Lovika v Malpo [2019] PGSC 114; SC1895 (17 December 2019)

SC1895

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 22 OF 2014

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

APPLICATION BY JAMES LOVIKA AND 79 OTHER DISCHARGED MEMBERS
OF PAPUA NEW GUINEA DEFENCE FORCE
Applicants

AND
CARL MALPO as Commander of Papua New Guinea Defence Force
First Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi DCJ, Bona & Shepherd JJ
2018: 29^th August

2019: 17^th December

PRACTICE AND PROCEDURE – Supreme Court - Objection to competency of application for review of National Court’s decision to dismiss claim by retirees from Defence Force for certain entitlements – Supreme Court Rules Order 7 Rule 15 and Order 11 Rule 28(a) –Inclusion in application for review of some grounds for which leave was granted and other grounds for which leave was not sought or granted - Effect of – Objection to competency upheld and Application to Review dismissed.

Cases Cited:
Papua New Guinea Cases

Michael Kuman v Digicel (PNG) Ltd (2017) SC 1638
Rea Joseph v. ManauSereva (2011) SC1152
Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221
Jacob Sanga Kumbu v. Dr Nicholas Mann (2018) SC1710
Lucas Dekena v Nick Kuman (2018) SC 1715
ParuAihi v. Peter Isoaimo(2013) SC1276

Overseas Cases:

Aviagents Ltd v Balstravest Investments Ltd [1996] 1 WLR 150

Legislation Cited:

Section 155(2)(b) Constitution
Order 7 Rule 15Supreme Court Rules 2012
Order 11 Rule 28(a) Supreme Court Rules 2012
Order 7 Rule 10 Supreme Court Rules 2012
Order 2 Rule 1(h) Supreme Court Rules 2012

Order 12 Rule 40 National Court Rules
Section 14(1) Supreme Court Act

Counsel:

Mr B Lai, for the Applicants
Mr D Levy, for the First and Second Respondents

DECISION

13^thDecember, 2019

1. BY THE COURT: Before us is an objection made under Section 155(2)(b) of the Constitution. The objection conforms with the procedure allowed by O.7 Rule 15 and O.11 Rule 28(a) of the Supreme Court Rules 2012(SCR). It is an objection against a review application filed by the applicants.
2. The review application, which the respondents contend is incompetent, is against the decision of the primary judge in National Court proceeding WS No.780 of 2000 delivered on 19^thNovember 2013 whereby it was ordered that the whole of that proceeding be dismissed and that an amount of K12,919,600 be paid out from the National Court Registrar’s Trust Account to the Papua New Guinea Defence Force. The reason for the dismissal was because the primary judge had earlier ruled on 7^thOctober 2013 to the effect that the PNG Defence Force Manual of Personnel Administration is a set of administrative guidelines only and the application of those guidelines to the retirement circumstances of the applicants was not mandatory and was therefore not capable of legal enforcement at the behest of aggrieved retirees from the Defence Force .
   

The Objection

3. The applicants were granted leave by a single judge of the Supreme Court to review the primary judge’s dismissal decision of 19^thNovember 2013 one year later, on 19^thNovember 2014. It was an express condition of the orders for grant of leave to review that the applicants file and serve their application to review based only on grounds 3(b), 3(d) and 3(e) of their amended application for leave to review filed on 27^th October 2014.
4. Term 2 of the orders dated 19^thNovember 2014:
   
   “The Applicants shall file and serve an Application for Review based on Grounds 3(b), 3(d) and 3(e) of the Amended Application for Leave to Review filed on 27^th October 2014 within fourteen (14) days from the date of this Order.”
5. The applicants filed their review application within time on 3 December 2014. We observe that the application for review contains grounds additional to those which were approved by the orders of 19^thNovember 2014.
6. Grounds 3(b), 3(d) and 3(e) in the applicants’ amended application for leave filed on 27 October 2014 were duly reproduced by the applicants as grounds 3(a), 3(d) and 3(h) in their application to review filed on 3^rd December 2014. We set out hereunder those grounds in exactly the same terms as were pleaded, grammatical errors included, in the applicants’ review application:

“ 3(a) The learned Judge had erred in law when he proceeded to hear and determine the application by the First and Second Respondents in the National Court proceedings under W.S. Nos. 780 of 2000 – James Lovika & 79 Other and Daniel Tali & 36 Others -v- Carl Marlpo& The State to dismiss the entire proceedings when the First and Second Respondents had not demonstrated the urgency to have the application to dismiss the entire proceedings dealt with, notwithstanding the fact that the issue of liability had been determined, the Applicants had brought to the Court’s attention than an Appeal had been filed against the Judge’s earlier decision of 7^th October, 2013, and as such the Court should not have proceeded to hear and determine the application to dismiss the entire proceedings, whilst the Applicant’s Application for Leave to Appeal was still on foot and had not been heard and determined on its merits as such the decision to dismiss the entire proceedings is harsh and oppressive and failed to take into serious consideration the relevant consideration of the Appeal on foot.

...

3(d) The learned trial Judged erred in the exercise of his discretion and acted unfairly when he dismissed the entire proceedings, as he had in dismissing the entire proceedings, relied on his earlier decision of 7^th October, 2013, which was the subject of an application for leave to appeal and by dismissing the entire proceedings has dealt with matters that were subjudice and this has denied the Applicant the opportunity to have the issues it had raised with respect to the learned Judge’s earlier decision of 7^th October, 2013 dealt with on its merits and this has denied the Applicants natural justice.

...

3(e) The learned Judge was misled by lawyers for the First and Second Respondents when they submitted that the K12,919,600.00 was for payment repatriation costs when the said monies were calculated for payment of the Applicants backdated salaries from 2000 – 2006.”

7. We observe that although ground 3(a) pleads alleged error of law on the part of the primary judge, ground 3(d) should have similarly pleaded alleged error of law and ground 3(e) should have pleaded alleged error of mixed law and fact or error of fact alone, but those two grounds did not do so contrary to section 14(1) of the Supreme Court Act which provides to the effect that civil appeals to the Supreme Court from the National Court lie on questions of law alone or mixed fact and law but that if the appeal is on a question of fact then only with leave of the Supreme Court. It is however not in dispute at this stage that grounds 3(a), 3(d) and 3(e) as contained in the applicants’ review application were permitted when leave to proceed with the review on those three grounds was expressly granted on 19^th November 2014.
8. What is in contention between the parties is whether additional grounds 3(b), 3(c), 3(e), (f), (g) and (i) as pleaded by the applicants in their review application, being new grounds which were not raised by the applicants at the leave application and for which leave was not granted as grounds for the review, now render the applicants’ application to review incompetent such that the substantive review should be dismissed.
9. The text of the additional grounds which surfaced for the first time in the review application filed by the applicants on 3^rd December 2014 is set out in full below:

“ 3(b) The learned Judge had erred in law when dismissing the proceedings on 19^th November, 2013, as in dismissing the entire proceedings he has denied the Applicants natural justice and the right to be heard on the Appeal from his earlier decision made on 7^th October, 2013, as such the dismissal of the entire proceedings is harsh and oppressive particularly when the Applicants had advised the Court that an Appeal had been filed and was pending hearing at the time of the dismissal of the National Court proceedings in W.S. No. 780 of 2000.

3(c) The decision of 19^th December, 2013, to dismiss the entire National Court proceedings was based on the Judges own earlier decision of 7^th October, 2013, a decision that did not take into serious consideration the express powers of the Defence Council of Papua New Guinea under Section 8(1)d) of the Defence Act 1974, as such the finding by the Judge that the Papua New Guinea Defence Force Manual of Personnel Administration (MPA) is not mandatory and later dismissing the entire National Court proceedings on 19^th November, 2013 based on that finding is wholly unfair as the ruling has failed to take into serious consideration the Appeal on foot particularly when the said Appeal raised issues of law which the Applicants were denied the right to be heard on Appeal to the Supreme Court when the National Court dismissed the proceedings on 19^th November, 2013.

...

3(e) The learned trial Judge had erred in the exercise of his discretion and erred in law when he considered matters that were strictly sub-judice, in so far as his earlier decision of 7^th October, 2013, is concerned and by dismissing the entire proceedings on 19^th November 2013, the learned trial Judge has denied the Applicants and the Supreme Court the opportunity to deal with the Applicants Appeal from his earlier decision and by extinguishing the Applicants right to appeal from his earlier decision the Supreme Court can also review the earlier decision of 7^th October, 2013, as it is just and fair to do so in the circumstances of this case especially when the learned Judge denied them the right to have the Appeal dealt with on its merits as the decision of 7^th October, 2013, determined the critical issue of liability which the Court found in favour of the Respondents.

3(f) The learned Judge had erred in law and acted unreasonably and unfairly when he dismissed the Applicants proceedings in the National Court as by dismissing the proceedings he has denied the right of the Applicants to have the Supreme Court deal with the merits of the Appeal and as a consequence has prevented the agitation of an issue that was germane to the interests of the Applicants in the National Court with respect to the question of liability.

3(g) The decision of the Court made on 19^th November, 2013, was based on the decision of 7^th October, 2013, an earlier decision that did not seriously consider the express powers of the Defence Council of PNG under Section 8 (1)(c) of the Defence Act, 1974, a matter that was raised in the Appeal by the Applicants from the decision of 7^th October, 2013, however, the Applicants were denied the right to raise this in the Appeal due to the entire proceedings be dismissed by the learned trial Judge on 19^th November, 2013, as such the learned Judge has erred in law and acted unfairly when he dismissed the entire proceedings on 19^th November , 2013.

...

3(i) The Defendants lawyers in the National Court knew, or ought to have known, that the K12,919,600.00 was paid into the National Court Registrar’s Trust Account as a consequence of a Consent Order entered into by parties in W.S. No. 780 of 2000 pending the determination of the substantive issue in those proceedings, as such if the proceedings were dismissed on 19^th November, 2013, then the said monies should have been paid to the Applicants and not to the PNG Defence Force as submitted by the Defendants lawyers as such they have misled the Court into ordering the said monies be paid to the PNG Defence Force as the monies belong to the Applicants and constitutes their backdated salaries for a period of one hundred and forty three (143) fortnights calculated from 2001 – 2006.”

10. On 17^thDecember 2014 the respondents filed their notice of objection to competency of the applicants’ review application. The respondents primary ground of objection is that the review application seeks orders to quash not only the primary judge’s order made in WS No. 780 of 2000 on 19^th November 2013 for dismissal of the proceeding but also the primary judge’s earlier order made in the same proceeding on 7^th October 2013, whereas no leave to apply for review of that earlier order was sought and granted in the application for leave.
11. The respondents’ other grounds of objection to competency are that grounds 3(a) to 3(g) of the application to review are alleged to be incompetent because they are said to be frivolous, vexatious and an abuse of process as they have not pleaded any errors of law, errors of mixed law and fact or errors of fact with the degree of particularity required by O.7 r 10 SCR which provides:

“10. Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.”

12. As to ground 3(h) of the application to review (for which leave had been granted) and ground 3(i) of the application to review (for which no leave had been sought by the applicants or granted), the respondents’ position was that those grounds could be addressed at the substantive hearing of the application to review in the event that the respondents’ objection were to be dismissed.

Effect of inclusion of new grounds without leave

13. The written and oral submissions of counsel for the respondents at the objection hearing asserted to the effect that grounds 3(c) and 3(g) of the review application filed by the applicants on 3^rd December 2014 were new grounds for which leave had not been sought or granted, that those grounds should not have been pleaded or included by the applicants in the review application and that this adversely impacts on the competency of the review application. We observe that this objection applies equally to grounds 3(b), 3(e), 3(f) and 3(i) in the applicant’s review application as these were also new grounds which were inserted by the applicants in the review application without leave being sought and granted. Grounds 3(b), 3(c), 3(e), 3(f), 3(g)and 3(i) are all novel, leaving only grounds 3(a), 3(d) and 3(h) as grounds in the review application for which leave had been granted. What then is the fate of the review application, given that it contains 9 grounds for review, of which 6 grounds are new in that leave for those grounds was not granted, leaving only 3 grounds for which leave was granted for substantive review?
14. Objections to competency of an appeal or of an application for leave to appeal are made by a respondent under O.7 Division 5 SCR, in particular under O. 7 Rule 15 which states:

“15. 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.”

15. Where the substantive matter before the Supreme Court is not an appeal but is another proceeding before the Court, in this instance an application under Section 155(2)(b) of the Constitution to review a National Court decision, O. 11 Rule 28 SCR deems the provisions of O.7 Division 5 SCR to apply equally to the other proceedings.
16. Case law which applies to objections to competency of appeals and applications for leave to appeal therefore applies equally to objections to competency of applications to the Supreme Court for review of a National Court decision made in reliance on Section 155(2)(b) of the Constitution, as is the case here.
17. A recent decision of this Court on point, is the decision in Michael Kuman v Digicel (PNG) Ltd (2017) SC 1638. There, Logan J stated:

“A notice of appeal might fail to invoke the Court’s appellate jurisdiction if none of the grounds raised a question of law or mixed question of law and fact and pleaded only questions of fact for which no prior leave to appeal had been granted. Equally, a notice of appeal the specified grounds in which were, on a fair reading incomprehensible would likewise fail to invoke the Court’s appellate jurisdiction. In all such cases, an objection to competency would be an appropriate procedure for a respondent to follow.”

18. His Honour continued:

“The question then becomes what is to be done with such grounds as raise patent questions of fact in the absence of a prior grant of leave? Somewhat surprisingly, the Supreme Court Rules do not make express provision for a procedure. Order 2, rule 1(h) makes a relevant provision in the National Court Rules applicable in the event that there is no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed. Within the National Court Rules, Order 12, rule 40 provides:

40. Frivolity, etc (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the procees of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

There is also, as Aviagents Ltd v Balstravest Investments Ltd^[1] serves to remind, inherent power to deal with an abuse of process.”

19. The majority decision in the Michael Kuman case delivered by Logan and ManuhuJJ resolved the alleged incompetency of the notice of appeal in that proceeding by striking out 4 grounds in the notice of appeal which had pleaded questions of fact for which no prior leave had been granted. They then dismissed the objection to competency and allowed the appeal to proceed on the remaining grounds for which leave had been granted.
20. In his dissenting view, the Kandakasi J (as he then was) decided to uphold the objection to competency and dismissed the appeal for being incompetent. His Honour had a detailed look at all of the case law up to the date of his decision. That included the five member Supreme Court decision in Rea Joseph v. Manau Sereva (2011) SC1152, per Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ.
21. Speaking of the import of all the decisions on competency of proceedings before the Supreme Court,his Honour said at paragraph 5 of the judgment:

“A notice of appeal, an application for leave to appeal or any application or a process brought before the Supreme Court must strictly meet the requirements of the Supreme Court Act and Supreme Court Rules in order for such a process to be properly before the Court. A failure to strictly meet these requirements amounts to incompetence by reason of which the process could be dismissed.”

22. His Honour also noted that the only departure from the above position was the decision of the Supreme Court in Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221, per Lenalia, Kawi and Logan JJ. As his Honour observed, that decision stands for the proposition that as long as one ground of appeal properly invokes the jurisdiction of the Supreme Court, the appeal or the process before the Court is competent. But, as Kandakasi J correctly noted in the Michael Kuman case, the decision in Coca Cola Amatil (PNG) Ltd v.Yanda “has not considered in any meaningful way the long line of cases and their import.” His Honour expounded:

“The long line of cases stands for the relevant principles which govern the issue of how a process can properly or competently invoke the Supreme Court’s jurisdiction. Having one ground of appeal or a process before the Supreme Court that invokes the jurisdiction of the Court is one critical aspect. The other also critical aspect is the need to come to the Supreme Court in the correct manner and form, at the correct time and by the correct person or parties...

Even if a person gets everything right but for one requirement such as the form, timing, not sufficiently and properly pleading a ground, or raising an issue not raised in the Court below, or seeking leave when not required, renders the appeal or the processes before the Court not properly before the Court. ... it would be incompetent and could be dismissed on that basis. The Coca Cola Amatil (PNG) Ltd v. Yanda (supra) decision does not address this aspect and why all the years of making through the various decisions of the Supreme Court must now be abandoned..... The principles upon which they stand are still sound and have not been demonstrated otherwise by the decision in Coca Cola Amatil (PNG) Ltd v. Yanda(supra).”

23. In this Court’s subsequent decision in Jacob Sanga Kumbu v. Dr Nicholas Mann (2018) SC1710, his Honour Kandakasi J. added, with the agreement of the other members of the Court, Yagi and Bona JJ: “the principles governing a departure from earlier decisions of the Supreme Court are also well settled.” He then cited the decision in Paru Aihi v. Peter Isoaimo(2013) SC1276 and stated:

“I said with the agreement of my brothers, Hartshorn and Yagi JJ:

‘As clearly stipulated in Schedule 2.9(1) of the Constitution, this Court is not bound by its earlier decisions. However, that does not mean that, the Court can readily and easily depart from its earlier decisions as and when it wants to or feels like. Instead, departures are permissible for good reason and in keeping with the relevant principles governing departures.’ ”

24. His Honour then went on to note that “after a detailed consideration and discussion of the relevant cases on point especially those discussing ... the relevant principles governing such departures”, he had in that case summarized the principles as follows:

“A careful consideration of the above authorities makes it clear that:

(a) the Supreme Court is not bound by its own earlier decisions;

(b) but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart from its earlier decision;

(c) departures within a short space of time are undesirable and should not be encouraged; and

(d) departures are permissible only in exceptional circumstances where:

(i) the earlier decision clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction;

(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and

(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.”

25. More recently, the decision in Lucas Dekena v. Nick Kuman (2018) SC 1715 adopted and applied with approval the dissenting opinion of Kandakasi J and the decision in Jacob Sanga Kumbu v. Dr Nicholas Mann (supra). There the Applicant in a review application had been granted leave to file a review application under Section 155(2) of the Constitution on certain grounds. However, in his substantive review application, the applicant included several grounds for which leave had not been sought and granted as well as grounds for which leave had been sought but refused and grounds that were not consistent with the actual grounds for which leave had been sought and granted. The Court, when expressing its reasons for upholding the respondent’s objection to the competency of the review application, unanimously had this to say:

“ If leave is granted, the applicant would be entitled to proceed to file his or her substantive application. This must be strictly in accordance with terms upon which leave was granted and most importantly only on the grounds for which leave was first sought and granted. The decision granting leave for judicial review is not an open license for an applicant to plead grounds of the review as an applicant pleases. An applicant is under an obligation to plead in his or her substantive review application only the grounds for which leave was sought and specifically granted. Any departure from that would render the review incompetent.”

26. Applying the law to the case then before it, the Court in Lucas Dekena v Nick Kuman (supra) decided to uphold the objection to competency and dismissed the review application. The Court found that the addition of the grounds for which leave had not been sought and granted rendered the review application incompetent.

Application and decision in the present case

27. In the case before us, leave had been sought and granted for some grounds of the review application. However, other grounds of the review application, namelygrounds 3(b), (c), (f), (g) and (i), are grounds which were not included in the application for leave to proceed with the review application. The inclusion of those additional grounds rendered the review application incompetent. At this late stage this incompetence cannot be curred by a strike out of the offending grounds as that would amount to granting an application to amend contrary to the law and practice on amendments to notices of appeals and applications for review. In the circumstances as outlined, the review application in this case is liable for dismissal for incompetence.

Orders of the Court

28. Based on these reasons we make the following orders:

(1) The objection to competency is upheld.

(2) The application for review is dismissed for being incompetent.

(3) The appellants shall pay the respondents’ costs to be taxed, if not agreed.
____________________________________________________________________
B.S. Lai Lawyers: Lawyers for the Appellants
Manase & Co Lawyers: Lawyers for the Respondents

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^[1] [1996] 1 WLR 150