SC2688

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 12 OF 2023

RONALD MEKETA in his capacity as Acting Managing Director of the National Energy Authority 
First Appellant

AND 
JOSEPH GABUT in his capacity as Chairman of the
National Energy Authority Board 
Second Appellant

AND
THE NATIONAL ENERGY AUTHORITY
Third Appellant

AND
THE NATIONAL ENERGY AUTHORITY BOARD
Fourth Appellant

AND
REBECCA OGANN KIAGE
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: DAVID J, BERRIGAN J, ELIAKIM J
19 DECEMBER 2024; 17 JANUARY 2025

APPEAL – OBJECTION TO COMPETENCY –. application to dispense with strict requirements of the Supreme Court Rules in relation to filing and service of  objection to competency and if successful file an amended notice of objection to the competency of an appeal out of time - time limits contained in Order 7 Rule 15 for the filing and service of objection to competency are mandatory in nature - the rule plainly and ordinarily does not give any discretion or power on the Supreme Court to extend the prescribed time limit – application dismissed with costs - Supreme Court Rules, Order 7 Rule 15, Order 11, Rules 25 and 28(a).

Cases cited
Manda v Yatala (2005) SC795
Yama v Singirok (2020) SC1982
Maser v Salin (2021) SC2093
Fayana v Waipo (2023) SC2389
Application by the Hon. Douglas Tomuriesa MP (2024) SC2645

Counsel
G Kogora for the appellants 
J Napu for the first respondent

DECISION ON APPLICATION

1.	BY THE COURT:  This is a decision on an application to dispense with the strict requirements of the Supreme Court Rules in relation to filing and service of an objection to competency and if successful file an amended notice of objection to the competency of an appeal out of time. 

2.	The application is made pursuant to Order 11, Rules 25 and 28(a) of the Supreme Court Rules, which provides that a party dissatisfied with a direction or order given by a Judge under the Supreme Court Rules may, upon notice to the other parties in the proceedings, filed and served within 21 days of the making of direction or order, apply to the Court which may make such order as appears just.

3.	In particular, the First Respondent applies pursuant to Order 2 Rule (1)(h) of the Supreme Court Rules invoking Order 1, Rule 7 of the National Court Rules and seeks to have the requirements for filing and service of a notice of objection to competency within 14 days dispensed with.

Background

4.	The Appellants filed an appeal pursuant to Order 10 of the Supreme Court Rules by way of notice of motion, which was served on the Respondent on 13 July 2023. The First Respondent filed and served her objection to the competency of the appeal on 19 July 2023, within the 14-day period prescribed under Order 7 Rule 15 of the Supreme Court Rules.

5.	On 9 October 2024, the First Respondent filed an application seeking leave to have the requirements for filing and service of a notice of objection to competency within 14 days dispensed with to allow an amended notice of objection containing additional grounds to be filed within 7 days. The application was refused by a single judge of the Supreme Court on 7 November 2024.

6.	The First Respondent now makes the same application before us.

Consideration

7.	The application is refused.

8.	It is well established that the time limits contained in Order 7 Rule 15 are mandatory in nature:  Manda v Yatala (2005) SC795; Maser v Salin (2021) SC2903; Fayana v Waipo (2023) SC2389; and Application by the Hon. Douglas Tomuriesa MP (2024) SC2645. 

9.	It follows that the question of dispensation of the Rules does not arise.  As the Court said in Application by the Hon. Douglas Tomuriesa MP(supra) at [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.

10.	Whilst a party who fails to comply with the mandatory requirements of the Rules may seek leave of the Court to raise an objection going to jurisdiction at any time any such exception must be one that demonstrates unequivocally that the Court has no jurisdiction: Yama v Singirok (2020) SC1982 per Cannings J at [96], Salika CJ, Batari J and Mogish J agreeing and the cases since applying. 

11.	The proposed additional grounds are not before us. Whether or not the First Respondent will be permitted to raise them at the hearing of the objection to competency or the hearing of the appeal itself is not for us to determine on this application.

ORDERS

12.	We make the following orders:

(1)	The application is dismissed.
(2)	The First Respondent shall pay the costs of the Appellants on the application to be taxed if not otherwise agreed.
(3)	The matter is remitted to the Registry for listing.
________________________________________________________________
Lawyers for the appellants: Holingu Lawyers		
Lawyers for the first respondent: Napu & Company Lawyers