Hegele v Kila [2011] PGSC 24; SC1124 (2 September 2011)

SC1124

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 50 0F 2010

TALIBE HEGELE FOR HIMSELF AND ON BEHALF OF MEMBERS OF THE YUMBI CLAN
Appellants

V

TONY KILA FOR HIMSELF AND ON BEHALF OF MEMBERS OF THE NANO WEBO CLAN
First Respondent

ANDREW ELABE
Second Respondent

Waigani: Cannings J, David J, Sawong J
2011: 31 August, 2 September

PRACTICE AND PROCEDURE – objection to competency of appeal on grounds of abuse of process and vexatiousness – whether proper grounds of objection – whether appeal an abuse of process or vexatious – Supreme Court Rules, Order 7, Rule 14

A respondent to an appeal objected to competency of the appeal on the grounds that it was an abuse of process and vexatious as the appellant had filed a multiplicity of proceedings in the Supreme Court concerning the same issues that had been determined in the National Court.

Held:

(1) A proper ground of objection to competency is one that draws the Court's attention to a question of jurisdiction.

(2) It is not a proper ground of objection to competency of an appeal that the appeal is an abuse of process or vexatious (Turia & McKay v Nelson (2008) SC949 applied). The objection to competency was therefore itself incompetent and was dismissed.

(3) As to the merits of the objection, the appellant gave a satisfactory explanation for the apparent multiplicity of proceedings. The appeal is neither an abuse of process nor vexatious.

(4) Remarks: as to the correct way for a respondent to apply to strike out an appeal on the grounds of abuse of process or vexatiousness.

Case cited

The following cases are cited in the judgment:

Boyepe Pere v Emmanuel Ningi (2003) SC711
Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882
Gigmai Awal v Salamo Elema [2000] PNGLR 288
Gregory Puli Manda v Yatala Limited (2005) SC795
Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886
Madang Timbers Ltd v Valentine Kambori (2009) SC992
Oio Aba v MVIL (2005) SC779
Paul Bari v John Raim (2004) SC768
Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894
PNG Forest Authority v Securimax Ltd (2003) SC717
Porgera Joint Venture v Joshua Siapu Yako (2008) SC691
Telikom PNG Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906
The State v John Talu Tekwie (2006) SC843
The State v John Tuap (2004) SC675
Turia & McKay v Nelson (2008) SC949
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
Yakham & The National v Merriam & Merriam (1997) SC533

OBJECTION

This was an objection to competency of an appeal.

Counsel

M Nasil, for the appellant
S Soi, for the first respondent
G Kubak, for the second respondent

2 September, 2011

1. BY THE COURT: This is a ruling on an objection to competency of an appeal to the Supreme Court. The objection has been filed by the first respondent, Tony Kila, and is supported by the second respondent, Andrew Elabe.

2. The appeal, SCA No 50 of 2010, which the respondents say is incompetent, is against the decision of Kandakasi J in the National Court in WS No 459 of 2008. In those proceedings, which emanate from a dispute over land and entitlement to royalties arising from a petroleum development licence regarding the Moran Oil Project, the appellant, Talibe Hegele, sought a declaration that a deed of release executed by the respondents is null and void and that consent orders in related proceedings, OS No 687 of 2007, be set aside. His Honour on 12 May 2010 dismissed the proceedings in WS No 459 of 2008 for lack of jurisdiction.

3. The respondents object to the competency of the appeal on the grounds that the appeal is an abuse of process and vexatious as the appellant has filed a multiplicity of proceedings in the Supreme Court concerning the same issues that had been determined in the National Court. The respondents point out that the appellant has, in addition to the appeal that is the subject of this objection, filed two separate applications for review of interlocutory decisions of the National Court made in the same proceedings, WS No 459 of 2008, or the related proceedings OS No 687 of 2007:

• Supreme Court Review No 10 of 2010, an application under Section 155(2)(b) of the Constitution for review of the decision of Hartshorn J in OS No 687 of 2007 of 27 December 2007, endorsing a consent order regarding proceedings between the respondents; and
  
• Supreme Court Review No 19 of 2010, an application under Section 155(2)(b) of the Constitution for review of the decision of Salika DCJ in WS No 459 of 2008 of 13 October 2009, restraining the parties from collecting royalties and equity benefits until land ownership issues and the proceedings have been determined.
  

4. The appellant argues that there is no abuse of process and the appeal is not vexatious as the three Supreme Court proceedings (the appeal and the two applications for review) relate to three separate National Court decisions. Furthermore it is contended that the objection to competency does not raise jurisdictional issues and for that reason alone should be dismissed.

DETERMINATION OF OBJECTION

5. We accept the appellant's submissions and will dismiss the objection for two reasons.

1 The notice of objection does not raise jurisdictional issues

6. The law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v Nelson (2008) SC949 and it is instructive to repeat what was stated in that case.

7. A proper ground of objection to competency is one that draws the Court's attention to a question of jurisdiction (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185). It must raise serious threshold issues concerning legality or viability of the appeal (PNG Forest Authority v Securimax Ltd (2003) SC717). Where the objection is based on one or more of the following grounds the objection will normally be properly before the Supreme Court:

• That an application for leave to appeal was not filed as a separate document, in cases where some of the grounds of appeal require leave and some do not (Yakham & The National v Merriam & Merriam (1997) SC533).
  
• That an application for leave does not adequately state the nature of the case, the questions involved and the reason that leave should be given, as required by Order 7, Rule 2(c) of the Supreme Court Rules (Gigmai Awal v Salamo Elema [2000] PNGLR 288, Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894).
  
• That an application for leave or notice of appeal was, without leave, filed outside the 40-day period allowed by Section 17 of the Supreme Court Act (The State v John Tuap (2004) SC675).
  
• That an application for leave refers to questions of law or fact not raised in the National Court (Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882).
  
• That an applicant for leave does not have a sufficient interest in the subject matter of the National Court decision that it wishes to appeal against (Porgera Joint Venture v Joshua Siapu Yako (2008) SC691).
  

8. The above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court as they raise the question of jurisdiction. Examples of grounds of objection that would not properly be before the Court are:

• That an application for leave has been filed unnecessarily, ie where the objecting party points out that leave to appeal was not actually required (Boyepe Pere v Emmanuel Ningi (2003) SC711, Oio Aba v MVIL (2005) SC779, The State v John Talu Tekwie (2006) SC843; note that Paul Bari v John Raim (2004) SC768, decided oppositely to Boyepe Pere).
  
• That an application for leave to appeal was not served on the respondent (see Gigmai Awal v Salamo Elema [2000] PNGLR 288, where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties).
  
• That the proposed grounds of appeal referred to in an application for leave to appeal, lack merit (The State v John Talu Tekwie (2006) SC843).
  

9. The objection to competency must itself be competent. If it does not comply with the Supreme Court Rules it will be dismissed, eg if filed outside the 14-day period allowed by Order 7, Rule 14 (Gregory Puli Manda v Yatala Limited (2005) SC795).

10. In the present case it will be immediately observed that the two grounds of objection – abuse of process and vexatiousness – do not appear in the list of grounds that, as explained in Turia's case, are normally accepted as proper grounds of objection. The reason for this is simple: these are not matters that relate to the jurisdiction of the Supreme Court. They do not concern the competency of the appeal. They are not proper grounds of objection to competency. This means that the notice of objection is itself incompetent and must be dismissed.

2 The objection is unsustainable

11. When we heard the objection to competency in SCA No 50 of 2010, we also heard – until they were withdrawn with the leave of the Court – similar objections to competency of SC Rev No 10 of 2010 and SC Rev No 19 of 2010. We are fully cognisant of the background of the three Supreme Court proceedings. We agree with the respondents' proposition, based on Telikom PNG Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906, that a party commencing a multiplicity of legal proceedings concerning the same issues will commit an abuse of process unless very good reasons are shown to justify it. Here we are satisfied that the apparent multiplicity of proceedings is justified as each of the three Supreme Court proceedings relates to a different National Court decision. Though each National Court decision is related, they are different decisions, made by different judges on different dates. In all the circumstances it has not been shown to our satisfaction that the appellant has abused the processes of the Supreme Court. Nor are we satisfied that this is a vexatious appeal.

12. Therefore, even if the notice of objection were competent and had been determined on its merits, the grounds of objection are unsustainable so the objection would still be dismissed.

REMARKS

13. Our dismissal of the notice of objection as itself being incompetent raises the interesting question of how a respondent to an appeal should approach the Supreme Court in the event that the respondent wants to argue abuse of process as a preliminary issue. Guidance is provided by the decision of the Supreme Court in Madang Timbers Ltd v Valentine Kambori (2009) SC992. In that case the respondents to an appeal, filed under Order 10 of the Supreme Court Rules against refusal by the National Court of an application for judicial review, wanted to file an objection to competency. The Court, following the decision in Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886, held that objections to competency cannot by right be filed in Order 10 appeals as there is no equivalent in Order 10 to Order 7, Rule 14, the provision which expressly allows for objections to competency of Order 7 appeals. However, a respondent to an Order 10 appeal can apply for leave to file a notice of objection to competency by (a) applying to the Court under Section 185 of the Constitution for directions; or (b) applying to the Court under Order 11, Rule 9 of the Supreme Court Rules for directions; or (c) applying to a single Judge of the Supreme Court under Order 11, Rule 9 of the Supreme Court Rules for directions. Any one of those avenues of approaching the Court might have been utilised by the respondents in the present case in order to have their arguments about abuse of process and vexatiousness properly put before the Court.

CONCLUSION

14. The notice of objection is incompetent as it relies on issues that do not go to the jurisdiction of the Court and for that reason alone must be dismissed. If we had dealt with the objection on its merits it would still have been dismissed as the appeal is neither an abuse of process nor vexatious.

JUDGMENT

15. The Supreme Court will direct entry of judgment in the following terms:

(1) the objection to competency is dismissed;

(2) the respondents shall pay the appellant's costs of these proceedings on a party-party basis to be taxed if not agreed.

Judgment accordingly.
_____________________
Nasil Lawyers: Lawyers for the Appellant
Soi & Associates Lawyers: Lawyers for the First Respondent
Kubak Lawyers: Lawyers for the Second Respondent