Nipo Investment Ltd v Nambawan Super Ltd [2017] PGSC 45; SC1642 (2 November 2017)

SC1642

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No 20 of 2017

BETWEEN:
NIPO INVESTMENT LIMITED
Appellant

AND
NAMBAWAN SUPER LIMITED
First Respondent

AND
LUTHER SIPISON – SECRETARY FOR LANDS & PHYSICAL PLANNING
Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Murray, Collier, Geita JJ
2017: 2 November

PRACTICE AND PROCEDURE – objection to competency of appeal – Order 10 rule 3 (b)(i) and (ii) Supreme Court Rules 2012 – compliance with Supreme Court Rules mandatory – rules not complied with – objection upheld – appeal dismissed

Cases cited:

Bakani v Daipo (2001) SC 659
Haiveta v Wingti [1994] PNGLR 189
Kukari v Polye (2008) SC 907
National Capital Ltd v Bakani (2014) SC 1392
Neville v National Executive Council of PNG (2015) SC 1431
Pacific Equities & Investments Ltd v Goledu (2009) SC 962
PNG Law Society v Cooper (2016) SC1553

Counsel:

Mr A Waira, for the respondent to the objection to competency (and appellant to the appeal)
Mr I Shepherd, for the applicant to the objection to competency (and first respondent to the appeal)
No appearance for the second & third respondents

2^nd November, 2017

1. BY THE COURT: By a notice of motion filed on 9 June 2017 there has been an appeal against the whole of the judgment of a Judge of the National Court given on 30 May 2017 in proceeding OS (JR) No 358 of 2016, in which the respondent’s application for judicial review was granted. However by notice filed on 26 July 2017 the respondent objected to the competency of the appeal. Only one ground of objection is pressed by the respondent, namely:

The Appeal fails to comply with the requirements of Order 10 Rule 3 (b)(i) and (ii) in that the Notice of Motion does not have annexed to it :

1. Copies of all documents which were before the Judge in the National Court; or
2. A copy of the Order made, certified by the Judge’s Associate or the Registrar
   

2. Order 10 Rule 3 (b)(i) and (ii) of the Supreme Court Rules provides as follows :

ORDER 10—APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES

Division 1.—Institution of appeal

1. ...

2. ...

3. The notice of motion shall—

(a) ...

(b) have annexed—

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and

3. An affidavit in support of the notice of objection to competency was sworn by Mr Ian Shepherd, the lawyer for the respondent, on 26 July 2017 and filed on the same day. Relevantly, Mr Shepherd deposes as follows:

1. I am a Partner in the firm of Ashurst PNG, lawyers for the Respondent Nambawan Super Limited and I have conduct of this matter on behalf of the Respondent. I also had conduct of National Court proceedings OS (JR) 358 of 2016 and it is the decision of Her Honour Justice Nablu in those proceedings which is the subject of the within appeal by way of Notice of Motion under Order 10 of the Supreme Court Rules (SCR).
2. At the trial of this matter I represented Nambawan Super Limited who was the Plaintiff and Applicant for Judicial Review, Jerry Kiwai Lawyers represented the Fifth Defendant and Mr Geita represented the First and Fourth Defendants.
3. Annexed hereto and marked with the letter “A” is a true copy of the Trial Judge’s decision which was handed down on 30 May 2017.
4. In the course of the trial it is my recollection that only the Fifth Defendant and the Plaintiff’s counsel handed up written submissions. The Fifth Defendant’s counsel’s submissions have been included in the Notice of Motion from page 247 of the Notice of Motion but the Plaintiff’s submissions, a true copy of which is annexed hereto and marked with the letter “B” were not included.
5. ...
   

4. On 25 July 2017 leave was granted pursuant to Order 11 Rule 9 of the Supreme Court Rules and section 185 of the Constitution for the respondent to file and serve a notice of objection to competency. The respondent was ordered to file and serve the notice by 28 July 2017. The file shows some irregularity attending the service of the notice of objection to competency on the lawyers for the appellants in time, however further orders were made on 16 August 2017 to serve the notice of objection to competency, and by order of the Court of 5 September 2017 the respondent’s objection to competency was set down for hearing on 2 November 2017.

5. In the proceedings, and at the hearing before us, it appeared that only the first appellant, Nipo Investment Limited, was pressing the appeal. In the circumstances it is convenient to refer to Nipo Investment Limited as “the appellant” for the purposes of this judgment.

Submissions of the parties

6. The respondent submitted, in summary :

• Only three documents were listed as annexures to the application book, namely a Supplementary Review Book, an affidavit of Simon Yambaki and a submission of the Fifth Defendant
• Although the Supplementary Review Book contains some of the documents that were presumably before the National Court, it itself constitutes only one of the documents that were actually before the Court below.
• In Mr Shepherd’s affidavit he deposes that the appellant also failed to include, in addition to all the other documents that were before the National Court, the respondent’s submissions, a copy of which was annexed to his affidavit.
• In Bakani v Daipo (2001) SC659 Gavara-NanuJ found that failure to comply with the mandatory requirements of Order 10 Rule 3 (b) put an end to the application of the appellants in that case because they had lost their right to appeal. The decision has been relied on in a number of subsequent decisions, for example Kukari v Polye (2008) SC 907.
• In National Capital Ltd v Bakani (2014) SC 1392 the Supreme Court found that the failure by the appellant to annex a duly certified copy of the order made by the trial court to the notice of motion as required by Order 10 rule 3 (b)(ii) rendered the appeal as invalid and incompetent. The same principle applies in this case.
  

7. The appellant opposed the objection to competency on the following basis:

• The notice of objection is defective and incompetent because:
  
  • It fails to properly cite the full name of the “Rules of the Supreme Court of Justice 2012” in accordance with Order 1 rule 1 of the Supreme Court Rules
  • Order 13 rule 15 of the Supreme Court Rules provides that all applications for interim orders must contain a concise statement of the Court’s jurisdiction to grant orders being sought with the exception of urgent matters. This is not an urgent matter. The appellant relied on Pacific Equities & Investments Ltd v Goledu [2009] SC962.
  • The respondent has erroneously applied both paragraphs (i) and (ii) of Order 10 rule 3 (b) to all documents.
  • The documents used in the National Court are many and it was important for the documents to be identified by describing the type of the documents, date filed and the like on the ground of the objection, but that did not happen.
  • In this case the relevant documents included in the Review Book by the consent of the parties and used at the trial were all before this Court.
  • At the appellate level the Court gave few directions and included orders made after the trial that is the subject of the appeal. The objection did not indicate the order that is not annexed.
    
• The notice of objection has no merit because:
  
  • It would be unfair to the appellant to dismiss the appeal based on the ground that not all documents before the primary Judge were included in the application book because
    • the respondent’s submission was only tendered from the bar table and not properly filed in the National Court,
    • the appellant was not given a copy of the respondent’s submission to appreciate the content and the document
    • the respondent’s submission was not dated, stamped and did not have distinguishing marks under Order 2 rule 21 of the National Court Rules
  • The Court order issued on 30 May 2017 is annexed to the notice of motion on the back of all the attachments. Unless the order dated 30 May 2017 is set aside for any reason by another Court, it is sealed and is the valid Court order, thus serving the purpose of the Rule

Consideration

8. As the Supreme Court has observed on multiple occasions, an appeal may be incompetent if it does not comply with the requirements of the Supreme Court Act and or the SCR: Haiveta v Wingti (1994) PNGLR 189, Neville v National Executive Council of Papua New Guinea [2015] SC1431 at [22], Papua New Guinea Law Society v Cooper [2016] SC1553 at [5].

9. In this case the material before the Court, both in the affidavit of Mr Shepherd and the application book itself, shows that Order 10 Rule 3 (b) (i) and (ii) has not been complied with. The appellant refers to fairness in its submissions. While the strict application of these rules can lead to what may appear to be a harsh result, the need for parties to comply with Rules of Court is not an exercise in pedantic technicality. The Rules ensure that the difficult and often complex process of litigation occurs in an ordered manner, meeting the expectations of the Court and all parties. This Court has been consistent in finding that breach of Order 10 rule 3 (b)(i) and (ii) is fatal to an appeal. Bakani v Daipo (2001) SC659, Kukari v Polye (2008) SC 907 and National Capital Ltd v Bakani(2014) SC1392 remain good law, and no reason has been advanced to us to persuade us that we should not follow these authorities.

10. We note the submissions of the appellant but reject them:

• The appellant’s submission concerning the alleged failure of the respondent to state the Court’s jurisdiction is wrong. The objection to competency was clearly referable to the Supreme Court Rules, although as a matter of practice the respondent should have stated this in its notice of objection. The omission to refer to the Supreme Court Rules was not, however, a defect going to the validity of the objection.
• The fact that leave was granted by the Supreme Court on 25 July 2017 addresses any concerns relating to the jurisdictional basis of the Court in this matter. Certainly as far as we are aware the appellant’s claims concerning the absence of jurisdictional basis in the objection to competency were not raised at that time.
• The respondent has not erroneously applied both paragraphs (i) and (ii) of Order 10 rule 3 (b) to all documents. The affidavit evidence of Mr Shepherd clarifies the documents the respondent claimed were not in the application book.
• The objection could not possibly be read to mean that the respondent had not identified which order had not been annexed. Rule 3 (b)(ii) clearly identifies the order which must be annexed to the application book – in this case it was not.
• Contrary to the submissions of Counsel, Order 13 rule 15 of the Supreme Court Rules is not relevant. The respondent did not file “an application for an interlocutory order” as contemplated by that rule. The respondent has objected to the competency of the appeal.
  

11. The submission by the appellant that it never saw the submissions of the respondent in the National Court proceedings is curious. However some light was cast on this point by Mr Shepherd, who informed the Bench that at the National Court level no orders were made for the filing of submissions, and submissions were handed up to her Honour at the hearing. This was not contested by Counsel for the appellant. The real issue in this respect appears to lie in the fact that the lawyers for the appellants have apparently changed since the National Court hearing. It is unclear to us whether the lawyers in the National Court proceedings exchanged written submissions. In any event the submissions of the Counsel for the appellant that it would be unfair for this Bench to require him to obtain a copy of those submissions for inclusion in the material in this appeal are nonsense. It was the obligation of the appellant to properly compile the material to be presented in this appeal. If the current lawyers had difficulty they could have approached the Supreme Court for assistance before now.

12. The errors in the application book are fatal to the appeal. The objection to competency is upheld, and the appeal dismissed.

13. The Court orders that:

(i) The objection to competency of the appeal is upheld;
(ii) The appeal is dismissed as being incompetent;

• (iii) The appellant will pay the first respondent’s costs of and incidental to the objection to competency.

__________________________________________________________
Cappollo Lawyers: Lawyers for the Appellant
Ashurst Lawyers: Lawyers for the first Respondent