Amaiu v Kipalan [2009] PGSC 14; SC991 (6 July 2009)

SC991

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 56 OF 2009

BETWEEN:

TOM AMAIU
Appellant

AND:

SIR ALBERT KIPALAN & OTHERS
Respondents

Waigani : Injia, CJ
2009 : June 26th, July 6th

SUPREME COURT – Practice & Procedure - Jurisdiction – Whether a single Judge of the Supreme Court has jurisdiction to deal with an objection to competency of an application for leave to appeal – Supreme Court Act (Ch. No. 37), s 10(1)(a); Supreme Court Rules 1984, O 7 r16.

Counsel:

N. Kubak, for the Appellant
M. Kambao, for the Respondents

6th July, 2009

1. INJIA, CJ: By notice filed under O 7 r15 of the Supreme Court Rules 1984 (SCR), the respondents object to the competency of the Application for Leave to Appeal (leave application) filed herein. A preliminary procedural issue arises as to whether a single Judge of the Supreme Court (a Judge) has jurisdiction to deal with an objection to the competency of a Leave Application (competency objection). The issue arises from the wording of O 7 r 16 of SCR. Counsel argued the issue before me on 26th June 2009 and I reserved my ruling to this afternoon which I now deliver.

BACKGROUND OF ISSUE

2. The power of the Supreme Court to grant leave to appeal is given by s 14(4) in respect to civil appeals and s 22(c) and (d) of the Supreme Court Act (Ch. No. 37) (the Act) in respect to criminal appeals.

3. Section 162(2) of the Constitution provides that in "such cases as are provided for or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that court, or by a number of Judges sitting together." Section 184 of the Constitution gives the Judges the power to make rules of the Supreme Court to govern the practice and procedure in respect of any matter within its jurisdiction. Section 41 of the Supreme Court Act (Ch. No. 37) (the Act) also gives the Judges the same power. If a rule of the Court is inconsistent with a provision of an Act of the Parliament, "the rule ceases to have effect to the extent of the inconsistency.": s 185(4) of the Constitution.

Section 10(1)(a) of the Act gives the Supreme Court power to grant leave to appeal to a single Judge of the Supreme Court in the following terms:

"10. Powers that may be exercised by Judge:

(1) Any power of the Supreme Court under this or any other Act—

(a) to give leave to appeal; or

(b) ............

(c) ............

may be exercised by a Judge in the same manner as it may be exercised by the Court."

5. Section 10 of the Act makes no provision on the competency of a leave application, the procedure for dealing with a competency issue and the jurisdiction of the Supreme Court or a single Judge of the Supreme Court to deal with competency issues arising in a leave application. These matters are provided for or under the SCR.

6. SCR, O 7 Div. 5 (rr 14 – 18) sets out the procedure for a respondent to file and serve a notice of objection to competency of a leave application and the Court that deals with the objection. Rules 14 – 18 state:

"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 after service on 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 applicant.

15. Any party may file affidavits.

16. An objection of which notice has been given shall be determined by the Court at or before the hearing of the appeal or of the application for leave to appeal as the Court thinks proper.

17. Upon the hearing of the application the burden of establishing the competency of the appeal is on the applicant.

18. If notice of objection is not given and the appeal or the notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the Court on special grounds orders otherwise." (my emphasis).

7. The word Court is defined in SCR O 1 r 7(a) to mean the ‘Supreme Court’. A Judge is defined in O 1 r7 (a) to mean a ‘Judge of the Supreme Court’. It is generally understood by parties and practitioners that where the word a Judge is used in the SCR, it means a single Judge of the Supreme Court and where the word Court is used, it means the Supreme Court constituted by a number of Judges.

8. The issue before me arises from the word Court in O 7 r 16 which appears in O 7 r 16 and the absence of the word a Judge in that rule. On a literal reading of r 16, the objection is determined by the Supreme Court constituted by a number of Judges; it is not determined by a single Judge of the Supreme Court. It is this reading of this rule that may have prompted the general practice that a competency objection under O 7 r 16 is usually listed before the Supreme Court constituted by a number of Judges and determined by that Court.

ARGUMENTS OF COUNSEL

9. It is submitted by Mr. Kubak of counsel for the appellant that s 10(1)(a) of the Act gives a single Judge the jurisdiction to entertain an application for leave to appeal. Order 7 r 16 should be read subject to s 10(1)(a) of the Act so that to the extent of any inconsistency, s 10(1)(a) should prevail. There is no inconsistency in that the Court in O 7 r 16 should be read as inclusive of a Judge of the Supreme Court. A Judge having jurisdiction to deal with an application for leave under s 10(1)(a) must have jurisdiction to deal with an objection to competency of the application for leave. Although Mr. Kubak was unable to cite any case directly on point, he referred to two (2) published decisions of the Supreme Court in which a single Judge dealt with competency objections in the course of dealing with the leave application.

10. It is submitted by Mr. Kambao of counsel for the first respondent that whilst a Judge has jurisdiction to entertain an objection to competency of the leave application, it is beyond his or her jurisdiction to determine an objection which has the effect of determining the substantive leave application.

11. Mr. Bokomi of counsel for third (3rd) respondent submits that O 7 r 16 confers jurisdiction on the Supreme Court constituted by a number of Judges to deal with a competency objection. In the absence of an express provision in s 10 of the Act conferring jurisdiction, a single Judge should not usurp the Supreme Court’s exclusive jurisdiction conferred by O 7 r 16 to deal with competency objection. The rules are made collectively by Judges under s 184 of the Constitution and it is binding on this Court. The prevailing practice where competency objections on a leave application are dealt with by the Supreme Court should not be disturbed.

DETERMINATION OF ISSUE

12. Counsel were unable to cite any case on point. In my brief research I am unable to locate any case on point. It seems to me that the issue has not been decided previously by the Supreme Court.

13. The answer to the issue lies in the interpretation of the words Court and a Judge in SCR, O 7 and the application of s 10(1)(a) of the Act in terms of the Supreme Court’s ordinary or inherent jurisdiction to deal with procedural matters relating to the competency of the leave application.

14. In my view the words Court and a Judge as used in O 7 r 16 are used in their generic sense to refer to the Supreme Court which determines the competency objection. The words are not used in an exclusionary sense, to limit the exercise of the power to deal with a competency objection depending on how the Supreme Court is constituted, whether constituted by a single Judge or a number of Judges. In terms of composition of the bench, the word Court in O 7 r 16 could equally mean the Supreme Court constituted by a single Judge or a number of the Judges.

15. Elsewhere in O 7 the word Court is used to also mean a Judge of the Supreme Court which determines a leave application by virtue of s 10 of the Act. The SCR also use the words Court and a Judge interchangeably. For instance, in O 7 r 5 provides:

"5. When leave to appeal has been granted, the Supreme Court may treat the notice of application for leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow."

16. Given that by virtue of s 10(1)(a) of the Act leave may be granted by a single Judge or the Supreme Court constituted by a single Judge or a number of Judges, the reference to the Supreme Court in this rule is inclusive of both a single Judge or the Supreme Court constituted by a number of Judges which granted the leave. The latter part of this rule reflects the wording of s.17 of the Act in relation to extension of time to file a notice of appeal and the distinction is of no relevance here. If the first part of this rule were literally applied against the definition of a Court in O 1 r 7(a), the words "Supreme Court" as used in O 7 r 5 would have the same meaning as a Court in O 1 r7(a) and that would preclude a single Judge from granting a leave application or where leave has been granted by a single Judge, the matter would then have to be referred to the Supreme Court constituted by a number of Judges to grant leave to treat the application for leave as the notice of appeal. This would result in an absurdity.

17. In my view, the use of the word Court in O 7 r 16 should be read subject to and consistent with s 10(1)(a) which is the source of the primary power exercised by the Supreme Court or Court constituted by a single Judge. The exercise of that primary power involves determination of procedural matters which are part and parcel of the exercise of the primary power. The hearing and determination of leave applications under s 10(1)(a) of the Act involves determination of procedural issues arising in the particular case before the Judge and those include competency issues. I do not believe the small number of Judges who promulgated O 7 r 16 in 1984 would have intended that this rule would preclude a single Judge dealing with a leave application to decline jurisdiction to deal with a competency issue raised by a respondent under O 7 r 15, stop the proceedings and refer the competency issues to the Supreme Court constituted by a number of Judges. In my view the only proper workable reading of the word Court in O 7 r 16 is that it was simply used to described the Supreme Court in a generic sense as inclusive of the Supreme Court as constituted under s 10(1)(a), whether constituted by a single Judge or by a number of Judges.

18. In my view, in a case where an objection to competency of a leave application is filed, the competency issues raised in the objection is part and parcel of the primary jurisdiction given to a single Judge by s 10(1)(a) to deal with a leave application. The primary jurisdiction given to a single Judge of the Supreme Court by s 10(1)(a) includes the power to deal with competency issues arising thereto and this includes an objection to competency of a leave application. The single Judge should assume jurisdiction to deal with the competency objection by virtue of s 10(1)(a) and the inherent power or jurisdiction of the Supreme Court constituted by a single Judge which is dealing with the leave application.

19. SCR, O 7 Div. 5 provides the procedure for a respondent to object to the competency of a leave application. It does not provide the procedure in a case where the Court of its own motion raises a competency issue. Competency issues are threshold procedural issues which relate to the jurisdiction of the Court to entertain the point: Whagi Savings and Loans Society Ltd v Bank of South Pacific Ltd (1980) SC 185. The Court’s power to raise competency issues with the parties and determine those issues is in the ordinary or inherent jurisdiction of the Judge or Court which is possessed of primary statutory power or jurisdiction to deal with a particular matter. This power or jurisdiction may be exercised in a particular case at any stage of the proceedings up to judgment: Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC 828. Even if parties do not raise competency issues, they may be raised by the Court of its own motion and after hearing the parties, may determine those issues.

20. For these reasons I hold that a single Judge of the Supreme Court dealing with leave applications has jurisdiction to entertain an objection to competency of the leave application filed under O 7 Div. 5 (rr 14 – 18) of the Supreme Court Rules.

21. In the alternative, pursuant to the power given to a Judge of the Supreme Court by s 185 of the Constitution, in the absence of any express provision in SCR giving a single Judge jurisdiction to deal with a competency objection filed under O 7 Div. 5, the Judge may, as a matter of course, issue an ad hoc direction to assume jurisdiction to deal with and determine the competency objection.

22. Finally it goes without saying that if the competency objection is upheld and the leave application is dismissed, the appellant has recourse to the Supreme Court under s 10(2) of the Act.

CONCLUSION

23. In my view the jurisdiction to deal and determine competency issues pertaining to a leave application are procedural matters in the inherent jurisdiction of the Judge or Court which is possessed of primary jurisdiction to deal with and determine a leave application. For these reasons, I am of the view that a single Judge of the Supreme Court has jurisdiction to deal with and determine an objection to competency of a leave application filed under SCR O 7 Div. 5.

CONSEQUENTIAL – SC PRACTICE

24. As a result of this ruling, the current general practice for dealing with competency objections in respect of leave applications will change. Notices of objection filed from hereon will be listed before a single Judge of the Supreme Court for hearing and determination. If parties feel there are some substantive issues of procedural law or for other special reasons they feel the objection should be determine by the full Supreme Court, parties should seek appropriate directions before the Supreme Court Motions Judge.

_______________________

Kubak Lawyers: Lawyer for the Appellant
Steeles Lawyers: Lawyer for the First Respondent
Kikira, Rageau & Manu Lawyers: Lawyer for the Third Respondent