SC2047
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO.165 OF 2018

BETWEEN
FREDRICK KASPER
Appellant

AND
HONK KIAP AS CHAIRMAN OF STAFF APPEALS TRIBUNAL
First Respondent

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Second Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, Anis & Miviri JJ
2020:23rd November &17th December

SUPREME COURT APPEAL – Appeal against refusal of leave – Leave sought to apply for judicial review – Leave refused on ground of undue delay –Whether undue delay was satisfactorily explained – Self-represented litigant – Legally represented litigant – National Court Rules – Order 16, rules3& 4(1)&(2)

SUPREME COURT APPEAL – Practice & Procedure – Objection to competency – No prior notice – No leave sought and granted to object – Objection dismissed – Supreme Court Rules – Order 7, rules 15 to 19 & Order 10, rule 1, Form 8 & Form 15

Cases Cited:

Nominees Niugini Limited v. Independent Public Business Corporation & Ors (2017) SC1646
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Felix Bakani v. Rodney Daipo (2001) SC659
Dr Arnold Kukari v. Hon. Don Pomb Polye (2008) SC907
Idumava Investments Limited v. National Fisheries Authority (2013) SC1273
National Capital Limited v. Loi Bakani (2014) SC1392
Rural Technology Infrastructure Limited v. Paradise Foods Limited & Ors (2015) SC1408
Nipo Investment Limited v. Nambawan Super Limited (2017) SC1642
Talibe Hegelev. David Yawe & Ors: SCM No 4 of 2019 (Unnumbered & Unreported Judgment of 2nd September 2019)
Betty Palaso, IRC Commissioner General v. Paru Elliot (2020) SC2030
Ronald Rimbao v. Don Pandan (2011) SC1098 
Stephen Mendepo v. National Housing Corporation (2011) SC1169
NTN Pty Ltd v. The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Pipoi v. Seravo, Minister for Lands and Physical Planning (2001) N2120
Application by Eric Gurupa (1990) N856
The Independent State of Papua New Guinea v. Toka Enterprises Ltd (2018) SC1746
Louis Medaing v. Joseph Gabut & Ors(2016) N6431

Counsel:

Appellant in person
Ms. L. Raula, for the First and Second Respondents
Ms. P. Ohuma, for the Third Respondent

17th December, 2020
JUDGMENT

1.	BY THE COURT: This appeal can be decided purely on either a procedural point in relation to the form used to institute the appeal or substantively on whether there was a reasonable explanation for the undue delay in seeking leave to apply for judicial review in the National Court.  

Brief Facts

2.	These issues can be decided on the following uncontested facts: The appellant was Council Manager of the second respondent.  On 4th May 2011 he was charged with a disciplinary offence which included assault of a staff member and loss of property under his care and supervision.  On 4th July 2011, he was charged with a second disciplinary offence for breach of procedure for approval of payment of funds to a contractor called Horbill Construction.  He responded to the charges.  He denied some aspects of the first charge and admitted others like the assault of the staff member but explained that he was provoked by the victim.  He denied the second charge and explained that he was tasked to investigate the claim by the local contractor to verify if the latter had actually rendered services to the second respondent.  His investigation revealed that work was carried out by the local contractor and he recommended that the latter be paid itsdue.  On 20th February 2012, the second respondent through the City Manager found him guilty as charged and terminated his employment.

3.	On 14th August 2012 the appellant appealed to the first respondent using the appeal process under the establishment.  On 28thJanuary 2013 the first respondent dismissed his appeal and affirmed the decision to terminate him.  On 3rd December 2013 his former lawyers filed a writ of summons in the National Court for a claim for wrongful dismissal.  Subsequently, and upon the direction of the National Court, to file a judicial review proceeding, he filed an originating summons.  The documents for this proceeding were not served on the first and second respondents.  On 9thMarch 2018 he was further directed by the National Court to file a judicial review proceeding.

4.	On 19th July 2018 he filed judicial review proceeding and as is required, sought leave pursuant to Order 16, rule 3 of the National Court Rules (NCR).  The National Court accepted that he had standing to bring judicial review proceedings with regards to his termination, that he had exhausted alternative remedies and had an arguable case, in that, whether the first respondent heard his appeal in accordance with the principles of natural justice.  However, he was late by five years and seven months.  It was for the delay that leave was refused.

Objection to Competency

5.	In filing the appeal, he lodged at the Supreme Court registry at Waigani, a notice of appeal in accordance with Form 8 of the Supreme Court Rules(SCR).Form 8 is used for appeals under Order 7, rule 9(e) of the SCR. For appeals arising from decisions from judicial review proceedings the prescribed form is a notice of motion in Form 15.

6.	The appeal was instituted by the appellant using Form 8.  Quite clearly and correctly, the respondents objected to the competency of the appeal on the ground that the prescribed Form 15 was not used to lodge this appeal and the Court’s jurisdiction has not been correctly invoked.  However, the objection is a belated one as it is without notice and leave.  The SCR prescribes a procedure by which a party (respondent) who wishes to object to the competency of an appeal may invoke.  This procedure is prescribed under Order 7, rules15 to 19 of the SCR.

7.	A respondent who seeks to object to the competency of an appeal must file a notice of objection to competency in accordance with Form 9 and serve on the appellant, supported by an affidavit (if any).  Pursuant to rule 17, “An objection of which notice has been given shall be determined by the Court at or before the hearing of the appeal …………………..as the Court thinks proper”.

8.	It shall be noted that the procedure under Order 7, rules 15 to 19 of the SCR applies to an appeal instituted under Order 7.  One may argue that it has no application to an appeal instituted under Order 10 as in this case.  It may also be argued that given the lack of procedure to object to the competency of an appeal instituted under Order 10, it is open to raise the objection at any time and without notice.  We received no such submission from the respondents.

9.	All we received was a submission that the appellant failed to file a notice of motion in the prescribed Form 15.  What was filed was a notice of appeal using Form 8 under Order 7, rule 9(e) of the SCR.  It would seem that the respondents assumed that it was open to them to object to the competency of the appeal as of right, at any time, and without proper notice.  

10.	The requirement to give notice of objection even in cases where a notice was given outside the period of fourteen days is mandatory.  In Nominees Niugini Limited v. Independent Public Business Corporation & Ors (2017) SC1646 the Supreme Courtstated:

“Order 7 Rule 15 is quite explicit and unambiguous and couched in mandatory terms by the use of the word “shall”.”

11.	Notwithstanding the view it had expressed, the Court went on to hear the objection based on what appeared to be the inherent power of the Court to control its process, and protect itself from abuse supported by the decision of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.  It upheld the objection and dismissed the appeal on the ground that no leave was obtained to appeal an interlocutory judgment of the National Court pursuant to Section 14(3)(b) of the Supreme Court Act (SC Act).

12.	We would like to review past cases to see how the Supreme Court has dealt with the issue of notice.  Except for two, the cases we have been able to find appeared to decide the competency of the appeal based on prior notice being given:

•	In Felix Bakani v. Rodney Daipo (2001) SC659, the issue of non-compliance with filing a notice of motion under Order 10 was decided by a single judge of the Supreme Court in an application for extension of time to appeal under the relevant provision of the SCR.This is one of the cases which the judge did not have a notice of objection before him because competency of the appeal was not the primary issue for consideration.

•	In Dr Arnold Kukari v. Hon. Don Pomb Polye (2008) SC907, an application was filed to dismiss the appeal for non-compliance with Order 10.

•	In Idumava Investments Limited v. National Fisheries Authority (2013) SC1273, the respondent filed an application to dismiss the appeal for failure of appellant in annexing a certified copy of the order of the National Court under Order 10, rule 3(b)(ii). 

•	In National Capital Limited v. Loi Bakani (2014) SC1392, a notice of objection to competency was filed.  The objection was based on failure by the appellant to annex a certified copy of the order of the National Court under Order 10, rule 3(b)(ii).  

•	In Rural Technology Infrastructure Limited v. Paradise Foods Limited & Ors (2015) SC1408, it is not clear whether the Court on its own motion or the respondents brought up the issue of competency of appeal in relation to the appeal being instituted by notice or appeal as opposed to notice of motion contrary to Order 10, rule 1(a).  This is another case where no notice of objection was filed. 

•	In Nipo Investment Limited v. Nambawan Super Limited (2017) SC1642, a notice of objection to competency was filed.  The objection was based on failure by the appellant to annex a copy of the respondent’s submissions to the notice of motion under Order 10, rule 3(b)(i).

•	In Talibe Hegele v. David Yawe & Ors: SCM No 4 of 2019 (Unnumbered & Unreported Judgment of 2nd September 2019), a notice of objection to competency was filed.  The objection was based on failure by the appellants to annex a copy of the respondent’s submissionsand certified copy of the order of the National Court to the notice of motion under Order 10, rule 3(b)(i)&(ii).

•	Finally and very recently, in Betty Palaso, IRC Commissioner General v. Paru Elliot (2020) SC2030 the Commissioner General of Internal Revenue Commission filed judicial review proceeding under Order 16 of the NCR.  Following the decision of the National Court the Commissioner General appealed by notice of motion to the Supreme Court under Order 10 of the SCR but did not annex two documents which were before the judge of the National Court.  These were:

•	Respondent’s written submissions, and
•	Certified copy of order made by the judge of the National Court.

The respondent filed a notice of objection to competency and sought dismissal of the appeal for failure by the Commissioner General to annex these documents to the notice of motion.  The Supreme Court upheld the objection and dismissed the appeal as being incompetent.  It is significant to note that although the appeal was instituted under Order 10, the respondent still gave notice of objection to the appellant and it was one of the matters determined on the papers pursuant to the Supreme Court Practice Direction No 3 of 2020 in response to the Covid-19 pandemic.

13.	The Supreme Court decision in Sir Arnold Amet v. Peter Charles Yama (supra) has been adopted by the Court in many civil appeals and election petition reviews where an issue of competency is raised without prior noticeor even on the Court’s own motion. This appears to be the current practice.  The reason being the Court has inherent power to control its own processes: Ronald Rimbao v. Don Pandan (2011) SC1098 and Stephen Mendepo v. National Housing Corporation (2011) SC1169.  The present case exemplifies that.  It is a case where no notice of objection was filed within fourteen days after the notice of appeal was served on the respondents.  As one was not filed, none was served on the appellant and he had no notice of it until the hearing.  In addition, the competency issue was not raised by the Court on its own motion.  It was brought to the notice of the Court by the respondents in their submissions at the hearing.

14.	As a matter of procedural fairness and good practice, we consider that it is advisable for a party who intends to object to an appeal instituted under Order 10 to adopt the procedureset out in Order 7, rules 15 to 19 of the SCR, and file and serve a notice of objection to competency on the appellant.  Otherwise, should seek ad hoc directions from the duty judge at directions hearing under Section 185 of the Constitution. We do not believe that a party who does not give notice of objection should, without leave, be permitted to object to the appeal as being incompetent.  We think it would be most unfair to an appellant who has progressed his appeal this far, to now, defend an objection to competency to his appeal.  Time and resources would have been spent in preparing the appeal for hearing and would bewasted.

15.	In expressing this view, we are mindful of the legal implications of an objection, that if upheld, will terminate the appeal and for this reason, we consider that where no notice has been given, leave must be sought and granted prior to its determination. The notice will set out the ground(s) of the objection.  Where leave is granted, two things may happen: if parties are ready, they may proceed with the hearing of the objection.  Alternatively, if the opposing party is not ready, the hearing can be vacated and appeal adjourned to a date for the hearing of the objection.  These are the options available to a party who seeksleave to object to the competency of an appeal.  Either options will accord the opposing party a reasonable opportunity to response to the objection.

16.	We find that the respondents did not seek leave to object to the competency of the appeal.  As a result, the question of form of the appeal was not properly and fairly raised.  The lack of notice has prejudiced the appellant in his defence because he was unable to respond to it at the hearing.  For these reasons, we give no consideration to it and dismiss it.

Explanation for undue delay

17.	The National Court judge held that the delay was about five years and seven months and the explanation for the delay was unreasonable.  This conclusion was based on the proposition that “The plaintiff [appellant] was located in Port Moresby where he had access to other private lawyers or even the Public Solicitor’s office”.

18.	Delay is one of the factors relevant to deciding leave to apply for judicial review: NTN Pty Ltd v. The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70.  It is provided under Order 16, rule 4(1) of the NCR.  The general proposition is that the Court will refuse leave if there is undue delay. The cases cited by counsel for the first and second respondents in her submissions are some examples: Pipoi v. Seravo, Minister for Lands and Physical Planning (2001) N2120 (11 years delay), Application by Eric Gurupa (1990) N856 (delay of almost two years) and The Independent State of Papua New Guinea v. Toka Enterprises Ltd (2018) SC1746 (13 years delay).  A plaintiff who is late must provide a reasonable explanation.

19.	In this case, the respondents blamed the appellant for the delay.  They contend that he chose to engage a lawyer and followed his legal advice to sue for damages for wrongful dismissal.  The appellant contend that he relied on his lawyer’s advice to sue for damages for wrongful dismissal and was a victim of the Court process.  He was advised to take up this option because he had gone past the prescribed time limitation of four months to file a judicial review proceeding to challenge his termination and wherehe seeks an order for certiorari. This time requirement is prescribed in Order 16, rule 4(2) of the NCR(supra). The respondents did not contend that the legal advice the appellant received was wrong.  If it was not wrong, the presumption is he did the right thing then by suing for wrongful dismissal.

20.	The respondents point to the applicant as having a reasonable level of education, the highest being the attainment of a diploma in civil engineering at the Lae Technical College.  In addition, he has worked with the second respondent for almost 20 years.  For these reasons, they asked us to find that as a person of a reasonable level of education and experience, he should have been able to act quickly to bring proceeding including identifying the correct mode of proceeding.

21.	The third respondent added that “The Plaintiff/Appellant is well educated, is well aware of the Court process and cannot be deemed to be arrogant of instituting such proceedings”.

22.	All these submissions failed to acknowledge the undisputed fact that the appellant holds a diploma in civil engineering and is not a lawyer or someone who has being legally trained to be in a position to act quickly to file proceedings and identify the correct mode of instituting the judicial review proceeding.  The real question is how should a self-represented litigant who is not legally trained be treated?

23.	Except for one National Court case which was cited by counsel for the third respondent in her submission, we were not assisted with case law in this jurisdiction or overseas dealing with how a self-represented litigant such as the appellant is treated in a case where an application for leave is filed outside the prescribed period of four months.  We do not know if the same level of scrutiny is given to a self-represented litigant and a legally represented litigant.  Further, we have not been assisted on how we should treat a self-represented litigant who has acquired a reasonable level of education from a self-represented litigant who has no educational background.

24.	In Louis Medaing v. Joseph Gabut & Ors (2016) N6431 which was cited by the third respondent’s counsel, Cannings J refused an application for leave to apply for judicial review on the grounds of undue delay and stated that a delay of four years was too long and the reason for the plaintiff to institute other proceedings aimed at agitating the same grievance is not an adequate explanation for the delay.

25.	His Honour held that on the evidence the plaintiff was not a stranger to the Court.  He was not someone who was completely ignorant of court proceedings.  However, even if the Court was faced with someone who had absolutely no idea about the Court, the Court would still not be inclined to disregard the delay.  Everyone in PNG, unless they are completely uneducated and unsophisticated and live in a very remote location, is expected to know that if they want to bring court proceedings, they will have to rather quickly.  If they leave proceedings too late, they will be accused of undue delay.

26.	While we are not bound to follow the decision of the National Court in that case, there are two significant points we take out of that case.  First, a self-represented litigant who has previously been to Court will not be considered a stranger and is expected to know and act quickly to bring proceedings.  Second, a completely uneducated and unsophisticated self-represented litigant who lives in a remote location in PNG may be excused from knowing his duty to act quickly to file proceedings.

27.	It can be argued that the appellant does not fall into the class of self-represented litigants who are uneducated and unsophisticated and live in a remote location in PNG.  However, we do not think that he can be described as a litigious person like the plaintiff in the above case (supra).  This is his first time to come to Court and as a first time litigant, he has provided an explanation for the delay.  

28.	His explanation is that the first respondent made its decision on 20th February 2012.  He then appealed to the second respondent on 14th August 2012.  It was not until 28th January 2013 when he was served with a copy of the decision by letter under the hand of the City Manager.  The lapse of time was eleven months and that delay was adequately explained by the late service of the dismissal decision.  From 28th January 2013 to date of filing of writ of summons of 3rd December 2013 is a period of about ten months and five days.  The appellant does not provide an explanation for the delay for this period.  However, the delay would be reduced to six months and five days when four months allowed by the Order 16, rule 4(2) of the NCR is deducted.

29.	Significantly, during one of the preliminary hearings on 11th April 2016, the presiding judge directed him to file a judicial review proceeding.  This was more than two years and four months after the writ was filed.  By then the appellant’s lawyers withdrew from acting for him. Sometime in 2017 the appellant filed an originating summons proceeding and sought reinstatement.  Again, during one of the preliminary hearings on 9th March 2018, the next presiding judge directed the appellant to file judicial review proceeding.  By the time the appellant filed judicial review proceeding on 19th July 2018, a period of five years and seven months had lapsed since the decision of the second respondent on 28th January 2013.

30.	In our view, a combination of factors had contributed to the delay.  They comprised of the appellant’s lawyers advising him to sue for wrongful dismissal,  that it was not contended for that such advice was wrong, next, the first presiding judge directing the appellant to file for judicial review,then the next presiding judge reaffirming the earlier decision for the appellant to file for judicial review and in both instances, it was not mentioned if the presiding judge was informed of the time limitation of four months under the NCR which would reduce on his the chances of obtaining leave,then the institution of wrong mode of proceeding and finally, the time spent in attending the preliminary hearings.  Added to these, the appellant’s lawyers withdrew from representing the appellant and he took over the task of prosecuting the matter in person.  

31.	We accept that while the National Court judge has wide discretion to refuse leave, we are satisfied that, these different events adequately explained the delay. Finally, we are of the view that this is not a case where the appellant sat on his right so to speak and it is wrong to suggest that he did not make any effort in accessing services from other private lawyers or Public Solicitor’s office.  Of course it was an option open to him but he chose otherwise.  On the other hand, he was a victim of circumstances.  For all these reasons, we are satisfied that the National Court judge erred in holding that the appellant’s explanation for the delay was unreasonable.

Conclusion

32.	Finally, the National Court judge mentioned other factors that would operate against grant of leave such as the statutory time limitation of six years was about to expire if the appellant were to make a claim for damages and if he had given the requisite notice to make a claim to the second respondent or the State.  However, in our view, these factors are irrelevant and have no application to the application for leave.  It suffices to say that as there is no contest to the question of standing of the appellant, exhaustion of alternative remedy and arguable case and that as the appellant has been able to adequately explain the delay, in the exercise of the discretion conferred on us under Section 16(c) of the SC Act we will grant leave to the appellant to apply for judicial review and order that the substantive review application be remitted to the National Court for hearing without further delay.

Order

33.	The orders are:

1.	The objection to competency is dismissed.
2.	The appeal is upheld.
3.	The decision of the National Court of 4th September 2018 is quashed.
4.	The appellant is granted leave to apply for judicial review of the decision of the second respondent dated 28th January 2013.
5.	The substantive application for judicial review is remitted to the National Court for hearing without further delay.
6.	The respondents shall pay the appellant’s costs of the appeal to be taxed, if not agreed.
________________________________________________________________
AppellantIn person:
In-House Lawyer:		Lawyers for First & Second Respondents
Solicitor General:		Lawyers for Third Respondent