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Supreme Court of Papua New Guinea |
SC2831
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA 24 OF 2025
BETWEEN:
LEMSON MABIRIA AND OTHERS
Appellant
AND:
NICKSON ALBERT HIWI AND OTHERS
Respondent
WAIGANI: LOGAN J, BERRIGAN J, KHAN J
29 AUGUST 2025
PRACTICE AND PROCEDURE – where the appellants commenced judicial review proceedings concerning a decision of the Minister for Provincial and Local-Level Government Affairs – where the appellants had costs ordered against them in that proceeding – where the respondents applied for those costs to become a judgment against the appellants – where the court ordered the costs become a judgment debt against the appellants – where the appellants filed a notice of appeal against the decision converting the costs into a judgment debt – where the appellants were not granted leave to appeal decision – where the respondents filed an objection to competency pursuant to Order 10 of the Supreme Court Rules – whether the notice of appeal should have been a notice of motion under Order 10 of the Supreme Court Rules – whether decision to enter judgment debt was interlocutory in nature – whether leave was required to appeal interlocutory decision – objection to competency of appeal on grounds the appeal was incompetent as it was not a notice of motion made under Order 10 of the Supreme Court Rules overruled – notwithstanding appeal dismissed as decision to convert costs into judgment debt was interlocutory and required leave where none granted.
Facts:
Cases cited
Mabiria v Hiwi (2023) N10264
Unas v Mumu [2025] PGSC13; SC2704
Counsel:
Mr Simbala for the appellant
Mr Harry for the respondent
1. LOGAN J: The origin of the difference between the parties to this proceeding lies in a decision of the then Minister for Provincial and Local-Level Government Affairs. That decision aggrieved the present appellants or perhaps more correctly purported appellants. They initiated what at least purported to be a judicial review proceeding, namely OS (JR) 94 of 2022 in the National Court. Thereafter, the following occurred:
(1) On 12 May 2023, the National Court made an order for costs on an indemnity basis in favour of the respondents: see Mabiria v Hiwi (2023) N10264.
(2) On 8 November 2024, as a sequel to the costs order of 12 May 2023, the respondents obtained from the Registrar a certificate of taxation in respect of their bill of costs arising from the costs order of 12 May 2023. That costs order as taxed and certified was in the amount of K94,540. The appellants were aggrieved by that certification. They filed what purported to be an application for the review of the taxing officer’s decision, not in the proceeding in which the costs order have been made, namely OS (JR) 94 of 2022 but rather by way of a separate proceeding, OS 317 of 2024.
(3) On 29 November 2024 the respondents applied in OS (JR) 94 of 2022 for the certificate of taxation to become a judgment. Provision is made in the National Court Rules by Order 22 rule 62 for such a conversion and that rule provides:
62. Judgement (52/63)
Where the amount of any costs has been certified under this Division the Court may, on motion by a party, direct the entry of such judgement for the costs as the nature of the case requires.
(4) On 25 February 2025 and with respect unremarkably, proceeding OS 317 of 2024 was dismissed summarily. I say with respect unremarkably because the means of challenging a certificate of taxation is by way of application for review of taxation under Order 22 Rule 60 of the National Court Rules. That application for review is made in the proceeding in respect of which the taxation decision has been made. However that may be, on 6 March 2025, upon an ex parte hearing and acting under order 22 rule 62 of the National Court Rules, the learned primary judge directed the entry of a judgment for the costs as certified.
(5) On 13 March 2025 the appellants filed a notice of appeal by which at least purportedly they sought to appeal against the direction for the entry of judgment made on 6 March 2025 and the related judgment as made on 6 March 2025.
(6) In turn and in response to the filing and service of that notice of appeal, the respondents filed on 26 March 2025 an objection to the competency of the appeal.
2. It is that objection which falls for hearing today. The objection is made by the respondents on the following grounds:
(1) The Appellants' notice of appeal filed 13 March 2025 against the National Court Order made 6 March 2025 in the judicial review proceeding OS (JR) No. 94 of 2022 contravened the mandatory requirement under Order 10 rule l(a) of the Supreme Court Rules which require that an appeal under this Order shall be instituted by a notice of motion and thereby is incompetent.
(2) The Appellants' notice of appeal filed 13 March 2025 contravened the mandatory requirement under Order 10 rule 3(b)(i) of the Supreme Court Rules in that it failed to annex to it copies of all documents which were before the Judge of the National Court appealed from and thereby is incompetent.
(3) The Appellants' notice of appeal filed 13 March 2025 contravened the mandatory requirement under Order 10 rule 3(b)(ii) of the Supreme Court Rules in that it failed to annex to it a copy of the order made that was certified by the Judge's Associate or the Registrar and thereby is incompetent.
(4) The Appellants' notice of appeal filed 13 March 2025 contravened the mandatory requirement under Order 10 rule 3( c) of the Supreme Court Rules in that it failed to be in accordance with Form 15, which did not annex copies of all documents before the National Court in sequence, a Certified copy of the Order of 6 March 2025 in OS (JR) No. 94 of 2022, and an affidavit in support of the motion, and thereby is incompetent.
3. As can be seen on the face of those grounds, they proceed from a premise that the relevant practice in respect of the initiation of an appeal against the order directing judgment be entered for the amount of the costs as certified was the practice set out in order 10 of the Supreme Court Rules. In particular, the point raised for the objector/respondents was that the initiating document, the notice of appeal, was not apt to invoke appellate jurisdiction. Rather, it was submitted that Order 10 rule 1(a) of the Supreme Court Rules was applicable such that the initiating document had to be a notice of motion.
4. It was common ground between the parties that if truly Order 10 governed the practice in respect of a challenge to the order of 6 March 2025, the appeal was incompetent because a notice of motion was necessary to invoke appellate jurisdiction. It is not necessary to canvass authority for that proposition. Suffice to say, the common ground between the parties reflects a settled decision on the authorities.
5. The subsidiary points taken in the objection each depended upon the correctness of the premise that the practice was governed by order 10 of the Supreme Court Rules in terms of a challenge. The subsidiary points included an absence of due certification, so it was said of the order under challenge by reason of an alleged violation of the certification requirement found in order 10 rule 3(b)(ii) of the Supreme Court Rules. Here, too, there was common ground between the parties. That common ground was that there were two lines of authority in relation to the meaning and effect of order 10 rule 3(b)(ii) of the Supreme Court Rules.
6. As to those two lines of authority, one may look no further than a recent judgment of the Supreme Court, Unas v Mumu [2025] PGSC13; SC2704 (28 February 2025), where the two lines of authority are comprehensively surveyed and a sharp difference of views as to the meaning and effect of that rule is exposed. Suffice it to say one line of authority supports a narrow view as to what constitutes certification for the purposes of Order 10 rule 3(b)(ii) and another line of authority supports a more liberal construction. For reasons which follow, I find it unnecessary to embark upon any consideration of those lines of authority.
7. Another issue in the proceeding in today’s hearing concerned whether or not there was hearsay evidence before us in relation to the objection. That truly with respect is a sterile issue in that the questions for resolution depend upon documents on the court record either of the National Court or of this court in relation to which we may admit the same upon a mere production and tendering. They were annexed for convenience to a lawyer’s affidavit. I refer in this regard to the order of the National Court of 6 March 2025 and the notice of appeal filed in this proceeding.
8. The argument for the objector/respondents proceeded from the submission that in Order 10 rule 1(a) of the Supreme Court Rules, the reference to an appeal under this order necessarily and materially was a reference to an appeal under Order 16. That submission was not in itself controversial between the parties and in my respectful view correctly so. The reference in Order 10 rule 1(a) to an appeal under this order is a reference to, in this case, materially, an appeal from an order made under Order 16 of the National Court Rules.
9. The next premise of the objector/respondents’ submission was more controversial. The submission was that so construed, Order 10 rule 1(a) embraced everything by way of order in the judicial review proceeding. In other words, it embraced not just the final order disposing of the judicial review application, but also and materially, the order made under Order 22 Rule 62 of the National Court Rules to direct entry of judgment as made in the judicial review proceeding.
10. That point is certainly in my view arguable but a tempering consideration to its acceptance as found in Order 10 Rule 5 of the Supreme Court Rules which provides: “Where leave to appeal is required pursuant to section 14 of the Supreme Court Act, application shall be made in Form 7.” Form 7 in the Supreme Court Rules is an application for leave to appeal. To me, that is a signpost that the practice for which Order 10 of the Supreme Court Rules provides is that the initiating process in respect of a judicial review proceeding depends upon whether the challenge is to the final order made in the judicial review proceeding or rather, whether it is a challenge to what is an interlocutory order requiring leave to appeal.
11. Support for that view is found also in Order 10 rule (1)(b) which provides: “Where the appeal lies only with leave, the provisions of Order 7 division 2 shall apply.” That may, of course, not be a complete answer in that if leave were given, it might be arguable that the appeal had nonetheless to be made by way of a notice of motion. But all of that is dependent upon acceptance of the proposition that an appeal against an order made under Order 22 rule 62 of the National Court Rules can be characterised as an appeal from an order made under Order 16 of the National Court Rules. Order 16 of the National Court Rules in its provision of practice in respect of applications by judicial review does not concern itself with the process by which an order for costs is taxed and then the subject after certification of a direction for entry of judgment. The costs practice is found in Order 22 of the National Court Rules insofar as Order 16 of the National Court Rules does not prescribe costs practice. The general costs practice for which Order 22 of the National Court Rules applies becomes applicable.
12. Given that, my conclusion is that the order of 6 March 2022 as made under Order 22 rule 62 of the National Court Rules was not in terms of Order 10 rule 1(a), an order made under Order 16 of the National Court Rules. What follows from that is that Order 10 rule 1(a) was not applicable. Rather, the order of 6 March 2025 is correctly characterised as an order under Order 22 rule 62 of the National Court Rules. It follows from that that it was not necessary to institute an appeal to file a notice of motion in respect of a challenge against that order.
13. What also follows from that is that all of the subsidiary points concerning alleged non-compliance with particular rules in Order 10 are not applicable. That being so, the grounds invoked by the objector/respondents to the competency of the appeal must fail.
14. I should add that another reason why I consider they must fail is that when one looks at the documents which, according to Order 10 practice must be annexed to the notice of motion, it becomes apparent that the notice of motion practice is directed to a challenge of the final order made on a judicial review proceeding. It does not, however, follow from this conclusion in my view that the appeal is competent.
15. The court raised with the parties in the course of the hearing of the objection whether even assuming that the grounds taken by the objector/respondents failed, the appeal was nonetheless incompetent because the order of 6 March 2025 directing entry of judgment upon the certified costs was an interlocutory order. It was common ground between the parties that if on its true characterisation, that order was an interlocutory order then the appeal was indeed incompetent because the appellants had not before filing their notice of appeal obtained a grant of leave to appeal.
16. The appellants in response to the court raising that issue submitted that the order of 6 March 2025 should be characterised as a final order for the purposes of section 14 of the Supreme Court Act such that leave was not necessary given that there were alleged errors of law. The difficulty about that submission and in my view it is a fatal difficulty is that the Order of 6 March 2025 did nothing more than translate an interlocutory costs order which had become the subject of a certification on taxation into a judgment in respect of an interlocutory order for costs.
17. The order of 6 March 2025 did not finally dispose of the judicial review proceeding initiated by the appellants. In my view, the order of 6 March 2025 is correctly characterised as an interlocutory order. That being so, leave to appeal was necessary. There being no grant of leave, the appeal is in my view incompetent for that reason.
18. If only for completeness, I should also make reference to a grievance sought to be voiced by the appellants concerning an alleged violation of section 59 of the Constitution constituted by a failure to afford an opportunity to be heard prior to the direction of the entry of judgment under Order 22 rule 62 of the National Court Rules.
19. It is not the case that each and every exercise of judicial power requires an opportunity to be heard to be afforded to a party. It depends on the circumstances of a given case. In this instance, all that occurred was a purely mechanical and procedural conversion of a certificate of taxation into a judgment by direction. That procedure is necessary in this jurisdiction to allow a party in whose favour costs as certified have been quantified with precision to avail of the various recovery remedies which hang off a judgment for a money sum, nothing more and nothing less.
20. I am, therefore, not persuaded in any event of the alleged grievance.
21. As to other grievances in relation to the certificate of taxation, the process ordained by the National Court Rules is a review proceeding in the original jurisdiction of the National Court under Order 22 rule 60 of the National Court Rules in the proceedings in which the relevant costs order and related certification on taxation have been made.
22. What follows from the foregoing, in my view, is that the appeal is indeed incompetent but incompetent for reasons not taken on the objection to competency. That being so, whilst I would dismiss the appeal, I would overrule the objection on the grounds taken. I would also order that there be no order as to costs on the basis that the appeal has been dismissed for reasons other than those taken by way of objection.
23. BERRIGAN J: I agree with the orders proposed by the president for the reasons given and have nothing to add.
24. KHAN J: Yes, I also agree with the reasons proposed by the president and I agree with all the observations made by him.
________________________________________________________________
Lawyers for appellant: VIJAY and Co
Lawyers for respondent: Harry Lawyers
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