SC1590

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 4 & 5 of 1997

BETWEEN:
PNG AVIATION SERVICES PTY LTD
Appellant

AND:
MICHAEL THOMAS SOMARE
First respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second respondent

Waigani: Injia CJ
2017:  May 29 

SUPREME COURT - Practice & procedure - Taxed Costs - Application for Leave for review of certificate of taxation- Notice of Objection to Competency of Application - Procedure to be followed - Whether provisions of O 7 r 15 applicable by virtue of O 11 r 28 (a) of the Supreme Court Rules- Meaning of "any proceedings" in O 11 r 28 - Supreme Court Rules 2012, O 12 r 37 (2), O 7 r 15, O 11 r 28 (a).
SUPREME COURT - Practice & procedure - Taxed Costs - Application for Leave for review of certificate of taxation- Procedure to be followed - Whether leave for review separately required - Supreme Court Rules  2012, O 12 r 37 (2) & (2)

Cases Cited
 Neville v National Executive Council of Papua New Guinea [2015] SC 1431

Counsel:

Mr Kerenge, for the Applicant
Mr Joseph, for the Respondent

25 May, 2017

1.	INJIA CJ:  By Notice of Objection to Competency (the Objection), the appellants object to the competency of the second respondent's Application for Review of Certificate of Taxation filed 24 April 2017 (the Application).   In turn, the applicant (second respondent) objects to the competency of the Objection itself. I will first deal with this objection to the Objection.

2.	There is no provision in the Supreme Court costs rules found in O 12 rr 1-39 of the Supreme Court Rules 2012 for an Objection to the competency of an application for leave for review of taxed costs.  There is a gap in the procedure. Section 184 of the Constitution and s 41 and s 42 of the Supreme Court Act empower the Judges of the Supreme Court to make rules of Court with respect to the practice and procedures of the Supreme Court. If in the circumstances of a particular case before the Court, there is no provision or adequate provision is made in respect of a matter of practice or procedure in the existing rules, S 185 of the Constitution empowers the Court or Judge to give ad hoc directions to remedy the lack or inadequacy.  Clearly, s 185 of the Constitution coupled with s 41 and s 42 of the Supreme Court Act and O 11 r 9 of the Supreme Court Rules 2012 are available to the appellant in this case. But the appellant has opted for O 11 r 28 (a) of the Supreme Court Rules. The second respondent takes issue with this approach.

3.	I reproduce the pertinent  provisions of the Supreme Court Rules 2012 under consideration, as follows: 
              Part 4 - GENERAL PROVISIONS
             ORDER 11- RULES OF GENERAL APPLICATION
Division 1- Application
1.	The rules contained in this part apply to all matters brought under these rules unless in these rules, the contrary intention appears.  ...
Division 6- Lack of procedural provision
9. 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.
Division 14- Other Rules of General Application
28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word "appeal" where necessary:      
(a) Order 7 Division 5 (objection to competency of appeal);
(b) Order 7 Division 19 (time, and want of prosecution).

ORDER 12 - COSTS

"Division 37- Review of taxation
37. (1) A court or a Judge may review the decision of a taxing officer, only if the taxing officer has given a certificate in accordance with that decision.
 (2) A party aggrieved by the taxed costs may, within 14 days from the date of issue of the certificate of taxation, apply to the Court or a Judge, for leave to review the taxing officer's decision, such application to be supported by affidavit and shall be served on the other party, 3 clear days before the date of moving the application.
(3) The application shall be made by Notice of Motion and supported by affidavit which shall, amongst other things, specify the list to which the applicant objects and must state concisely the nature and grounds of each objection." 

4.	Order 11 rule 28 is a new provision inserted in the Supreme Court Rules in 2012, to extend objections to competency of ordinary appeals found in O 7 r 15 of the Supreme Court Rules to other originating processes commenced in the Supreme Court under those rules such as Order 10 appeals from decisions on judicial review proceedings brought under O 16 of the National Court Rules. The Supreme Court in Neville v National Executive Council of Papua New Guinea [2015] SC 1431 confirmed this position. The Court in that case was dealing with an objection to competency of an appeal brought under O 10 of the Supreme Court Rules 2012 which permits appeals from judicial review proceedings brought under O 16 of the National Court Rules. The Court discussed the history of O 11 r 28 and noted this new provision was introduced in 2012 to address situations in which the rules do not expressly make provision for a notice of objection to competency of an appeal brought under the Supreme Court Rules such as that found in O 10. The Court ruled that an objection to competency of an appeal brought under O 10 may be brought under O 11 r 28(a) and the procedure to be applied, with appropriate modification, is found in O 7 r 15. The question now arises whether the term "any proceedings" in O 11 r 28 should be further extended to include other originating processes such as an application for leave for review of certificate of taxation brought under O 12 r 37.    The Supreme Court fell short of defining the term "any proceedings" appearing in O 11 r 28. The words " any proceedings" in my view entail a variety of originating proceedings commenced in the Supreme Court that are allowed by or under the Supreme Court Rules and those clearly include proceedings commenced by originating process such as an application for review of certified costs commenced by Notice of Motion under O 37 r (2) of the Supreme Court Rules 2012. I see no good reason why the term "any proceedings" in O 11 r 28(a) should be restricted to "appeals" only as suggested by the second respondent.

5.	I am satisfied that the Objection is in accordance with O 7 r 15 and accords with Form 9. 

6.	I now deal with the grounds of the Objection. There are two grounds  as follows: 

(a)	The second respondent has not sought leave of the Court to review the decision of the taxing officer dated 13 April 2017 as required by O 12 r 37(2) of the Supreme Court Rules 2012.

(b)	The form of the application for review of taxed costs does not comply with O 12 r37(3)  of the Supreme Court Rules 2012 in that it is not in the form of a Notice of Motion.

7.	With regard to the first ground of objection, the appellants argue that 0 12 r 37(2) requires leave for review to be obtained separately and upon grant of leave, the need to file a substantive application for leave arises. In the absence of any provision in this rule for a substantive application, the successful applicant for leave should seek appropriate ad hoc directions from the Court under s 185 of the Constitution and O 11 r 9 of the Supreme Court Rules. In the present application, the applicant filed a substantive application for judicial review without first obtaining leave and the application is incompetent for this reason. The second respondent argues the application complies with the requirements of O 12 r 37 (2) and (3) both of which have been cited in the application. 

8.	Order 12 r 37 (1) speak of "a review" by leave of the Court sought and obtained under sub rule (2). However, this rule does not require a separate application for leave to be made and granted from the substantive application. Indeed there is no provision in this rule for a substantive application for review to be filed upon grant of leave. It seems to me that the intention in the scheme of O 12 r 37 is that the application for review by way of leave is all but one in the same. This view is fortified by the use of the term "review" in sub rule (1) and the term "The application" in Sub rule (3). Jointly, the term "application for review" entails a full review based on a consideration of the affidavits filed in support of the application under sub rules (2) and (3). These sub rules requires all material which supports the application to be contained in the supporting affidavit that "specify the list of items to which the applicant objects". The intention is obvious that the application is made to the same judge or Court in the one hearing and a full and final determination of the application is made by the judge.
  
9.	The expression "leave for review" appearing in sub rule 2  has a special meaning that accords with the judicial review of the administrative nature of the taxing power performed by the Taxing Master and it should not be confused with the ordinary review procedures under Order 5 of the Supreme Court Rules that applies to review of judicial decisions made by the National Court under s155 (2)(b) of the Constitution which require leave for review to be sought separately and upon its grant, a separate application for the substantive review is required to be filed.  Elsewhere in other common law jurisdictions, judicial review of a taxing master's decision on costs is reviewed as of right and not conditioned on leave being granted:  see The Supreme Court Practice 1999, Sweet & Maxwell, London, Vol 1, page 1250, para 62/C/64. Therefore, in practice the application for leave for review of taxed costs is the review itself referred to in O 12 r 37. 

10.	With regard to the second ground, there are several material defects in the application. First, the application is not titled "Notice of Motion" and does not conform to the standard requirements of a Notice of Motion. The application is titled "Application for Review of Taxation of Costs of 13 April 2017, pursuant to Order 12 Rule 37 (1), (2) & (3) of the Supreme Court Rules 2012". 

11.	The Supreme Court Rules do not prescribe the form of a Notice of Motion brought under O 12 r 37(3). However a standard form of Notice of Motion found in the National Court Rules,  Division 5, O 4rr 37 - 40, 49 (8) & (10) and Form 11 can be adopted by virtue of  O 2 r 1 (h) of the Supreme Court Rules, which states:

"Order 2 - ADMINISTRATIVE MATTERS
Division 1- Certain rules apply
Application of National Court Rules
1.	The following rules of the National Court Rules shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to -
(a).. (g)
(h) Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed". 

12.	Secondly, the application states "the second respondent appeals from the decision of the Taxing Master of the 13th April 2017.." and  that the "grounds of Appeal are against findings of law and therefore do not require leave".  Clearly the application for review is expressed as an appeal.   It is not brought by a Notice of Motion seeking review of the taxing master's decision on costs. 

13.	Thirdly, the application does not seek leave to review the taxing master's certificate of taxation. There is no mention of the word "leave".

14.	I am satisfied that the application is not in the prescribed form, it is defective in several material respects and is incompetent for that reason. For those reasons, the application is dismissed with costs to the appellants.
______________________________________________________________
Solicitor General: Lawyers for the Applicant             
Ashurst Lawyers: Lawyers for the Respondents