Kou v Kaupa [2010] PGSC 18; SC1021 (28 April 2010)

SC1021

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 83 OF 2009

BETWEEN:

SIMON KOU, WILLIE WAURE, MAIE AROM & 100 ORS
Appellants

AND:

SIMON KAUPA
First Respondent

AND:

JOHN NONGORR t/a NONGGORR & ASSOCIATES LAWYERS
Second Respondent

Waigani: David, Gabi & Kariko, JJ
2009: 26 November
2010: 28 April

PRACTICE AND PROCEDURE- Supreme Court – objection to competency of appeal - Rules of the Supreme Court of Justice 1984 – two notices of objection with different grounds of objection – O.7 r.14 only permits one notice of objection to be filed – notice first filed in time entertained – where any amendment required, notice must be filed within the prescribed time under O.7 r.14 - matters listed under O.7 r.8 are mandatory requirements – failure to comply with mandatory requirements fatal – objection granted - appeal dismissed with costs.

Cases cited:

The State v. Kubor Earthmoving (PNG) Limited [1985] PNGLR 448
Dinge Damane v. The State [1991] PNGLR 244
Patterson Lowa v. Wapula Akipe & Ors [1991] PNGLR 265.
Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112
PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717
Unasi Martin v. Motor Vehicles Insurance (PNG) Trust (2007) SC896
Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677

Counsel:

David Dotaona, for the Appellants/Respondents
Ray William, for the Respondents/Applicants

RULING ON OBJECTION TO COMPETENCY

28 April, 2010

1. BY THE COURT: INTRODUCTION: On 17 July 2009, the Appellants/Respondents (the Respondents) filed a Notice of Appeal against the decision of the National Court made on 12 June 2009 in proceedings commenced by writ of summons registered as WS No.632 of 2004.

NOTICES OF OBJECTION

2. The Respondents/Applicants (the Applicants) filed two notices of objection to the competency of the appeal pursuant to O.7 r.14 of the Rules of the Supreme Court of Justice 1984 (the Supreme Court Rules). The first one dated 28 July 2009 was filed on 29 July 2009 and the second one dated 3 August 2009 was filed on the same date.

Applicants' submissions

3. Mr. William of counsel for the Applicants submits that both notices of objection were filed within the time prescribed under the Supreme Court Rules and are therefore properly before the Court.

Respondents' submissions

4. On the converse, Mr. Dotaona of counsel for the Respondents submits that the plain meaning of O.7 r.14 is that only one notice of objection is allowed and therefore the second notice should be disregarded.

Reasons for ruling

5. Order 7 Division 5 (rr.14-18) of the Supreme Court Rules regulates the filing of objections to the competency of an appeal or of an application for leave to appeal.

6. Order 7 rule 14 clearly provides that an objection to competency of an appeal must be filed within fourteen days from the date of service of the notice of appeal on a respondent. That rule is in the following terms:-

"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."

7. It is settled law that; firstly, the Supreme Court has no power to extend the period of fourteen days; and secondly, there is no right to raise objections outside the prescribed period: The State v. Kubor Earthmoving (PNG) Limited [1985] PNGLR 448; Patterson Lowa v. Wapula Akipe & Ors [1991] PNGLR 265.

8. Order 7 rule 17 of the Supreme Court Rules provides that it is an applicant who has the burden of establishing the competency or not of an appeal.

9. In the present case, the Respondents do not challenge the competency of the two notices of objection on the basis of non-compliance with the time stipulation. There is no evidence before us that suggest that they were filed out of time. So in that respect, the two notices of objection are properly on foot.

10. However, we pose the question whether the filing of the two notices of objection is permitted by the Supreme Court Rules. Rule 14 (a) provides in no uncertain terms that a respondent challenging the competency of an appeal apart from compliance with the time stipulation must file "an objection" in accordance with form 9. In our view, the literal, unambiguous and plain meaning of the phrase "an objection" is that it refers to only one objection. There may be more than one ground for the objection to competency, but only one objection can be filed by way of a notice in accordance with form 9. It follows therefore that the filing of two notices of objection is not permitted by the Supreme Court Rules.
    
11. If an applicant wishes to amend a notice of objection to competency, then the amended notice must be filed within the prescribed time under O.7 r.14 of the Supreme Court Rules. But that is not the case here. What is before the Court are two separate notices of objection to competency filed within the prescribed time with each notice setting out different grounds of objection to competency. As O.7 r.14 only permits one notice of objection to be filed, this Court can only entertain the notice filed first in time, namely, the notice filed on 29 July 2009. The notice of objection filed on 3 August 2009 is struck out for abuse of process.
    

NOTICE OF OBJECTION FILED ON 29 JULY 2009

12. We now proceed with the discussion of the grounds of objection raised by the Applicants in the notice of objection filed on 29 July 2009.

Grounds of objection

13. The grounds of the objection set out in the notice of objection are in the following terms:

"1. The Notice of Appeal filed and served on the Second Respondent does not comply with Order 7 Rule 8 (d) of the Rules of the Supreme Court, as there is no relief claimed in the Notice of Appeal. The Appeal is incompetent.

2. The Notice of Appeal filed and served on the Second Respondent does not comply with Form 8 of the Rules of the Supreme Court in that no order or judgment is sought. The appeal is incompetent.

3. Simon Kou has signed the Notice of Appeal in his own capacity as an individual. The proceeding in the National Court was filed by Simon Kou, Willie Waure, Maie Arom and 100 others. The rest of the defendants have not appealed the decision of the National Court. Simon Kou has no authority to appeal on their behalf. The appeal is therefore incompetent.

4. There is no entity known as "John Nonggorr & Associate Lawyers". The appellant has named a different entity in the Notice of Appeal as the Second Respondent. The appeal is therefore, incompetent." (sic)

Applicants' submissions

14. The Applicants contend that the appeal is incompetent on the basis that:

• the notice of appeal does not plead the relief sought in lieu of that appealed from and therefore that amounts to a breach of a mandatory requirement stipulated under O.7 r. 8 (d) of the Supreme Court Rules;
  
• the failure to comply with O.7 r.8 (d) leads to the contravention of the mandatory requirement under O.7 r.8 (e) of the Supreme Court Rules and therefore the notice of appeal is defective for want of form;
  
• one of the appellants, Simon Kou who signed the notice of appeal in his individual capacity had no authority to file an appeal on behalf of the other defendants enjoined in the National Court proceedings;
  
• the Second Respondent does not have legal capacity to be sued.
  

Respondents' submissions

15. The Respondents advance five arguments.

16. First, they submit that the matters raised by the Applicants are not matters that are normally raised in an objection to competency. They rely on PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC 717 and Unasi Martin v. Motor Vehicles Insurance (PNG) Trust (2007) SC896 to support their argument.

17. Secondly, they submit that the appeal was filed by Appellants in person therefore justice requires that strict adherence to the Supreme Court Rules should be dispensed with in the circumstances of the present case. They rely on Dinge Damane v. The State [1991] PNGLR 244 and Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677 to support their contention.

18. The third argument is that, in the event that the grounds of objection are established, instead of the Court dismissing the appeal, it should nevertheless allow the Respondents fourteen days to file a supplementary notice of appeal to cure the defects which is permitted by O.7 r.24 of the Supreme Court Rules and also in the exercise of its discretion to order amendments to proceedings and give consequential directions under O.11 r.11 of the Supreme Court Rules. This is because, the Respondents contend, the prerequisites for the application of O.7 r.24 are present. These are; firstly, that rule applies to appeals to this Court as of right and the present case falls in that category; and secondly, the settlement of the appeal book has yet to take place. The Respondents rely on Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112 to support that argument.

19. The fourth argument is that the question of whether or not Simon Kou had authority to file an appeal on behalf of the other defendants enjoined in the National Court proceedings is a matter for argument at the substantive hearing of the appeal.

20. The fifth and final argument is that the Applicants' contention that the Second Respondent does not have legal capacity to be sued is misconceived because John Nonggorr is actually sued in his individual capacity, but trading under the business name pleaded.

Reasons for ruling

21. Order 7 rule 8 of the Supreme Court Rules is in the following terms:

"8. The notice of appeal shall—

(a) state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal;

(b) state whether the whole or part only and what part of the judgment is appealed from;

(c) state briefly but specifically the grounds relied upon in support of the appeal;

(d) state what judgment the appellant seeks in lieu of that appealed from;

(e) be in accordance with form 8;

(f) be signed by the appellant or his lawyer; and

(g) be filed in the registry." (our emphasis)

22. We agree that there are merits in grounds one and two of the Applicants' objection. The matters listed under O.7 r. 8 of the Supreme Court Rules are in our respectful view mandatory requirements. Therefore the failure to comply with any of them including rules 8 (d) and (e) is fatal to the competency of this appeal.

23. We do not accept the Respondents' arguments that because they have appealed in person, the Supreme Court Rules should be applied with circumspection or that they be allowed to invoke O.7 r.24. Our reasons are twofold. First, we consider that O.7 r.24 applies only in a situation where the proceedings are properly on foot with no issue as to their competency arising. For reasons given already, this appeal is incompetent. Secondly, Mr. Dotaona conceded verbally at the hearing that he was actually retained by the Respondents before 11 August 2009, the date of appointment for the settlement of the appeal book which is also the date when he filed his formal appearance to act for the Respondents. In our view, the Respondents failed to avail themselves of the opportunity to amend the notice of appeal under O.7 r.24. We find no good or convincing reason why this Court should allow the Notice of Appeal to be corrected now.

24. In the circumstances, we consider it not necessary to discuss the remaining grounds of the Applicants' objection to the competency of the appeal.

25. We uphold the objection. The appeal is dismissed with costs to the Applicants to be taxed if not agreed.

____________________________________________________
Nonggorr & William: Lawyers for the Respondents/Applicants
Dotaona: Lawyers for the Appellants/Respondents