Cakara Alarm (PNG) Ltd v Dotaona [2018] PGSC 100; SC1772 (19 April 2018)

SC1772

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 42 OF 2017

BETWEEN:
CAKARA ALARM (PNG) LTD
First Appellant

AND:
MICHAEL BENO, STEVEN WALEP, AND THOMAS MACKLAI,
on their own as landowners and representative of 277 other landowners of Pulie Anu Timber Permit Area No. LFA 14-04 listed in the schedule hereto
Second Appellant

AND:
DAVID DOTAONA,
Chairman of National Forest Board, PNG Forest Authority
First Respondent

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
MATUFI (PNG) LTD
Fourth Respondent

Waigani: Dingake J
2018 : 19^th April

SUPREME COURT – Application for Waiver of rules – Order 11, Rule 10 – Powers conferred on the Registrar – not Court or Single Judge of the Supreme Court.

Counsel

Mr. T. Tape, for the Appellant
Mrs. E. Noki, for First and Second Respondents
Mr. S. Sakarias, for the Fourth Respondent

RULING

19^th April, 2018

1. DINGAKE J: This is an application to waive the preparation of Appeal Book and that the Supreme Court Notice of Motion with annexures in three volumes filed on the 22^nd of November, 2017, be used instead of Appeal Book.
2. The application is brought pursuant to Order 11, Rule 10 of the Supreme Court Rules.
3. In the affidavit filed in support of the motion, the applicant avers that there are three bound volumes of the Supreme Court Notice of Motion with Annexures on 22^nd of November, 2017. He says the three volumes contain the three volumes of Review Book filed in the National Court upon which the substantive review was heard and determined.
4. In essence, the applicant avers that if the orders sought are not granted, the resulting Appeal Book will be confusing as the three volumes of the Review Book are already numbered and that if they are numbered again it will be confusing and cumbersome.
5. Order 7 Division 15 Rule 43 (1) requires the Appeal Book for use at the hearing of an appeal to be prepared. Rule 43 prescribes in great detail how the Appeal Book is to be prepared and what it must contain.
6. Order 11 Rule 10 of the Supreme Court Rules that the Applicant invokes bears quoting in full as it contains the answer to whether this Court can grant the orders sought.
7. Order 11 Rule 10 provides:
   • “10. Where compliance with the provisions of these rules relating to the preparation of documents or appeal books for the court may cause unnecessary hardship expense or delay, the Registrar, may, after consultation with the Chief Justice, or if he is not available, the next most senior Judge in Chambers, waive compliance to such extent as in his opinion is reasonable.”(emphasis mine)
8. Order 11 Rule 10 is as clear as anything could be. It gives the power to waive the rules relating to the preparation of documents or appeal books, where such preparation may cause unnecessary hardship or delay, not to the Court or Single Judge of this Court (Supreme Court), but to the Registrar. This the Registrar may do after consultation with the Chief Justice, or if he is not available, the next most senior Judge in Chambers.
9. It follows in may view that the Court and or the Single Judge of this Court, cannot in terms of Order 11, Rule 10, grant the waiver sought.
10. In the premises the application is without merit and it is refused.

___________________________________________________________
Kandawalyn Lawyers: Lawyers for the Applicant

Ms. E. Noki: Lawyer for the First and Second Respondents
Jefferson Lawyers: Lawyers for the Fourth Respondent