SC2343

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 12 OF 2021 

BETWEEN:

PETER TERRY GIRIRE
Appellant

AND:

INVESTMENT PROMOTION 
AUTHORITY & OTHERS
Four Respondents

Waigani: Hartshorn J.
2022: 1st &16th December

SUPREME COURT – PRACTICE AND PROCEDURE - Application for substitution of the appellant 

Counsel:

Ms. A. Narokobi, the Appellant
Mr. G. Konjib, for the Second and Third Respondents

16th December, 2022

1. HARTSHORN J: This is a decision on a contested application to substitute Peter Terry Girire, who is now deceased, as the appellant in this appeal.

Background

2. The appellant was appealing the decision of the National Court in OS JR 503 of 2019 which dismissed a judicial review proceeding, at the time of his decease.

3. In the judicial review proceeding, in which the appellant had been granted leave, the appellant was reviewing a decision of the Registrar of Companies to accept certain documents filed by the second respondents. These documents purportedly changed directors and shareholders of the third respondent.

4. The appellant commenced the National Court proceeding and this appeal purportedly as a shareholder and director of the third respondent. These capacities in which the appellant sued are disputed by the second and third respondents. 

5. The appellant now, purportedly, applies for Mr. Milson Kalase to be substituted for the appellant in this appeal as the appellant is now deceased. I assume that the application is actually made by Mr. Kalase given the demise of the appellant. Mr. Kalase is purportedly a director of the third respondent. He was also purportedly, a close relative and confidante of the appellant.

6. Application is made pursuant to s. 155 Constitution, Order 11 Rule 11 and Order 2 Rule 1(h) Supreme Court Rules and Order 5 Rules 10(1) and 11(1)(d), 2 and 3 National Court Rules.

Consideration

7. A preliminary issue that arises is the competency of the amended application filed 24th October 2022 and the application filed 15th July 2022. Order 13 Rule 15 Supreme Court Rules provides amongst others, that applications for interlocutory orders must contain a concise statement of the court’s jurisdiction to grant the orders being sought and that all applications shall be made in Form 4. Order 13 Rule 15 is mandatory by use of the words “must” and “shall”.

8. Form 4 includes a part where “Grounds” are specified. The amended application and application do not set out any grounds. Consequently, the amended application and application are both incompetent as they have not been made in Form 4 and should be struck out. 

9. If I consider the amended application further, I note that s. 155 Constitution is impliedly relied upon with use of the word “consistent”. Section 155 Constitution consists of six subsections and numerous sub-subsections. By including a reference to s. 155 only and not stating which subsection or sub-subsection is relied upon in the amended application, the applicant is not giving a concise statement of the court’s jurisdiction to grant the orders sought, contrary to Order 13 Rule 15 Supreme Court Rules. I therefore do not consider further the orders sought with reliance upon s. 155 Constitution.

10. If I consider the amended application and application further, they both rely on Order 11 Rule 11 Supreme Court Rules for the orders sought, which is that Milson Kalase substitute the appellant. Order 11 Rule 11 Supreme Court Rules provides that amongst others, a Judge may order that a person be added as a party to proceedings. It does not provide that a party be substituted. In this regard I mention that the title to Division 8 which only contains Order 11 Rule 11, is “Adding parties and amendment”. There is no reference to substitution. I am not satisfied therefore, that Order 11 Rule 11 Supreme Court Rules may be relied upon for the relief sought.

11. Application is also made with reliance upon Order 2 Rule 1(h) Supreme Court Rules and Order 5 Rules 10(1) and 11(1)(d), 2 and 3 National Court Rules.

12. Order 5 Rule 10(1) National Court Rules does not provide for any relief to be granted. It merely makes a statement. Order 11(1)(d) National Court Rules provides that orders made under Rules 8, 9 and 10 of Order 5 may provide for substitution. However, no order is sought in the amended application or application under Order 5 Rules 8, 9 and 10 apart from Rule 10(1) which as I have said, does not provide for relief to be granted. Order 5 Rules 11(2) and 11(3) National Court Rules provide for consequential matters and do not provide for relief to be granted under them.

13. Consequently, the appellant and Mr. Kilase have not enlivened this court’s jurisdiction for it to grant the orders sought. For the above reasons the relief sought in the amended application filed 24th October 2022 and the application filed 15th July 2022 should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

14.  It is ordered that:

a)	The application filed 15th July 2022 and the amended application filed 24th October 2022 of the appellant are dismissed.

b)	The appellant and Mr. Milson Kalase shall pay the costs of the second and third respondents of and incidental to the said application and amended application.

__________________________________________________________________
Torricelli Legal: Lawyers for the Appellant                                            
Konjib and Associates: Lawyers for the Second and Third Respondents