SC1677
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 11 of 2012

BETWEEN:
NAPANAPA LANDOWNERS
ASSOCIATION INC.
First Appellant

AND:
KORE KORE GAUDI
Second Appellant

AND:
GAUDI LOGAE
of Kuriu Clan
First Respondent

AND:
KURIU CLAN LAND
GROUP INC.
Second Respondent

Waigani: Hartshorn J
2017: 14th December

Objection to competency of an application for leave to make a slip rule application

Cases Cited

The State v. The Transferees (2016) SC1488

Counsel:

Mr. G. Sheppard and Mr. O. Moi, for the First Appellant
Mr. T. Tape, for the Second Appellant
Mr. H. Kevau, for the Respondents 

ORAL DECISION DELIVERED ON
14th December, 2017

1.   HARTSHORN J:  This is a decision on two objections to competency of two applications for leave to make a slip rule application. 

Background

2.   This Court delivered its decision on the substantive appeal on 7th July 2016. It concerned land near Port Moresby described as Napanapa DA-5 Land. The appeal was dismissed. The appeal was against orders of the National Court that had amongst others, refused an application for joinder of parties to the proceeding before it and quashed a Provincial Land Court decision concerning ownership of the Land.

3.  The first and second appellants have filed separate applications for leave to make a slip rule application. Such a leave application is required pursuant to Order 11 Rule 32 (1) Supreme Court Rules 2012.
 
4.   The respondents have filed objections to competency to each leave application. The respondents object to the competency of the first appellant’s leave application as it was:

a)	Served out of time contrary to Order 11 Rule 32 (1) Supreme Court Rules;

b)	Not brought in the proper form.

5.  The respondents object to the competency of the second appellant’s leave application as:

a)	It was filed and served out of time contrary to Order 11 Rule 32 (1) Supreme Court Rules;

b)	Interlocutory and substantive relief are sought in the same application;

c)	The grounds in the leave application lack substance and do not disclose any strong prospects of success. 

6.   The appellants’ took issue with the objections to competency on the basis that:

a)	There is no provision in the Supreme Court Rules that permits an objection to competency to be made in respect of an application for leave to make a slip rule application;

b)	Non-compliance with a timing provision is not an issue of jurisdiction. 

7.   As to whether the Supreme Court Rules permit an objection to competency to be made in respect of an application for leave to make a slip rule application, Order 11 Rule 28 Supreme Court Rules provides that;

“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)”

8.    In this instance the words, “application to apply for leave to make a slip rule application” being the nature of the proceedings presently before the Court, may be substituted for the word “appeal”. This is so as the “proceedings before the Court” is not the appeal. The proceedings before the Court are the applications to apply to make a slip rule application made after, “disposal of a proceeding”: Order 11 Rule 32(1) Supreme Court Rules. There has been an order, “disposing of the proceeding”: Order 11 Rule 32(1). Consequently, I am satisfied that the Supreme Court Rules do allow for an objection to competency to be brought in respect of an application for leave to make a slip rule application. 

9.   As to non-compliance with a timing provision not being an issue of jurisdiction, in the decision of this Court in The State v. The Transferees (2016) SC1488 (Sakora, Gavara-Nanu, Ipang JJ), the Court said as to Order 11 Rule 32 (1) Supreme Court Rules at [4]:

“4. It is significant to note that this rule is in mandatory terms by reason of the word “shall”.”

and then at [9] and [10]:

“9. Filing of a slip rule application is regulated by Orders 11 r 32 and 13 r 15 of the Supreme Court Rules, thus the requirements under these rule (sic) being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetency and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412.

10. Order 11 r 32 of the Supreme Court Rules, grants power to the Court to hear a slip rule application as long as the application meets the requirements of the above mentioned rules viz; that it is competent.” 

10.    Cleary from that Court’s observations, its members were of the view that non-compliance with Order 11 Rule 32 renders an application incompetent. A requirement of Order 11 Rule 32 is as to time, - the time by which an application is to be filed and served. In my view therefore, an objection to competency may validly question the competency of an application because of a failure to comply with the time requirements of Order 11 Rule 32. 

11.   Consequently, the objection of the appellants’ to the objections to competency are refused. 

Objects to Competency

Time of Service 

12.    At the conclusion of the hearing, counsel for the first respondent informed the court that the last day of the 21 day period from 7th July 2017 was 28th July, and not 29th July 2017. I am satisfied from my own calculation, starting from and including 8th July 2017, that this is correct.

13.   The evidence before the court is clear as to service of both applications for leave. They were both served on the lawyers for the respondents on 29th July 2017. The 29th July 2017 is the 22nd day after the order disposing of the proceeding. The ground of the respondents’ objections to competency as to service of the application for leave is successful and is upheld, as one of the mandatory requirements of Order 11 Rule 32 (1) Supreme Court Rules has not been complied with. That requirement is that any application of any nature made after disposal of a proceeding shall be filed and served in writing within 21 days of the order disposing of the proceeding. Consequently both applications for leave to make a slip rule application should be dismissed. Given this it is not necessary to consider the other submissions of counsel. 

Orders

14.  The formal Orders of the Court are:

a)	The application for leave for slip rule application of the first appellant filed 28th July 2016 #112 is dismissed;

b)	The respondents’ costs of and incidental to the said application of the first appellant shall be paid by the first appellant;

c)	The application for leave for slip rule application of the second appellant filed 28 July 2016 #110 is dismissed;

d)	The respondents’ costs of incidental to the said application of the second appellant shall be paid by the second appellant. 

__________________________________________________________________	
Young & Williams Lawyers: Lawyers for the First Appellant                           
Kandawalyn Lawyers: Lawyers for the Second Appellant      
Rageau, Manua & Kikira Lawyers: Lawyers for the Respondents