SC2006

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 47 OF 2019

BETWEEN:
PHILIP VITOLO, HERMAN PASI, KENNY
SONNY & VINCENT TOVILI
First Applicants

AND:
NEW BRITAIN PALM OIL LIMITED
Second Applicants

AND:
MARAREA LAND GROUP INCORPORATED
First Respondent

AND:
HON. JUSTIN TKATCHENKO, in his capacity as
the Minister for Lands and Physical Planning
Second Respondent

AND:
IRUNA ROGAKILA, in his capacity as the
Registrar for Incorporated Land Groups
Third Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Manuhu J, Hartshorn J, Miviri J
2020: 29th September, 2nd October

SUPREME COURT - Practice and Procedure - Objection to competency of application for leave to appeal - jurisdictional basis relied upon for making the objection to competency has to be cited – lack of citing jurisdictional basis for filing application for objection to competency – objection to competency dismissed

Cases Cited: 
Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185
Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC692
Nandali v. Curtain Bros Ltd (2012) SC1483
Toale Hongiri ILG v. Wolotou ILG (2012) SC1201
Papua New Guinea Law Society v. Cooper (2016) SC1553
Peter O’Neill v. Nerrie Eliakim (2016) SC1524
National Superannuation Fund Ltd v. Yawenaik Holdings Ltd (2018) SC1709 Yambaki Surveys Ltd v. Nambawan Super Ltd (2020) SC1901

Counsel:

Mr. E. Issac, for the First Applicants
Mr. T. Kuma, for the Second Applicants
Mr. E. Asigau, for the First Respondent
Mr. N. Yano, for the Second, Third and Fourth Respondents

2nd October, 2020

1. BY THE COURT: This is a decision on a contested objection to competency of an application for leave to appeal. The objection is by the first respondent and is supported by the three other respondents.

Background

2. The applicants apply for leave to appeal a decision of the National Court which granted leave for the further amendment of a statement and originating summons filed in a judicial review proceeding under Order 16 National Court Rules (subject decision). The subject decision permitted the first respondent to include an application for judicial review of the decision of Hon. Benny Allen made on 16th August 2016. That decision amongst others, rescinded a decision of the Registrar of Incorporated Land Groups, the third respondent, to de-register Mami Incorporated Land Group and transfer title of a certain property known as Lamavoro Estate in Talasea, West New Britain, to Mararea Land Group Incorporated, the first respondent.

Objection to competency

3. The first respondent objects to the competency of the application for leave to appeal on four grounds:

a)	   	the first applicants do not have standing to bring the appeal;

b)	the Supreme Court does not have the jurisdiction to hear an appeal from a decision arising out of a judicial review proceeding which is not a refusal to grant leave or a refusal of a judicial review application;

b)		the wrong decision has been made the subject of these appeal proceedings;

d)	the applicants have not been identified and included as proper parties in this application for leave to appeal.

4. The applicants submit that the objection to competency should fail as:

a)	it does not state the jurisdiction relied upon and comply with the Supreme Court Rules:

b)	the grounds of objection do not question the jurisdiction of this Court.

Consideration

5. The first issue for consideration is whether the objection to competency is itself incompetent as the jurisdictional basis relied upon for making the objection to competency has not been cited. In Papua New Guinea Law Society v. Cooper (2016) SC1553 (Manuhu J, Yagi J, Sawong J), the Court stated at [8]:

“…. the notice of objection to competency must itself be competent. It has to plead the appropriate provision and comply with the Supreme Court Rules. Failure to comply would be fatal.”

6. In National Superannuation Fund Ltd v. Yawenaik Holdings Ltd (2018) SC1709 (Hartshorn J, Higgins J, Frank J) the Court stated at [7]:

“As the objections to competency do not cite the correct jurisdictional basis for making an objection to competency, ……. this Court’s jurisdiction has not been invoked.”

7. Further, the Supreme Court cases of Pacific Equities and Investment Ltd v. Teup Goledu (2009) SC692 (Davani J Cannings J Manuhu J) and Nandali v. Curtain Bros Ltd (2012) SC1483 (Hartshorn J, Makail J, Logan J) are decisions of the full Supreme Court that were concerned with and affirmed the requirement to cite the correct jurisdiction, including in objections to competency.

8. Consequently, as the jurisdictional basis relied upon for making the objection to competency is not cited within the objection to competency, in accordance with the authorities to which we have made reference, the objection to competency should be dismissed.

9. If the objection to competency is not dismissed on the above basis, we consider the grounds relied upon in the objection to competency.

10. As to the approach to be taken by the Supreme Court to an objection to competency, in Yambaki Surveys Ltd v. Nambawan Super Ltd (2020) SC1901 (Salika CJ. Polume-Kiele J, Shepherd J) the Court said at [18]:

“We do note that there are currently two divergent approaches of the Supreme Court governing objections to competency of proceedings. The first approach requires strict compliance with Order 7 Rules 9 and 10 of the Supreme Court Rules and s. 14 of the Supreme Court Act. However a more liberal approach to objections to competency was recognised in the decision of Coca Cola Amatil v Kennedy (2012) SC1221, which provides a concession to the effect that if a notice of appeal or application for review contains at least one ground by which the Court’s jurisdiction is validly invoked, all of the grounds survive the objection to competency although those grounds can still be open to challenge at the substantive hearing of the appeal or review application.”

and then at [24]:

“The decision of the Court in Coca Cola Amatil with respect is consistent with a line of prior decisions of 3-member benches of the Supreme Court. It has not subsequently been overtaken by any contrary decision of a 5-member bench of the Supreme Court. Both approaches have their merits. However we emphasise the importance of the distinction between the two approaches but recognise that objections must always go to the competency of the appeal, not to the grounds of appeal per se.”

11. The first ground of the objection to competency concerns the standing of the first applicants. The first respondent submits that as the first applicants did not appeal to the then Minister for Lands and Physical Planning, Hon. Benny Allen, they do not have standing to make this appeal. 

12. It is acknowledged in the first respondent’s submissions that the first applicants were joined as individual parties to the first respondent’s judicial review proceeding. Given that the first applicants were joined to the said National Court proceeding, to that extent the first applicants appear to have an interest in the subject matter of the National Court proceeding. We refer to Toale Hongiri ILG v. Wolotou ILG (2012) SC1201 at [33] for similarity purposes. This objection fails.

13. As to the second objection that the Supreme Court lacks jurisdiction, this is based on the premise that Order 16 Rule 11 National Court Rules is the only provision capable of conferring jurisdiction upon the Supreme Court to hear an appeal from an order in National Court judicial review proceedings. This is not so. Section 14 Supreme Court Act confers jurisdiction and specifically in respect of an interlocutory judgment as in this instance, with leave – s. 14(3)(b). An example of this is Peter O’Neill v. Nerrie Eliakim (2016) SC1524 which granted leave to appeal an order for joinder of parties in a judicial review proceeding. This order in respect of which leave was granted, was not a refusal of leave or refusal of an application for judicial review. Further, to the extent, if at all, that there is an inconsistency between s.14(3)(b) Supreme Court Act and Order 16 Rule 11 National Court Rules, the Supreme Court Act section takes precedence over a National Court Rules Rule. This objection fails.

14. As to the third objection, that the wrong decision has been made the subject of the appeal proceeding and further, as submitted by counsel, that the application for leave has been rendered nugatory by a grant of leave to judicially review in another proceeding, even if the submissions had substance, they do not in some way deprive the Supreme Court of, “the jurisdiction to entertain the point”: Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185 (Kearney DCJ, Andrew J, Kapi J). This objection fails.

15. As to the fourth objection, that the applicants are named as a group and not individually, this has no merit. The Court has jurisdiction which is not affected even if the objection had merit. No further consideration is required on this objection. This objection fails.

16. Given the above, it is not necessary to consider the other submissions of counsel apart from as to costs.

17. The first applicants seek costs on a solicitor client basis against the first respondent. We are not satisfied that the first applicants have sufficiently made out that such costs should be awarded.

Orders

18. The Court orders that:

a)	The objection to competency of the first respondent filed 24th April 2019 is dismissed;

b)	The first respondent shall pay the costs of the first and second applicants of and incidental to the said objection to competency on a party/party basis.

c)	The application for leave to appeal is adjourned to the listings Judge for a date to be allocated for the application for leave to appeal to be heard by a single Supreme Court Judge.
__________________________________________________________________
Emmanuel Lawyers: Lawyers for the First Applicants
Bradshaw Lawyers: Lawyers for the Second Applicants
Pacific Legal Group:  Lawyers for the First Respondent                        
Office of the Solicitor General: Lawyers for the Second, Third and Fourth Respondents