Kandiu v Parkop [2015] PGSC 88; SC1597 (6 March 2015)

SC1597

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV. (EP) NO. 2 OF 2014

IN THE MATTER OF APPLICATION UNDER SECTION 155(2) (b) OF THE NATIONAL CONSTITUTION

IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON THE NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
MICHAEL KANDIU
Applicant

AND:
HON. POWES PARKOP
First Respondent

CYRIL RETAU
Second Respondent

RICKY FUGUNTO
Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Davani, Kariko, Toliken.JJ

2014: 16^th December
2015: 6^th March
Cases Cited:

Amet v. Yama (2010) SC 1064
Bari Palma v. the Electoral Commission of PNG (2014)
Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221

Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC 1272
Edward Ekan Alina v. Francis Mulungu Potape & Electoral Commission (2012) N4877
In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917
In Yap v. Tan [1987] PNGLR 227
Jeffery Turia v Gabriel Nelson (2008) SC949
Korak Yasona v. Castan Maibawa (1998) SC 552
Paru Aihi v. Victor Naime Isoaimo and Electoral Commission of Papua New Guinea (2014) N5691
Ramu Nico Management (MCC) Ltd v Farina Siga (2010) SC1056
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Special Reference by Morobe Provincial Executive) SC 1089
Vele v. Parkop (2008) SC 945
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Counsel:

Mr P. Korowi, for the Applicant
Mr T. Dawidi, for the first Respondent
Mr M. Duma and Mr L. Okil, for the Second, Third & Fourth Respondents

DECISION
6^th March, 2015

1. DAVANI J: Before the Court for hearing is application filed by Dawidi Lawyers on 3^rd June, 2014 and which is contained in Application Book filed by Dawidi Lawyers on 10^th September, 2014. The application or as put by Mr Dawidi, an Objection to Competency of the review, is filed for and on behalf of the first respondent, the Hon. Powes Parkop and is an application seeking to dismiss the Review, filed by Michael Kandiu, the Applicant (‘Mr Kandiu’) on 7^th April, 2014, after leave was granted by a single Judge of the Supreme Court on 27^th March, 2014.
   
2. Before setting out and discussing the grounds of Review, it is necessary that I discuss the jurisdictional basis and the form of the Objection to Competency now before us, because it was raised and argued by both counsel.
   

Jurisdictional basis and form of the Application/Objection to Competency

3. The Objection to Competency of the Review now before this Court is in the form of an Application filed by Dawidi Lawyers on 3^rd June, 2014. Mr Dawidi for the Applicant seeks leave of this Court to apply under Order 11 Rule 9 of the Supreme Court Rules for directions because the manner or form of challenges to the competency of a Review, is not covered or provided by the rules of court and he seeks this Court’s sanctioning to rely on the Application, now before us. Mr Dawidi submits, in response to my brother Kariko J’s queries about the form he has adopted, that because there is no prescriptive method provided in the Supreme Court Rules and also because of the fact that the Rules do not say that the application or objection should be in the form of a Notice of Motion, that the application or objection to competency, is in the form that it is.

4. Although Mr Dawidi requested that the Court rule on the grant or not of leave first, before considering the merits of the Objection, the Court proceeded to hear counsel.
   
5. In response to that, Mr Korowi for Mr Kandiu, referred the Court to Order 7 Rule 15 of the Rules which provides for and prescribes the form of Objection to Competency of an appeal.
   
6. Mr Korowi submits that because order 7 rule 15 provides that an Objection to Competency must be in the form of a “Notice of Objection to Competency of Review”, that the Application, filed by Dawidi Lawyers, is not in the proper form and should be dismissed as being defective and for want of proper form.
   
7. Order 7, Rule 15 of the Supreme Court Rules falls under Division 5 which is the Division on “Objection to Competency of Appeal”. (my emphasis) That provision states that a respondent will file within 14 days after service on him of the Notice of Appeal, an Objection to the Competency of the Appeal, in accordance with Form 9 of the Supreme Court Rules.
   
8. Clearly, that provision does not apply to Reviews filed under section 155 (2) (b) of the Constitution. This was discussed in Korak Yasona v. Castan Maibawa (1998) SC 552 per Amet CJ, Salika J, Sakora J dated 3^rd May, 1998.
   
9. In that case, the respondent filed an Objection to Competency of the Review, relying on a form headed “Objection to Competency”. The respondent submitted that because the Supreme Court Rules were silent in relation to procedure and process for objecting to the Competency of an Application for Review, pursuant to Section 155 (2) (b), that the Objector should have asked for directions from the Supreme Court pursuant to Section 185 of the Constitution as how to make such an application.
   
10. The Supreme Court found that to be the case and held this;
    

“Since there is no applicable provision of procedure for objecting to the competency of an Application for Review, we consider that the Objector to the Competency of the Application for Review ought probably to have made application to the Supreme Court pursuant to Section 185 of the Constitution for direction as to the procedure to be adopted for making such an objection to the Competency of the Application.”

11. The Court found the Objection to be incompetent and dismissed it.
    
12. Order 5 of the Supreme Court Rules, provides for the Court’s general power of review of National Court decisions, for parties applying under s. 155 (2) (b) of the Constitution, with leave only or without leave. Division 2 falls under order 5 which provides for Election Petition Reviews. It states this at order 5 rule 36;
    

“36. The Court may hear and determine the application or any objection to competency of the application on the date and time fixed for the hearing or may adjourn the hearing.”

13. This provision falls under sub-division 10 which is the provision on the hearing of the Review. In Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272 per David, Sawong and Kassman JJ dated 30^th August, 2013, the Supreme Court held this;
    

“It is trite that a Competency issue is an issue that can arise at any time during a proceeding. It may be raised by a party or by the Court on its volition at any time.” (my emphasis)

14. In saying that, the Court relied on the case Amet v. Yama (2010) SC1064, where this principle was emphasized.
    
15. The Supreme Court in Dawa Lucas Dekena v. Kuman (supra) said further in relation to Rule 36 of the Supreme Court Rules;
    

“This rule is clear. This rule gives the Supreme Court power to hear any objection to the competency of the Review application at the hearing of the application. There is no rule as to how that objection is to be raised. The objection may be raised by a party or by the Court at the hearing. (Amet v. Yama (supra)). One should not confuse this procedure with objections to competency in the ordinary appeal rules.”

(my emphasis)

16. Therefore, based in these authorities, it is clear that the position at law is that if an aggrieved respondent wishes to challenge the competency of a review under S.155(2) (b), then he need only do the following;
    
    1. That he can raise these objections at anytime; even during the leave the hearing of the Review; (Amet v. Yama (supra)); Dawa Lucas Dekenai v. Kuman (supra));
       
    2. That the Objection need not to be in any form (see Bari Palma v. the Electoral Commission of PNG (2014) SC 1309 Makail .J dated 17.2.2014; Amet v. Yama (supra); Dawa Lukas Dekena v. Kuma (supra));
       
    3. And can be verbally made (Amet v. Yama).
       
17. What of the rule of general application, O.11, R.28 of the Supreme Court Rules 2012? This rule reads;
    

“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 of appeal);

(b) Order 7 Division 19 (time, and want of prosecution).”

18. This rule provides for the substitution of the word ‘appeal’ for ‘objection to competency’. It is not a mandatory provision, and is inserted there in the rules, to give an applicant the choice of a form to use. However, it is not mandatory that such a form be filed. And that is only because Objections to the Competency of the form of a Review, can be raised at anytime, even at a substantive hearing. In fact, such verbal objections, which are usually in the form of submissions, often determine the fate of the Review.
19. However, the form for Applications to Dismiss for Want of Prosecution is already provided in the rules i.e Form 11. So the question one would ask is, what is the utility of O.11 R. 28 (b) of the SCR?
    
20. In relation to Objections to Competency of Reviews, if parties are now to rely on O.11 R. 28 and Form 9 of the rules, which is the form relating to appeals only, the Court is effectively sanctioning the fact that there is not a marked difference between Appeals and Reviews, which we know to be otherwise. A major hurdle that must firstly be overcome is as to who signs Form 9. The Application for Review under s. 155 (2) (b) is signed by the applicant himself whereas a Notice of Appeal is signed by either the appellant or his lawyer (Forms 5B and 8 of the SCR).
    
21. An Objection to Competency of an Appeal is signed by the Respondent or his lawyer. Should the respondent in a s.155(2) (b) proceeding sign the Objection to Competency as an applicant would do in an Application for leave to apply for Review (O.5 R. 10(c) of SCR) and Application for Review (O.5 R. 19(f)) or should that form be signed by either the respondent or his lawyer, as is done in appeals?
    
22. I consider these to be inconsistencies that warrant that parties not rely on the general provision O.11 R. 28 but to either file application, before the hearing of the Review or to raise them in submissions at the substantive hearing of the review.
    
23. In this case, counsel for Mr Kandiu, relying on Order 7 Rule 15, submitted that the Objections to the Competency of the Petition should have been filed and served within 14 days and should have been titled “Objection to Competency”, in accordance with form 9 of the Supreme Court Rules.
    
24. Form 9 relates to Objections to Competency of Appeals. There is a distinction between Appeals and Reviews. The Supreme Court in Dawa Lucas Dekena v. Kuman (supra), took great pains to draw this distinction and it said this;
    

“The unanimous decision of the Supreme Court in Moi Ave and Electoral Commission v. Charles Maino (2000) PNGLR 157 clarified and stated the difference in an appeal and a Review in the following terms;

“it is common ground that there are fundamental differences between appeals and review. They are infact different jurisdictions”

25. The Supreme Court then went on to discuss the distinction between an appeal process and the review process, which I need not set out because the parties before me accept that there is indeed a difference. The Supreme Court’s discussion on this in Dawa Lucas Dekena is found at paragraph no. 11.
    
26. In view of all the above , I find that Mr Dawidi need not have applied for leave for directions as to how to move an Objection to Competency and the form it ought to take because the numerous case law in this country has established that Objections to Competency’s can be raised at anytime . Therefore, it makes sense that an objector need not use a specific form.
    
27. I find that the Applicant’s application is properly before the Court and I will proceed to consider all counsel’s submissions.
    

Competency of the Review

28. The Application although quite lengthy, when summarized, is in relation to the following;
    
    1. That Mr Kandiu failed to serve the Applicant with the Application to Review, within the 14 day time period ordered by the Court,
    2. that the Application for Review filed on 7^th April, 2014 be dismissed, because it was not served in accordance with Order 5 Rule 37 (a) of the Rules.
    3. that the Application for Review filed on 7^th April, 2014 be dismissed because leave was not granted on 26^th March, 2014, rather leave was granted on 27^th March, 2014.
    4. that the ground of the review failed to either give reasons or to specify with particularity what it is that is reviewed.
       
29. It is expected that in the event the Court does find that the Application for Review is not properly before the Court because it was either not properly served or not filed within the time period ordered by the single Judge of the Supreme Court, then the Application for Review will be dismissed. It means then that I need not proceed to consider ground no.4 because my findings in the applicant’s favour, effectively determine the Review because those are threshold and preliminary factors which are crucial to the existence or not of the Review.
    
    1. Objection 1

The correct date that leave was granted by the Court was 27^th March, 2014, hence Mr Kandiu should have applied to amend the date stated on the Application for Review.

30. Mr Dawidi for the applicant, submits that the correct date leave was granted was 27^th March, 2014 and that the date presently in the Petition of 26^th March, 2014 is incorrect which means that the Application for Review is not properly before the Court and must be dismissed.
    
31. The affidavit of Timwapa Dawidi sworn on 2^nd June, 2014 and filed on 3^rd June, 2014 deposes to the following;
    
    1. The application for leave to review was heard on 27^th March, 2014. This is confirmed by the endorsement form in the Court file, of the same date.
       
    2. The Application to Review states at paragraph 2 that leave to review was granted on 26^th March, 2014.
       
32. At the grant of the leave to review, Mr Korowi for Mr Kandiu and Ms C. Lari for the second, third and fourth respondents, were in Court. Which means Mr Korowi was fully aware that leave was granted on 27^th March, 2014.
    
33. The Application to Review filed on 7^th April, 2014 by Korowi Lawyers states that Leave to apply for Judicial Review was granted on 26^th March, 2014 by his Honour Justice Makail. That is clearly an error. Although Mr Korowi was in Court on the date of grant of leave and was very much aware that 27^th March, 2014 was the correct date, he allowed this defect to remain on the application until the hearing of the Objection to Competency. At no time did he make an effort to apply to amend that error.
    
34. How does that affect the Application to Review?
    
35. Mr Kandiu could have returned to Court through his lawyer to apply to amend the Review, to change the incorrect date of 26^th March, 2014 to the correct date of 27^th March, 2014.
    
36. Infact, there was no misunderstanding by Mr Korowi that the date was incorrect. His honour Justice Kariko, on enquiring with him on two occasions was repeatedly told by Mr Korowi that the correct date was 27^th March, 2014, not 26^th March, 2014 and that the Court should accept it as a typographical error.
    
37. What is this Court’s role, bearing in mind the fact that the Application to Review bears the incorrect date for the grant of leave to review? Does that render the Review, incompetent?
    
38. It means that on the face of the Application to Review, leave was never granted on 26^th March, 2014. The grounds set out in the Application to Review are therefore none existent and obsolete because leave was not sought and granted on 26^th March, 2014, in relation to the grounds set out in the Application.
    
39. Mr Dawidi referred the Court to Order 5 Rule 9 and Rule 19 (a) (c) of the Supreme Court Rules. Reference to these rules is made in support of the issue of whether the Review filed on 7^th April, 2014 should be struck out for failure to comply with the mandatory requirements set out in those rules. These rules read;
    

1. Order 5 Rule 9
   

“9. An application for an Election Petition Review in respect of a decision referred to under Rule 8 lies to the Court with leave only.”

Order 5 Rule 19

“19. The Application for Review shall;

(a) state that the Application lies with leave and states the date on which leave was granted; and”

(my emphasis)

40. Order 5 Rule19 (a) is in mandatory terms, that the application must state the date when such leave was granted. It is not acceptable, that a lawyer having allowed the defect to remain on the application, then comes before a Court of law, in this case the Supreme Court, and informs it that the date on the Application is a typographical error. That is unacceptable.
    
41. There have been many cases in this jurisdiction which were dismissed for parties’ failure to comply with the requirements of the Organic Law on National and Local Level Government Elections (‘Organic Law’) and the Election Petition Rules 2002 as amended (‘EP Rules’).
42. One such case is Paru Aihi v. Peter Naime Isoaimo and Electoral Commission of Papua New Guinea (2014) N5691. This was a case where the Petitioner had failed to pay the security for costs in the correct account.
    
43. In that case, the Petitioner’s submissions were that he did pay K5,000.00 security deposit, however he paid it at a place other than the National Court Registrar’s account at the nominated bank. When the Petitioner presented at the Waigani National Court Registry to file the Petition , the receipt was rejected by the Registry Staff because the K5,000 was paid into a wrong account. The relevant provision on security for costs is Rule 5 of the EP rules which states that the deposit shall be paid at the Registry at the time of filing (5) (2)) and that the evidence of the payment shall be immediately forwarded to the Registrar after payment is paid into the National Court Registrar’s Trust Account (PNGBC – Account No – 202/006/551) (Rule 5 (3)) (my emphasis).
    
44. Indeed, those provisions are mandatory, which was why the Registrar refused to accept the receipt because the deposit of K5,000.00 was paid into a wrong account.
    
45. Again in Edward Ekanda Alina v. Francis Mulungu Potape & Electoral Commission (2012) N4877, the Court dismissed the Petition on the ground that the Petitioner had failed to file and submit affidavits within time as directed by the Court.
    
46. And as Makail .J said in Paru Aihi v. Victor Isoaime & 1 other (supra), these cases and many others demonstrate the importance of compliance with the EP Rules and Court directions, and of course, the consequences that flow from non-compliance.
    
47. To emphasize the effect of non compliance with mandatory provisions, Makail .J said this in Paru Aihi v. Victor Isoaime & 1 other (supra);
    

“the onus is on the Petitioner and his legal advisors to ensure that the requirements of the Organic Law and EP Rules are strictly complied with.... Anything falling short of meeting these requirements invites trouble...”

48. Indeed, although those cases and findings by the National Court are in relation to Petitions filed in the National Court, by the same token, the same emphasis is given to Reviews filed in the Supreme Court.
49. By analogy, the Court has held that the requirement to comply with the rules is not to be trifled with. The Supreme Court case of Vele v. Parkop (2008) SC 945, in dealing with Vele’s failure to file, serve and move an application within 14 days of the decision sought to be reviewed, said this;
    

“The purpose of the Election Petition Review Rules is;

a. not to treat an Election Petition Review as an ordinary matter but as a special matter requiring the applicant’s constant and detailed attention;

b. to closely manage the review process;

c. to reduce to the minimum the time between the various steps in the Review.”

50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.
    
51. The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917). Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).
    
    2. Second Objection
       

If the date of leave is 26^th March, 2014, as stated on the Leave Application, then service of the application was well after the 14 days prescribed period.

52. If this Court were to go by the fact that leave was granted on 26^th March, 2014, which is not my stance in this, then the Application to Review would have to be served within 14 days from the date of the orders, that is 26^th March, 2014.
    
53. The affidavit of service of Donald Poli filed by Korowi Lawyers shows that the Application for Review was purportedly served on 10^th April, 2014. This is the 15^th day, contrary to the orders of the court.
    
54. Indeed, the applicant did not seek a variation of the orders or seek an extension of time, or even seek to amend. Until that order is successfully appealed, varied, set aside or amended, he is required by law to comply with those orders. In Yap v. Tan [1987] PNGLR 227, the Court said;
    

“where an order is made in a Court of competent jurisdiction, it is the obligation of every person against or in respect of whom the order is made, to obey it unless and until the order is discharged.”

(my emphasis)

55. Indeed, there can be only one date when leave to review was granted. That date is the 27^th March, 2014, because that is confirmed by the endorsements in the Court file. And, of course, service was affected one day out of time.
    

III. Third Objection

Service of the Review was not personally effected

56. Mr Dawidi submits that Mr Kandiu, through his lawyers, had not effected personal service upon the Applicant, which is the requirement under the Supreme Court Election Petition Review Rules 2002.
    
57. Mr Dawidi further submits that because of this non compliance, that the Application to Review must be dismissed.
    
58. Subdivision 4 of the Supreme Court Election Petition Review Rules 2002, as amended, states this;
    

“18. Within 7 days of filing the application, the applicant shall serve the application together with the draft index on the respondent named in the application and on any other person the Court considers has an interest in the Application” (my emphasis)

59. Order 5 Rule 25 of the Supreme Court Rules 2012, states this;
    

“Within 7 days of filing the Application, the Applicant shall serve the Application, together with the draft index on the respondents named in the application and on any other person the Court considers has an interest in the Application.”

(my emphasis)

60. In this case, the Court’s order of 27^th March, 2014 ordered that the applicant shall file and serve an Application for Review within 14 days of the order. (par. 3 of the Court order).
    
61. Indeed, my view is that personal service upon respondents is required under the Supreme Court Review Rules and the Supreme Court Election Petition Review Rules (‘SCR EP Rules’). Personal service will be required if the party does not have an address for service, as in this case. I will illustrate further below. Order 5 R. 25 of the SCR and Rule 18 of the SCR rules read;
    

“25. Within 7 days of filing the application, the applicant shall serve the application together with the draft Index on the respondents named in the application and on any other person the Court considers has an interest in the application.”

62. In this case, according to the affidavit of Donald Poli sworn on 10^th April 2014 and filed by Korowi Lawyers, Donald Poli went to the office of the first respondent on Wednesday 9^th April, 2014 to deliver the Application for Review; the Court’s decision of the 7^th March, 2014 and the draft index to the Review Book, however was informed by the lady sitting at the front desk of the first respondent’s office that she would not accept service and even to sign the proof of delivery form.
    
63. On Thursday, 10^th April, 2014 about 11:40am, he returned there and went to the legal section situated next to the first respondent’s office and delivered the same documents to Ms Vavine. He asked her to sign the proof of service and she refused informing him that she will pass the documents to the Personal Assistant to the first respondent.
    
64. In my view, if Mr Kandiu’s lawyers were unable to effect personal service, then they had options available to them under the rules. They could have come back to ask for dispensation of that rule or they could have asked for substituted service. However, they did neither.
    
65. One can argue that personal service is not required in Applications for Review as opposed to Applications for Leave to Review (O.5 R. 14 (15) of SCR), because of the fact that once leave is granted, then the Court has assumed jurisdiction to deal with it. However, that is not the issue, the issue is whether, at the time Mr Kandiu or Korowi Lawyers sought to serve, whether the Applicant had counsel acting for him. Although Dawidi Lawyers filed Notice of Appearance for the Applicant on 9^th April 2013, (Doc. No. 10 in Court file), Korowi Lawyers went looking for the Applicant to serve on him, on 9^th April, 2013 (see Donald Poli’s affidavit of service sworn on 10^th April 2014, Doc. No. 11).
    
66. There is no affidavit of service in the Court file that would show when the Notice of Appearance was served on Korowi Lawyers which means that, as Mr Korowi correctly directed his clerks, service had to be personally effected on the Applicant.
    
67. And it is the same with a Notice of Appeal, where, although O. 7 R. 13 of the SCR provides for service upon a party, it is accepted practice that if there is no lawyer on record, then service must be effected on the respondent (party) personally.
    
68. In this case, although one can argue that the Applicant eventually received the Court documents, we as practitioners of the law must accept that in the event we are not able to comply with requirements of the rules, that there are other processes available to us that we must utilize failing which this Court must sanction such lack of attention and diligence by a penalty that will send out a message that rules must be followed and complied with.
    
69. And I should add finally, in view of all the above, that obviously at the time Mr Korowi served through his employees that he was not in receipt of an address for service for the Applicant, and so chose to effect personal service (Div 3 and Div 4 of the SCR) meaning all requirements for personal service must be complied with.
    
70. I find that Mr Kandiu, through his lawyers, did not effect personal service of the Application to Review upon the Applicant.
    

Conclusion

71. In my view, I find that the Application to Review is indeed incompetent for those preliminary threshold reasons alone and that the Review should not proceed any further. It must be terminated.
    

Costs

72. Because the Review now fails, I will order that Mr Kandiu pay the Applicant’s costs of this Review which will include the leave application, if not already ordered by the Court. I will not order costs for the other respondents because they have never supported the first respondent in this endeavor, although they were in Court. However, they are of course entitled to other related costs, subject to taxation.
    

Orders

73. These are the orders I will issue:
    
    1. The Application to Review filed on 7^th April, 2014, is dismissed;
       
    2. Mr Michael Kandiu will pay the first respondents’ costs of this Review including this application, to be taxed if not agreed; and
       
    3. Mr Michael Kandiu will pay the other respondents’ costs of the Review, excluding the costs related to this application including appearances, to be taxed if not agreed.
       
74. KARIKO & TOLIKEN, JJ: Pursuant to Section 185 of the Constitution and Order 11 Rule 9 of the Supreme Court Rules (the Rules), the first respondent the Hon. Powes Parkop by way of an Application filed on 3^rd June 2014 firstly seeks directions from the Court approving the form of the application he filed objecting to the competency of the application for an election petition review.
    

Form for objection

75. Section 185 states:
    

“If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

Order 11 Rule 9 reads:

“Where a person desires to take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a Judge for directions.”

76. It was submitted for Mr Parkop that the Rules do not provide for the procedure or the form for an objection to competency of a review application. Counsel for Mr Parkop relied on the case of Dawa Lucas Dekena v Nick Kopia Kuman (2013) SC1272 for the proposition that an objection to competency of a review application may be raised by a party on application filed. In that case the Court in referring to Order 5 Rule 36 said:
    

“This rule is clear. This Rule gives the Supreme Court power to hear any objection to the competency of the review application at the hearing of the application. There is no rule as to how that objection is to be raised. The objection may be raised by a party or by the Court at the hearing; (Amet v Yama (Supra)). One should not confuse this procedure with objections to competency in the ordinary appeal rules.”
(Our underlining)

77. The practice and procedure and the form for objection to competency of appeals are specifically provided for in the Rules, Order 7 Division 5 (Objection to competency of appeal). Pursuant to Order 7 Rule 15, a respondent objecting to the competency of an appeal shall, within 14 days after service on him of the notice of appeal, file the objection in Form 9 and serve a copy on the appellant.
    
78. While Order 5 Rule 36 provides that the Court may hear and determine any objection to competency of a review application on the date and time fixed for the hearing, there are no specific provisions regarding filing and service and form of any objection to competency. However, Order 11 Rule 28 states that the rules under Order 7 Division 5 (Objection to competency) “apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary”. It follows that in relation to objection to competency a review application, the provisions of Order 7 Division 5 (Objection to competency) apply.
    
79. It is therefore not correct to argue there is a lack of prescribed practice and procedure or form for an objection to competency of a review. It is interesting to note that Order 7 Division 5 was not referred to in Dawa Lucas Dekena v Nick Kopia Kuman (supra). To the extent that that case stands for the proposition that an objection to competency of a review application may be properly raised by a party on the filing of an application, we would respectfully disagree with it.
    
80. In our opinion, Mr Parkop should have adopted and adapted Form 9 and followed the practice and procedure set out under Order 7 Division 5. Accordingly, we find the Application filed by Mr Parkop dated 3^rd June 2014 itself to be incompetent.
    

Issue of competency

81. Notwithstanding the dismissal of Mr Parkop’s application, this Court may nevertheless consider the issue of competency as the question of jurisdiction is one that can be raised at any stage of the proceedings; see Sir Arnold Amet v Peter Charles Yama (2010) SC1064. In Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 Kearney DCJ stated the principle as to what is the nature of an objection to competency as: “An objection to competency is really an objection to the jurisdiction of the Court to entertain the point”. The Supreme Court has approved this statement in many subsequent cases including Jeffery Turia v Gabriel Nelson (2008) SC949 and Ramu Nico Management (MCC) Ltd v Farina Siga (2010) SC1056.
    

Misstatement of date

82. It is agreed that the date on which leave to apply for the review was granted is wrongly stated on the application for review. The correct date is 27^th March 2014 but it is noted as 26^th March 2014 on the application (Form 5B). This is clearly a typographical error. This Court’s jurisdiction to hear the application for review is invoked by the grant of leave, and that was made. In our view the misstatement of the date of leave does not mean that proper jurisdiction has not been invoked as argued by counsel for Mr Parkop, and we would adopt the remarks of the Supreme Court in dealing with certain defects in the completion of From 8 (Notice of Appeal) in the case of Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221 that “.. that defect is, truly, a mere irregularity. That defect does not mean that the jurisdiction of the court has not been invoked ..”.
    

Service

83. Order 11 Rule 7 deals with how service may be effected and this includes personal service. The Rule says:
    

“7. Where in these rules service is required of any document, it may be effected—

(a) by serving a signed and sealed copy of the document personally on the party to be served; or

(b) by delivering a signed and sealed copy of the document to—

(i) the address for service of a party given in accordance with Division 3; or

(ii) the address for service of a party in the proceedings in the National Court from which the present proceedings arose; or

(c) where a lawyer of a party has an address for service disclosed, service shall be effected at that address whilst such lawyer continues to act for a party.” (Our underlining)

84. Division 3 provides, among others, that an address for service shall be disclosed on the originating document and a notice of appearance. It also sets out the requirements for an address for service.
    
85. Counsel for Mr Parkop suggested that the review application should have been personally served on his client. We are unable to agree. The Court did not order personal service. Order 5 Rule 25 which deals with service of review applications does not specify personal service unlike O5 Rule 15 which requires that applications for leave for review must be served personally. Unless otherwise provided, service of an originating process is by personal service because it is necessary to bring to the attention of the defendant or respondent the claim that has been instituted against him so that he may defend that claim if he wishes to. In relation to a review, the process is commenced by an application for leave. Thus, the specific requirement for a leave application to be personally served.
    
86. There seems to be a growing tendency for defendants and respondents to avoid service of process. This practice should not be allowed to fester and take root. Where service proves difficult because a defendant or respondent cannot genuinely be located or where service cannot be effected on an address for service, substituted service may be ordered on application. However, where a defendant or respondent deliberately avoids service, including where he instructs others over whom he has authority not to accept service (as appears to have been the case here), we consider such deliberate refusal to subject oneself to the jurisdiction of the Court is in the broader sense contemptuous at the very least, because it is an attempt to frustrate the administration of justice or prevent justice to run its course.
    
87. Leaving aside personal service, we are of the opinion that where the Court is satisfied there has been a deliberate avoidance of service when there has been a genuine attempt at proper service, the Court may deem that a defendant or respondent has been duly served.
    
88. Affidavit material filed for Mr Kandiu state that service of the application was attempted on Mr Parkop’s office twice on the 9^th and 10^th April 2014. Both dates were within the time ordered by the court. Although the first attempt was refused outright, a Miss Vavine accepted service (without formally acknowledging receipt) on the second occasion. The attempts at service have not been challenged by Mr Parkop. Neither has he suggested that his office was not an address for service. He merely states in his affidavit that he never received the documents served. In all the circumstances, we are satisfied Mr Parkop was properly served the review application.
    

Merits of grounds of review

89. In submissions, counsel for Mr Parkop raised issues regarding the merits of the grounds relied upon in support of the review. It is our view that those are matters for resolving at the hearing of the review application and not competency issues. As the Court stated in Coca Cola Amatil (PNG) Ltd v Joshua Yanda (supra) at paragraph 22: “... whether or not an individual ground has no reasonable prospect of success in circumstances where the notice does otherwise validly invoke the court's jurisdiction is not a matter for an objection as to competency.”
    

Costs

90. Although costs normally follow the event, we note that the issues raised by Mr Parkop in his Application were arguable so we consider that costs in relation to the Application should be left until the hearing of the review.
    

Conclusion

91. In our opinion, the application for review raises no issue of competency, and we would order:
    
    1. The first respondent’s Application filed 3^rd June 2014 is dismissed.
    2. Costs shall be in the cause.
    3. The application for review shall proceed to hearing.
    4. The matter is adjourned to the registry to be listed for hearing.
       

Formal Orders

92. BY THE COURT (Majority): These are the formal orders of the Court:
    
    1. The first respondent’s Application filed 3^rd June 2014 is dismissed.
    2. Costs shall be in the cause.
    3. The application for review shall proceed to hearing.
    4. The matter is adjourned to the registry to be listed for hearing.
       

______________________________________________________---_
Korowi Lawyers: Lawyers for the Applicant
Dawidi Lawyers: Lawyers for the First Respondents
Parua Lawyers: Lawyers for the Second, Third and Fourth Respondents