Lokinap v Wagambie [2015] PGSC 52; SC1457 (11 September 2015)

SC1457

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 52 OF 2015

BETWEEN

BRIGADIER GENERAL ROCKUS LOKINAP, Commander of Papua New Guinea Defence Force
First Appellant

AND

STEVEN MOKIS, Secretary for the Department of Defence
Second Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

AND

JACK WAGAMBIE, JACK KUPO appointed representatives for and on behalf of 522 retrenched members of the Papua New Guinea Defence Force
Respondents

Waigani: Hartshorn, Makail & Geita, JJ
2015: 01st & 11th September

SUPREME COURT – PRACTICE & PROCEDURE – Objection to competency – Time limitation of 14 days – Time runs after service of notice of appeal – Notice of appeal shall be served on each party – Meaning of each party – Whether objection filed within time – Supreme Court Rules – Order 7, rules 13 & 15.

SUPREME COURT – PRACTICE & PROCEDURE – Grounds of appeal – Questions of fact – Requirement for leave – Whether grounds raise questions of fact – Whether leave required – Supreme Court Act – Section 14(1)(c).

No cases cited:

Counsel:

Mr. A. Manase with Ms. D. Bona, for Appellants
Mr. S. Malaga, for 162 Respondents
Ms. S. Oki, for 26 Respondents

RULING ON OBJECTION TO COMPETENCY

11th September, 2015

1. BY THE COURT: There are two groups of respondents totalling 188 in this appeal. They were plaintiffs in the proceeding in the National Court. 162 of them are represented by S. Douglas Uyassi Lawyers and 26 by Wal & Co Lawyers. The respondents represented by S. Douglas Uyassi Lawyers filed an objection to competency and seek to dismiss this appeal for being incompetent. They are supported by the other 26 respondents.

Preliminary Objection

2. In response, the appellants raise a preliminary objection and submitted that the objection was not filed within 14 days after service of the notice of appeal contrary to Order 7, rule 15 of the Supreme Court Rules. The appellants contended that the notice of appeal was served on Mr Douglas Uyassi the lawyer for the 162 respondents on 18th May 2015. From that date, 14 days expired on 01st June 2015. The notice of objection was filed on 10th June 2015. It was late by nine days and incompetent.

3. In opposing the preliminary objection, the respondents submitted that the preliminary objection is misconceived because Mr Uyassi did not have instructions at that time and time did not run from 18th May 2015. It ran from 02nd June 2015 when they instructed Mr Uyassi and he filed a notice of appearance on that date. From that date, 14 days expired on 16th June 2015. The objection was filed on 10th June 2015 and was within time.

4. Order 7, rule 15 provides for objection to competency of appeal. It states:

"15. 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."

5. This Rule permits a respondent to object to the competency of an appeal by giving notice within 14 days after service of the notice of appeal. However, a respondent can only object if a notice of appeal is served on him. The issue here is service of the notice of appeal and not mode of service of the notice of appeal. Order 7, rule 13 of the Supreme Court Rules provides for service of a notice of appeal and states:

"13. A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party —

(a) affected by the relief sought by the notice of appeal; or

(b) interested in maintaining so much of the judgment as is appealed from;

and upon the associate to the primary judge." (Emphasis added).

6. According to Rule 13 a notice of appeal must be served on each party. It was submitted for the appellants that when this Rule is read in conjunction with Order 11, rule 7(c) which provides for service of documents, it includes service on lawyers for the parties and it is, therefore, permissible for an appellant to serve a notice of appeal on the lawyers, in this case Mr Uyassi, the lawyer who acted for the respondents in the National Court.

7. Whenever the question of service of a notice of appeal arises, it must be remembered that an appeal to the Supreme Court is a different proceeding from the National Court proceeding. The Supreme Court is the final Court of appeal. It is also a superior Court of record with, amongst other things, its own Court Registry and staff who are responsible for the case management of files: Sections 155(2) and 160 of the Constitution. In the case of an appeal, it is initiated by a notice of appeal: Section 4 of the Supreme Court Act and Order 5, rule 7 of the Supreme Court Rules. It follows that when a notice of appeal which is the document that initiates the appeal is filed, logically, it must be served on the party named as the respondent to the appeal.

8. We are of the view that Order 11, rule 7(c) relied on by the appellants has limited application in so far as the question of service of a notice of appeal is concerned because the question of service is adequately addressed in Rule 13. Rule 13 states that a notice of appeal must be served on each party to the appeal. It does not state that it may be served on the lawyers for each party.

9. There is no dispute that the notice of appeal was served on Mr. Uyassi. Mr. Uyassi is not a party to the appeal. Even then, he had no instructions at that time to act for the respondents. Given this we are not satisfied that 14 days ran from 18th May 2015 and expired on 01st June 2015. However, accepting the respondents' contention that 14 days ran from 01st June 2015 which was the date S. Douglas Uyassi Lawyers formally entered appearance as lawyers for the first group of respondents, time expired on 14th June 2015. The notice of objection was filed on 10th June 2015. We are satisfied it was filed within time. We dismiss the preliminary objection.

Objection to Competency

10. This case has a long and convoluted history dating back to 1989. However, in short, the respondents were part of 522 re-trenched members of the PNG Defence Force who sued the appellants for unpaid entitlements following their discharge from the Force in proceeding OS No 58 of 1989. Out of 522 plaintiffs, 188 of them (the respondents) entered into a consent order with the appellants on 03rd December 1993 and settled their claim. They were paid K2.5 million. The remaining 334 plaintiffs separately pursued their claim against the appellants.

11 Between 1993 and 2014, the respondents unsuccessfully sought to set aside the consent order. A review was filed in the Supreme Court and was also unsuccessful. They also sought settlement of their claim through the Alternative Dispute Resolution ("ADR") process. The appellants took a different position. They asserted that proceeding OS No 58 of 1989 was concluded in 1993 when the respondents had settled the claim and received K2.5 million. Despite this, at the suggestion of the Court, between 2014 and 2015, the respondents commenced three separate proceedings for unpaid entitlements: They were:

(a) WS No 1503 of 2014: Joseph Kupo & Ors v. The State & Ors;

(b) WS No 1507 of 2014: Noah Kimai & Ors v. The State & Ors; and

(c) WS No 316 of 2015: John Kiriniam & Ors v. The State & Ors.

12. At a directions hearing on 01st April 2015 the primary judge granted leave to the respondents to discontinue the proceeding OS No 58 of 1989 and "All the Order and directions concerning the question of quantum shall remain current and issued under the 3 WS proceedings named above."

Consent Order

13. This is the order that is being appealed against by the appellants. Amongst other grounds, the appellants allege that the primary judge erred when he granted leave to the respondents to discontinue proceeding OS No 58 of 1989 because the proceeding had been concluded in 1993 and there was no proceeding by which his Honour could lawfully exercise jurisdiction and grant the orders. Secondly, he gave no consideration to their defences of, amongst other things, res judicata and that the proceeding was statute-barred. One of the grounds of objection is that the order was made by consent and an appeal against a consent order is prohibited by Section 14(2) of the Supreme Court Act.

14. We point out that the objection is not based on the discontinuance of the proceeding OS No 58 of 1989 being by consent but that the granting of leave to discontinue the proceeding was by consent. These are two different matters. In the former case, a party who commences a proceeding is at liberty to apply for leave to discontinue it at any time subject to costs. In the latter case, no appeal lies from a consent order under Section 14(2) of the Supreme Court Act. We make this distinction because parties have addressed the objection on the basis that the order for discontinuance was by consent and we have addressed the objection on that basis.

15. For an order to be categorised as a consent order, it must be clearly and unequivocally expressed as one. In this case the order is not expressed as a consent order. However, we were referred to the transcript of the proceeding of 01st April 2015 which counsel for the respondents contended is proof of the consent order. We have considered the transcript. It shows that the primary judge and counsel for the appellants discussed at some length how the different proceedings could be progressed. At the centre of the discussion was the suggestion to discontinue proceeding OS No 58 of 1989. If it were to be discontinued, the primary judge suggested that the respondents be allowed to pursue their claim in the remaining proceedings.

16. The appellants had reservations about this suggestion. First, they were concerned that the claim was not, to use the words of counsel for the appellants, "articulated" or the details of the outstanding heads of unpaid entitlements were not sufficiently pleaded. If that was done, it would give the appellants the opportunity to identify which heads of claim were settled in 1993 and which are still outstanding and needed to be settled. Secondly, they were concerned that the respondents were allowed to maintain a claim in a proceeding (OS No 58 of 1989) which was concluded in 1993 and subsequently were proposing to replace it with three new proceedings without giving consideration to the possibility that the claim may be, amongst other things, res judicata or statute-barred.

17. The discussion concluded with the primary judge granting leave to the respondents to discontinue the proceeding OS No 58 of 1989 and allowing the respondents to pursue the claim in the remaining three proceedings. From what has transpired, we are unable to say with certainty that the parties had agreed to discontinue the proceeding. We reach this conclusion because the primary judge does not clearly address the two issues raised by the appellants. He was more concerned about having the claim settled by mediation. In taking this position, he does not say in clear and unequivocal terms that the appellants could argue in their defence that the claim is res judicata or statute-barred in the remaining proceedings.

18. The appellants' contention is consistent with term 1(iv) of the minute of the purported consent order taken out and filed by the lawyers for the respondents which states, "All the Order and directions concerning the question of quantum shall remain current and issued under the 3 WS proceedings named above." If the order is taken on face value, it does not mention the issue of liability and any defence that the appellants may have in response to the claim. It was all about settling the claim. Given the ambiguity, we are not satisfied that the discontinuance of OS No 58 of 1989 was by consent and leave is required. We dismiss this ground.

Questions of Fact

19. The remaining two grounds of objection are based on the failure by the appellants to obtain leave to appeal the findings of fact by the primary judge. Section 14(1)(c) of the Supreme Court Act states that an appeal lies to the Supreme Court from the National Court with leave of the Supreme Court, on a question of fact. The respondents contended that the grounds of appeal raise questions of fact and leave is required to appeal them. No leave was sought and granted and so the appeal is incompetent.

20. They further contended that of particular concern is the appellants' assertion that the primary judge was not impartial in his consideration of the issues raised by the appellants. The appellants had asserted that the primary judge was also a mediator. As a mediator, it influenced the way he dealt with the case. This is evident from the proposal to have the matter settled by mediation without giving any consideration to the appellants' defence of, amongst others things, res judicata and statute-bar.

21. As a result, he compromised his position and impartiality. The appellants had raised this issue as a separate ground of appeal in grounds 3.3 and 3.5 of the notice of appeal. The respondents contended that the question of impartiality is a question of fact and leave is required. No leave was sought and granted and these grounds are incompetent.

22. Briefly restating what has already been discussed, the appeal is against first the discontinuance of the proceeding OS No 58 of 1989 and secondly, the allowance given to the respondents to pursue the claim for unpaid benefits in the remaining proceedings without the appellants being given the opportunity to argue in their defence, amongst other things, res judicata and statute-bar.

23. A matter of grave concern for the appellants is that by allowing the respondents to pursue the claim in those proceedings, the primary judge did not say if the appellants were entitled to challenge the issue of liability based on their defence to the claim. Given this, it is unclear if the appellants would be permitted to challenge the issue of liability in the remaining proceedings.

24. We are of the view that the issues raised in the grounds of appeal are not pure questions of fact. Rather they are mixed fact and law because they do not only seek the Supreme Court to look at what transpired at the hearing on 01st April but also the exercise of discretion by the primary judge to grant leave to the respondents to discontinue the proceeding OS No 58 of 1989 and allow the respondents to pursue the claim in the three mentioned proceedings. Further, none of the grounds challenge the primary judge's assessment of evidence and findings of fact.

25. With regard to the respondents' objection to grounds 3.3 and 3.5, the objection is misconceived because the primary judge did not make any finding of fact. In these grounds, the appellants question the impartiality of the primary judge given that he is a mediator and was more inclined to have the claim mediated through the ADR process even though there were serious issues concerning the competency of the proceeding OS No 58 of 1989 and the exercise of jurisdiction by the Court. These were issues the appellants wanted to argue but were not given the opportunity in the Court below. In our view, the question of impartiality is not purely a question of fact but mixed fact and law. We dismiss these grounds.

Order

26. The orders are:

1. The respondents' objection to competency is dismissed.

2. The appeal is adjourned to the next available date for directions hearing.

3. Costs of and incidental to the objection be in the appeal.

_______________________________________________________________
Manase & Co Lawyers: Lawyers for the Appellants
S. Douglas Uyassi Lawyers: Lawyers for the 162 Respondents
Wal & Co Lawyers: Lawyers for the 26 Respondents