Dekenai Construction Ltd v National Airports Corporation Ltd [2015] PGSC 23; SC1417 (24 March 2015)

SC1417

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 53 OF 2011

BETWEEN:

DEKENAI CONSTRUCTION LIMITED
First Appellant

AND:

LUCAS DEKENA, MP, Minister of the Department of Lands & Physical Planning
Second Appellant

AND:

PEPI KIMAS, the Departmental Head and Secretary of the Department of Lands & Physical Planning
Third Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

AND:

NATIONAL AIRPORTS CORPORATION LIMITED
Respondent

Waigani: Gavara-Nanu J, Batari & David JJ
2013: 1st March
2015: 24th March

PRACTICE AND PROCEDURE – Appeal – Notice of objection to competency of appeal – Notice of objection filed under the old Supreme Court Rules – Notice of objection governed by the old Supreme Court Rules – Filing of notice of objection not by right – Leave required to file the notice of objection – Notice of objection incompetent.

Cases cited:

Kenn Norae Mondiai v. Wawoi Guava Timber Co. Ltd (2007) SC866
National Capital Limited v. Loi Bakani Governor, Bank of Papua New Guinea and Ors (2014) SC1392
Talibe Hegele v. Tony Kila (2011) SC1124

Counsel

D.Mel, for the first appellant
F. Griffin, for the respondent

24th March, 2015

1. BY THE COURT: On 25 May, 2011, the first appellant filed an application for leave to appeal the whole of the decision of his Honour Deputy Chief Justice Sir Gibbs Salika given on 3 May, 2011, to grant leave to the plaintiff to apply for judicial review in proceedings OS (JR) No. 430 of 2010, between National Airports Corporation Limited v. Lucas Dekena, Minister for Department of Lands and Physical Planning and Ors.

2. On 30 May, 2011, the first appellant filed an application pursuant to s. 19 of the Supreme Court Act, (Chapter No. 37) and s. 155 (4) of the Constitution to stay the said National Court proceedings OS (JR) N. 430 of 2010, between National Airports Corporation Limited v. Lucas Dekena, Minister for Department of Lands and Physical Planning and Ors, pending the outcome of its appeal or until further Orders of this Honourable Court. Subsequently on 9 June, 2011, the first appellant filed its amended application to stay.

4. On 10 June, 2011, the respondent filed a notice of objection to competency of the first appellant's application for leave to appeal (appeal).

5. The notice of objection to competency was heard on 1 March, 2013. The first appellant has raised a preliminary objection against the competency of the respondent's notice of objection to competency of the appeal claiming that it was incompetent because it did not comply with the requirements of the Supreme Court Rules. Mr. Dave Mel of counsel for the first appellant argued that the respondent's objection to competency of the appeal is an abuse of process because the respondent has not sought and obtained leave of Court before filing it.

6. In regard to the claim by the respondent that the application for leave to appeal is defective and incompetent, Mr. Mel submitted that it is competent because it complies with the requirements of Order 7 r 4 (c) of the Supreme Court Rules.

7. Mr. Francis Griffin of counsel for the respondent in responding to the first appellant's preliminary objection to the competency of his client's notice of objection to competency of the appeal, submitted that leave is not required under the Rules for a notice of objection to competency to be filed for appeals filed under Order 10 of the Supreme Court Rules. He submitted that, his client is challenging the competency of the appeal filed under Order 7 of the old Supreme Court Rules which he said permitted a notice of objection to competency of an appeal to be filed without leave of Court.

8. We propose to decide the preliminary objection to the competency of the respondent's objection to competency of the appeal raised by the first appellant first because the outcome of that decision may determine whether we should consider the respondent's objection to competency of the appeal or not.

9. It should be noted that the new Supreme Court Rules of 2012, came into effect on 19th December, 2012. It therefore follows that the first appellant's application for leave to appeal having been filed before the new Rules came into effect is governed by the old Rules. Notably, under Order 7 r 15 of the new Rules, a notice of objection to competency of appeal can be filed without leave. There was no equivalent provision under the old Rules. This situation was noted by the Supreme Court in Kenn Norae Mondiai v. Wawoi Guavi Timber Co. Ltd (2007) SC886 where the Court in the summary of its findings held:

"There is no provision in the Supreme Court Rules for filling an objection to competency of an appeal under Order 10 and such objection should not be filed".

10. Relying on Kenn Norae Mondiai decision the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 said:

"... 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 of appeal 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. Anyone of those avenues of approaching the Court might have been utilized by the respondents in the present case in order to have their arguments about abuse of process and vexatiousness properly put before the Court".

11. One of the above avenues namely, option (c) was adopted in a more recent case of National Capital Limited v. Loi Bakani Governor, Bank of Papua New Guinea and Ors (2014) SC1392. In that case the respondent applied for leave before the Chief Justice (single Judge) under Order 11 Rule 9 of the old Supreme Court Rules to file an objection to competency of the appeal.

12. As we noted earlier, the new Supreme Court Rules cannot apply in this case because those Rules came into effect after the first appellant's application for leave to appeal was filed. Therefore persuant to the principles enunciated by the Supreme Court in the cases we have cited, the respondent/applicant should have obtained leave first before filing its notice of objection to competency of the appeal, but it did not. Obtaining leave to file an objection to competency of an appeal is a mandatory requirement which goes to the jurisdiction of the Court. Therefore the failure by the respondent to obtain leave before filing the notice of objection to competency of the appeal is fatal.

13. It follows that the respondent's objection to competency of the appeal is incompetent.

14. We therefore make the following orders:

(i) notice of objection to competency of the appeal (application for leave to appeal) is incompetent.

(ii) the respondent will pay the first appellant's costs and incidental to this hearing.

(iii) the second, third and fourth appellants' will pay their own costs.

__________________________________________________________________
Steeles Lawyers: Lawyers for the First Appellant
Solicitor General: Lawyers for the Second, Third and Fourth Appellants
Young & William Lawyers: Lawyers for the Respondent