Kuk v O'Neill [2014] PGSC 65; SC1331 (28 February 2014)

SC1331

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 123 OF 2012

BETWEEN:

MEK KUK
Appellant

AND

HON. PETER O'NEILL
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Batari, Davani and Manuhu .JJ
2013: 24th June,
2014: 28th February,

APPEAL – Judicial Review, O. 16 proceedings filed – appeal filed after dismissal of Judicial Review proceedings – objection to competency of appeal – Appeal must be by Notice of Motion – O. 10 R. 1 (1) (2) of Supreme Court Rules

JUDICIAL REVIEW – Judicial Review O. 16 proceedings filed – O. 12 R. 40 application filed – JR proceedings dismissed – O. 12 R. 40 application can be filed in O. 16 proceedings – O. 16 R. 8 (1) of National Court Rules

Facts:

The appellants filed a Notice of Appeal against a decision of the National Court in Judicial Review Proceedings where the appellant had applied under O. 12 R. 40 of the National Court Rules, for the proceedings to be dismissed and where the National Court dismissed the proceedings. The Respondent filed Objection to Competency of the appeal arguing that the appellant should have filed Notice of Motion, because the appeal emanates from O. 16 Judicial Review proceedings.

Held:

1. The appeal is against a dismissal of the Judicial Review proceedings, done upon application under O. 12. R. 40 of the National Court Rules. Because it is an appeal against a dismissal of the Judicial Review proceedings, that an appeal must be by way of Notice of Motion (O. 10 R. 1 of Supreme Court Rules and O. 16 of National Court Rules).
   
2. Order 16, Rule 8 does not exclude reliance upon Order 12 Rule 40 applications because "any interlocutory applications" clearly fall within the ambit of the term "any proceedings" (O.12 R. 40 (1). It means that an applicant in Judicial Review proceedings can ask for a dismissal of proceedings under Order 12 Rule 40.
   

Distinguish with Sir Julius Chan v. Ombudsman Commission of Papua New Guinea, Simon Pentanu, Joe N. Wagula, Ninchib Tetang and Gregory Toop (1998) SC 556.

The appellant in Sir Julius Chan, filed Notice of Appeal against the National Court's decision to set aside an earlier decision setting aside the granting of leave for Judicial Review, application made pursuant to O. 12 R 8 (3) (5) of the National Court Rules.

The Supreme Court held, amongst others that the Appellant quite properly filed Notice of Appeal because he was appealing against an order to set aside the order granting leave for Judicial Review.

Cases Cited

Sir Arnold Amet v. Peter Charles Yama (2010) SC 1064
Sir Julius Chan v. Ombudsman Commission & Ors (1998) SC 556
Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence, and 2 Ors (2013) SC 1225

Counsel:

Mr R. Lains, for the Appellant
Mr J. Apo, for the first Respondent/Applicant
No appearance, for and on behalf of the Second Respondent

DECISION

28th February, 2014

1. BY THE COURT: Before the Court is Objection to Competency of Appeal filed on 25th March, 2013 by Ame Lawyers, ('Objection') for and on behalf of the first respondent/applicant ('applicant').
   
2. The Objection to Competency questions the propriety and existence of the Notice of Appeal filed by Steeles Lawyers for and on behalf of the appellant on 6th November, 2012. The grounds of the Objection to Competency of the Appeal read as follows:
   

"1. The Notice of Appeal filed by the Appellant on the 6th November, 2012, be dismissed for being incompetent on the grounds that an appeal in respect of a decision of National Court in Order 16 Judicial Review proceedings to the Supreme Court is by Notice of Motion under Order 16, Rule 11 of the National Court Rules and not any other way.

2. Costs of the proceedings be paid to the respondents."

3. The application is opposed by the appellant.
   
4. Mr Apo for the applicant submits that the Notice of Appeal should be dismissed for being incompetent because it is not properly before the Court. He submits that the decision from which the appeal is lodged emanates from an Order 16, Judicial Review proceeding in the National Court and that therefore, pursuant to Order 10, Rule 1(1) (2) of the Supreme Court Rules, the appeal should be by way of a Notice of Motion rather than an ordinary Notice of Appeal.
   
5. Order 10, Rule 1(1) (2) reads as follows;
   

"Institution of Appeal

(1) An appeal under this Order shall be instituted by a notice of motion.

(2) Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply."

No doubt, O. 10 R 1 (1) is specific as to when an Objection to Competency application must be filed.

Preliminary Objection

6. Firstly, a preliminary objection raised by the appellant is that the Objection was filed out of time. We have heard that after the National Courts decision of 8th October, 2012 in Judicial Review Proceedings (OS) No. 864 of 2011, and after the Notice of Appeal was served upon the applicant's lawyers on the 16th November, 2012, that in accordance with Order 7, Rule 15 of the Supreme Court Rules, the 14 days period within which to file an Objection to Competency lapsed on 30th November, 2012.
   
7. Order 7, Rule 15 reads;
   

"(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 appellant."

8. In this case, there is no dispute that the respondent did not file and serve the Notice of Objection to Competency within 14 days after service upon his lawyers of the Notice of Appeal. However, the position at law is that in the exercise of its discretion, a Court can hear an objection that is raised after the expiration of the 14 days period (see Sir Arnold Amet v. Peter Charles Yama (2010) SC1064; Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence, and 2 Ors (2013) SC 1225). This inherent power of the Court carries with it the onerous responsibility to safe guard its processes and procedures against abuse. The issue of competence has to do with legal and jurisdictional aspects of the court process. Salika DCJ, Batari and Davani .JJ in Sir Arnold Amet (supra), held that more often than not, this concerns the validity of the very proceedings before the Court, therefore, allowing for an aggrieved party, to raise it, at any stage of the proceedings. But it must be a proper exercise of discretion relying on evidence before the Court, to demonstrate that there are indeed good and sound grounds warranting the hearing of the objection. In this case, it meant that the Court has had to review the grounds relied on to assist it in deciding whether to uphold the application or not. On a quick review of the grounds, the Court notes that the applicant seeks a dismissal of the appeal because the Notice of Appeal was filed upon a dismissal of Judicial Review Proceedings, contrary to Order 10 Division 1 of the Supreme Court Rules.
   
9. Order 10 Rule 1 is in mandatory terms that an appeal from orders made in O. 16 proceedings "shall" be by way of Notice of Motion. That alone is convincing enough for us to find that the preliminary objection is without merit and that the Objection is properly before the Court.
   

Other grounds – Objection to competency of appeal

10. Another reason why the appellant submits the Objection is misconceived is because the decision from which the appeal is lodged was made after a decision from an application under Order 12, Rule 40 of the National Court Rules. Mr Lains for the appellant relies on Sir Julius Chan v Ombudsman Commission & Ors, (1998) SC 556. Mr Lains did not state the ratio decidendi in that case nor did he state the findings by the Court in relation to appeals lodged after decisions made from an Order 12 Rule 40 application in Judicial Review proceedings in the National Court. It was therefore necessary for the Court to review the Sir Julius Chan (supra) decision.
    
11. On our perusal of Sir Julius Chan (supra), we found Mr Lains' submissions to be incorrect because in that case, the appellant first made an application under Order 16, Rule 3 of the National Court Rules for leave to apply for judicial review of the Respondent's investigation and report of the respondents into the purchase of the Cairns Conservatory by the Public Officers Superannuation Fund Board. The application was made ex parte as permitted by Order 16, Rule 3, and leave was granted. The respondents subsequently made applications before another National Court pursuant to Order 12, Rule 8 (3) and (5) of the National Court Rules to set aside the orders granting leave and other incidental orders. In that Notice of Motion, the respondents also purported to apply for leave to appear on the hearing of the appellant's application for judicial review and sought an order that the appellant's application be refused. The National Court made orders that the orders of the National Court made earlier on 10th November, 1997 be set aside and that leave for judicial review be refused, amongst others.
    
12. The appellant filed an appeal by Notice of Appeal, the principle ground being that the learned trial Judge had erred in law in setting aside the order of the Honourable Justice Woods made on 10th November, 1997 when he granted leave to apply for judicial review.
    
13. The respondents filed objection to the competency of the appeal on three separate grounds, one being the non-compliance with Order 10 of the Supreme Court Rules and Order 16, Rule 11 of the National Court Rules.
    
14. The principle ground of Objection to the Competency of the appeal was because the appellant had inter-alia purported to appeal against the refusal of the National Court to grant leave to apply for judicial review and that the appeal should have been instituted by notice of motion in compliance with the requirements of Order 10 of the Supreme Court Rules and Order 16, Rule 11 of the National Court Rules and not by Notice of Appeal under Order 7 of the Supreme Court Rules. The appellant in that case submitted that the appeal had been properly lodged by notice of appeal.
    
15. The Supreme Court held in that case that the Objection to Competency of the appeal was misconceived because the principal ground of appeal was against Justice Salika's order setting aside Justice Woods' order granting leave to apply for judicial review. That the application by the respondent to set aside Justice Salika's order was made pursuant to Order 12, Rule 8 of the National Court Rules as pleaded in the respondent's Notice of Motion before Justice Salika. The Supreme Court also found that the appellant had not appealed against Justice Wood's orders granting leave for judicial review. The Supreme Court found that the Notice of Appeal was filed appealing against Justice Salika's orders which were made after an application pursuant to Order 12, Rule 8(3) (5) of the National Court Rules setting aside orders made by Justice Woods granting leave for judicial review. That was the basis on which the supreme court in Sir Julius Chan (supra) found that the appeal to the Supreme Court was correctly by way of ordinary Notice of Appeal as provided under sections 14 and 17 of the Supreme Court Act and Part 3 Order 7 of the Supreme Court Rules, in form 8 of the Supreme Court Rules. The Supreme Court held that the appellant filed notice of appeal quite properly pursuant to the provisions of the Supreme Court Act and Rules. That was the basis on which it dismissed the Objection to Competency.
    
16. Therefore, based on the above review of the facts, it is clear that the factual situation in this case is not the same as in Sir Julius Chan (supra). In that case, an Order 12, Rule 8 application was granted setting aside leave for Judicial Review, and the appeal to the Supreme Court was against decision to set aside the Judicial Review. And that was why the Supreme Court held that the Appeal to the Supreme Court against the set aside, by way of Notice of Appeal, was quite proper. In this case, the appeal is against a dismissal of the Judicial Review proceedings, done upon application under O. 12. R. 40 of the National Court Rules. Because it is an appeal against a dismissal of the Judicial Review proceedings, that an appeal must be by way of Notice of Motion (O. 10 R. 1 of Supreme Court Rules and O. 16 of National Court Rules).
    
17. Finally, interlocutory applications can be made in Judicial Review Proceedings as is provided in Order 16, Rule 8 (1) of the National Court Rules. That rule states that "any interlocutory applications" in judicial review proceedings may be made to any Judge. Order 12, Rule 40 (1) of the National Court Rules states in clear terms that such an application can be "made in any proceedings" which of course includes Judicial Review proceedings.
    
18. In our view, Order 16, Rule 8 does not exclude reliance upon Order 12 Rule 40 applications because "any interlocutory applications" clearly fall within the ambit of the term "any proceedings" (O.12 R. 40 (1). It means that an applicant in Judicial Review proceedings can ask for a dismissal of proceedings under Order 12 Rule 40.
    
19. We find the submissions by Mr Lains for the appellant, to be without merit. It is clear that the Notice of Appeal filed on 6th November, 2012, is not properly before the Court and that it must be dismissed.
    

Formal Orders

20. Therefore, the formal orders of the Court are;
    
    1. The Objection to Competency of the appeal is upheld;
       
    2. The Notice of Appeal filed on 6th November, 2012 by Steeles Lawyers is dismissed as being incompetent;
       
    3. The appellant will pay the first respondent's costs of the application and also, the costs of the appeal, to be taxed if not agreed.
       

_____________________________---____________________________________
Steeles Lawyers: Lawyer for the Appellant
Ame Lawyers: Lawyer for the First Respondent/Applicant