Neville v National Executive Council of Papue New Guinea [2015] PGSC 17; SC1431 (5 June 2015)

SC1431

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 22 of 2013

BETWEEN:

PETER NEVILLE
Appellant

AND:

NATIONAL EXECUTIVE COUNCIL
OF PAPUA NEW GUINEA
First Respondent

AND:

HONOURABLE KERENGA KUA in his capacity as the Attorney General as the nominal defendant for and on behalf of the GOVERNOR GENERAL OF PAPUA NEW GUINEA
Second Respondent

AND:

INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

AND:

MALCOM LEWIS, RUBEN AILA, JERRY AGUS & MICHAEL JELLIFFE in their capacities as DIRECTORS OF NATIONAL AIRPORT CORPORATION LIMITED
Fourth Respondents

Waigani: Gavara-Nanu J, David & Murray, JJ
2014: 30 June
2015: 05 June

APPEAL – Practice & Procedure – Preliminary Objection to Competency of the Notice of Objection to Competency of the Appeal – Supreme Court Act, Chapter No. 37; ss. 4 (2) (c) and 14 (1) (c) – Whether Grounds of Appeal raise issues of law, fact, or mixed fact and law – Whether leave to appeal required – Appellant raising fresh matters on appeal – Appeal incompetent – Appeal dismissed.

Cases cited:
Papua New Guinea cases

Barawa Ltd v. Giregire Estates Ltd (2008) SC958
Boyepe Pere v. Emmanuel Nugi (2003) SC711
Chief Inspector Robert Kalasim v. Tangane Koglwa (2006) SC828
Chris Haiveta v. Paias Wingti & Ors [1984] PNGLR 189
Coca Cola Amatil (PNG) Ltd v. Joshua Yanda (2012) SC1221
Dekenai Construction Limited v. Lucas Dekena, MP, Minister for the Department of Lands & Physical Planning & Ors (2015) SC1417
Dillingham Corporation of New Guinea Pty Ltd v. Constantino Alfredo Diaz [1995] PNGLR 262
Dr Arnold Kukari v. Hon. Don Pomb Polye (2008) PGSC4; SC907
Gigmai Awal v. Salamo Elema [2000] PNGLR 288
Gregory Puli Manda v. Yatala Limited (2005) SC795
Henzy Yakam v. Stuart Merriam [1998] PNGLR 555; SC533
Isaac Lupari v. Sir Michael Somare, MP; Prime Minister & Chairman of the National Executive Council & Ors (2010) SC1071
Jeffrey Turia v. Gabriel Nelson (2008) SC949
Ken Norae Mondiai v. Wawoi Guavi Timber Co. Ltd (2007) SC886
National Capital Limited v. Loi Bakani, Governor of Bank of Papua New Guinea (2014) SC1392
NCD Water & Sewerage Ltd v. Sam Maskuman Tasion (2002) SC696
Oio Aba v. MVIL (2005) SC779
Pacific Equities & Investments Ltd v. Teup Goledu (2009) SC962
Patterson Lowa v. Wapula Akipe [1991] PNGLR 265
Placer (PNG) Ltd v. Anthony Harold Leivers (2007) SC899
Pogera Joint Venture v. Joshua Suapu Yako (2008) SC916
PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717
Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557
Talibe Hegele v. Tony Kila (2011) SC1124
The State v. John Talu Tekwie (2006) SC843
The State v. John Tuap (2004) SC675
The State of Papua New Guinea v. Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448
Waghi Savings and Loans Society Ltd v. Bank South Pacific Ltd (1980) SC185

Other Cases cites:

British Launderers' Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21

Counsel:

Alfred Manase, for the Respondents/Applicants
Tobias Dalid, for the Appellant/Respondent

5th June, 2015

1. BY THE COURT: INTRODUCTION: On 18th September 2013, the National Court constituted by Kariko, J (the primary judge) presiding at Waigani dismissed the proceedings instituted by the Appellant in the National Court on 15th May 2013; OS (JR) No.258 of 2013 (the National Court proceedings), for failing to file a substantive notice of motion under Order 16 Rule 5(1) of the National Court Rules (NCR). On 11th October, 2013, the Appellant filed a Notice of Appeal by way of a Notice of Motion, under Order 10 of the Supreme Court Rules (SCR) (Notice of Appeal). The appeal is against the whole of the judgment of the primary judge.

2. On 1st November, 2013, the Respondents filed a Notice of Objection to Competency of the Appeal.

BACKGROUND

3. The Appellant was first appointed a Director and Chairman of the Board of Directors of the National Airport Corporation Ltd (NAC) in early October 2009. According to Clause 2.2 of the Constitution of the NAC, the tenure of appointment of Directors of the NAC Board was for three years. The Appellant asserts that by a decision of the First Respondent (NEC) made on 22nd December 2011, which was published in the National Gazette No.G10 on 6th January 2012, he was reappointed Director and Chairman of the NAC Board.

4. The Appellant further asserts that on 24th April 2013, the NEC convened a Special Meeting No.10/2013 and by its Decision No.133/2013, from that meeting, amongst other things, revoked his appointment as Director and Chairman of the NAC Board together with two other Directors namely, Freda Talao and Jack Pidik and appointed the Fourth Respondents, as new non-ex officio members of the NAC Board. The appellant also asserts that the above revocations and appointments came into effect on 24th April 2013, which is the day the NEC Decision No. 133/2013.

5. Aggrieved by the above NEC decision, the appellant instituted the National Court proceedings claiming that his revocation with two other Directors of the NAC Board and the appointments of the Fourth Respondents as new non-ex officio members of the NAC Board were unlawful. The Appellant claims that the revocation of his appointment as a Director and Chairman of the NAC Board together with two other Directors, namely, Freda Talao and Jack Pidik was contrary to the Civil Aviation Act 2000; Clause 2 of the Constitution of the NAC and the Companies Act. The appellant also claims that the appointment of the Fourth Respondents as non ex-officio members of the NAC Board was contrary to the Civil Aviation Amendment Act 2010.

6. On 4th June 2013, the National Court constituted by Cannings, J granted the Appellant leave to apply for judicial review. His Honour also ordered that a substantive notice of motion under Order 16 Rule 5 (1) of the NCR and supporting affidavits be filed by Tuesday, 11th June 2013.

7. On 6th June 2013, the National Court constituted by Cannings, J heard and granted the Appellant's application for stay of the NEC decision No. 133/2013, thus effectively restoring the two original Directors and himself as Directors and him as the Chairman of the NAC Board.

8. On 19th July 2013, the Respondents filed a Notice of Motion which was subsequently amended by an Amended Notice of Motion filed on 31st July 2013 seeking, amongst other things, the following orders:

"1. Pursuant to Order 12 Rule 8(5), Order 16 Rules 3(8)(a) and 13(1) of the National Court Rules and Section 155(4) of the Constitution, the Court Order of 6th June 2013 be varied or discharged on the basis that the National Airport Corporation does not have a full Board sufficient to constitute a quorum at the present time to manage its affairs or transact its business.

2. Pursuant to Order 16 Rules 13(1) and (2)(a) and (b) and Order 12 Rule 40 of the National Court Rules, the proceedings be dismissed on the basis that the Plaintiff does not have standing to institute the proceedings because his purported appointment by the National Executive Council and gazetted in National Gazette No.G10/2012 of 6th January 2012 was made in breach of Section 147(A) (5) of the Civil Aviation Act (CAA) and Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act in that the Plaintiff was not cleared by the Public Services Commission as a fit and proper person.

1. The Court Order of 6th June 2013 be discharged on the basis of the Plaintiff's failure to make full and candid disclosure of all relevant materials and information to the Court contrary to the principles established in Bauf and Nodai vs Poliamba Pty Ltd [1991] PNGLR 278.
   
2. Alternatively, the Court Order of 6th June 2013 be discharged on the basis that the order is confusing and not clear as the order seeks to stay a gazettal notice which has already taken effect and the Fourth Defendants already took office and were performing the powers of the directors of NAC.
   
3. Alternatively, the stay order be discharged and the entire proceedings be dismissed on the basis that there is no Notice of Motion on foot seeking substantive relief contrary to Order 16 Rule 5 of the National Court Rules.
   
4. In the further alternative, pursuant to Rule 15 (2) (c) of the Listings Rules 2005, the entire proceedings be dismissed for non compliance of Consent Orders, in particular, Order No. 3 of the Consent Orders of 19th June 2013."
   

9. On 18th September 2013, the primary judge dismissed the entire National Court proceedings for the appellant's failure to comply with Order 16 Rule 5 of the NCR by not filing a substantive notice of motion. In view of that decision, it was not necessary for his Honour to rule on the Respondents' application to discharge or vary the stay order given by Cannings J, on 6th June, 2013.

10. Following the dismissal of the National Court proceedings, on 23rd September 2013, the Appellant filed a slip rule application seeking orders to set aside the orders of the primary judge given on 18th September 2013 (dismissing the entire National Court proceedings) and to reinstate the National Court proceedings and allow the proceedings to proceed to hearing on the basis that the notice of motion under Order 16 Rule 5 (1) had actually been filed on 11th June 2013, pursuant to an order made by Cannings, J. The Appellant claimed that the primary judge dismissed the National Court proceedings on the basis of a misapprehension of that fact. The slip rule application, which was contested by the Respondents, was moved by the Appellant before the primary judge on 28th September 2013. On 9th October 2013 the primary judge dismissed that slip rule application.

11. It is to be noted that the Appellant has not challenged the dismissal of the slip rule application.

12. It should also be noted that on 11th October 2013, the Appellant apart from filing a Notice of Appeal, also filed an Application seeking an order to stay the judgment of the primary judge given 18th September 2013 to dismiss the National Court proceedings. That application was granted on 18th November 2013 by Cannings J.

GROUNDS OF APPEAL

13. The grounds of appeal are set out in paragraph 3 of the Notice of Appeal, they are:

3. "In exercising his discretion to dismiss the entire proceedings:-

(a) His Honour acted contrary to procedure in not allowing the Defendants' Application to be heard before the same Judge, His Honour Justice Cannings, who granted leave to review and the stay when Justice Cannings was available in Waigani National Court and therefore committed an error of law.

(b) His Honour erred in fact when he dismiss the entire proceedings on the basis that there was no Notice of Motion filed by the Appellant seeking substantive Review as required under Order 16 Rule 5 of the National Court Rules when:

(i) There was in fact a Notice of Motion (Application for Judicial Review) filed by the Appellant on 11th June, 2013 institution the Judicial Review proceedings within 14 days from the date of grant of leave for Judicial Review by His Honour Justice Cannings on 4th June 2013.

(ii) During submission on 4th September 2013 a copy of written submission was handed up in Court. In that submission, it was specifically mentioned that the subject Notice of Motion was indeed filed on 11th June 2013 and the Court was asked to dismiss that particular ground on which the Defendants were relying to dismiss the proceedings.

(iii) During oral submissions, it was intimidated to the Court that such a Notice of Motion was filed after leave was granted.

(iv) The Court file endorsements clearly reveal the existence of that particular document filed on 11th June 2013 and indentifies it as a Notice of Motion.

(v) Such procedure is being laid down in the case of Peter Makeng v Timbers (PNG) Ltd (2008) N3317 and Timbani Logai v Steven Maken (2008) N4021 where the Court said that an application for leave for Judicial Review should be done by way of an Originating Summons and when leave is granted the Judicial Review should be instituted by way of a Notice of Motion. The Appellant complied with this procedure and filed the Notice of Motion for Judicial Review on 11th June 2013.

(vi) For the reasons set out in sub-paragraphs (i)–(v) above, His Honour's decision of 18th September 2013, committed a slip on the relevant fact and consequently took into account wrong facts. In other words, the decision was not supported by the facts and therefore was factually wrong and thus amounted to substantial injustice being done to the Appellant in the circumstances.

(c) His Honour erred in law when he exercised his discretion to dismiss the entire proceedings in that:

(i) His Honour failed to consider evidence of substantial compliance to directions issued by the Court on the part of both parties to prepare the matter for trial and the matter was nearing its substantive hearing; and

(ii) The absence of proper legal principles on which His Honour could satisfy himself on whether or not he could dismiss the proceedings; and

(iii) In failing to exercise his discretion to dispense with the requirements of the Rules pursuant to Order 1, Rule 7 of the National Court Rules in favour of the Appellant in so far as matters relating to form or procedure; and

(iv) As a result of (i), (ii) & (iii) above, His Honour dismissed the substantial merits of the Appellant's Judicial Review which had merit and was granted leave for Judicial Review. Consequently, the decision was harsh and oppressive on the Appellant and therefore unjust in the circumstances."

GROUNDS OF NOTICE OF OBJECTION TO COMPETENCY OF THE APPEAL

14. The grounds of Objection are:

1. Grounds 3 (a), (b) and (c) of the appeal raise issues of fact only for which leave to appeal is required under Section 4 (2) (c) and 14 (1)(c) of the Supreme Court Act. No Application for Leave to appeal was filed in relation to these grounds under Order 10 Rule 5 of the Supreme Court Rules 2012 and therefore the appeal is incompetent.

2. Grounds 3 (a) and (c) do not raise any specific error of law or fact or mixed fact and law which is appealable to demonstrate the error of fact or law or mixed fact and law as required by Order 10 Rule 3(a) and Order 7 Rule 10 of the Supreme Court Rules 2012 and therefore these grounds are incompetent.
   
3. Grounds 3(b) is incompetent and amounts to an abuse of process because these grounds are raised as if it were an application under the Slip Rule principle and not grounds of appeal alleging error of law or fact or mixed fact and law. Further, the application under the Slip Rule by the appellant was heard and dismissed by the National Court on the 9th October 2013.
   
4. Grounds 3 (a), (b) and (c) do not raise proper grounds of appeal with specificity pointing to identifiable or demonstrable error in the decision of the Court, the subject of the appeal. Therefore, it amounts to being frivolous and vexatious, an abuse of process and incompetent.
   
5. Grounds 3(c)(i-iv) raise new issues in the appeal and not issues arising from the matters submitted and considered by the National Court in its decision, the subject of the appeal and therefore, the grounds are incompetent." (sic)
   

PRELIMINARY OBJECTION TO COMPETENCY OF THE NOTICE OF OBJECTION TO COMPETENCY OF THE APPEAL

15. The appellant has raised a preliminary objection to the competency of the Notice of Objection to Competency of the appeal filed by the Respondents. It is submitted by the Appellant that Order 10 of the SCR does not allow for the filing of an objection to competency of an appeal, unlike the procedure set out under Order 7 Rule 15 of the SCR, in relation to appeals in ordinary civil cases. The Respondents on the other hand contend that the new SCR does cater for the filing of an objection to competency of an appeal instituted under Order 10 of the SCR, more particularly under Order 11 Rule 28.

16. The Appellant having raised this preliminary objection to the competency of the Respondents' Notice of Objection to Competency of the Appeal, we will address this preliminary objection first, because if we find in favour of the Appellant, then there will not be any need for us to consider the Objection to Competency of the appeal by the Respondents: Isaac Lupari v Sir Michael Somare, MP – Prime Minister & Chairman of the National Executive Council & Ors (2010) SC1071.

17. Until the promulgation of Order 11 Rule 28 of the SCR in 2012, Order 16 Rule 11 of the NCR and Order 10 of the SCR set out the exclusive procedure for appeals against orders made in judicial review proceedings: Dr Arnold Kukari v Honourable Don Pomb Polye [2008] PGSC 4, SC907; National Capital Limited v Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392; and Sir Julius Chan v Ombudsman Commission of Papua New Guinea (1998) SC557. There is no provision under Order 10 of the SCR that is comparable to Order 7 Rule 15 of the SCR granting an automatic right to an appellant to file an objection to competency of an appeal. This was highlighted in Kenn Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886, where this Court held that no such objections to competency should be filed: see also Dekenai Construction Limited v Lucas Dekena, MP, Minister of the Department of Lands and Physical Planning & Ors (2015) SC1417 and Barava Ltd v Giregire Estates Ltd (2008) SC958. Relying on Ken Norae Mondiai v Wawoi Guavi Timber Co. Ltd (supra), this Court in Talibe Hegele v Tony Kila (2011) SC1124 stressed that an appellant wishing to file an Objection to Competency of an appeal should apply for directions under s. 185 of the Constitution or apply to the Supreme Court for directions under Order 11 Rule 9 of the SCR or apply for directions before a single judge of the Supreme Court under Order 11 Rule 9 of the SCR.

18. Under the new SCR, a respondent to an appeal filed under Order 10 can now file a notice of objection to competency of such an appeal under Order 11 Rule 28 of the SCR. The Rule states:

28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word 'appeal' where necessary:

(a) Order 7 Division 5 (Objection to competency);

(b) Order 7 Division 19 (Time, and want of prosecution)."

19. This Rule was promulgated in the SCR, 2012 which came into force on 19th December 2012. It is a Rule of general application.

20. Order 7 Division 5 (Rules 15 to 19) of the SCR regulates the filing of an objection to competency of an ordinary civil appeal. Order 7 Rule 15 in particular requires a respondent who objects to the competency of an appeal to within 14 days after service on him of a notice of appeal file an objection in accordance with Form 9 and serve a copy of the objection on the appellant.

21. It is not disputed that the Respondents filed their Notice of Objection to Competency of the Appeal on 1st November 2013. The question is: Did the Respondents comply with the requirements of Order 7 Rule 15? The Appellant has not raised, either in his submissions or by affidavit, any issues of compliance with the requirements of Order 7 Rule 15. We note that the form of the Notice of Objection to Competency complies with Form 9. We also note that the Appellant does not deny that he was served with the Notice of Objection to Competency within the period allowed. For these reasons, we reject the Appellant's preliminary objection and find that the Respondents' Notice of Objection to Competency of the Appeal is competent.

RELEVANT PRINCIPLES APPLICABLE TO A NOTICE OF OBJECTION TO COMPETENCY OF AN APPEAL

22. We state below some of the relevant principles which apply to an objection to competency of an appeal.

(i) An appeal may be incompetent if it does not comply with the requirements of the Supreme Court Act and or the SCR: Chris Haiveta v Paias Wingti & Others (1994) PNGLR 189.

(ii) A respondent who objects to the competency of an appeal or of an application for leave to appeal filed pursuant to Order 10 of the SCR can file an objection to competency of the appeal pursuant to Order 11 Rule 28 of the SCR.

(iii) The objection to competency must itself be competent, i.e., it must comply with the SCR: The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448; Patterson Lowa v Wapula Akipe [1991] PNGLR 265; PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717; Gregory Puli Manda v Yatala Limited (2005) SC795; Jeffrey Turia v Gabriel Nelson (2008) SC949, Pacific Equities & Investments Ltd v. Teup Goledu (2009) SC962.

(iv) An objection to competency of an appeal may be raised at any time before judgment at the discretion of the Court: Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC 828.

(v) A proper ground of objection to competency is one that goes to the Court's jurisdiction: Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (1980) SC185; Jeffrey Turia v Gabriel Nelson (supra), Talibe Hegele v Tony Kila (2011) SC1124; Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221. In PNG Forest Authority v Securimax Security Pty Ltd (supra), Sakora, J held that an objection to competency must raise serious threshold issues concerning legality or viability or otherwise of a particular process.

23. Some examples of what are considered as proper grounds of objection were identified in Jeffrey Turia v Gabriel Nelson (supra) at paragraph 7 of the judgment and these are:

1. That the application for leave to appeal was not filed as a separate document, in cases where some of the grounds of appeal required leave and some did not: Yakham & The National v Merriam & Merriam (1997) SC533.
   
2. That the application for leave did 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 SCR: Gigmai Awal v Salamo Elema [2000] PNGLR 288; Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC899.
   

3. That the application for leave 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.

4. That the application for leave refers to questions of law or fact not raised in the National Court: Chief Inspector Robert Kalasim v Tangane Koglwa (supra).

5. That the applicant for leave did 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) SC916.

24. Some examples of grounds of objection that do not raise the question of jurisdiction were also identified in Jeffrey Turia v Gabriel Nelson (supra) at paragraph 9 of the judgment and these are:

1. That the application for leave had been filed unnecessarily, i.e., where the objecting party points out that leave to appeal was not actually required. It is now settled law that an unnecessary application for leave to appeal is not necessarily incompetent: Boyepe Pere v Emmanuel Ningi (2003) SC711; Oio Aba v MVIL (2005) SC779 and The State v John Talu Tekwie (2006) SC843.

2. That the 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.

3. That the proposed grounds of appeal referred to in the application for leave to appeal lack merit: The State v John Talu Tekwie (supra).

25. In Jeffrey Turia v Gabriel Nelson (supra), it was held that it is not a proper ground of objection to competency of an application for leave to appeal that the proposed grounds of appeal, amongst other things, are frivolous or vexatious.

26. We turn now to the Respondents' Notice of Objection to Competency of the Appeal.

27. In order to appreciate the grounds of appeal and objections made against each of the grounds of appeal for being incompetent, we bear in mind that the Appellant is appealing against the whole of the judgment of the primary judge dismissing the National Court proceedings based on his Honour's finding that the Appellant failed to file a substantive notice of motion pursuant to Order 16 Rule 5(1) of the NCR.

28. As noted earlier, the grounds of appeal are stated in paragraph 3 of the Notice of Appeal. For purpose of clarity, and ease of reference, we will re-categorize the grounds and refer to them as Grounds A, B (i) to (vi) and C (i) to (iv).

Objections to Ground A of the appeal

29. Ground 1of the objection to competency of the appeal relates to all the grounds of appeal, namely, grounds A, B and C. The Respondents submitted that all three grounds raise issues of fact which require leave to be sought and obtained separately under s. 4(2)(c) and 14(1)(c) of the Supreme Court Act. It was further submitted that since leave has not been sought by way of an application for leave to appeal, all the grounds of appeal are incompetent. The Respondents rely on NCD Water and Sewerage Ltd v Sam Maskuman Tasion (2002) SC696 and Henzy Yakham and The National Newspaper v Dr Stuart Hamilton Merriam and Carol Merriam; The Independent State of PNG and Michael Nali v Dr Stuart Hamilton Merriam and Carol Merriam [1998] PNGLR 555; SC533.

30. The Appellant did not make any substantive submission against this ground of objection, other than claiming that the objection to competency of the appeal is not properly before the Court.

31. Sections 4(2)(c) and 14(1) (c) of the Supreme Court Act, provide that an appeal lies to the Supreme Court from a judgment of the National Court with the leave of the Supreme Court, on a question of fact.

32. So the question is: Do all or any of the grounds of appeal raise issues of fact alone for which leave to appeal is required under Section 4(2)(c) and 14(1)(c) of the Supreme Court Act?

33. As to what questions relate to fact or law is difficult to determine: Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz [1975] PNGLR 262, Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (supra). In British Launderers' Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21 at 25 to 26, Lord Denning discussed the distinction this way:

"On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and so far as these conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts: ... If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination by a trained lawyer — as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer — the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of the first instance." (Our underlining)

34. This passage was considered and applied in Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz (supra) and Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (supra). We adopt these principles here in determining whether the grounds of appeal raise questions of fact, mixed fact and law or law.

35. In the present case, we are of the opinion that ground A of the Notice of Appeal raises questions of mixed fact and law, therefore this ground does not require leave.

36. Grounds 2 and 4 of the objection to competency of the appeal raise issues of compliance with Order 7 Rule 10 by virtue of Order 10 Rule 3(a) of the SCR, regarding particularising with specificity the grounds of appeal inclusive of errors alleged to have been committed by the primary judge and which are frivolous and vexatious and an abuse of process. We will return to deal with these objections later on should it be necessary.

37. We note that the issue as to whether or not Cannings, J was available to sit in the Waigani National Court and should have heard the Respondents' application moved pursuant to the Amended Notice of Motion filed on 31st July 2013, does not appear to have been raised before the primary judge therefore it cannot be raised on appeal. The relevant transcript of the hearing on 4th September 2013 which would have shed some light on this issue was not available. The two affidavits of Tobias Dalid sworn on 23rd September 2013 and filed on 11th October 2013 and that sworn on 4th November 2013 and filed on 5th November 2013 are of no assistance as they do not address this issue. The affidavit of Joseph Tupiri sworn and filed on 13th November 2013 lends no assistance on this issue as well.

38. The only assistance we have is from the written judgment of the primary judge which is annexed to the affidavit of Tobias Dalid sworn on 23rd September 2013 and filed on 11th October 2013 as annexure "H". At paragraph 4 of the judgment, his Honour made the following observation:

"While it is preferable that any application to vary or set aside a stay order should be made before the judge that granted the order, in the circumstances where Cannings J has returned to Madang as resident judge of the province, there was no objection to my hearing this application." (Our underlining)

39. Going by the primary judge's observation in this passage it is clear that, there was no objection raised against him from hearing the application, therefore the issue about Cannings J, not hearing the application cannot be raised on appeal as it was not raised before the primary judge.

41. We therefore dismiss ground A of the appeal for being incompetent.

41. Given our ruling above, it is not necessary for us to deal with the grounds 2 and 4 of the Objections to Competency of the Appeal.

Objections to ground B of the appeal

42. Ground B of the appeal raises a question of fact viz; whether a Notice of Motion (Application for Review) was actually filed by the Appellant pursuant to Order 16 Rule 5(1) of the NCR. We accept the Respondents' submission with regards to Ground 1 of the objections touching upon this appeal ground. It is a question of fact and leave is required. The Appellant has failed to file an application for leave to appeal under Order 10 Rule 5 of the SCR. This appeal ground is incompetent therefore we dismiss it.

43. It is not necessary to deal with Grounds 3 and 4 of the objections in connection with appeal ground B of the appeal.
    

Objections to ground C of the appeal

44. In addition to the submission made in connection with ground 1 of the objection to competency of the appeal touching upon this ground of appeal, the Respondents essentially submitted that the objections raised under grounds 2, 4 and 5 of the Objection to Competency of the Appeal demonstrate that this ground of appeal is incompetent on the basis that it offends Order 7 Rules 9 and 10 by virtue of Order 10 Rule 3(a) of the SCR as to particularising with specificity the grounds of appeal inclusive of errors alleged to have been committed by the primary judge and that issues not being raised before the primary judge being raised on appeal. The Appellant did not make any substantive submission with regards to this ground of appeal.

45. This ground of appeal appears to raise questions of law for which leave is not required.

46. However, we accept the Respondents' submission that the way this ground is pleaded offends against Order 7 Rules 9 and 10 by virtue of Order 10 Rule 3(a) of the SCR.

47. We also accept the Respondents' submission that this ground of appeal raises new issues which were not raised before the primary judge: Chief Inspector Robert Kalasim v Tangane Koglwa (supra).

48. For these reasons, we dismiss this ground of appeal as incompetent.

49. We make the following Orders:
    
    1. The Respondents' objection to competency of the appeal is granted.
    2. All three grounds of appeal are incompetent.
    3. The appeal is dismissed.
    4. The Appellant shall pay the Respondents' costs of and incidental to the appeal.
    5. The appellant will also pay the Respondents' costs of and incidental to the National Court proceeding, OS (JR) 258 of 2013.
       

Orders accordingly.

_________________________________________________________

Wantok Legal Group: Lawyers for the Appellant/Respondent

Manase & Co: Lawyers for the Respondents/Applicants