Digicel (PNG) Ltd v Miringtoro [2019] PGSC 71; SC1850 (6 September 2019)

SC1850

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 108 OF 2015

BETWEEN:
DIGICEL (PNG) LIMITED
Appellant

AND
HON. JIM MIRINGTORO in his capacity as Minister for Communications and Information Technology
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND
NATIONAL INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY
Third Respondent

Waigani: Gavara-Nanu J, Hartshorn J, Polume-Kiele J
2019: 25^th June & 6^th September

APPEAL - Appeal against interlocutory ruling - Judicial review proceeding - Supreme Court Rules, 2012; Order 10 - Proper mode of appeal - Notice of motion- Mandatory requirement - Appeal by way of a notice of appeal - Appeal incompetent.

APPEAL - Wrong mode of appeal - No objection to competency filed - Inherent power of the Court - Appeal an abuse of process - Duty of the Court to protect its processes.

Cases Cited

Bruce Tsang v. Credit Corp. (PNG) Ltd [1993] PNGLR 112
Chief Inspector Robert Kalasim and Tongane Koglwa (2006) SC828
Christopher Haiveta, Leader of Opposition v. Pais Wingti, Prime Minister and Attorney
Don Polye v. Jimson Papaki (2002) SC637
Felix Alai v. Nakot Waina (2005) SC1615
Felix Bakani v. Rodney Daipo (2002) SC699
Garamut Enterprises v. Steamships Trading Co. Limited (1999) SC625
General and National Parliament [1994] PNGLR 189
Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273
Kukari v. Polye (2008) SC907
Lowa v. Akipe [1991] PNGLR 265
Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence and Ors (2013) SC 1225
NEC &Ors v. David Nelson (2004) SC766
Ronald Rimbao v. Don Pandan (2011) SC1098
Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408
Sir Arnold Amet v. Peter Charles Yama (2010) SC 1064
Stephen Mendepo v. NHC (2011) SC1169
Tamali Angoya v. Tugupu Association Incorporated (2009) SC978

Counsel

M.M. Varitimos QC with P. Tabuchi, for the Appellant
I. Mugugia, for the First and Second Respondents
No appearance, for the Third Respondent

6^th September, 2019

1. GAVARA-NANU J: I have had the benefit of reading the decisions of Hartshorn J and Polume-Kiele J, and I respectfully concur fully with their Honours' reasons and conclusions and I have nothing further to add.

2. HARTSHORN J: I have had the opportunity to peruse the draft decision of Polume Kiele J. and respectfully agree with Her Honour’s conclusion concerning the competency of this appeal. I add a few paragraphs of my own.

3. This appeal is from an interlocutory decision of the National Court made in a judicial review proceeding. The judicial review proceeding had been reinstated by the Supreme Court following a successful appeal against a refusal of leave. The interlocutory decision was to refuse to refer two constitutional questions to the Supreme Court (decision appealed). Leave to appeal has been granted.

4. In the course of submissions, the competency of the appeal was raised by the State. Notwithstanding, that no objection to competency was filed and that there was no appearance on behalf of the State to oppose leave for appeal being granted, an objection to competency may be made at any time. I refer to Felix Alai v. Nakot Waina (2015) SC1615 and the cases cited therein.

5. Further, this court has inherent power to control its own processes: Ronald Rimbao v. Don Pandan (2011) SC1098; Stephen Mendepo v. NHC (2011) SC 1169.

6. In this instance, the decision appealed is an interlocutory decision made in a judicial review proceeding commenced pursuant to Order 16 National Court Rules.

7. Order 10 Rule 1(1) Supreme Court Rules, provides that, an appeal under this Order shall be instituted by a notice of motion. Here, however, this appeal was instituted by a Notice of Appeal.

8. That the procedural requirements of Order 10 Supreme Court Rules are mandatory has been consistently recognised by this Court: Felix Bakani v. Rodney Daipo (2002) SC699; Kukari v. Polye (2008) SC907; Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273 and Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408.

9. Consequently, as Order 10 Supreme Court Rules has not been complied with in the institution of this appeal, this appeal is incompetent and should be dismissed.

10. POLUME-KIELE J: Before the Court is an appeal against the interlocutory decision of the primary judge in OS (JR) No. 141 of 2015 delivered on the 13 August 2015, refusing to refer the two constitutional questions (above) to the Supreme Court pursuant to Section 18 of the Constitution. The questions are:

(i) Whether, on the proper interpretation or application of Section 59 of the Constitution, Section 130 (5) of the National Information and Communication Technology Act (NICTA Act), is unconstitutional, invalid and of no effect; and

(ii) Whether, on the proper interpretation or application of Section 59 of the Constitution a deemed decision by the Minister to accept a declaration recommendation under s 130 (5) of the NICTA Act is unconstitutional, invalid and of no effect?

11. In this present case, the appeal arose from an application moved by way of a Notice of Motion filed in pursuance of the substantive judicial review proceedings which is current for which leave has been granted on 2^nd July 2015 for judicial review of the deemed decision made by the first respondent pursuant to Section 130 (5) of the NICTA Act 2009. Here, instead of the appellant pursuing the judicial review application before the National Court, the appellant is pursuing this appeal.

12. The Appeal is by way of a Notice of Appeal under Order 7 Division 3 Rule 8 of the Supreme Court Rules. However, the proceedings before the National Court were by Originating Summons pursuant to Order 16 of the National Court Rules. The appellant is seeking leave of the Court to apply for Judicial Review of a decision of the first respondent, the Minister for Communications and Information Technology made on the 27 of December 2014. However, as opposed to the grant or refusal to grant judicial review, this is an appeal against a decision arising from a judicial review proceedings and therefore the issue then arises as to whether, the principles applied in the case of Felix Bakani v Rodney Daipo (2002) SC699, Garamut Enterprises v Steamships Trading Co. Limited [1999] SC625 and NEC & Others v David Nelson (2004) SC766 are applicable to this present case?

13. In the decisions of Bakani v Daipo (supra) and Garamut v Steamships (supra) these cases affirm the principle that an appeal against a decision under Order 16 of the National Court Rules must be instituted by notice of motion pursuant to Order 10 of the Supreme Court Rules.
    
14. Given these circumstances, the question asked here is, whether the appeal filed is in compliance with the requirements of Order 10 Rule 1 (1) (a) of the Supreme Court Rules and Order 16 Rule 11 of the National Court Rules?
    

15. I note that leave to appeal was granted on the 15 of September 2015.

Competency of Appeal

16. In determining the appeal, I consider that there is only one matter for determination and this relates to the competency of the appeal; which may determine this appeal noting that Ms Mugugia for the first and second respondents did not raise any objections on the competency of the appeal.

17. With regard to the competency of the appeal, this Court has the power to properly consider matters before it, and in this regard, the Court should be able to determine competency issues even if not raised by the respondents. The exercise of this Courts authority can be by its own motion (see Tamali Angoya (supra) as applied in this present appeal. Furthermore, an objection may be raised at any time, before judgment, at the discretion of the Court (Stephen Mendepo v NHC (2011) SC1169 and Chief Inspector Robert Kalasim and Tongane Koglwa (2006) SC828. In addition, in Bruce Tsang v. Credit Corp (PNG) Ltd [1993] PNGLR 112, the Court held that it can raise an issue of competency at any time until judgment.

18. Further, the Court also has an inherent power to control its own processes (Ronald Rimbao v. Don Pandan (2011) SC1098) and confirmed its authority where it determined that there is an abuse of process (Tamali Angoya vs. Tugupu Association Incorporated (2009) SC978). In the decision of Don Polye v. Jimson Papaki Sauk (2002) SC637the Court said:

“The Court always has had authority and of course jurisdiction to ensure the integrity of its’ process”.

19. The exercise of this Courts authority can be, by its own motion (see Tamali Angoya (supra) and an objection may be raised at any time, before judgment, at the discretion of the Court (Chief Inspector Robert Kalasim and Tongane Koglwa (supra), see also Stephen Mendepo v NHC (supra). Furthermore, in Bruce Tsang v. Credit Corp (PNG) Ltd (supra), the Court held that it can raise an issue of competency at any time until judgment.
    
20. For this appeal before this Court, I note that the Appeal is by way of a Notice of Appeal under Order 7 Rule 14 of the Supreme Court Rules. The proceedings before the National Court however, were by Originating Summons seeking leave of the Court to apply for Judicial Review by Originating Summons (JR) No. 141 of 2015. In those proceedings, the appellant seeks leave of the Court to apply for Judicial Review of a decision of the Minister for Communications and Information Technology made on the 27 of December 2014; regarding the provision of wholesale interconnection services to telecommunications network operators.
    
21. The appellant’s application for Judicial Review proceedings were commenced pursuant to Order 16 of the National Court Rules. Given the appellant’s mode of proceedings, the Court notes that any appeals arising from a National Court decision under 0rder 16 are to proceed by way of a Notice of Motion under Order 10 of the Supreme Court Rules 2012 and under Order 16 Rule 11 of the National Court Rules.
    
22. The provision of Order 10 of the Supreme Court Rules is restated as follows:
    

"Order 10 - Appeal from orders made under orders 16 and 17 of the National Court Rules

Division 1.-lnstitution of appeal

1. (1) An appeal under this Order shall be instituted by a notice of motion.

(2) Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply.

2. The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.

3. 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."

23. Order 16 Rule 11 of the National Court Rules reads:
    

"11. Appeal.

An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review."

24. It is settled law that an appellant intending to appeal against the decision of the National Court concerning the review jurisdiction of the National Court must comply with all the requirements of the Order 10 Rule (1), (2) & (3) of the Supreme Court Rules to institute a valid appeal. In Felix Bakani v Rodney Daipo (supra) the Supreme Court said:

"Unlike ordinary appeals, an appeal under Order 10 is a special category of appeal. It is an appeal from a decision of the National Court under the review jurisdiction in Order 16 of the National Court Rules. This review jurisdiction of the National Court is available to a person aggrieved by the decisions of the statutory, administrative or quasi-judicial tribunal. The enabling statutes often contain provisions pronouncing the finality of the decision and precludes appeals. Therefore, the procedural requirements for invoking the review jurisdiction are stringent. The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural requirements of Order 10, in particular Order 10 r 3 are also restrictive and onerous. They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant..."

25. Further, in the case of Garamut Enterprises v Steamships Trading Co. Limited (supra) the Supreme Court stated:

"But Order 16 rule 11 of the National Court Rules expressly refer to "an appeal" under Order 10 of the Supreme Court Rules and construed in that context, it is our view that whilst Order 16 rule 11 of the National Court Rules grants original power, it is directory only in that it is effected through the procedure stipulated in Order 10 of the Supreme Court Rules which is the overall regulatory provision. And if one accepts this argument, then it logically follows that both order 16 rule 11 of the National Court Rules and Order 10 of the Supreme Court Rules are subject to section 14(3)(b) of the Supreme Court Act."

26. The above principles were applied in the case of NEC & others v David Nelson (supra). It is settled law that an appellant seeking to appeal against a decision of the National Court to grant or refuse leave to apply for judicial review made under Order 16 Rule 3 of the National Court Rules is required to obtain leave of Court to appeal.

27. There is no dispute that the appeal is against a decision made under Order 16 of the National Court Rules proceedings. The appellant did not file and serve a Notice of Motion pursuant to Order 10 Rule 1(1) of the Supreme Court Rules. Similarly, the respondents also did not file an objection to competency within 14 days after service upon his lawyers of the Notice of Appeal. However, the position at law is that, in the exercise of its discretion, a Court can hear an objection that is raised after the expiration of the 14 days period (Sir Arnold Amet v. Peter Charles Yama (2010) SC1064; Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence, and 2 Ors (2013) SC1225. The principles established in those cases were that the inherent power of the Court carries with it the onerous responsibility to safe guard its processes and procedures against abuse and the issue of competence has to do with legal and jurisdictional aspects of the court process.

28. Further, it is settled law that any competency issue on an appeal may be raised by the Court before judgment and remains open. The Court may of its own discretion address it any time before judgment (see Lowa v Akipe [1991] PNGLR 265, Bruce Tsang v Credit Corporation (PNG) Limited (supra), Christopher Haiveta, Leader of the Opposition v Pais Wingti, Prime Minister; and Attorney General and National Parliament (N2) 1994 PNGLR 189; Felix Alai v Nakot Waina (2015) SC1615, Ronald Rimbao v. Don Pandan (supra), Tamali Angoya vs. Tugupu Association Incorporated (supra), Don Polye v. Jimson Papaki (supra), Chief Inspector Robert Kalasim and Tongane Koglwa (supra), Stephen Mendepo v NHC (supra)).

29. Order 10 Rule 1 is in mandatory terms that an appeal from orders made in Order 16 proceedings “shall” be by way of Notice of Motion. That alone is convincing enough for me to find that the appeal before the Court is incompetent and that the appeal is not properly before the Court.

30. Order 10 of the Supreme Court Rules allows for appeals against orders made pursuant to Orders 16 of the National Court Rules to be instituted by way of a notice of motion instead of an ordinary notice of appeal. In that sense appeals lodged pursuant to Order 10 of the Supreme Court Rules are of special nature (See, Felix Bakani& Oil Palm Industrial Corporation vs. Rodney Daipo (supra). But that does not exempt such appeals from the mandatory requirements of Order 7 Rule 14 of the Supreme Court Rules. The requirements of Order 7 Rule 14 apply equally to appeals lodged under Order 10 and Order 7 of the Supreme Court Rules.

31. Having heard Counsels, I have arrived at a conclusion that the Appeal is incompetent. The appellant has not filed a Notice of Motion as required by Order 10 (1) (a) of the Supreme Court Rules and 0rder 16 Rule 11 of the National Court Rules. Instead the appellant has filed a Notice of Appeal. This is not permissible (Felix Alai v Nakot Waina (supra).

32. It is for this reason that the Appeal should be dismissed for being incompetent. Given this, it is not necessary to consider the appeal further.

33. The National Court proceedings, OS (JR) 141 of 2015 must proceed to hearing and determination accordingly.

34. Consequently, I make following orders: -

(i) The appeal is dismissed.

(ii) The appellant to pay the first and second respondents’ cost of and incidental to the appeal on a party-party basis to be taxed if not otherwise agreed.

Judgment accordingly
_______________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellant
Solicitor General: Lawyer for the First and Second Respondents