Sarea v Moutu [2019] PGSC 112; SC1893 (23 December 2019)

SC1893

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NOS 30 & 31 OF 2018

BENI SAREA & ILAIAH BIGILALE
Appellants

V

DR ANDREW MOUTU, DIRECTOR,
NATIONAL MUSEUM AND ART GALLERY
First Respondent

NATIONAL MUSEUM AND ART GALLERY
Second Respondent

Waigani: Cannings J, Hartshorn J, Yagi J
2019: 16^th, 23^rd December

PRACTICE AND PROCEDURE – objections to competency of appeals – Supreme Court Rules 2012, Order 7, Rule 15 – whether non-compliance with Order 10, Rule 3 renders an appeal incompetent – whether objections to competency should be heard when notices are filed and served late

The respondents objected to competency of appeals against refusal of judicial review by the National Court on grounds of non-compliance with Order 10, Rule 3 of the Supreme Court Rules 2012. The appellants objected to the objections to competency being entertained on grounds of non-compliance with Order 7, Rule 15 of the Supreme Court Rules.

Held:

(1) The notices of objection to competency were non-compliant with Order 7, Rule 15 in that the notices were filed and served late and were not in the prescribed form. Further, the respondents did not seek leave to raise the objections. The respondents had no right to have the objections heard and ought to have sought the leave of the Court to have the objections heard.

(2) However, the Court has discretion to entertain an objection even if leave is not sought and notice of it is non-compliant with the Rules, and may of its own volition raise any issue as to jurisdiction of the Court, including competency of an appeal. It exercised that discretion here, as the notices of objection raised arguable grounds and the appellants had been put on notice of them. The objections were heard and determined on their merits.

(3) The objections were sustained as strict compliance with Order 10 is essential and the notices of motion filed by the appellants were non-compliant with the Rules in two respects: (a) did not annex a copy of the National Court order appealed from, certified by the Judge’s Associate or the Registrar (required by Order 10, Rule 3(b)(ii)); and (b) were not supported by affidavit (required by Order 10, Rule 3(c) and form 15).

(4) The appeals were therefore dismissed. As to costs, respondents to pay the appellants’ costs of the appeals as the notices of objection were filed and served late and were non-compliant with the Rules and the respondents did not seek leave to argue their objections.

Cases cited

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064
GR Logging Ltd v Dotaona (2018) SC1690
Hegele v Kila (2011) SC1124
Kuk v O’Neill (2014) SC1331
Lowa v Akipe [1991] PNGLR 265
Madang Timbers Ltd v Kambori (2009)
Mountain Catering Ltd v Punangi (2013) SC1225
National Capital Ltd v Bakani (2014) SC1392
Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642
Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646

OBJECTIONS

These were objections to competency of two appeals.

N Kopunye, for the Appellants
J Aku, for the Respondents

23^rd December, 2019

1. BY THE COURT: Before the Court are objections to competency of two appeals. The appeals are against the decisions of the National Court of 2^nd November 2018 to refuse judicial review applications by the appellants, Beni Sarea and Ilaiah Bigilale. The respondents to each appeal are Dr Andrew Moutu and the National Museum and Art Gallery.

2. The respondents have filed notices of objection to competency, on grounds of non-compliance with Order 10, Rule 3 of the Supreme Court Rules 2012. The appellants have responded by objecting to the objections to competency being entertained on grounds of non-compliance with Order 7, Rule 15 of the Supreme Court Rules.

3. The following issues arise:

1. Do the respondents have the right to have their objections heard?
   
2. Can the Court entertain the objections?
   
3. Do the objections to competency have merit?
   
4. What orders should the Court make?
   
1. DO THE RESPONDENTS HAVE THE RIGHT TO HAVE THEIR OBJECTIONS HEARD?
   

4. A respondent’s right to object to competency of an appeal is conferred by Order 7, Rule 15 of the Supreme Court Rules 2012, which states:

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. We uphold the appellants’ argument that the respondents’ objections to competency are defective in two respects. First, the notices of objection were filed and served very late. The notices of appeal were served on 18^th December 2018. The notices of objection ought to have been filed and served within 14 days after service of the notices of appeal on the respondents, by 2 January 2019. The notices of objection were served on 28 March 2019, two months, three weeks and five days late.

6. Secondly, the notices of objection were not in accordance with form 9, which requires that the notice be set out as follows:

NOTICE OF OBJECTION TO COMPETENCY

OBJECTION to the competency of this appeal will be made at the Supreme Court, Waigani at . . . am on the . . . day of . . . 20

OBJECTION is made on the following grounds (set out concisely the whole of the grounds of the objection).

DATED:

Sgd _____________
(To be signed by
Respondent or his
Lawyer)

FILED BY: (Form 17)

7. It will be observed that the notice of objection must provide an address for service containing the particulars of form 17, which provides:

GENERAL FORM OF ADDRESS FOR SERVICE

FILED: Name (Personal) Name (Lawyer)

Address (O11 R4(a)(ii)) Address (O11 R4(a)(iv))

Address (Postal) Address (Postal)

Telephone Telephone

8. Here, both notices of objection lacked an address for service.

9. For those two reasons (lateness and absence of address for service) the notices of objection to competency are non-compliant with Order 7, Rule 15. The consequence is that respondents have no right to have their objections to competency heard. They ought to have sought leave to raise their objections. They have not done that, so the position remains that they have no right to have the objections heard (Lowa v Akipe [1991] PNGLR 265 Hegele v Kila (2011) SC1124).

2 CAN THE COURT ENTERTAIN THE OBJECTIONS?

10. Though the respondents have no right to have their objections heard, the Court still has discretion to entertain the objections. The Court can also of its own volition at any time raise any issue as to jurisdiction of the Court, including competency of an appeal (Amet v Yama (2010) SC1064, Mountain Catering Ltd v Punangi (2013) SC1225, Kuk v O’Neill (2014) SC1331, Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646).

11. We have decided to exercise that discretion here, despite leave to argue the objections not being sought, as the notices of objection have raised arguable grounds and the appellants have been put on notice of the grounds of objections. The objections will be heard and determined on their merits.

3 DO THE OBJECTIONS HAVE MERIT?

12. The respondents’ grounds of objections are based on Order 10, Rule 3 of the Supreme Court Rules, which requires that an appeal against a refusal by the National Court of judicial review be instituted by a notice of motion, which meets these requirements:

The notice of motion shall—

(a) show where appropriate the particulars set out in a notice of appeal under Order 7, Rule 9; and

(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

(c) be in accordance with form 15; and

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry.

13. The grounds of objection are that the appellants’ notices of motion:

(1) do not annex copies of all documents which were before the Judge of the National Court appealed from (contrary to Order 10, Rule 3(b)(i));

(2) do not annex a copy of the order of the National Court certified by the Judge’s Associate or the Registrar (contrary to Order 10, Rule 3(b)(ii));

(3) are not in accordance with form 15 ((contrary to Order 10, Rule 3(d)).

14. Ground (1) has not been pressed by the respondents and we are not satisfied that the notices of motion fail to annex all the documents required. Ground (1) is dismissed.

15. We uphold ground (2) as the notices of motion clearly failed to annex a copy of the order of the National Court certified by the Judge’s Associate or the Registrar. This is an essential requirement. It is not complied with by annexing a copy of the judgment of the National Court (which is what happened here). Failure to comply with it cannot be remedied by filing a certified copy of the order after filing the notice of motion (which is what happened here). Substantial compliance with the requirement is not sufficient. The Supreme Court has taken a strict approach to Order 10, Rule 3(b)(ii), exemplified by cases such as National Capital Ltd v Bakani (2014) SC1392, Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642. Though there have been cases in which the issue has arisen whether the National Court order has been “certified” as required (see eg Madang Timbers Ltd v Kambori (2009) and GR Logging Ltd v Dotaona (2018) SC1690), if there is nothing that can be regarded as a certified copy of the order annexed to the notice of motion, the notice of motion is materially defective and the appeal is rendered incompetent. We find that to be the case here.

16. Ground (3) is based on form 15, which provides:

GENERAL FORM NOTICE OF MOTION

IN THE SUPREME COURT SCM No of 20
OF JUSTICE

AB
Appellant

CD
Respondent

NOTICE OF MOTION

1. THE Appellant appeals from the whole (or if from part specify part) of the Order of (specify National Court or National Court Judge) given on (specify day) at (place).
2. GROUNDS (specify each particular ground by paragraph).
3. ORDER SOUGHT (state what Order appellant seeks in lieu of order appealed from).
4. ANNEXED are:—
   1. Copies of all documents before National Court in sequence.
   2. Certified copy of Order.
5. AFFIDAVIT in support of this Motion is sworn by (name) on the (date).

Dated:

Sgd _____________________

(To be signed by appellant
or his lawyer)

FILED BY: (Form 17)

NOTICE: (Form 18)

17. We uphold the respondents’ argument that Order 10, Rule 3(d) requires the notice of motion to be in accordance with form 15, which requires that there be an affidavit in support of the motion signed by the appellant or the appellant’s lawyer, filed with the notice of motion. This is an essential requirement, to be met at the time of filing the notice of motion. Failure to comply, like failure to annex a certified copy of the National Court order, renders the appeal incompetent. Here, the supporting affidavits were filed well after the notices of motion were filed. Ground (3) is upheld.

18. To sum up, we dismiss ground of objection (1) and uphold grounds (2) and (3). The objections are meritorious. The consequence of upholding each of (2) and (3) is that the appeals are incompetent.

4 WHAT ORDERS SHOULD THE COURT MAKE?

19. As each of the appeals is incompetent, each appeal must be dismissed. As to costs, it is appropriate that the respondents pay the appellants’ costs of the appeals as the notices of objection were filed and served very late and were non-compliant with the Rules and the respondents did not, as they ought to have done, seek leave to argue their objections.

ORDERS

20. The same order is made for each of the two appeals, SCM 30 and SCM 31 of 2018:

(1) The objection to competency is sustained.

(2) The appeal is dismissed.

(3) The orders of the National Court of 2 November 2018 are affirmed.

(4) The respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

__________________________________________________________________
Kopunye Lawyers: Lawyers for the Appellants
Manase & Co Lawyers: Lawyers for the Respondents