Papua New Guinea Law Society v Cooper [2016] PGSC 69; SC1553 (30 November 2016)

SC1553

PAPUA NEW GUINEA

IN THE SUPREME COURT OF JUSTICE

SCA NO. 102 OF 2016

BETWEEN:
PAPUA NEW GUINEA LAW SOCIETY
Appellant

AND:
DAVID RICKEY COOPER

Respondent

Waigani: Manuhu, Yagi, Sawong, JJ.
2016: October, 29 & November, 30.

PRACTICE AND PROCEDURE – Competency – Conduct of appellant post-judgment – Estoppel, waiver and contract – Relevant principles.

Cases cited:
Marape v O’Neill (2016) SC 1486,
Neville v NEC & Ors [2015] PNGSC 17.

Counsel:

T. Griffiths, for the Appellant
The Respondent, In Person

30^th November, 2016

1. BY THE COURT: This is the ruling on the Respondent’s objection to the competency of the appeal. The appeal is against the decision by Kariko J where the Appellant was ordered to issue an Unrestricted Practising Certificate for 2016 to the Respondent.
   
2. The grounds pleaded by the Respondent in the notice of objection to competency are:
   
   • The parties have agreed by their conduct on and after 27 May 2016 that the Appellant would not appeal the judgment,
   • The Appellant is stopped by its conduct on 27 May 2016 from appealing the judgment,
   • The Appellant has waived or abandoned its right to appeal the decision of Kariko J.
     
3. The relevant factual basis in support of the said grounds are that after the pronouncement of the decision on 27 May 2016, the Appellant forwarded a tax invoice in the sum of K8,018 to the Respondent’s lawyers for his practising certificate fee. The fee was paid on 1 June 2016. On the same date, a practising certificate no 1098 was issued by the Appellant to the Respondent for period 27 May 2016 to 31 December 2016. The Appellant did not file a notice of appeal within 40 days, but was granted extension of time and eventually filed its appeal and application for stay of decision of Kariko J on 4 August 2016. The application for stay has not been moved.
   
4. We note and appreciate the arguments by both parties. There is no controversy about the principles of estoppels, waiver and contract in England, New Zealand, Australia and Papua New Guinea. However, before we consider the applicability of those principles, there are two procedural issues that must first be resolved. The first issue is, whether an objection to competency can be raised on the basis of those principles and the second is, whether the objection to competency is itself incompetent for failing to plead the jurisdiction of this Court.
   
5. The basis upon which an objection can be made against competency of appeal has been the subject of numerous previous decisions, some of which were summarised in Neville v NEC & Ors [2015] PNGSC 17, as follows:

“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:

(i) 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.

(ii) 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.

(iii) 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.

(iv) 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).

(v) 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:

(i) 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.

(ii) 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.

(iii) 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.”

6. A recent Supreme Court case of Marape v O’Neill (2016) SC 1486 also held that:

“7. The wording of Order 7 Rule 15 Supreme Court Rules 2012 is clear. It concerns an objection to the competency of an appeal or of an application for leave to appeal. As this Court said in Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185, an objection to competency:

".... is really an objection to the jurisdiction of the Court to entertain the point...."

“8. As mentioned in Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1056, this decision has been referred to with approval in the cases of State v. John Talu Tekwie (2006) SC843 and Jeffrey Turia v. Gabriel Nelson (2008) SC949 amongst others.

“9. More recently in Joseph Nandali v. Curtain Bros Ltd (2012) SC1483, the Court said:

"Unless the effect of a notice of objection to competency is that, if upheld, this Court has no jurisdiction at all to entertain the appeal as instituted by the notice of appeal, the objection must be dismissed."

and in Coca Cola Amatil ( PNG) Ltd v. Joshua Yanda (2012) SC1221 the Court said:

"The importance........ of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised."

7. It is clear from these authorities that firstly, a proper ground of an objection to competency of appeal in this jurisdiction is one that relates to procedural non-compliance so that, where non-compliance is shown, the appeal becomes invalid and falls outside of the jurisdiction of this Court . An objection to competency of an appeal is unconcerned with the merits of the grounds of appeal.
   
8. Secondly, the notice of objection to competency must itself be competent. It has to plead the appropriate provision and comply with the Supreme Court Rules. Failure to comply would be fatal.
   
9. In this case, the specified grounds of the objection do not relate to procedural non-compliance, and therefore, do not question the jurisdiction of the Court in relation to the substantive appeal. Thus, the appeal is properly before this Court, which is required to hear and determine its merits.
   
10. The principles of estoppels, waiver or contract and their effect on one’s right of appeal, in our respectful view, relate to the substantive appeal and the appropriate remedy sought in the appeal. They are not procedural issues. They are not jurisdictional issues. They are not competency issues. To hold otherwise would be to offend against the established position in this jurisdiction.
    
11. In relation to the second issue, it is clear that the notice of objection to competency is itself incompetent. The Court’s jurisdiction is not pleaded in the notice of objection to competency: See Nandali v Curtain Brothers Ltd (2011) SCA 14. This is a fatal error.
    
12. We further note that the facts supporting this application are post-judgment developments. We have determined that these developments do not raise competency issues. Processes are in place to deal with such post-judgment events. The Appellant, if he so desires, may invoke those processes to properly bring those facts and related issues within the jurisdiction of the Supreme Court.
    
13. We find ultimately that an objection to competency cannot be raised on the basis of estoppel, waiver or contract. We also find, in any case, that the notice of objection to competency is itself incompetent. Accordingly, the Respondent’s objection to competency is dismissed with costs which if not agreed shall be taxed.

Orders accordingly,
________________________________________________________________
Ashurst Lawyers : Lawyer for the Appellant

Warner Shand Lawyers : Lawyer for the Respondent