Manda v Yatala Ltd [2005] PGSC 22; SC795 (12 August 2005)

SC795

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 24 of 2003

GREGORY PULI MANDA
(Appellant)

v

YATALA LIMITED
(First Respondent)

AND

DARYL HASTE
(Second Respondent)

Waigani: Injia DCJ, Hinchliffe & Mogish, JJ
2005: 29th June
2005: 12th August

APPEALS - Appeal to Supreme Court- Practice and Procedure- Objection to competency- Failure to file within time limited-Whether discretion to allow- Supreme Court Rules, O 7, r 14

Held: Or. 7 r 14 of the Supreme Court Rules does not give a respondent, who has failed to file an objection within the prescribed period of fourteen days a right to raise questions of incompetence on the hearing of the appeal. Lowa –v- Akipe [1991] PNGLR 112; The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448 approved.

Cases cited:
Lowa –v- Akipe [1991] PNGLR 112
Bruce Tsang -v- Credit Corporation (PNG) Ltd [1993] PNGLR 112
Haiveta v Wingti (No 1) [1994] PNGLR 160
The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448.

Counsel:
Mr. W. Thomas for the Appellant
Mrs. J. Murray for the Respondent

BY THE COURT: The Appellant filed an Application for Leave to Appeal against the decision of the National Court on the 21st March 2003.

On the 25th October 2004 the Respondent filed a Notice of Objection to the Competency of the Application for Leave to Appeal. Their objection was made on the ground that the questions and reasons for the application for leave were all questions of law and therefore leave was not required.

Mr. Thomas, for the Appellant argued that the Respondent’s Notice of Objection was in itself incompetent because it did not comply with the mandatory provisions of Order 7 r 14 of the Supreme Court Rules. He relied on the case of Lowa –v- Akipe [1991] PNGLR 112 to support his contentions.

Mrs. Murray for the Respondent conceded that the Objection was filed outside the fourteen days. However she argued that the Supreme Court still has discretion. She referred the Court to the cases of Bruce Tsang -v- Credit Corporation (PNG) Ltd [1993] PNGLR 112 and Haiveta v Wingti (No 1) [1994] PNGLR 160.

The issue is whether the Supreme Court has a discretion to allow a respondent to file Notice of Objection to Competency outside the fourteen days time. Order 7 r 5 states:

"Division 5.- Objection to competency of appeal

14. A respondent who objects to the competency of an appeal, or of an application for leave to appeal, shall, within 14 days immediately after service upon him of the Notice of Appeal-

(a) file an objection in accordance with form 9; and

(b) serve a copy of the objection on the appellant." (our emphasis)

The application of Order 7 r 14 has been previously considered by the Supreme Court. In Lowa v Akipe [1991] PNGLR 265 the respondents sought to raise an objection to the competency of several consolidated appeals pursuant to O 7, r 14 of the Supreme Court Rules. The appellants argued that the notice of objection was incompetent because it was filed outside the period of fourteen days. In dismissing the objection, Kapi DCJ (as he then was) in particular said at p. 286:

"A respondent has a right to be heard on an objection to the competency of an appeal if he files the objection and serves notice of the copy of the objection on the appellant within fourteen days after service on him of the notice of appeal. The court is bound to hear the objection either before or at the hearing of the appeal. If he does not file the objection to competency of the appeal within the fourteen days, he does not have any right to be heard. The Rules of the Supreme Court do not provide for any power in the court to extend the fourteen days period. See The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448."

With respect we endorse His Honour’s views. The terms of Rule 14 above are explicit and encroached in mandatory terms by virtue of the word "shall". In our view there cannot be any room for ambiguity. Any objections to the competency of an appeal "shall" be filed "within 14 days immediately after service upon him of the Notice of Appeal". There is no discretion on the Supreme Court to extend the fourteen days period. The cases of Bruce Tsang -v- Credit Corporation (PNG) Ltd and Haiveta v Wingti did not specifically deal with O. 7 r 14 of the Supreme Court Rules and to that extent are not relevant on the issue before us.

In the present appeal, the respondents filed their objection one year and six months after being served with the copy of the Notice of Appeal. Clearly they have breached the mandatory requirements of O 7 r 14 of the Supreme Court Rules. They cannot as a matter of right raise the question of objection now.

For these reasons we dismiss the objection to the competency of the Application for Leave to Appeal. Having reached this conclusion, it is not necessary in our view to determine the merits of the objection argued before us.

We award costs of the objection to the Appellant.
__________________________________________________________
Lawyer for the Appellant: Warner Shand Lawyers
Lawyer for the Respondent: Henoes Lawyer