SC2298

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 162 OF 2021

PHILIP VITOLO
Appellant

-V-

MARAREA LAND GROUP INCORPORATED
First Respondent

HONOURABLE JUSTIN TKATCHENKO in his capacity as the Minister for Lands & Physical Planning
Second Respondent

IRUNA ROGAKILA in his capacity as the Registrar of Incorporated Land Groups
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

NEW BRITAIN PALM OIL LIMITED
Fifth Respondent

Waigani: David J, Kariko J & Berrigan J
2022: 27th September & 7th October

PRACTICE AND PROCEDURE – objection to competency – application for leave to appeal – application made to the full court after refusal by a single judge, s 10(2) Supreme Court Act – procedure for application in mandatory terms, O 11 r 27 Supreme Court Rules – requirements to be complied with to invoke court’s jurisdiction 

Following the refusal by a single Judge of the Supreme Court of the appellant’s application for leave to appeal, the appellant applied again to the full court. The first respondent objected to the competency of the application contending it was not in accordance with the mandatory requirements of the relevant Supreme Court Rules, namely O 11 r 27, to properly invoke the jurisdiction of the Court. 
Held:

(1)	An objection to competency must go to the jurisdiction of the court to entertain at all a particular proceeding: Waghi Savings and Loan Society Ltd v Bank South Pacific Ltd (1980) SC185 referred to.

(2)	Where application for leave to appeal made to a single Judge of the Supreme Court under s10(1) of the Supreme Court Act is refused, the same application may be made to the full court (the Supreme Court) pursuant to s10(2).

(3)	The procedure for application to the full court is provided in O 11 r 27 of the Supreme Court Rules.

(4)	Pursuant to O 11 r 27 of the Supreme Court Rules, the applicant must serve a written request to the Registrar within 14 days of the order refusing the application made under s 10(1), for a hearing of the same application by the full court.   

(5)	The mandatory terms of O 11 r 27 must be strictly complied with to properly invoke the jurisdiction of the full court, and failure to do so renders the application incompetent: The State v. Transferees (2016) SC1488 referred to.

Case Cited:

Waghi Savings and Loan Society Ltd v Bank South Pacific Ltd (1980) SC185 Kopalye v 1st Mutual Ltd (2011) SC1113 
The State v Transferees (2016) SC1488
Dekena v Kuman (2018) SC1715
Gadiki v Logea (2019) SC1876

Legislation:

Constitution
Supreme Court Act, Chapter 37
Supreme Court Rules

Counsel:

Mr E Isaac, for the Appellant 
Mr H Leahy, for the First Respondent

OBJECTION

This is a ruling on an objection to competency of an application for leave to appeal. 

7th October, 2022

1.	BY THE COURT: The first respondent objects to the competency of the appellant’s application for leave to appeal.  

2.	On 13 December 2021, the appellant moved his application under s 10(1) of the Supreme Court Act before Hartshorn J sitting as a single Judge of the Supreme Court for leave to appeal a decision of the National Court. His Honour refused the application (“the Refused Application”). 

3.	 By letter dated 16 December 2021 (“the Letter”), the appellant’s lawyers wrote to the Registrar of the Supreme Court and enclosed an application for leave to appeal made pursuant to s 10(2) of the Supreme Court Act referenced SCA No. 162 of 2021 (“the First Application”).

4.	On 21 January 2022, the appellant filed another application for leave to appeal which was referenced SCA No. 8 of 2022 (“the Second Application”). 

5.	The Second Application was withdrawn with leave of the court on 14 February 2022. 

6.	The first respondent’s lawyers wrote to the appellant’s lawyers on 27 May 2022 encouraging them to advise their client to withdraw the First Application because, amongst other reasons, it was without merit.  

7.	The First Application was subsequently discontinued with leave of the court on 2 June 2022. 

8.	The appellant now relies on the Letter as the relevant document invoking the jurisdiction of the full court (the Supreme Court) to hear his application for leave to appeal. 

SUPREME COURT ACT & RULES

9.	Pursuant to s 10(1) of the Supreme Court Act, a single Judge of the Supreme Court may exercise the powers of the Supreme Court in respect of several matters, including applications for leave to appeal. Where such an application is refused, the application may be made to the full court; s 10(2). 

10.	Under s 1 of the Supreme Court Act, the term “Judge” means a judge of the Supreme Court, which court is established by s 160(1) of the Constitution and which shall comprise of at least three judges when hearing cases: s 161(2), except where the law permits a single judge or a number of judges sitting together to exercise the powers of the court: s 162(2).   

11.	O 11 r 27 of the Supreme Court Rules describes in mandatory terms the procedure for an application made under s 10(2) of the Supreme Court Act. The provision reads:

27.	Where a Judge refuses an order sought on an application pursuant to Section 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to Section 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief. 
[Emphasis added]

12.	The Rule patently explains that a s10 (1) application which has been refused, is not regarded as dismissed and may be moved afresh before the full court so long as a written request for this is made to the Registrar. 

 THE APPLICATION

13.	In the case before us, the appellant filed two further and separate applications for leave to appeal on 16 December 2021 and 21 January 2022 seeking de novo hearings. 

14.	As noted earlier, those applications were ultimately not proceeded with. When the last of them was discontinued on 2 June 2022, Hartshorn J relevantly ordered: 

1.	Leave be granted to the appellant to discontinue the application dated December 2021.
2.	The matter be brought before the Directions Judge for a date to be listed for hearing of the matter.

15.	While the parties did not properly assist us on the meaning and intent of order 2, and there is a lack of material before us in respect of what happened at the hearing, it is safe to assume that the order recognized that the appellant correctly discontinued the First Application, and he could seek to rely on the Letter for the application to the full court.

16.	Indeed, it has eventuated that the issue for our determination is whether the Letter meets the requirements of O 11 r 27.

THE LETTER 
 
17.	The Letter is dated 16 December 2021 and it was written to the Registrar by the appellant’s lawyers.

18.	The first three paragraphs are significant to note:

We refer to the above and enclose our client’s application for leave which is made under section 10(2) of the Supreme Court Act after the Single Judge refused our client’s application for leave on 1 December 2021.

Also enclosed are affidavits of Philip Vitolo and Herman Pasi.

The Application is made for the full Court to hear our client’s Application for Leave under section 10(2) of the Supreme Court Act.
	[Emphasis added]

THE FIRST APPLICATION

19.	The First Application is found in the Objection Book:134-138, and it appears to conform with Form 4 of the Supreme Court Rules which provides for “General Form of Application”. 

20.	Consistent with Form 4, the application included the affidavits in support mentioned in the Letter. 
 
21.	The Rules state that Form 4 shall be used in respect of applications to intervene in references: O 4 r 22(d), and applications for extension of time to appeal or apply for leave to appeal: O 7 r 1(a).  

OBJECTION TO COMPETENCY 

22.	The first respondent has objected to the competency of the appellant’s application for leave raising several grounds, which as summarized are:

(1)	That the appellant failed to comply with O 11 r 27 of the Supreme Court Rules which provides the procedure for an application for leave to appeal to be made to the full court after it has been refused by a single Judge.
(2)	That the appellant has abused the process of the court by filing unnecessary applications. 
(3)	That the First Application was filed in breach of s 17 of the Supreme Court Act.

SUBMISSIONS
 
23.	The first respondent’s arguments focussed mainly on the first ground, which if upheld would determine this proceeding. 

24.	The first respondent argued that Letter does not comply with O 11 r 27 and that it is in fact the cover letter to the filing of the First Application. 

25.	The appellant submitted to the contrary, urging the court to note that while he wrongly relied on the “old” O 11 r 27 to proceed as he did after the Refused Application, the Letter nevertheless complies with the requirements of the current Rule in that:

(1)	It is a written request.
(2)	It mentions that a single Judge refused his application for leave.
(3)	It was served on the Registrar within 14 days after the refusal. 
(4)	It states that application for leave is being made under s 10(2) of the Supreme Court Act.
(5)	It seeks a hearing of the application by the full court.

CONSIDERATION

26.	An objection to competency goes to the jurisdiction of the court to deal with a particular proceeding. The question to answer is whether the jurisdiction of the Court has been correctly engaged by the appellant: Waghi Savings and Loan Society Ltd v Bank South Pacific Ltd (1980) SC185 .

27.	As noted earlier, O 11 r 27 of the Supreme Court Rules mandates the procedure for an application for relief made under s 10(2) of the Supreme Court Act. 

28.	It is not an issue that O11 r 27 provides how an application under s 10(2) can be brought before the full court, thereby invoking the jurisdiction of the court to entertain it. 

29.	The procedure requires the applicant to serve a “written request” on the Registrar within 14 days from the order by the single Judge refusing the application made under s 10(1). 

30.	There is no definition for the expression “written request” nor is there a form prescribed for it by the Rules. We view that the words should be accorded their plain and ordinary meaning, and that the expression simply means a request made in writing.  We think that the written request would normally take the form of a formal letter.

31.	Furthermore, we consider that in line with O11 r 27, the written request should include the following matters:

(1)	a reference to the application heard and determined by the Judge, and 
(2)	a request for the full court (the Supreme Court) to hear the same application pursuant to s 10(2) of the Supreme Court Act. 

32.	We have no issue finding that: 

(1)	The Letter is a “written request”.
(2)	It was served on the Registrar within 14 days from when Hartshorn J refused the appellant’s application for leave to appeal made pursuant to s 10(1). 
(3)	The Refused Application is referred to in the Letter. 
(4)	The appellant requests in the Letter for hearing of the appellant’s application by the full court under s 10(2).

33.	However, the application which the appellant seeks to be heard is not the Refused Application, but the First Application. It is clear from the introductory paragraph of the Letter that it was written in respect of the First Application, and it was the cover letter for the filing of that application. The affidavits referred to in the Letter are in fact mentioned in the application, seemingly in compliance with Form 4 of the Supreme Court Rules which the appellant erroneously adopted for his application to the full court. 

34.	Plainly, the appellant did not have regard to O 11 r 27 until he was alerted to his error by the first respondent some five months later. 

35.	We add that the appellant’s explanation that he relied on the previous provision is not credible. The current O 11 r 27 has been in force since the promulgation of the 2012 Supreme Court Rules. Prior to then, O 11 r 27 dealt with appeals from directions issued by a Judge. There was no procedure set out in the Rules for making of an application under s 10(2) of the Supreme Court Act and the practice was for the applicant to file a new application for hearing by the full court. The Supreme Court alluded to this in Kopalye v 1st Mutual Ltd (2011) SC1113 at [2]: 

Section 10(2) allows a person who has had an application for leave to appeal refused by a single Judge of the Supreme Court to apply to the full court of the Supreme Court to have the matter determined by that court. Such an application is not an appeal against or review of the single Judge's decision and should not be framed as an application to set aside or reinstate the application that has been refused. It is a fresh application (The State v John Tuap (2004) SC765). 
	
[Emphasis added]

36.	It is apparent that the appellant followed the former practice which was changed some nine years back and for good reason. The relevant Rule now allows for a more convenient and speedier procedure to hear applications made pursuant to s 10(2).

37.	The Supreme Court has regularly dismissed proceedings and applications as incompetent for non-compliance with mandatory provisions of the Rules. 

38.	The case authorities include of The State v Transferees (2016) SC1488 is an example, where the Supreme Court made the following remarks (emphasis added) which are pertinent: 

[9] … the requirements under these rule(s) 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 incompetence and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412. 

[10] …The need for a slip rule application to conform to Form 4 under Order 13 r 15, as stated earlier is a mandatory requirement and therefore it is a pivotal consideration on the issue of the competency of such an application. … if the application did not conform to Form 4, the application would be incompetent of the basis of want of form: Barawa Ltd v. Mamalau [2013] PGSC 50; SC1301 and National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392….

See also Dekena v Kuman (2018) SC1715 and Gadiki v Logea (2019) SC1876.

39.	We adopt and apply the relevant principles expressed in the above judgments, and we accordingly view this application for leave as incompetent in circumstances where the appellant has clearly not complied with the mandatory terms of O 11 r 27. 

40.	It is then unnecessary to consider the other grounds of objection. 
 
CONCLUSION

41.	The non-compliance with O11 r 27 means the jurisdiction of the Court has not been properly invoked. 

42.	The appellant’s application for leave to appeal is therefore incompetent and is dismissed with costs in favour of the first respondent, the only respondent who filed an appearance.  

ORDERS

(1)	The first respondent’s objection to competency of the application for leave to appeal is upheld.
(2)	The appellant’s application for leave to appeal is dismissed for being incompetent.
(3)	The appellant shall pay the first respondent’s costs to be taxed if not agreed.
________________________________________________________________
Emmanuel Lawyers: Lawyers for the Appellant
Pacific Legal Group: Lawyer for the First Appellant