Barava Ltd v Giregire Estates Ltd [2008] PGSC 46; SC958 (28 November 2008)

SC958

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 58 OF 2008

BETWEEN:

BARAVA LIMITED
First Appellant

AND:

RAGA KAVANA, as the Registrar of Titles of the Department of Lands and Physical Planning
Second Appellant

AND:

HON. PUKA TEMU, as the Minister for Lands and Physical Planning
Third Appellant

AND:

GIREGIRE ESTATES LIMITED
Respondent

Kokopo: Kirriwom J., Batari J. & Yagi J.

2008: 26th November
Waigani: 28th November 2008

PRACTICE AND PROCEDURE –– Judicial Review under Order 16 National Court Rules - Appeal against order granting leave – Objection to competency of appeal - No provision for objection to competency in respect to application for leave to appeal under Order 10 – Objection to competency dismissed - Supreme Court Rules, Order 10 Rule 14

Kenn Norae Mondiai & Anor v Wawoi Guavi Timber Co. Limited & 2 Others [2007] – SC 886 followed.

PRACTICE AND PROCEDURE – Power of Court – Ex parte application - Power of primary court to stay its own orders pending lodgement of appeal against its decision to higher tribunal – Primary court dispossessed and devoid of power over the matter once appeal is registered in appellate court – Functus officio – Order of National Court staying enforcement of its own orders following lodgement of appeal is set aside as irregular.

Facts:

The Respondent objected to competency of the application for leave to appeal filed by the Appellants contending that there is no reasonable cause of action disclosed in the application for leave and further that the application for leave is vexatious and abuse of the court process. The Appellants argued otherwise.

Held:

1. The objection to competency is dismissed.
2. The National Court stay order made ex parte on 27 July 2008 is set aside.
3. Each party to pay their own costs.

Cases Referred:

Kenn Norae Mondiai & Anor v Wawoi Guavi Timber Co. Limited & 2 Others [2007] – SC886
Ombudsman Commission of Papua New Guinea v Denis Donohue [1985] PNGLR 348 (SC306).
Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153 (N982)
R -v- Inland Revenue Commission, Ex-parte National Federation of Self Employed Small Business Ltd [1981] UKHL 2; (1981) 2 W.L.R. 722

Counsels:

Mr. P. Paisat, for the Appellants
Mr. N. Saroa, for the Respondent

28 November, 2008

RULING

1. BY THE COURT: This is a ruling on an objection taken by the Respondent in respect to competency of the application for leave to appeal filed by the Appellants.

2. The Appellants filed an application for leave to appeal against an interlocutory decision of the National Court at Kokopo made on 4 June 2008. There are several proposed grounds of appeal raised in the application for leave, however, it appears the fundamental issue raised by the Appellants in the appeal is in respect to alleged breach of principles of natural justice. Mr. Paisat appearing before the Court on behalf of the Appellants confirmed before us that the proposed appeal was against the order by the National Court granting leave for judicial review. He says the challenge is in fact on the question of whether the Respondent had sufficient interest in the subject matter for review. He argues that the trial judge erred by failing to accord to the Appellants an opportunity to be heard on the issue of whether the Respondent, the Plaintiff/Applicant in the National Court, had sufficient interest.

3. The proposed appeal arose out of proceedings for judicial review commenced under Order 16 of the National Court Rules. National Court Rules Order 16 Rule 3 (2) clearly provides that an application for leave shall be made ex parte to the Court. This rule is stated as follows:

"(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported -

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on." (emphasis added)

4. The Supreme Court has considered the effect of Rule 3 (2) of Order 16 in a number of cases and has consistently stated that except in certain circumstances, application for leave are intended to be heard ex parte. For example see Ombudsman Commission of Papua New Guinea v Denis Donohue [1985] PNGLR 385 (SC 306). Generally, the exceptions are provided for under statutes, for example s. 8 of the Claims By and Against the State Act 1996, however, in all other cases leave of the court is required. In Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153 (N982), it was held that an intervening party, with the leave of Court, may be allowed to be heard at the leave stage. However, where leave is granted, the intervening party should be restricted to making submissions only. With respect, we consider the principles pronounced in Diro’s case to be the correct exposition of the law.

5. Because of the special historical nature of the jurisdiction of the Court under Order 16, there is no automatic right to seek the relief or remedy which were traditionally known as the prerogative writs. One must first seek leave of Court before one is allowed to pursue a substantive right.

6. The case of R -v- Inland Revenue Commission, Ex-parte National Federation of Self Employed Small Business Ltd [1981] UKHL 2; (1981) 2 W.L.R. 722 has been cited with approval by the Courts in this jurisdiction. That case discussed the rational and necessity for the application for leave in judicial review to be heard ex parte. The often relied upon quote from Lord Diplock in that case explains, at page 739, the reasons in the following way:

"It’s purpose is to prevent the time of Court being wasted by busy bodies with misguided and trivial complaints of administrative errors and to remove the uncertainty in which the public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

7. The Supreme Court Rules, Order 7 Rule 14, gives to a respondent a right to object to the competency of an application for leave to appeal filed by an appellant. This rule states:

"14. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal—

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

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

8. The provision of Order 7 Rule 14 applies to all appeals except appeals under Order 10 of the Rules. This is because the procedure for appeals under Order 10 are specifically provided separately. Appeals under Order 10 relates to proceedings commenced under Order 16 and 17 of the National Court Rules.

9. However, there is no provision under Order 10 of the Supreme Court Rules relating to filing and serving of objections to competency of an appeal or application for leave to appeal.

10. This Court has held in Kenn Norae Mondiai & Anor v Wawoi Guavi Timber Co. Limited & 2 Others [2007] Unreported Supreme Court Judgment – SC886 that because there is no provision for objection to competency under Order 10, no such objection shall be filed. The Court in that case said:

"It was submitted for the Appellant’s, and we agree, that the Supreme Court Rules contain no provision for a Respondent to a Motion of Appeal under Order 10 to file a Notice of Objection to the Competency of the Appeal. For that reason we would dismiss the Objections to Competency. They have no basis under the Supreme Court Rules. The point has not been previously taken and ruled upon. In the future objections to competency should not be filed in respect of Order 10 appeals."

11. We cannot agree more with the view stated in Mondiai’s case which clearly expresses the law as it stands.

12. In this case we are also of the view that the Respondent will be relying on the same grounds in opposing the application for leave to appeal and thus will have the opportunity to raise these same issues at the leave application stage in this proceeding. It therefore makes no sense for the same grounds to be raised at two different stages of the proceeding. It is trite law that the competency issue remains alive right throughout the entire proceedings.

13. For the above reasons we dismiss the objection to competency by the Respondent.

14. There is however, a further matter that needs to be considered. At the end of the submissions, Mr. Paisat Counsel for the Appellants, produced a sealed copy of an order of the same judge of the National Court made on 27 July 2008 staying his orders made on 4 June 2008. The stay order was not served on the Respondent since being made contrary to the terms of the clause 5 of the order itself. Mr. Saroa, Counsel for the Respondent, was in fact surprised of the existence of the order. It is obvious that the stay order was made ex parte and it would appear that the Appellants are guilty of failing to comply with the terms of the order in terms of service.

15. A fundament and significant issue of concern to us, however, is that the stay order is highly irregular based on the facts and records before us. The facts are that on 4 June 2008, the National Court granted to the Respondent leave for judicial review. On granting leave, the National Court also issued a number of directions relating to further conduct of the proceeding. On 9 July 2008 the Appellants filed a notice of motion in the Supreme Court appealing against the decision of the National Court granting leave for judicial review. On application by the Appellant’s lawyers, the National Court made orders ex parte on 27 July 2007 staying the directions as regards the conduct of the proceeding.

16. With respect, we are firmly of the opinion that the National Court did not have the power, to make the stay orders. Once the appeal is filed and registered in the Supreme Court, the matter is seized by the Supreme Court; the National Court is dispossessed and devoid of any power over the matter and at that point became "functus officio". Consequently, the stay order purportedly made by the National Court on 27 July 2008 is invalid, null and void ab initio.

17. In view of this ruling, the onus is now on the Appellants to take appropriate steps as soon as is practicable in applying to the Supreme Court seeking orders to stay the orders made on 4 June 2008.

18. The orders of the Court are therefore that:

1. The objection to competency is dismissed.

2. The National Court stay order made ex parte on 27 July 2008 is set aside.

3. Each party to pay their own costs.

___________________________________________
Mane Isana Lawyers: Lawyer for the Appellants
Nelson Lawyers: Lawyer for the Respondent