respondents appear to have dragged their heels. Their application was filed and served in December, 2008 and they have only managed to get it before the Court in September, 2009. Nine months seems an inordinate delay. However, they have provided a satisfactory explanation. They have made genuine attempts to have their application heard but have been thwarted by events beyond their control. Their lawyers at one stage reached an understanding with the appellant’s lawyers that the best way of dealing with it was to have it raised as a preliminary issue when the appeal was set down for hearing. And this is what has happened. We will therefore regard the application as having been prosecuted expeditiously. 

(c) Do the proposed grounds of objection raise issues that would obviously render the appeal incompetent?

21. We consider that this is a relevant matter because if the respondents propose to raise something that would obviously render an appeal incompetent (e.g if an appeal was filed well outside the 40 days allowed by Section 17 of the Supreme Court Act) the Court would be more inclined to give a direction and grant leave to file a notice of objection. If the proposed grounds of objection can be categorised as raising arguable rather than obvious jurisdictional issues this would work against the granting of leave. 

22. So, what are the grounds of incompetency raised by the respondents? There are two. 

23. First, they submit that the notice of motion by which the appellant instituted the appeal does not comply with Order 10, Rules 3(b) and 3(c) of the SCR as:

(a) the copy of the trial judge’s order (Salika J, as he then was) annexed to the notice of motion is not certified by the Judge’s Associate or the Registrar, as required by Rule 3(b); and

(b) the notice of motion is not in accordance with Form 15 of the Rules, as required by Rule 3(c), as there is no affidavit in support of the notice of motion and the decision of the National Court should not be annexed to the notice of motion. 

24. Secondly, they submit that some of the orders sought in the appellant’s notice of motion (in particular, in paragraph 4(ii) – which asks the Supreme Court to make the orders sought by the appellant in the National Court) cannot be granted by the Supreme Court. 

25. The whole of Order 10 Rule 3 reads as follows:

"ORDER 10 – APPEAL FROM ORDERS UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES

Division 1. – Institution of appeal

1. An appeal under this Part shall be instituted by a notice of motion.

2. The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.

3. The notice of motion shall – 

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule8;

(b) have annexed –

(i) copies of all documents which were before the Judge of the National Court appealed from;

(ii) a copy of the order made, certified by the Judge’s Associate or the Registrar;

(c) be in accordance with form 15;

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry."

26. As to ground (a), we consider that the matters concern arguable defects in the notice of motion. We find that there is merit in the arguments advanced by the appellant because the meaning of the word "certified" in the Oxford English Dictionary 2nd Edition, to be "made certain, assured, certainly informed, attested by certificate, furnished with a certificate" meant that the Registrar "made certain" these were the orders made by the trial judge. This is endorsed by the fact that;

(i) The National Court Act, National Court Rules, Supreme Court Act and Supreme Court Rules do not provide for any particular mode of certification, more particularly, they do not provide for a form of a certificate;

(ii) The Registrar of the National Court signed and entered the orders of 27th November, 2008, thereby certifying the trial judge’s orders announced on 22nd October, 2008 and which are contained in his published reasons. We also point out that the respondents are not genuinely aggrieved by this because if they were, they would have exercised the option available to them under Order 12 Rule 8(1) of the NCR to apply to set aside or vary a direction for entry of judgment, before the judgment was entered, or even after. They did not.

27. This ground will not render the appeal incompetent or does not demonstrate that the Court lacks jurisdiction to hear the appeal. 

28. As to ground (b), unless the appellant seeks to adduce fresh evidence, Order 10 Rule 3 and Form 15 contemplate that the Notice of Motion and the documents annexed to it will constitute the record upon which the appeal will be determined. As far as we can tell from the Court records before us, there has been no application and there is no application to adduce fresh evidence. (see Order 10 Rule 4(b) of the SCR).

29. Additionally, Form 15 is headed as "General Form Notice of Motion", which in our view is a general form to be adapted to the circumstances of a particular case.

30. As to ground 1(b)(ii) of the respondents’ Notice of Motion, in relation to the exclusion of the reasons of the National Court, neither the SCR nor Form 15, precludes the annexing of the trial judge’s reasons to the Notice of Motion. We have not heard anything from the respondents’ lawyers that would convince us otherwise.

31. We have also heard that the respondents joined in the process of reproducing the Motion and the whole of the attachments in the Appeal Book further supported by the fact that the respondents’ lawyers certified the Appeal Books in March, 2009. Therefore, they cannot now suggest or make the submission that the appeal is incompetent because of the form of the appeal documentation now before us.

32. As to the second ground, the Supreme Court has a wide discretion under Sections 6(2) (appeal to be by way of rehearing) and 16 (decision etc on appeal) of the Supreme Court Act as to the nature and form of the orders it can make on the hearing of an appeal. It has under Section 6(2) "all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court". Under Section 16(c) it may "give such judgment as ought to have been given in the first instance". It also has an inherent power under Section 155(4) of the Constitution to make "in such circumstances as seem[s to it] proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case". Again, this is amplified by the fact that the SCR and the form does not require that the Notice of Motion state the orders sought in any particular manner. The Supreme Court will ultimately hear argument about whether it is appropriate and just to make the orders sought by the appellant and it will exercise all the powers of a Judge at first instance, as provided for. 

33. The second of the proposed grounds of objection has no basis.

34. Finally, none of the proposed grounds of objection raise issues that would obviously render the appeal incompetent. 

(d) Do the interests of justice favour giving the direction? 

35. We do not think so. The respondents will not be unduly prejudiced by refusal of the application because the hearing of the appeal will proceed expeditiously. The respondents are also not prejudiced in any way by the refusal of this application.

Conclusion on whether a direction and leave should be given

36. Only one of the considerations we have identified favours granting the respondents’ application for a direction that they be granted leave to file and serve a notice of objection to competency. It is heavily outweighed by the other considerations. We will therefore refuse the application.

3 SHOULD THE OBJECTION TO COMPETENCY OF THE APPEAL BE UPHELD? 

37. As we are refusing leave to file and serve an objection to competency, it is not necessary to answer this question. We will order that the appeal be progressed to hearing. Costs will follow the event.

ORDERS

(1) The application for a direction, granting leave to the first, second and third respondents to file and serve a notice of objection to competency, is refused. 

(2) The appeal shall be set down for hearing at the next sittings of the Supreme Court. 

(3) The first, second, third and fifth respondents shall pay the appellant’s costs of this application, on a party-party basis. 

Judgment accordingly.

___________________

Bradshaw Lawyers: Lawyers for the appellant 
Blake Dawson Lawyers: Lawyers for the 1st, 2nd and 3rd respondents
Blake Dawson Lawyers: Lawyers for the 5th respondent