Palaso v Elliot [2020] PGSC 118; SC2030 (17 November 2020)

SC2030

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 13 OF 2019

BETWEEN
BETTY PALASO IN HER CAPACITY AS COMMISSIONER GENERAL OF THE INTERNAL REVENUE COMMISSION
Appellant

AND
PARU ELLIOT
Respondent

Waigani: Cannings, Hartshorn & Makail JJ
2020: 10^th & 17^th November

SUPREME COURT – Practice & Procedure – Objection to competency – Non-compliance with requirement to annex documents to Notice of Motion –Respondent’s submissions and certified copy of order of National Court not annexed – Strict compliance required– Appeal incompetent and dismissed –Supreme Court Rules – Order 10, rule 3(b)(i)&(ii)

SUPREME COURT – Practice & Procedure – Objection to competency referred and placed on the papers list – Hearing on papers – Issue identified as clear and appropriate to resolve without oral submissions – Response to Covid-19 pandemic – Supreme Court Practice Direction No 3 of 2020

Cases cited:

Felix Bakani v. Rodney Daipo (2001) SC659
Dr Arnold Kukari v. Hon. Don Pomb Polye (2008) SC907
National Capital Limited v. Loi Bakani (2014) SC1392
Nipo Investment Limited v. Nambawan Super Limited (2017) SC1642
Talibe Hegele v. David Yawe & Ors: SCM No 4 of 2019 (Unnumbered & Unreported Judgment of 2^nd September 2019)

Counsel:

Mr. S. Sinen, for Appellant
Ms. C. Copland, for Respondent

JUDGMENT

17^th November, 2020

1. BY THE COURT: This is one of the matters referred and placed on the papers list to be determined on the papers pursuant to the Supreme Court Practice Direction No 3 of 2020 in response to the Covid-19 pandemic. It will be heard on the papers because the issue identified is clear and appropriate to resolve without oral submissions. The matter referred for our determination is the respondent’s objection to competency in its amended form filed 21^st August 2020.
2. The ground of objection is that, as it was an appeal under Order 10 of the Supreme Court Rules (SCR), the appellant failed to annex to the notice of motion constituting the appeal, all the documents which were before the judge of the National Court contrary to and in breach of Order 10, rule 3(b)(i) & (ii) of the SCR.

3. Order 10, rule 3(b)(i) & (ii) states:

“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.....”. (Emphasis added).

4. The documents which were said to be missing or not annexed to the notice of motion are first, the respondent’s written submissions and second, certified copy of the order made by the judge of the National Court.

5. The appellant conceded that these documents are missing or not annexed to the notice of motion but argued that pursuant to the inherent power of the Supreme Court and since this appeal stemmed from a disciplinary action taken against the respondent for soliciting favours and rewards from tax-payers, in the interests of justice the non-compliance be waived and the appeal be allowed to progress to appeal proper.

Requirement to annex documents

6. We accept the general proposition that Order 10, Division 1, rule 3(b)(i) & (ii) of the SCR is in mandatory terms and failure to comply with these provisions is fatal to the appeal: Felix Bakani v. Rodney Daipo (2001) SC659; Dr Arnold Kukari v. Hon. Don Pomb Polye (2008) SC907; National Capital Limited v. Loi Bakani (2014) SC1392; Nipo Investment Limited v. Nambawan Super Limited (2017) SC1642 and Talibe Hegele v. David Yawe & Ors: SCM No 4 of 2019 (Unnumbered & Unreported Judgment of 2^nd September 2019).

7. The case that is of immediate relevance to this case is Nipo Investment Limited v. Nambawan Super Limited (supra). In that case, the Court upheld an objection to competency after it found that the appellant did not annex to the notice of motion the written submission relied upon by the trial judge at trial in breach of Order 10, rule 3(b)(i) of the SCR.

8. As to the requirement to annex a certified copy of the order made by the National Court, the pertinent case is National Capital Limited v. Loi Bakani (supra). There, the Supreme Court said “.......we find 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 r 3(b)(ii) is indeed fatal to the appeal”. Accordingly, the objection to competency was upheld and the appeal was dismissed.

9. As recent as September last year, in Talibe Hegele v. David Yawe & Ors (supra) the Supreme Court reinforced the proposition that it is mandatory to comply with the requirements of Order 10, rule 3 of the SCR. A party who does not strictly comply with those requirements is liable to have their appeal struck out as incompetent. In that case the Court held:

“(3) Order 10, rule 3(b)(i) requires the annexure of the material relied upon at the trial, supplemented, if at all, only to the extent that, in a particular case, some material filed at an interlocutory stage is relevant to the determination of a grounds of appeal. It does not require copies of every document filed in the National Court to be annexed to the notice of motion”.

10. The term used in Order 10, rule 3(b)(i) to note here is ‘before’. It refers to copies of all documents which were before the judge of the National Court usually the trial judge and not all the documents filed in the National Court. This was the point stressed by the Supreme Court in that case. In other words, an appeal will survive if it does not annex a document which was filed but not put or indeed used by the judge at the National Court.

11. In relation to the requirement to annex a copy of the order made by the National Court, the Supreme Court stated:

“(4) Where Order 10, rule 3(b)(ii) requires that a copy of the order certified by the “Registrar” to be annexed to the notice of motion, it may be certified on behalf of the Registrar by an officer employed in the Registry”.

Discretion to dispense with strict compliance

12. As we have noted earlier, the appellant conceded that the respondent’s written submission and copy of the certified order of the National Court were not annexed to the notice of motion and that “......majority of cases dealing with objections to competency ........[have] held that a failure to comply with mandatory requirements of Order 10 of the SCR is fatal to an appeal”.

13. The appellant submitted however, pursuant to the inherent power of the Court and in the interests of justice, the objection should be dismissed, and the appeal allowed to progress. We note the appellant’s submission that the IRC took disciplinary action against the respondent for soliciting favours and rewards from tax-payers but it is irrelevant for the purpose of determining the issue of compliance. Other than these submissions, we have not received submissions from the appellant that the cases referred to above were wrongly decided and we should not follow them.

14. Given this, there are no reasons being offered for us to depart from what the Supreme Court has decided in those cases. These cases established that strict compliance is required when an aggrieved party is contemplating filing an appeal against a decision of the National Court in a judicial review proceeding under Order 10 of the SCR. Failure to comply will enliven the discretion of the Court to dismiss the appeal for being incompetent.

15. The case under consideration is one of those cases. The appellant has not given us any other option but to uphold the objection by the respondent. We uphold the respondent’s submission that his written submission was placed before the trial judge. This submission and a copy of the certified order of the National Court should be annexed to the notice of motion. They were not. Their omission constituted a breach of Order 10 rule 3(b)(i) & (ii) of the SCR and rendered the appeal incompetent. The objection is upheld and we will dismiss the appeal as being incompetent.

Order

16. The orders are:

1. Pursuant to the amended notice of objection to competency filed 21^st August 2020, the respondent’s objection to competency is upheld.
   
2. The appeal is dismissed as being incompetent.
   
3. The appellant shall pay the respondent’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
   

Ruling and orders accordingly.

________________________________________________________________

In-house counsel: Lawyers for the Appellant
Simpson Lawyers: Lawyers for the Respondent