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Faiteli v Kula [2019] PGSC 8; SC1757 (11 January 2019)

SC1757

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 13 of 2017

BETWEEN:
EMMA FAITELI
President of the Public Employees
Association of Papua New Guinea
First Appellant

AND:
PUBLIC EMPLOYEES ASSOCIATION
OF PAPUA NEW GUINEA
Second Appellant

AND:
GUISE KULA
General Secretary, Public Employees
Association of Papua New Guinea
Respondent

Waigani: Hartshorn J
2018: 30^th October
2019: 11^th January

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

Cases Cited

Napanapa Landowners Association Inc. v. Logae (2017) SC1677

Counsel:

Mr. M. Ginyaru, for the Appellant
Mr. A. Ona, for the Respondent

11^th January, 2019

1. HARTSHORN J: This is a decision on a contested objection to competency of an application for leave to make a slip rule application.

2. The proposed slip rule application made by the second appellant, the Public Employees Association of Papua New Guinea, concerns the order of the Court (Hartshorn, Yagi and Logan JJ) made by consent delivered on 2^nd November 2017 (SC Order).

3. The objection to competency is made by the respondent, Guise Kula. The first appellant did not make an appearance at the hearing of the objection to competency.

Background

4. The SC Order is as follows:

“1. As the fresh evidence allowed by this court has established that the first appellant remained a public servant and at all material times was the president of the second appellant, the appeal is allowed in part;

2. The orders of the National Court dated 26^th January 2017 in proceeding OS No. 31 of 2015 are set aside;

3. The respondent shall not be reinstated as the General Secretary of the second appellant and shall be paid the remaining part of his current employment contract by the second appellant;

4. The costs of this appeal and the National Court proceeding OS No. 31 of 2015 for the first appellant and the respondent are to be paid by the second appellant to be taxed if not agreed.”

5. The appeal was against a National Court decision that ordered amongst others, various declarations in favour of the respondent and against the appellants’ in regard to the respondent’s contract of employment.

Objection to competency

6. The respondent objects to the competency of the second appellant’s application for leave to make a slip rule application (leave application) as the leave application was filed and was also served out of time contrary to the time requirement of 21 days in Order 11 Rule 32(1) Supreme Court Rules.

7. The leave application was filed on 11^th September 2018, 10 months after the date of the SC Order and served on 2^nd October 2018, 11 months after the date of the SC Order.

8. The second appellant submits that it does not dispute that the leave application was filed and served outside of the 21 day period prescribed. It relies however, upon s. 155(4) Constitution for dispensation with compliance with filing within that period of time or for an extension of time during which the leave application may be filed and served.

Consideration

9. No issue was taken by the second appellant with the respondent being able to move his objection to competency. In this regard I refer to my decision in Napanapa Landowners Association Inc. v. Logae (2017) SC1677 at [7] and [8]:

“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.”

10. In regard to the second appellant’s reliance upon s. 155(4) Constitution for either a dispensation or extension of time as to compliance with Order 11 Rule 32(1) Supreme Court Rules, the second appellant relies upon the cases of Belden Namah v. Rimbink Pato (2014) SC1376, POSF Board v. Sailas Imanakuan (2001) SC677 and Philip Takori v. Simon Yagari (2008) SC905. These cases are either not on point or are concerned with amongst others, applications for extension of time and dispensation that were before those Courts for consideration.

11. In this instance however, the second appellant’s application for dispensation or extension of time has yet to be made. It is purportedly contained in the leave application. (In that regard I note that in the leave application, dispensation or extension is only referred to as part of the relief sought and not in the actual application.)

12. As no application for dispensation or extension of time has been made, heard or granted in respect of the leave application, the leave application is out of time, as conceded by the second appellant.

13. In regard to whether non-compliance with a timing provision renders an application incompetent, I reproduce [9] and [10] of Napanapa v. Logae (supra):

“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.”

14. As it is clear that the leave application was filed and served outside of the time requirements of Order 11 Rule 32(1) Supreme Court Rules, that this is conceded by the second appellant and that no dispensation or extension of time in respect of Order 11 Rule 32(1) has been granted, two mandatory requirements of Order 11 Rule 32(1) concerning filing and service have not been complied with. Consequently the respondent is entitled to the orders that he seeks. Given this it is not necessary to consider the other submissions of counsel.

Orders

15. The Orders of the Court are:

a) The application for leave for slip rule application of the second appellant filed 11^th September 2018 is dismissed;

b) The respondent’s costs of and incidental to the said application and to its objection to competency filed 5^th October 2018 are to be paid by the second appellant.
__________________________________________________________________
Chesterfield Lawyers: Lawyers for the First Appellant
Ginyaru Lawyers: Lawyers for the Second Appellant
Ona Lawyers: Lawyers for the Respondent