SC2645

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCA NO 2 OF 2024

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY 
THE HON. DOUGLAS TOMURIESA MP

Waigani: Kandakasi ACJ, Mogish J, 
Manuhu J, Yagi J, Kariko J
2024: 28th & 29th October

CONSTITUTION – s 18 application - practice & procedure - objection to competency of application - Supreme Court Rules, O11 r28(a), O 7 r15(a) - mandatory requirement to file objection within time limit – whether court has jurisdiction to hear objection filed late 

The Leader of the Opposition objected to a notice of objection to the competency of his application under s 18 of the Constitution, arguing that the notice was filed out of time and was not in proper Form. 

Held: 

1.	With regard to s 18 applications, the effect of O11 r28(a) and O7 r15(a) of the Supreme Court Rules read together is that an objection to the competency of an application shall adopt Form 9 and be filed within 14 days after service of the application.
2.	The wording of O7 r15(a) is clear – the starting day of the 14 days for filing of an objection is the date of service of the originating proceedings and not the date of grant of leave to intervene.
3.	Non-compliance with the relevant Rules relating to filing objections to competency renders the objection itself to be incompetent.
4.	The Court does not have jurisdiction to entertain an objection to competency which is itself incompetent for breaching the Rules.

Cases Cited:
Amet v Yama [2010] 2 PNGLR 87
Application of Hon Douglas Tomuriesa MP (2024) SC2610
Fayana v Waipo (2023) SC2389
Manda v Yatala (2005) SC795 
Maser v Salin (2021) SC2093 
Nominees Niugini Ltd v IPBC (2017) SC1646

Counsel:
L Giyomwanauri, for the Applicant
N Onom & A Serowa, for the First Intervener
W Mapiso, for the Second Intervener

29th October 2024

1.	BY THE COURT: The Leader of the Opposition, Hon. Douglas Tomuriesa MP, filed application under s 18(1) of the Constitution (Application) on 5 June 2024 seeking declarations and orders as to interpretation and application of provisions of the Constitution, particularly s 209 (Parliamentary Responsibility) and 211(Accounting,  etc, for public funds) in relation to the allocation of public moneys, funding and expenditure of moneys relating to the Connect PNG Economic Road Transport Infrastructure Development Programme, commonly referred to as the Connect PNG Programme. 

OBJECTION TO COMPETENCY

2.	Two issues were listed before us. The first was the applicant’s standing and the second was the competency of the Application. The issue of standing got resolved by consent resulting in a declaration by consent that the applicant has the necessary standing. 

3.	After the declaration on standing, the first intervener, the Attorney General, argued his Notice of Objection to the competency of the Application (Objection) filed on 8 August 2024. The second intervener, the Secretary of the Department of Works & Highways, supported the Objection.

4.	In brief, the interveners contended that the facts pleaded in the Application do not give rise to constitutional issues that justifies this Court invoking its jurisdiction under s 18 of the Constitution. 

5.	In their written submissions, the first intervener concluded at [19] “... it is our submission that the Applicant has failed to raise significant Constitutional issues to invoke the jurisdiction of the Supreme Court under section 18(1) of the Constitution...”. The second intervener concluded at [27] “In our considered submission, the application can be best described as hypothetical or merely academic exercise or futility (sic)”. 

6.	The applicant argued to the contrary in his response, but he first submitted that the Objection was itself incompetent because:

•	It was filed outside of the 14 days time limit prescribed under the Supreme Court Rules; and
•	It did not conform with the requirements of the Supreme Court Rules regarding form and content. 

CONSIDERATION

7.	O11 r28(a) and O7 r15(a) of the Supreme Court Rules are relevant in discussing the filing of the Objection.

8.	O11 r28(a) states:

The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary: 
(a) 	Order 7 Division 5 (Objection to competency); 
(b) 	...

9.	O7 r15 provides (with emphasis added): 

A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service of the notice of appeal or application for leave to appeal— 
(a) 	file an objection in accordance with Form 9; and 
(b) 	... 

10.	With regard to s 18 applications, the effect of the two Rules read together is that an objection to the competency of an application shall adopt Form 9 and be filed within 14 days after service of the application.

11.	The Application was served on the first intervener on 6 June 2024 meaning that the Objection should have been filed by 20 June 2024, but it was instead filed on 8 August 2024, 49 days late – quite an inordinate delay.

12.	The applicant pointed out that even if the requisite 14 days was computed from the date the first intervener was granted leave to intervene (2 July 2024), the Objection was filed late by 23 days. 

13.	The wording of O7 r15(a) is clear – the starting day of the 14 days for filing of an objection is the date of service of the originating proceedings and not the date of grant of leave to intervene. This is contrasted with O4 r25 of the Supreme Court Rules which distinguishes between an original party (to an application under s 18 of the Constitution or a reference under s 19 of the Constitution) and a party granted leave to intervene, concerning the time for filing of a notice of appearance and a statement of response. For an original party, it is 14 days after service of the originating process, while it is 14 days after the grant of leave for an intervener. 

14.	Notwithstanding the late filing of the Objection, the interveners urged the Court, in the exercise of its inherent jurisdiction to control its processes, to nevertheless entertain the Objection as competency issues go the question of the Court’s jurisdiction to hear a matter. It was argued that competency issues can be raised at any stage of proceedings (Amet v Yama [2010] 2 PNGLR 87) and may be raised late if there are good grounds for the objection (Application of Hon Douglas Tomuriesa MP (2024) SC2610). 

15.	However, Amet v Yama refers to the Court’s power to raise competency issues and it is not authority for the proposition that an objection to competency may be made outside any time limit for objecting. Application of Hon Douglas Tomuriesa MP (supra) is distinguishable from the present case. That case involved an amended Notice of Objection. The original Notice was filed within time. 

16.	 There have been numerous decisions of the Supreme Court that have stressed the importance of complying with mandatory provisions of the Supreme Court Rules. Non-compliance with the relevant Rules relating to filing objections to competency renders the objection itself to be incompetent. Cases which have affirmed this statement include Manda v Yatala (2005) SC795, Maser v Salin (2021) SC2093 and Fayana v Waipo (2023) SC2389, referred to by the applicant. These cases concern appeals but the principles are similarly applicable to s 18 applications.

17.	We endorse the following remarks of the Supreme Court about O7 r15 in Nominees Niugini Ltd v IPBC (2017) SC1646 at [22] and [23] which we consider relevant and applicable to the present case: 

22. 	...Order 7 Rule 15 is quite explicit and unambiguous and couched in mandatory terms by the use of the word "shall". The rule requires that any objection to the competency of an appeal "shall" be filed "within 14 days after service on him of the notice of appeal". The rule plainly and ordinarily does not give any discretion or power on the Supreme Court to extend the fourteen days period.

23. 	The other view advocating the discretionary approach adopted by the Second Respondent seems to equate the inherent power of the Court as the source of the discretion. We think that is a misconception. We are of the view that the inherent power of the Court is independent to the statutory power given by Order 7 Rule 15 which is in mandatory terms and gives no discretion or power on the Supreme Court to extend the fourteen days period.
(Emphasis added)

18.	After referring to the above remarks, the Supreme Court in Maser v Salin (supra) continued at [7]:

The Court therefore also has inherent power to consider competency at any stage of a proceeding but before judgment for possible abuse of process, this is discretionary. But where a respondent decides to object to the competency of an appeal or an application for leave to appeal, the respondent must comply strictly with the mandatory requirements of Order 7 r 15. The Court would lack jurisdiction to entertain an objection to competency which is itself incompetent for breaching these Rules and for abuse of process, as in this case. The improper use of the court processes is an abuse of process. See, Michael Newell Wilson v. Clement Kuburam (2016) SC1489.
(Emphasis added)

19.	In the result, we find the Objection incompetent for being filed out of time, and we deem it not necessary to address the other submissions of the applicant regarding the Objection. 

ORDER

20.	The Court orders that:

(1)	Objection to competency filed 8 August 2024 by the first intervener is dismissed for being itself incompetent. 
(2)	Costs will follow the event.
(3)	The proceedings are adjourned to the Registry to be listed for directions hearing to progress the substantive application to hearing. 
________________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Palem Onom Lawyers: Lawyers for the First Intervener
Guardian Legal Services: Lawyers for the Second Intervener