SC1289

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APPEAL NO. 89 OF 2013

BETWEEN

NATIONAL CAPITAL DISTRICT COMMISSION
Appellant

AND

CENTRAL PROVINCIAL GOVERNMENT
First Respondent

AND

INTERNAL REVENUE COMMISSION
Second Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Kassman, J
2013: 11th & 20th September

Cases cited:

Henganofi Development Corporation Limited v. POSFB (2010) SC1025
Tom Amaiu v Sir Albert Kipala (2009) SC991

Legislations cited:

Order 1 Rule 7 Supreme Court Rules
Order 7 Rule 15 and 17 Supreme Court Rules
Sections 161(1) and 162(2) Constitution
Section 1 Supreme Court Act c.37
Section 10(1)(a) and Section 10(2) Act

Counsel:

Mr Varitimos and Mr Wood, for the Appellant
Mr Hampalekie, for the First Respondent
Mr Sinen, for the Second Respondent
No appearance for the Third Respondent

DECISION

20th September, 2013 

1.	KASSMAN J: On 18 July 2013, the National Court delivered a decision in proceedings OS (JR) No. 335 of 2010 Central Provincial Government v. National Capital District and Internal Revenue Commission ("CPG", "NCDC" and "IRC" respectively) ("the decision"). 

2.	In the decision, the National Court partly refused and partly upheld the CPG's application for judicial review of the alleged failure of the NCDC and the IRC to comply with their duties to provide financial assistance to the CPG under the National Capital District Commission Act 2001 and the Goods and Services Tax Revenue Distribution Act 2003. 

3.	The National Court also referred to mediation by an accredited mediator "The question of how the second defendant's duties under Section 33(2)(a) of the National Capital District Commission Act are to be complied with, and in particular determination of the amount of money due to be paid by the second defendant to the plaintiff and the source of that money and the timing of payment of that money" and issued specific directions as to the conduct of that mediation.

4.	On 27 August 2013, the IRC filed an appeal from the decision of the National Court and those proceedings are titled SCA 102 of 2013 Internal Revenue Commission v. Central Provincial Government and National Capital District Commission. On 18 September 2013, sitting as a single judge of the Supreme Court, I granted orders staying the National Court proceedings OS (JR) No. 335 of 2010 Central Provincial Government v. National Capital District and Internal Revenue Commission and in particular the decision of the National Court of 18 July 2013 was stayed pending determination of that appeal. That application for stay was not opposed by CPG and NCDC.

5.	In this matter, NCDC filed on 16 August 2013 application for leave to appeal the same decision of the National Court of 18 July 2013 in proceedings OS (JR) No. 335 of 2010 Central Provincial Government v. National Capital District and Internal Revenue Commission. 

6.	On the same day 16 August 2013, the NCDC also filed an application seeking extension of time within which notice of appeal may be given. NCDC was concerned the Supreme Court may find the correct procedure was to file a notice of appeal and not an application for leave to appeal. To preserve their right and not abuse process by simultaneously filing both documents, as was the case in Henganofi Development Corporation Limited v. POSFB (2010) SC1025, NCDC seeks an order that it has fourteen days after determination of the application for leave to appeal to file notice of appeal. 

7.	NCDC then filed an Amended Application for Leave to Appeal on 20 August 2013. 

8.	On 3 September 2013, CPG filed Notice of Objection to Competency of NCDC's Amended Application for Leave to Appeal. CPG served this notice on NCDC on 10 September 2013.

9.	On 20 September 2013, NCDC filed an Application seeking dismissal of CPG's Notice of Objection to Competency on the grounds it was served out of time. NCDC argue Order 7 Rule 15 of the Supreme Court Rules provides that an objection to competency must be filed and served within fourteen days of service of the application for leave to appeal. Service of the application for leave to appeal was effected on CPG on 23 August 2013 and the fourteen day period from then expired on 6 September 2013. NCDC argues that by CPG serving notice of objection to competency on 10 September 2013, CPG was four days out of time and as such CPG's objection is itself incompetent. 

10.	As a preliminary issue, I asked for submissions as to whether, sitting as a single judge of the Supreme Court, I had the jurisdiction to hear and determine an application raising objection to the competence of the Notice of Objection to Competency and the notice itself.

11.	 Order 7 Rule 17 of the Supreme Court Rules provides "An objection of which notice has been given shall be determined by the court at or before the hearing of the appeal or of the application for leave to appeal as the court thinks proper." The underlining is mine and gives rise to the question whether the words "the court" includes a single judge sitting as a judge of the Supreme Court as well as the full court or three or more judges sitting as the Supreme Court. 

12.	 The Supreme Court Act and the Supreme Court Rules make provision for the Supreme Court to exercise jurisdiction constituted by a judge of the Supreme Court sitting alone or by at least three judges of the Supreme Court. 

13.	 Section 161(1) of the Constitution provides "The Supreme Court shall consist of the Chief Justice, the Deputy Chief Justice and the other Judges of the National Court (excluding the acting Judges)". By this, Acting Judges of the National Court cannot exercise powers or sit in the Supreme Court. Section 162(2) goes on to provide that "the jurisdiction of the Supreme Court may be exercised by a single judge of that court, or by a number of judges sitting together". 

14.	In the interpretation parts of the Supreme Court Act c.37 and the Supreme Court Rules, the word "Judge" is defined in Section 1 of the Act to mean "a Judge of the Supreme Court" and in Order 1 Rule 7 to mean "a judge of the Supreme Court of Justice". The meaning is the same. As to the word "Court", the Act does not contain a definition whereas the Rules do in Order 1 Rule 7 which provides that it "means the full court of the Supreme Court of Justice".

15.	 By Section 10(1)(a) of the Act, a single judge of the Supreme Court has the power to give leave to appeal. The Act does not state whether a single judge of the Supreme Court has power to determine an objection to the competency of an application for leave to appeal. With respect, that is of no consequence as it would seem illogical that a judge hearing an application for leave does not have the power to decide whether that application is properly made or that it is competent. 

16.	 This was discussed by the Chief Justice Sir Salamo Injia in Tom Amaiu v Sir Albert Kipala (2009) SC991 where His Honor said the use of the word "court" should be read subject to and consistent with Section 10(1)(a) of the Act "which is the source of the primary power exercised by the Supreme Court constituted by a single judge. The exercise of that primary power involves determination of procedural matters which are part and parcel of the exercise of the primary power. The hearing and determination of leave applications under section 10(1)(a) of the Act involves determination of procedural issues arising in the particular case before the Judge and those include competency issues."

17.	 In addition to this, I would say the use of the word "court" in the Supreme Court Rules is purposely made to be inclusive of both a single judge of the Supreme Court and a number of judges constituting the Supreme Court. I say this because the Rules recognize that certain powers of the Supreme Court provided by the Supreme Court Act may be exercised by both a single judge and a number of judges constituting the Supreme Court. Such specified circumstances include the power to give leave as allowed by Section 10(1)(a) of the Act. This is clear from the concluding line of section 10(1) "may be exercised by a Judge in the same manner as it may be exercised by the Court."

18.	 This is reiterated by Section 10(2) of the Act which provides "Where a judge refuses an application in relation to a matter specified in subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court." As such, any objection to the competency of such application to the Supreme Court consisting of a number of judges would be properly made to that Court and not to a single judge of the Supreme Court. Such an interpretation provides consistency and purpose.

19.	 For these reasons, I hold that a single judge of the Supreme Court dealing with an application for leave to appeal has jurisdiction to determine an objection to the competency of the leave application that is properly before that single judge of the Supreme Court. 

20.	I therefore order that:

A.	The Court, constituted by a single judge, has the jurisdiction to hear and determine NCDC's Objection to CPG's Notice of Objection to the Competency of the Amended Application for Leave to Appeal' filed on 3 September 2013.

B.	At 9.30 a.m. on 26 September 2013, the Court will hear three applications, namely, the NCDC's Objection to the Notice of Objection to the Competency of the Amended Application for Leave to Appeal, the CPG's Notice of Objection to the Competency of the Amended Application and NCDC's Amended Application for Leave to Appeal. 

Judgment accordingly:

________________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant 
MS Wagambie Lawyers: Lawyers for the First Respondent
IRC in-house counsel: Lawyers for the Second Respondent