National Executive Council v Nelson [2004] PGSC 15; SC766 (29 October 2004)

SC766

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 4 of 2004 & SCA 44 of 2004

BETWEEN:

NATIONAL EXECUTIVE COUNCIL
First Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND:

HON. PATRICK PRAUITCH, MP.
MINISTER FOR FORESTS
Third Appellant

AND:

NATIONAL FOREST BOARD OF PNG FOREST AUTHORITY
Fourth Appellant

AND:

DAVID S. NELSON
Respondent

WAIGANI : SALIKA, KIRRIWOM & LAY, JJ
2004 : 27 September & 29th October.

PRACTICE AND PROCEDURE – Supreme Court Rules - O7 Div 1 and 2 – Form 7 - O10 – Form 15 - National Court Rules O16 r11 –leave to appeal – appeal from grant of leave to review – National Court Rules – O16 r3 – leave required – interlocutory order - procedure for seeking leave.

Cases Cited:
Ombudsman Commission v Donohue [1985] PNGLR 346
Jeffrey Balakau v Ombudsman Commission of Papua New Guinea [1996] PNGLR 346
Application by Jeffrey Balakau [1998] PNGLR 437
The Rt. Hon. Sir Julius Chan v Ombudsman Commission of Papua New Guinea, Simon Pentanu, Joe Wagula, Ninchib Tetang & Gregory Toop (4/3/98) SC556
Sir Julius Chan v Ombudsman Commission (5/6/1998) SC557
Yakham v Merriam [1998] PNGLR 555
Garamut Enterprises Limited v Steamships Trading Co Limited (1999) SC625
SCR13/02 An Application by Anderson Agiru (2002) SC686

Facts:

The Respondent was granted leave by the National Court to review the Appellants decision to terminate his employment as Managing Director of the National Forest Board. The Appellants filed a Form 7 under the Supreme Court Rules seeking leave to appeal. They also filed a Notice of Motion by way of appeal pursuant to O10 of the Supreme Court Rules. The Respondent objected to the competency of the appeal because leave was sought by filing Form 7, because the O10 motion was filed out of time and because there was delay in serving both sets of proceedings.

Held:

Applying Garamut Enterprises Limited v Steamships Trading Co Limited (1999) SC625, leave is required to appeal from the grant of leave for judicial review under National Court Rule O16 r3. Form 7 is the proper procedure to adopt to seek leave. The application for leave is competent. The Notice of Motion appeal is premature. An application relating to delay should be brought in Form 11 and not in an Objection to Competency.

_______________________________________________

This is the hearing of a Notice of Competency filed by the Respondent in the proceedings entitled SMC 4 of 2004, an appeal pursuant to O. 16 r. 11 of the National Court Rules and O. 10 of the Supreme Court Rules, by way of Notice of Motion against the decision of the National Court to grant leave to the Respondent to review a decision made by the Appellants.

Background

On the 14th April 2004 the National Court granted leave for judicial review to proceed against the decision of the Third & Fourth Defendants made on the 16th of October 2003 revoking the Plaintiffs appointment as Managing Director of the National Forest Authority.

The Appellant sought to appeal against that judgment by filing an application for leave to appeal on the 6th of May 2004 which is entitled SCA 44 of 2004 pursuant to O. 7 Div. 1 of the Supreme Court Rules and a Notice of Motion by way of an appeal pursuant to O. 10 of the Supreme Court Rules was filed on 1st of June 2004 and those proceedings are entitled SCM 4 of 2004.

At the hearing Counsel for the Applicant Respondent said that although the Notice of Objection was entitled in relation to SCM 4 of 2004 only, he had come to Court on the understanding that the objection related to both SCA 44 of 2004 and SCM 4 of 2004. Counsel for the First, Second and Third Appellants said that they had also come to argue the objection in respect of both proceedings and Counsel for the Fourth Appellant said that his client would not be prejudiced if the Objection was argued in relation to both matters. The Court then proceeded to deal with the Objection to Competency as if it related to both sets of proceedings.

Submissions

The Applicant Respondent submitted that the Application for Leave to Appeal, whilst filed within the 40 days stipulated under s. 17 of the Supreme Court Act, did not conform with the requirements of O. 10 of the Supreme Court Rules and O. 16 r. 11 of the National Court Rules in that it was not a Notice of Motion in Form 15 of the Supreme Court Rules. And it was submitted the application did not have annexed to it the documents required by O. 10 (3)(a) and (b). Further the Respondent argued SCM 4 of 2004, commenced by a Notice of Motion by way of appeal, was filed outside the time allowed by s. 17 of the Supreme Court Act being filed some 47 days after the decision appealed from. Finally that there had been considerable delay in serving the Respondent with both sets of proceedings contrary to the requirement of O10 r11, 12 and 13.

The Respondent Appellants replied that O. 16 r. 11 of the National Court Rules is subject to s. 14 (3)(b) of the Supreme Court Act. They submitted an order granting leave to appeal for judicial review is not a final order but interlocutory and consequently leave is required to appeal from such an order . Because O. 10 of the Supreme Court Rules does not make provision for an application for leave to appeal, the provisions of O. 7 Div. 1 should be followed and the application in Form 7 should be filed. The Appellant argument went that the application was filed within time and the appeal so far was thus competent. If the application for Leave was determined in favour of the Appellants it was argued that the motion by way of appeal already filed could be amalgamated with the Application for Leave. Counsel for the Fourth Appellant also submitted that O. 10 of the Supreme Court Rules and Form 15 do not apply until leave is granted. He also submitted that leave must be granted by the procedures in O. 7 Division 1 and Form 7 of the Supreme Court Rules and this is confirmed by comparing & contrasting the different nature of Form 7 and Form 15.

Counsel for the Respondent and Counsel for the First and Second Appellants both submitted that leave was required for the appeal and we understood Counsel for the Third and Fourth Appellants to have adopted the submissions of Counsel for the First and Second Appellants.

The Law

The issue of whether or not leave is required to appeal from a decision to grant leave pursuant to O. 16 r. 3 of the National Court Rules or related issues have been argued before the Supreme Court on no less than five occasions. The first was in the case of Ombudsman Commission v Donohoe[1] a decision of Pratt, Amet, and Wood, JJ. The issue was not fully argued and the matter before the Court had been instituted before the Supreme Court Rules came into force. The Court was conscious of the fact that any observations it made "would not pose any problem of judicial comity for a subsequent Supreme Court." per (Pratt, J.) as a subsequent Court would be dealing with matters under the new Supreme Court Rules. Pratt, J. doubted that the Supreme Court Act s. 14 (3) was applicable and he was "unimpressed with the submission that a National Court Order may be treated as a final order and not as an interlocutory one." He finally concluded:

"although I am far from totally convinced of the applicability of the Supreme Court Act, s. 14 (3), in the circumstances such as the present, the matter is at least arguable and I would proposed the granting of leave but in the ultimate dismiss the appeal."

Amet, J. said:

"I agree with the comment of Pratt, J. in relation to this issue and treat the order as one ‘in the nature of a final decision’ under s. 14 (3)(b)(ii) of the Act as the jurisdictional basis for consideration of the substantive issues raised".

Woods, J. said:

"without creating a precedent as the matter is now covered by the Rules I would accept this appeal as an appeal under s. 4 and s. 14 of the Supreme Court Act for which leave is not required."

Their Honours were clearly of the view that the then newly introduce Supreme Court Rules would resolve the issue and that their decision would not be applicable in the future.

In Jeffrey Balakau v Ombudsman Commission of Papua New Guinea and Public Prosecutor[2] the Appellant appealed against the refusal of the National Court to grant leave, in accordance with the provisions O. 16 r. 3 of the National Court Rules, to apply for judicial review of the decision of the Ombudsman Commission, to refer allegations of misconduct in office by him to the Public Prosecutor. The matter came before the Supreme Court on an Objection to Competency one of the grounds of which was that " the Appellant did not apply for leave to appeal. Leave should have been sought, as all of the five grounds of appeal concern questions of facts." The first ground of the objection was that the appeal has been filed out of time and the Court found that the appeal was incompetent on that basis. The Court did not rule on the other grounds of objection. The Court specifically rejected the contention that Sections 14 and 17 of the Supreme Court Act did not apply to appeals by way of motion under O10 of the National Court Rules. The issue of whether or not leave to appeal was required was not addressed. The decision is therefore only authority for the proposition that Sections 14 and 17 of the Supreme Court Act apply to appeals under O10 of the National Court Rules. Subsequently leave to review pursuant to Constitution Section 155(2) was sought and refused: Application by Jeffrey Balakau[3]. The Court in that application did no deal with the issue of whether or not leave was required in the procedural situation before this Court.

In the case of The Right Honourable Sir Julius Chan v Ombudsman Commission of Papua New Guinea, Simon Pentanu, Joe N. Wagula, Ninchib Tetang and Gregory Toop[4] the principle ground of the appeal was that the learned Judge erred in setting aside the order of another Judge of the National Court granting leave to apply for judicial review pursuant to O.12 r.8 (3) & (5). The issue before the Court came by way of Objection to Competency of the appeal on grounds of (1) failure to comply with O. 10 of the Supreme Court Rules and O. 16 r. 11 of the National Court Rules (2) non compliance with s. 4 (2)(c ) and s. 14 (1)(c) of the Supreme Court Act and (3) non compliance with s. 14 (3)(b) of the Supreme Court Act (failure to seek leave). The Court dealt shortly with ground 3 simply saying:

"The third ground of objection to the competency of the appeal is that the judgement and orders of the National Court are interlocutory and Leave of the Supreme Court must be obtained under Section 14 (3) (b) of the Supreme Court Act. As leave has not been sought, the appeal is incompetent.

An order setting aside an order granting leave to apply for judicial review, is in our view a final order and not an interlocutory one. As envisaged by Order 16, Rule 11 of the National Court Rules where an appeal is to be made to set aside or discharge any order of the court or a judge granting or refusing an application for leave under Rule 3, the appeal is to be by way of motion under Order 10 of the Supreme Court Rules to the Supreme Court. The Order setting aside an order granting leave to apply for judicial review is substantive and final and not an interlocutory one requiring leave."

The day after this decision was delivered Sir Julius Chan v Ombudsman CommissonNo.2[5] was argued with the same Court and counsel. That Objection to Competency was disposed of by the Supreme Court solely on the basis that a grant of leave pursuant O.16 r.3 cannot be set aside by another National Court Judge pursuant to O.12 r8 (3 & (5). The Court there said:

"The order setting aside an order granting leave to apply for judicial review is a substantive and final and not an interlocutory one requiring leave .... We consider that O. 16 r. 11 of the National Court Rules and O. 10 of the Supreme Court Rules do provide an exclusive procedure for reviewing application for judicial review or application for leave. Indeed when O. 16 r. 3 and r. 11 and O. 12 and r. 8 (3)(b) read together it becomes clear that it was not intended the O. 12 r. 8 (3)(a) should apply as a alternative to O. 16 r. 11. We believe O. 12 r. 8 (3)(b) apply to ordinary inter parties actions when one of the parties was not present. An application for leave is not such an inter parties action."

The basis of those decisions is clearly confined to the question of jurisdiction to make orders under O12 r8(3)(b) and the decisions are not applicable to and do not deal with the questions before this Court.

In 1998 the Supreme Court delivered the decision in Yakam v Merriam [6] holding that when an Appellant had a right to appeal on some grounds of appeal but must seek leave in respect of others the Appellant must file Form 7 in respect of the grounds for which leave is sought and a separate Form 8 in respect of those grounds for which leave is not required. Amet, CJ. was of the view that the practice should apply to all civil and criminal appeals because Form 7 and 8 were applicable to use in both, although he acknowledged that view was obiter. Kapi, DCJ restricted his comments in respect of the requirement to file a Form 7 to those appeals where leave is required by s. 14 of the Supreme Court Act. In the circumstances of the case O. 10 of the Supreme Court Rules and O. 16 r. 11 of the National Court Rules were irrelevant and not considered.

That brings us to the case of Garamut Enterprises v Steamships Trading Co. Limited[7] a decision of Hinchliffe, Injia and Kirriwom, JJ. The Appellants appealed against a grant of leave for judicial review of decisions made by the Minister for Lands and the Physical Planning and Land Boards. The Respondent objected to the competency of the appeal. The Court said:

"We believe that this objection to competency must necessarily succeed on the question of leave being first obtained as is the requirement under section 14(3)(b) of the Supreme Court Act Ch.35, notwithstanding that this is an appeal under O.16 r.11 of the National Court Rules. And we express our reasons hereunder. The terms of Rule 11 are clear as it says "an appeal; from orders or judgments under O16 must proceed with by way of Notice of motion either to set aside or discharge any order of the national Court or judge granting or refusing an application for leave under Rule 3 or an application for judicial review". The rule does not say and nor can it be construed that leave must first be obtained to appeal against an order granting leave to apply for judicial review.

But O.16r.11 of the National Court Rules expressly refers to ‘an appeal ‘ under O. 10 of the Supreme Court Rules and construed in that context, it is our view that whilst O16.r.11 of the National Court Rules grants original power, it is directory only in that it is effected through the procedure stipulated in O.10 of the Supreme Court Rules which is the overall regulatory provision. And if one accepts this argument, then it logically follows that both O.16 r.11 of the National Court Rules and O.10 of the Supreme Court Rules are subject to Section 114(3)(b) of the Supreme Court Act ."

The court distinguish the case of The Right Honourable Sir Julius Chan v Ombudsman Commission of Papua New Guinea[8] because it held that the ratio of that case was really whether or not a National Court Judge could "entertain an application under O. 12 r. 8 (3)(a) to exercise jurisdiction over the same (dealt with by another judge) matter as if he were exercising his discretionary powers to set aside an ex parte order...."

The Garamut Enterprises Limited –v- Steamships Trading Co. Limited[9] decision was based on procedural circumstances identifical to those before us.

Subsequent to Garamut Enterprise –v- Steamship Limited the Supreme Court again discussed the issue in SCR 13/02: An Application by Anderson Aigiru[10]) Kapi, DCJ, Los, Salika, Sakora, Injia, JJ. That case was an application for judicial review under s. 155 (2)(b) of the Constitution of the decision of the National Court not to interfere with the recommendations of the Ombudsman amongst other penalties, that the Applicant be dismissed from office. In his judgment Injia, J. said:

"it is arguable whether an appeal under the Supreme Court Act against the decision of the National Court under National Court O.16 r. 3 lays as of right or by way of leave: see Ombudsman Commission v Donahu [1985] PNGLR 348. In my view the Supreme Court Rules made under the Supreme Court Act clearly permits any person aggrieved by the decision of the National Court made under the National Court Rules O. 16 r. 3 institute an appeal against the decision, as if it were of right

Ultimately the majority held that the application was incompetent because it was a clear abuse of s. 155 (2)(b) of the Constitution. Accordingly His Honour Justice Injia’s observation was obiter. It does not appear that the attention of the court was drawn to the decision in Garamut Enterprises v Steamship Trading Co Limited.

We therefore conclude that Garamut Enterprises v Steamship Trading Co. Limited is the only clear and binding statement of principle on the issue and it holds that leave is required to institute an appeal pursuant to O. 16 r. 11 of the National Court Rules and O. 10 of the Supreme Court Rule against the grant of leave. We re-affirm that finding and apply it in this case.

The Application for Leave

We must therefore resolve the issue argued before us, namely what is the proper manner of making application for leave in circumstances of the Appellant seeking leave to appeal from the interlocutory decision of the National Court under O. 16 r. 3. The alternatives put to us by Counsel being, by the Applicant Respondent, an appropriate amendment to Form 15 of the Supreme Court Rules, and for Appellant the procedure which was adopted namely an application in Form 7 of the Supreme Court Rules. We have concluded that this is a genuine case where there is no procedure set out in the Rules. Order 10 of Supreme Court Rules is clearly intended to be a complete and exclusive procedure for reviewing applications for judicial review as was found in Sir Julius Chan v Ombudsman Commission and approved in Garamut Enterprises v Steamships Trading Co Limited. However neither that Order nor Form 15 contemplate an application for leave. Neither O. 10 r. 3 nor r.4 important or apply any of provisions of O. 7 Division (1)&(2). This would have been an appropriate situation to make an application pursuant to O. 11 r. 9 which provides:

"Where a person desires to make and take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person must apply to a Judge for directions."

In our opinion it is still required following Yakam v Merriam to keep the procedure for making an application for leave separate from the appeal itself. It is therefore not appropriate to require an appellant to make a modification to Form 15 to incorporate the leave application. The desirable course is to adopt the procedure already set out in O. 7 Divisions 1 and 2.

For those reasons we find the proceedings entitled SCA 44 of 2004 to be competent. We find the filing of the Notice of Motion in proceedings entitled SCM 4 of 2004 to be premature.

As to the Applicant second ground of objection, namely the considerable delay in serving both sets of proceedings after filing; we find that as the Supreme Court Rules make specific provision for raising such an issue, it not appropriate be raised by an Objection to Competency and we reject it on that ground. If the Respondent wishes to raise that issue he should do so in accordance with the provisions of O. 7 r. 53, 54 and Form 11.

The order of the Court is that the Objection to Competency is dismissed. Costs of the Objection to Competency to be paid by the Applicant Respondent.
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Lawyers:
For the Applicant Respondent : Jerewai Lawyers
For the Respondent Appellants : Melanesian Legal Group

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^[1] [1985] PNGLR 346
^[2] [1996] PNGLR 346 per Amet CJ Kapi DCJ and Los J.
^[3] [1998] PNGLR 437 Amet CJ Kapi DCJ & Los J.
^[4] (4/3/1998) SC556 per Amet, CJ., Sakora, J and Sevua, J.
^[5] (5/6/1998) SC557 Amet CJ Sekora and Sevua JJ
^[6] [1998] PNGLR 555
^[7] [1999] SC625
^[8] Supra
^[9] Supra
^[10] (2002) (SC686