SC2646

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO.11 OF 2022 

BETWEEN:
THOMAS SEROWA 
First Applicant/Appellant

AND:
T SEROWA LIMITED trading as T SEROWA & Co
Second Appellant/Applicant

AND:
PAULUS M DOWA trading as PAULUS M DOWA LAWYERS
First Respondent

AND:
BANK OF SOUTH PACIFIC LIMITED (as an amalgamated entity from the formerly PNGBC Ltd, Nambawan Finance Limited and Bank of South Pacific Limited)
Second Respondent

Waigani:  David J
2024:  13th September & 26th October 

PRACTICE & PROCEDURE – application for leave to review decision of Taxing Officer –  application to be made by Notice of Motion supported by affidavit, which shall, amongst other things, specify the list of items to which the applicant objects and must state concisely the nature and grounds for each objection– application for leave commenced by “Notice of Motion Application for Leave to Review Costs - objection upheld: – Supreme Court Rules, Order 12 Rule 37.

Cases Cited:
Review pursuant to Constitution Section 155(2) (B) and Section 155(4) Application by Joseph Kintau, Acting Director, Civil Aviation Authority of Papua New Guinea (2011) SC1125
Luke v Maribu [2012] SC1188
Marape v O’Neill [2016] SC1487
PNG Aviation Services Pty Ltd v Michael Thomas Somare (2017) SC1590
Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646
Gire Gire Estates Ltd v Barava Ltd (2018) SC1675
Mathias Sapuri and Sylvester Lahe v The Medical Society of Papua New Guinea (2019) SC1910
Wamu Abari v Willie Gumaim (2020) SC1925
Rai v Imbuni (2021) SC2080
State v Kalaut [2022] SC2246
Graham v Klatt (2022) SC2287
Alfred Kimbu v Serah Eme Pakira and Others (2023) SC2387

Counsel:
Thomas Serowa, self-represented Applicant
Clayton Joseph, for the Second Respondent

JUDGMENT

26th October 2024

1.	DAVID, J:  INTRODUCTION: This is the decision of the Court on an objection to the competency of the Applicant’s application for leave to review the decision of the Taxing Officer made on 28 June 2024 after which a Certificate of Taxation was issued on 11 July 2024.

OBJECTION TO COMPTENCY

2.	The Second Respondent filed its Notice of Objection to Competency on 5 August 2024 (Objection to Competency).   Objection is made to the Applicant’s application for leave to review costs constituted by the Applicant’s “Notice of Motion Application for Leave to Review Costs” (the Application) dated 22 July 2024 and filed on 24 July 2024 on the ground that it does not comply with Order 12 Rule 37(3) of the Supreme Court Rules as it is not in Form 11 of the National Court Rules pursuant to Order 2 Rule 1(h) of the Supreme Court Rules. 

EVIDENCE

3.	Filed in support of the Application were the; Applicant’s Affidavit in Support filed on 24 July 2024; and the Applicant’s Affidavit of Service filed on 8 August 2024. 

4.	In support of the Objection to Competency, the Second Respondent relies on and reads the Affidavit of Clayton Joseph sworn and filed on 14 August 2024. 

SUBMISSIONS

5.	The Second Respondent submits that the procedure adopted by the Applicant is fundamentally flawed as the application for leave to review the Taxing Officer’s decision ought to have been by Notice of Motion in Form 11 of the National Court Rules as were pronounced by the Court per Injia CJ in PNG Aviation Services Pty Ltd v Michael Thomas Somare (2017) SC1590 and per Hartshorn J in Gire Gire Estates Ltd v Barava Ltd (2018) SC1675.  It was submitted that Order 12 Rule 37 of the Supreme Court Rules provided the exclusive procedure for a party aggrieved by the Taxing Officer’s decision to apply for review of the decision. The Application is therefore incompetent and be dismissed.

6.	The Applicant vigorously opposes the Objection to Competency.  He in essence submits that the Objection to Competency has no merit and should be dismissed as:

1.	All applications for interlocutory orders must be in Form 4 pursuant to Order 13 Rule 15 of the Supreme Court Rules; 
2.	The Objection to Competency which is in the nature of an interlocutory application is itself incompetent as it is not in Form 4 of the Supreme Court Rules;
3.	He has adopted and followed Form 4 in the Supreme Court Rules and the Application has substantially complied with the requirements of Order 12 Rule 37 of the Supreme Court Rules (relying on Graham v Klatt (2022) SC2287); and
4.	No prejudice has been caused to the Second Respondent. 

ISSUES

7.	The issues that fall for my determination are:

1.	Whether the Objection to Competency is competent?
2.	Whether the Application is incompetent? 

COMPETENCY OF OBJECTION TO COMPETENCY 

8.	The jurisdictional basis for filing the Objection to Competency are Order 7 Rule 15 and Order 11 Rule 28(a) of the Supreme Court Rules.

9.	An objection to competency of an appeal or an application for leave to appeal is made in Form 9 of the Supreme Court Rules pursuant to Order 7 Rule 15.  

10.	Order 11 Rule 28(a) of the Supreme Court Rules is an auxiliary provision which allows for the procedure for filing objections to competency regulated by Order 7 Division 5 (Rules 15-19) of the Supreme Court Rules to apply to other proceedings as the nature of the proceedings warrants:  Rai v Imbuni (2021) SC2080.  

11.	The Objection to Competency is in Form 9 and is properly before the Court. It is competent.

COMPTENCY OF APPLICATION FOR LEAVE TO REVIEW TAXED COSTS

12.	I adopt the Second Respondent’s submissions and in doing so, I concur with them.

13.	The procedure to invoke the jurisdiction of the Court to review certified costs is specifically set out under Order 12 Division 37 of the Supreme Court Rules which states:

"Division 37-Review of Taxation
37.(1) 	A Court or a Judge may review the decision of a Taxing Officer, only if the taxing officer has given a certificate in accordance with that decision.

(2) 	A party aggrieved by the taxed costs may, within 14 days from the date of issue of the Certificate of Taxation, apply to the Court or a Judge, for leave to review the taxing officer's decision, such application to be supported by affidavit and shall be served on the other party, 3 clear days before the date of moving the application.

(3) 	The application shall be made by Notice of Motion and supported by affidavit which shall, amongst other things, specify the list of items to which the applicant objects and must state concisely the nature and grounds of each objection."

14.	It is mandatory that the application is made by Notice of Motion.

15.	Neither Order 12 Division 37 nor any other provision of the Supreme Court Rules prescribe the form of the "Notice of Motion".

16.	In PNG Aviation Services Pty Ltd v Michael Thomas Somare (supra), Injia CJ found that the application to review costs was incompetent and said: 

"10. With regard to the second ground, there are several material defects in the application. First, the application is not titled "Notice of Motion" and does not conform to the standard requirements of a Notice of Motion. The application is titled "Application for Review of Taxation of Costs of 13 April 2017, pursuant to Order 12 Rule 37 (1), (2) & (3) of the Supreme Court Rules 2012".
11.The Supreme Court Rules do not prescribe the form of a Notice of Motion brought under O 12 r 37(3). However a standard form of Notice of Motion found in the National Court Rules, Division 5. O 4rr 37 - 40. 49 (8) & (10) and Form 11 can be adopted by virtue of O 2 r 1 (h) of the Supreme Court Rules….

12.Secondly, the application states "the second respondent appeals from the decision of the Taxing Master of the 13th April 2017.." and that the "grounds of Appeal are against findings of law and therefore do not require leave". Clearly the application for review is expressed as an appeal. It is not brought by a Notice of Motion seeking review of the taxing master's decision on costs.

13.Thirdly, the application does not seek leave to review the taxing master's certificate of taxation. There is no mention of the word "leave".

14.I am satisfied that the application is not in the prescribed form, it is defective in several material respects and is incompetent for that reason. For those reasons, the application is dismissed with costs to the appellants."

17.	In Gire Gire Estates Lid v Barava Ltd (supra), Hartshorn J in dismissing an application to review costs said: 

"8.  Further, the application should have been brought by notice of motion: Order 12 Rule 37(3) Supreme Court Rules and PNG Aviation Services v. Michael Thomas Somare (supra). It has not been. It has been brought by a purported amended application."

18.	The affidavit in support and not the Notice of Motion must specify the list of items to which the applicant objects and must state concisely the nature and grounds of each objection: see Luke v Maribu [2012] SC1188 per Injia CJ; Mathias Sapuri and Sylvester Lahe v The Medical Society of Papua New Guinea (2019) SC1910 per Batari J.

19.	The principles on objection to competency have been discussed in numerous judgments of the Supreme Court.

20.	In Alfred Kimbu v Serah Eme Pakira and Others (2023) SC2387 the Court relevantly said:

"11. Some of the relevant principles which apply when considering an objection to competency were summarized by the Court in Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431 and these are:

1 . An appeal may be incompetent if it does not comply with the requirements of the Supreme Court Act and or the Supreme Court Rules: Chris Haiveta v Paias Wingti (No.2) (1994) PNGLR 189.
….
3. The objection to competency must itself be competent, i.e., it must comply with the Supreme Court Rules: ...
…
5.A proper ground of objection to competency is one that goes to the Court's jurisdiction: Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (1980) SC185; Jeffrey Turia v Gabriel Nelson (2008) SC949, Talibe Hegele v Tony Kila (2011) SC1124; Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221. In PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717, Sakora, J held that an objection to competency must raise serious threshold issues concerning legality or viability or otherwise of a particular process."

21.	In Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646, the Court discussed its inherent power to address the issue of competency at any stage of the proceedings and said:

"25. Is there any proper basis upon which the Court can exercise its inherent power to address the question of competency notwithstanding the Second Respondent being non-compliant with Order 7 Rule 15? We have considered the decision of the Court in Sir Arnold Amet v Peter Charles Yama (2010) SC 1064 where at paragraphs 27 and 28, the Court held:

"27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors I1992] PNGLR 399 made that clear when it held:

"It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court."

22.	In Review pursuant to Constitution Section 155(2)(b) and Section 155(4) Application by Joseph Kintau, Acting Director, Civil Aviation Authority of Papua New Guinea (2011) SC1125 at [21], the Court said: 

"The requirement for strict compliance with procedures for bringing matters before the Supreme Court by way of appeal or judicial review application is well settled in this jurisdiction. An objection to competency in respect to the form of commencement of the appeal goes to the jurisdiction of the court to entertain the point. See, Pogera Joint Venture & Placer (PNG) Ltd v Joshua Siapu & Ors (2008) SC916.

23.	The Court does not have jurisdiction to hear an application if it does not comply with the mandatory requirements of the Supreme Court Rules: State v Kalaut [2022] SC2246.

24.	 The Applicant has failed to comply with the mandatory requirements of Order 12 Rule 37(3) in material respects and these are:

1.	The Application is not titled “Notice of Motion”, but is titled “Notice of Motion Application for Leave to Review Costs”;
2.	The Application does not conform with the standard requirements of a notice of motion in Form 11, but has adopted and followed Form 4 in the Supreme Court Rules contrary to the specific dictates of Order 12 Rule 37(3); and
3.	The Application attempts to specify the list of items to which the Applicant objects and state concisely the nature and grounds of each objection which ought to be set out in an affidavit supporting the Application. 

25.	The Applicant asserts that his affidavit in support specifies the list of items to which the Applicant objects and states the nature and grounds of each objection as required by Order 12 Rule 37(3), but that does not cure the clear and plain defect in the Application.    

26.	The Application does not comply with Order 12 Rule 37(3) of the Supreme Court Rules, ie, it must be by Notice of Motion in Form 11 of the National Court Rules pursuant to Order 2 Rule 1(h) of the Supreme Court Rules.

27.	In the present case, Order 12 Rule 1(h) is enlivened because; a form of a Notice of Motion is provided for by the National Court Rules, Division 5. O 4rr 37 - 40. 49 (8) & (10); while the application for leave to review the Taxing Officer’s decision is to be made by Notice of Motion under Order 12 Rule 37(3), the Supreme Court Rules do not prescribe the form of a Notice of Motion to be followed; and no order has been made as to the procedure to be followed:  Wamu Abari v Willie Gumaim (2020) SC1925 at [10].   

28.	The Applicant has adopted a procedure that is fundamentally flawed. 

29.	The Application is incompetent and must be dismissed.

30.	I will uphold the Objection to Competency.

COSTS

31.	Costs shall follow the event, ie, the Applicant shall bear the Second Respondent’s costs of and incidental to the Application and the Objection to Competency which shall be taxed, if not otherwise agreed. 

ORDERS

32.	I now make the following orders:

1.	The Second Respondent’s objection to competency moved pursuant to the Notice of Objection to Competency filed on 5 August 2024 is upheld.
2.	The Applicant’s “Notice of Motion Application for Leave to Review Costs” filed on 24 July 2023 is dismissed.
3.	The Applicant shall bear the Second Respondent’s costs of and incidental to the Applicant’s “Notice of Motion Application for Leave to Review Costs” and the Second Respondent’s Notice of Objection to Competency filed on 5 August 2024 which shall be taxed if not otherwise agreed.
4.	Time for the entry of these orders is abridged   

Judgment and orders accordingly.

______________________________________________________________
Thomas Serowa, self-represented Applicant
Ashurst PNG: Lawyers for the Second Respondent