SC2581

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 123 OF 2023

BETWEEN:
PACIFIC NETWORK SERVICES
LIMITED
Applicant

AND:
KOIARI WAN LIMITED
Respondent

Waigani: Gavara Nanu J, Hartshorn J, Narokobi J
2024: 26th March & 6th May

                       
SUPREME COURT – practice and procedure - Objection to competency - 

Cases Cited: 

James Marape v. Peter O'Neill (2016) SC1486 
National Development Bank Ltd v. Noka Builders Limited (2020) SC1953
Jay LW Contractors Ltd v. Covec (PNG) Ltd (2023) SC2498
Counsel:

Mr. S. Dewe, for the Appellant
Mr. L. Baida, for the Respondent

6th May 2024

1. BY THE COURT: Before the Court is the respondent’s notice of objection to competency. The objection raises eight grounds of challenge to the notice of appeal.

Background

2. The appellant appeals the dismissal of its National Court proceeding. The proceeding was dismissed for non-compliance with court directions and orders.

Application to amend the notice of appeal

3. In the course of the hearing before the Court, the appellant made an oral application to amend the notice of appeal by seeking that paragraphs 2(i) and 3.1 be struck out. The respondent objects to the application as no notice of the proposed application was given to the respondent and the respondent had filed its notice of objection to competency on the basis of the notice of appeal without amendment.

4. We are satisfied that this Court has the power to grant the orders sought pursuant to Order 11 Rule 11 Supreme Court Rules. Further, we are of the view that no prejudice will be caused to the respondent by the proposed amendment. Any prejudice which may be caused by the proposed amendment to the respondent will be adequately catered for by a costs order. Consequently, it is ordered that the notice of appeal is amended by paragraphs 2 (i) and 3.1 being struck out.

Objection to competency
5. In regard to the law concerning an objection to competency, we reproduce the following passage from James Marape v. Peter O'Neill (2016) SC1486, [7] - [9] which was repeated in National Development Bank Ltd v. Noka Builders Limited (2020) SC1953 at [6]:

"7. The wording of Order 7 Rule 15 Supreme Court Rules 2012 is clear. It concerns an objection to the competency of an appeal or of an application for leave to appeal. As this Court said in Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185, an objection to competency:
“.... is really an objection to the jurisdiction of the Court to entertain the point....”
8. As mentioned in Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1056, this decision has been referred to with approval in the cases of State v. John Talu Tekwie (2006) SC843 and Jeffrey Turia v. Gabriel Nelson (2008) SC949 amongst others.
9. More recently in Joseph Nandali v. Curtain Bros Ltd (2012) SCA No 14 of 2011 (Unnumbered and Unreported Judgment 4th May 2012), the Court said:
“Unless the effect of a notice of objection to competency is that, if upheld, this Court has no jurisdiction at all to entertain the appeal as instituted by the notice of appeal, the objection must be dismissed.”
and in Coca Cola Amatil ( PNG) Ltd v. Joshua Yanda (2012) SC1221 the Court said:
“The importance........ of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised.”"

6.  Further, in Jay LW Contractors Ltd v. Covec (PNG) Ltd (2023) SC2498,
the Court said at [8]:

“An objection to competency must demonstrate that all grounds of appeal are invalid. If one ground of appeal is identified as valid, the appeal is competent and the objection fails (Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205, Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201).”

7. We respectfully adopt the above statements of the law.

8. The first ground of objection, ground “A”, is that Order 7 Rule 9(e) Supreme Court Rules is breached as the notice of appeal does not cite the specific jurisdictional basis on which leave is not required. Order 7 Rule 9(e) states that, “The Notice of Appeal shall be in accordance with Form 8”. It does not require that any specific jurisdictional basis be cited. Further, Order 13 Rule 15 Supreme Court Rules which concerns the requirement to cite a concise statement of the court’s jurisdiction, applies to interlocutory orders. It is not stated that the rule applies when substantive or final orders are sought. This ground is refused.

9. As to grounds “B” and “C”, they complain about the notice of appeal not being filed in accordance with Form 8. With the notice of appeal being amended, we are satisfied that there is no merit in this complaint. These grounds are refused.

10. Ground “D” is no longer applicable. It concerns paragraph 3.1 of the notice of appeal. Paragraph 3.1 has been struck out. This ground is refused.

11. In regard to grounds “E”, “F”, “G” and “H”, they are all in respect of and complain about the notices of appeal raising purely questions of fact and so an application for leave to appeal should have been filed.

12. From a perusal of paragraphs 3.2 to 3.5 to which these grounds relate, these paragraphs are all concerned with and allege that the primary judge fell into error in the exercise of his discretion. In this regard we refer to the judgment in National Development Bank Ltd v. Noka Builders Limited (supra).  At [11], the Court said:
 
“ …. Second, in regard to the submission that the grounds of appeal raise issues of fact only, from a perusal of the grounds of appeal, none of them raise issues of fact only. We concur with the submission of NDB which is that the grounds of appeal allege an error in the exercise of discretion by not giving weight or sufficient weight to various facts or circumstances, or that in the circumstances the decision is plainly unjust. The submission that the discretion thereby miscarried, is an issue of law and/or mixed fact or law.” 

13. We are satisfied that in this instance paragraphs 3.2 to 3.5 of the notice of appeal raise questions of law or mixed fact or law and so an application for leave to appeal is not required. Grounds “E”, “F”, “G”, and “H” are refused.

14. Consequently, for the above reasons, the notice of objection to competency should be dismissed.

15. As referred to, given the amendments made to the notice of appeal without notice to the respondent, the order as to costs will reflect this.

Orders

16.  The Court orders that:

a)	The notice of appeal is amended by paragraphs 2 (i) and 3.1 being struck out.

b)	The notice of objection to competency filed 5th September 2023 is dismissed.

c)	The appellant shall pay to the respondent two thirds of the costs of the respondent of and incidental to the said notice of objection to competency, to be taxed if not agreed otherwise.

_____________________________________________________________
Jema Lawyers: Lawyers for the Appellant                             
Nelson Lawyers: Lawyers for the Respondent