Minister for Lands and Physical Planning v Air Niugini Ltd [2013] PGSC 7; SC1233 (3 May 2013)

SC1233

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PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 17 OF 2012

BETWEEN

MINISTER FOR LANDS AND PHYSICAL PLANNING
First Appellant

AND

MOROBE PROVINCIAL GOVERNMENT
Second Appellant

AND

HENRY WASA – REGISTRAR OF TITLES
Third Appellant

AND

JONATHAN NINKAMA, TIMOTHY BONGA, CATHY AGIRU, ROBERT POSU, HEBOU ASI, DR. TONGES ZANNGO as members of the PAPUA NEW GUINEA NATIONAL LAND BOARD
Fourth Appellant

AND

AIR NIUGINI LIMITED
Respondent

Waigani:Davani, Makail & Poole, JJ.
2013:30th April & 03rd May

Cases Cited

PNG Ports Corporation v. Starships (PNG) Ltd N4213.

Counsel

No appearance, for the First, Third and Fourth Appellants
Mr A. Manase, for the Second Appellant
Mr I. Sheppard, for the Respondent

1. BY THE COURT: Background: On the 04th November 2010 the National Court granted leave to the respondent to Judicially Review the decision of the Minister for Lands and Physical Planning to grant a State Lease of land known as Allotment 4 Section 362, Lae, Morobe Province (the whole of the land contained in Volume 12, Folio 23) to the Morobe Provincial Government. The decision was made on 21st September 2004.

2. The substantive Judicial Review was heard and determined on 1st November 2012 in proceedings OS (JR) No 62 of 2010 and the National Court heard that there were breaches of the statutory requirements to advertise land before leasing which were so serious to be illegal and tantamount to fraud. The Court also heard that the leases issued to the Morobe Provincial Government were tantamount to fraud and were declared illegal and null and void. The Registrar of Titles was restrained from registering a lease over the land in the name of the Morobe Provincial Government and the Morobe Provincial Government was permanently restrained from evicting Air Niugini from the land.

3. From this decision the Morobe Provincial Government proceeded to appeal and filed SCM 17 of 2012 on the 10th December 2012, on the last day permitted by s17 of the Supreme Court Act for Entry of Appeal or to apply for Leave to Appeal to the Supreme Court. As the decision was a Judicial Review the appeal proceeded under Order 10 of the Supreme Court Rules.

4. Eventually, on the 12th February 2013, the Morobe Provincial Government (Second appellant in this proceeding) filed a motion under Order 11 rule 11 Supreme Court Rules for Leave to Amend the Notice of Motion instituting the appeal in the form of the draft amended notice, annexured to the affidavit in support of the motion as annexure "E".

5. That annexure was an 8 page document, setting out the proposed deletion and amendments in the standard approved form whereby words to be deleted are ruled out in red and words to be marked are underlined in red.

6. On 20th February 2013 the motion seeking to amend the Appeal Motion (SCM 17 of 2012) came before the Chief Justice in the directions list of Supreme Court and His Honour ordered that the Application and the Objection to Competency be heard at the same time and re-listed the matter to 06th March 2013.

7. When the application for Leave to Amend filed (12th February 2013) and the Objection to Competency (filed 5th February 2013) returned to Court on 6th March 2013 they did not proceed because the Chief Justice noticed that the Court file copy of the Motion instituting the Appeal (filed 10/12/12) was lacking 2 pages. He ruled that questions arising out of the incomplete Notice of Motion on the Court file be determined by a full Supreme Court bench at the hearing appointed to determine the Application to Amend and the Objection to Competency.

8. At the commencement of the substantive hearing, the Court had listed before it two Applications. One was a Motion filed by the Applicant on 12th February 2013 seeking Leave to Amend the Notice of Motion which instituted this Appeal. The other was an Objection to Competency of the application, filed by the Respondent on 15th March 2013. But, in addition, there was the supervening issue of just what was before the Court in the Application to Amend as the only document on the court file was incomplete.

9. The appellant's counsel, Mr Manase, urged the Court to regard the question of rectifying the deficient Notice of Motion in the court file as a matter raised by approving, not an amendment, but "an application to insert" omitted materials. Mr Ian Sheppard, on the other hand, expressed the view that the material which the Applicant sought to incorporate into the deficient copy of the Motion in the court file amounted to substantial additional amendment to the Original Motion.

10. The issues for determination by this Court are:

• Whether the material which the applicant wished to incorporate into the application before the Court, on the basis of "inserting" omitted pages, constituted a minor correction of an existing text which did not substantially alter the terms of the appeal, or a substantive alternation or addition to the basis of appeal which constituted an amendment to the substance of the proposed appeal;
  
• If the Court does not agree to the application incorporating the additional material and permit the amendment in the form of the amended Notice of Motion, what issues remain for the court to determine? and
  
• Objection to Competency:
  

Is alteration to the text an amendment?

11. The Court received considerable assistance from able and thoughtful submissions by both counsel, and has deliberated on the question of where material can be inserted into the text of an application without being considered an amendment which must comply with the provisions of the Supreme Court Rules. There do not appear to be any Papuan New Guinean cases on this point and we were not referred to any authorities from other jurisdictions.

12. We have reached the view that an alteration to the text of a motion or application which is for the purpose of removing doubt on the meaning or clarifies the expression of an existing text without altering the legal or logical content of the text can be inserted without constituting an amendment. If the material goes further than the removal of doubt referred to and in any way alters or adds to the issues for judicial determination, it is an amendment and must comply with the Rules.

13. It follows, then, that we regard the material which the second appellant wished to inset into the text of the motion on the court file, as an amendment outside the 40 day period permitted by section 17 of Supreme Court Act. We have no evidence before us which points to any exceptional circumstances to justify the grant of leave to amend, and, in any case, the extent of the proposed amendment, comprising two whole pages, would require truly exceptional circumstances to obtain leave. The application is refused.

14. Upon the application being refused, the Court then has before it the motion filed by the second appellant on the 10th December 2012 which claims an appeal as of right under section 14(3) (b) (ii) of the Supreme Court Act.

15. It states its ground in paragraphs numbered 3(a) (b) (l) (m) (n) (o) and (p) and seeks orders that "the Ruling and Order made on 01 November, 2012 in proceedings OS No. 628 of 2010 (J/R) proceeding be squashed" (sic), an order for a retrial or, in the alternative, a declaration that the second appellant has indefeasible title to the land in question.

16. The Respondent has filed an Objection to the Competency of the appeal in this form, and it is convenient to deal with the objection before the second appellant's application.

17. Leave for Judicial Review was granted on 12 March 2011 and the motion filed by the second appellant is from the decision of the National Court on the substantive Judicial Review hearing delivered on 01 November 2012.

18. The Respondent objects to the competency of paragraphs numbered (in the motion filed on 10 December 2012) 3 (k) (l) (m) (n) and (o) on the basis that these grounds all relate to the decision to grant leave and do not relate to "the ruling and orders of Honourable Justice Nicholas Kirriwom given and made on the 01 November, 2012."

19. It is not competent for the second appellant to seek orders relating to the leave proceedings on a motion which is directed to the decision in the substantive proceedings. Further, the time for seeking leave to appeal from the grant of leave on 01 march, 2011 (section 14(3) (b) of the Supreme Court Act), expired on the 21st of April 2012, and no such application was made.

20. We uphold the objection to the competency of these paragraphs of the motion of grounds of appeal.

Citation of Courts Jurisdiction required.

21. The remaining ground (3(a) of the notice of motion) is expressed in unclear terms which we read as meaning that the Respondent (Air Niugini) was not an applicant for the Urban Development Lease and the second appellant says that, because of this, it was not an interested party entitled for the purpose of applying for a lease.

22. The Respondent object to the competency of this ground of appeal because the second appellant relies on sec. 14 (3) (b)(ii) of the Supreme Court Act as a basis for jurisdiction for the order.

23. Section 14(3)(b)(ii) of the Act is in these terms;

"(3) no appeal lies to the Supreme Court without leave of the Supreme Court...

(b) from an interlocutory judgment made or given by the National Court except

(ii) in cases granting or refusing an injunction or appointing a receiver," or

24. The National Court decisions which give rise to this appeal had nothing to do with an injunction or appointment of a receiver.

25. While the failure to cite a correct reference to the jurisdictional basis for orders, sought need not necessarily render a motion automatically incompetent, the Courts decision on whether to strike out such a motion must be exercised with care and on the proper grounds. (see PNG Ports Corporation v. Starships (PNG) Ltd N4213).

26. It is clear that the reasons for requiring correct citation of a jurisdictional basis are claimed are three in number. First, to make sure that the applicant is aware of the bases for the orders sought and direct his arguments accordingly. Secondly, to inform the other party of the basis for the application to enable it to respond relevantly to it. Thirdly, so the Court can appreciate whether it has a sound jurisdiction to grant the orders sought.

27. In the case before us, the wording of ground 3 (a) or lacks clarity of expression and could lead to confusion.

28. There was no argument directed to the Court which urged us to exercise to a discretion to permit the motion (ground 3 (a)). There is no express provision in the Supreme Court Rules in terms which explicitly require parties to cite the Court's jurisdiction, but Order 2 rule 1(h) states the Rules of the National Court shall apply as if they were rules of the Supreme Court, in "(h) any other matter where there is a relevant provision in the National Court rules, no provision in the rules and no order has been made as to the procedure to be followed". That being the case, Order 4, rule 49(8) of the National Court Rules must apply and it is:-

"all motions must contain a concise reference to the Court's jurisdiction to grant orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form."

29. We have heard no argument directed to why we should exercise discretion to waive the application of this rule and we apply it. The remaining ground in the motion for appeal is struck out.

30. The Formal Orders of the Court are:

1. The Second Appellant's Application to amend the Notice of Motion filed on 10 December 2012 is refused.
   
2. The Respondent's Objection to Competency is upheld.
   
3. This Appeal is dismissed in its entirety.
   
4. No Orders as to costs.
   

______________________________________
Acting Solicitor General: Lawyers for First, Third & Fourth Appellants
Manase & Co Lawyers: Lawyers for Second Appellants
Ashurst Lawyers: Lawyers for the Respondent