Independent State of Papua New Guinea v Kalaut [2021] PGSC 31; SC2094 (30 April 2021)

SC2094

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 10 OF 2021 (IECMS)

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
DAVID MANNING, COMMISSIONER OF POLICE
Second Appellant

AND:

HON. BRYAN KRAMER, MINISTER FOR POLICE
Third Appellant

AND:
HON. SOROI EOE, MINISTER FOR PUBLIC SERVICE
Fourth Appellant

AND:
THE PUBLIC SERVICES COMMISSION
Fifth Appellant

AND:

THE NATIONAL EXECUTIVE COUNCIL
Sixth Appellant
AND:
SILVESTER KALAUT
First Respondent

AND:

FRED YAKASA
Second Respondent
Waigani: Gavara-Nanu J, David J, Anis J
2021: 26^th & 30^th April

APPEAL – Objection to competency of appeal – Supreme Court Rules, Order 7 Rules 9(c), 10 and 15, Order 10 Rule 3(b), Order 11 Rule 11 and Order 13 Rules 1 and 15.

Cases Cited:
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221
Joseph Nandali v Curtain Brothers Ltd (2012) SC1483
Jimmy Lama v NDB Investments Ltd (2015) SC1423
Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431
Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553
Tukuyawini Peter Philip v Manasseh Makiba (2018) SC1725
Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd (2018) SC1752
Vitolo v Mararea Land Group Incorporated (2020) SC2006
Petroleum Exploration Joint Venture Ltd v Talu (2020) SC 2019

Palaso v Elliot (2020) SC2030
Counsel:

Troy Mileng, for the First, Third, Fourth, Fifth and Sixth Appellants
Derek Wood with Clayton Joseph, for the Second Appellant
David Dotaona, for the Respondents

RULING

30^th April 2021

1. BY THE COURT: INTRODUCTION: This is a ruling on an objection to the competency of the appeal instituted by the appellants by Notice of Motion filed on 26 January 2021 (the Motion) which is moved by the respondents pursuant to a Notice of Objection to Competency they filed on 10 February 2021 (the Objection). The appellants oppose the Objection.

BRIEF FACTS

2. The brief facts are not disputed.

3. In 2019, applications were invited for the positions of Commissioner of Police and Secretary for the Department of Police.

4. The Second Appellant and the respondents were among 18 applicants who applied in response to the invitation. They were the three candidates who made the final short-list and recommended for appointment to the position of Commissioner of Police. The appointment to the position of Secretary for the Department of Police was not addressed.

5. On 6 December 2019, the Sixth Appellant, National Executive Council resolved to advise the Head of State to appoint the Second Appellant as the Commissioner of Police and Secretary for the Department of Police for a period of four years.

6. On 10 December 2019, the Acting Governor-General, who was also the Speaker of Parliament, Hon. Job Pomat MP, appointed the Second Appellant as the Commissioner of Police and Secretary for the Department of Police for a period of four years with effect on and from 3 December 2019 under an instrument of appointment that was published in National Gazette No.G980 of 10 December 2019.

7. Aggrieved by the NEC decision and the subsequent appointment of the Second Appellant as the Commissioner of Police and Secretary for the Department of Police, the respondents instituted judicial review proceedings in the National Court by OS (JR) No.2 of 2020, Sylvester Kalaut & Fred Yakasa v NEC & Ors (judicial review proceedings) challenging the appointment primarily on the basis that the Second Appellant did not possess any tertiary qualification to be appointed to both the Office of Commissioner of Police and Secretary of the Department of Police.

8. The judicial review proceedings proceeded to a substantive hearing and on 21 January 2021, the National Court granted the application for judicial review and declared that the appointment of the Second Appellant as the Commissioner of Police and Secretary for the Department of Police was unlawful and the appointment quashed effective from 12 midday on 29 January 2021 and the offices of Commissioner of Police and Secretary for the Department of Police vacant. The National Court found as facts, among others, that; the Second Appellant did not possess any tertiary qualification and the respondents did and the Department of Police was established as a Department of the National Public Service in 1976 and has never been abolished.

9. Aggrieved by the decision of the National Court, the appellants filed this appeal by way of the Motion.

10. On 28 January 2021, Justice Hartshorn sitting as a Judge of the Supreme Court granted an order to stay the decision of the National Court pending the hearing and determination of the appeal.

11. On 10 February 2021, the respondents filed the Objection.

GROUNDS OF OBJECTION

12. The grounds of the Objection can be summarized as follows:

1. The grounds of the appeal do not state specifically the alleged error of law or the error of mixed fact and law.
2. In respect of paragraphs 9, 10, 11, 14 and 15 of the Objection, it is claimed that the grounds of the appeal at paragraphs 3.9, 3.10, 3.11, 3.12 and 3.15 were not raised by the appellants in the National Court.

EVIDENCE

13. The affidavits filed in support of the Objection are sworn by:

1. Sylvester Kalaut on 26 February 2021 and filed on 26 February 2021;
2. Charlie Arua on 26 February 2021 and filed on 26 February 2021; and
3. Sylvester Kalaut on 19 April 2021 and filed on 19 April 2021.

14. We have considered the evidence.

15. The appellants have not referred us to any rebuttal affidavit filed in opposing the Objection.

ISSUES
16. This ruling concerns two major issues and these are:

1. Whether the Objection itself is competent?

2. Whether the Objection has merit?

LAW ON OBJECTION TO COMPETENCY OF APPEAL

17. A respondent who objects to the competency of an appeal or an application for leave to appeal must file the objection in accordance with Form 9 of the Supreme Court Rules and within 14 days after service of the appeal on the appellant pursuant to Order 7 Rule 15 of the Supreme Court Rules.

18. The relevant principles which apply when considering an objection to competency of an appeal or an application for leave to appeal were summarized by the Court in Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431 and these are:

1. An appeal may be incompetent if it does not comply with the requirements of the Supreme Court Act and or the Supreme Court Rules: Chris Haiveta v Paias Wingti & Others (1994) PNGLR 189.
2. A respondent who objects to the competency of an appeal or of an application for leave to appeal filed pursuant to Order 10 of the Supreme Court Rules can file an objection to competency of the appeal pursuant to Order 11 Rule 28 of the Supreme Court Rules.
3. The objection to competency must itself be competent, i.e., it must comply with the Supreme Court Rules: The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448; Patterson Lowa v Wapula Akipe [1991] PNGLR 265; PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717; Gregory Puli Manda v Yatala Limited (2005) SC795; Jeffrey Turia v Gabriel Nelson (2008) SC949, Pacific Equities & Investments Ltd v. Teup Goledu (2009) SC962.
4. An objection to competency of an appeal may be raised at any time before judgment at the discretion of the Court: Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828.
5. A proper ground of objection to competency is one that goes to the Court’s jurisdiction: Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (1980) SC185; Jeffrey Turia v Gabriel Nelson (supra), Talibe Hegele v Tony Kila (2011) SC1124; Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221. In PNG Forest Authority v Securimax Security Pty Ltd (supra), Sakora, J held that an objection to competency must raise serious threshold issues concerning legality or viability or otherwise of a particular process.

19. Order 13 rule 15 of the Supreme Court Rules provides that:

“All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought...”

20. The word “Application” is defined in Order 13 Rule 1 of the Supreme Court Rules and it:

“means any application as provided for under these rules, the Act, the Constitution and any other legislation.”

21. An objection to competency would fall within the meaning of “Application”.

22. This Court has also held that:

1. A notice of objection to competency must state the jurisdictional basis for the Court to grant the orders: Joseph Nandali v Curtain Brothers Ltd (2012) SC1483, Vitolo v Mararea Land Group Incorporated (2020) SC2006.
2. A notice of objection to competency must plead the appropriate provision and comply with the Supreme Court Rules failing which will be fatal: Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553.
3. A notice of objection to competency must state the law, being Order 7 Rules 9(c) and (10) of the Supreme Court Rules: Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962.
4. The fact that issues raised in the notice of appeal were not raised in the court below is not a proper ground of objection as it goes to the merit of the appeal and not to jurisdiction: Tukuyawini Peter Philip v Manasseh Makiba (2018) SC1725, Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd (2018) SC1752.
5. Where there are multiple grounds of appeal specified in the notice of appeal and it contains at least one ground by which the Court’s jurisdiction was validly invoked or one of those grounds is conceded to be valid, the Court’s jurisdiction has been validly invoked, even though there may be other grounds that may lack merit: Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221, Jimmy Lama v NDB Investments Ltd (2015) SC1423.

23. In relation to what questions relate to fact or law, that was addressed by this Court in Peter Neville v National Executive Council of Papua New Guinea (2015) SC1431 at para 33 where it observed as follows:

“As to what questions relate to fact or law is difficult to determine: Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz [1975] PNGLR 262, Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (supra). In British Launderers' Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21 at 25 to 26, Lord Denning discussed the distinction this way:

“On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and so far as these conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts: ... If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination by a trained lawyer — as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer — the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of the first instance." (Our underlining)

24. We adopt these principles and apply them here.

COMPETENCY OF THE OBJECTION

Submissions

25. The appellants supporting each other through their respective counsel submit that the Objection is defective and incompetent as:

1. It does not state the jurisdictional basis to make the objection in respect of the competency of the Appeal;
2. All grounds of the Objection raise a similar claim that the grounds of the Appeal ‘do not state specifically the error of law or the error of mixed fact and law’, but these objections do not state the law that the grounds of the Appeal offend against.

26. On the contrary, the respondents essentially contend that the Objection is competent and properly before the Court for consideration and determination.

Consideration

27. It is quite apparent that the Objection does not state the jurisdictional basis for the Court to grant the orders being sought: Joseph Nandali v Curtain Brothers Ltd (2012) SC1483, Vitolo v Mararea Land Group Incorporated (2020) SC2006. The Objection should have expressly referred to Order 7 Rule 15 of the Supreme Court Rules as its jurisdictional basis.

28. In addition, the respondents have not raised any specific objection to the ground of appeal pleaded at paragraph 3.13 of the Motion and for this reason alone on the authorities of Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221 and Jimmy Lama v NDB Investments Ltd (2015) SC1423, the appeal is competent and the Objection is dismissed.

29. We also accept the appellants’ submission that all grounds of the Objection raise a similar claim that the grounds of the appeal ‘do not state specifically the error of law or the error of mixed fact and law’, but these objections do not state the law that the grounds of the Appeal offend against viz, Order 7 Rules 9(c) and 10 of the Supreme Court Rules: Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962. Order 7 Rules 9(c) and 10 specify how the grounds relied upon in support of an appeal must be pleaded in a notice of appeal or as in the present case in a motion filed under Order 10 of the Supreme Court Rules.

30. For these reasons, the Objection itself is incompetent and must be dismissed.

31. Notwithstanding the above findings and for completeness, we will briefly address whether the Objection has merit.

OBJECTION TO COMPETENCY OF APPEAL

Submissions

32. The respondents contend that the grounds of appeal pleaded in the Motion are incompetent and should be dismissed because:

1. Grounds 3.1 to 3.14 do not specifically state the error of law or the error of mixed fact or law committed by the National Court; and
2. Grounds 3.9, 3.10, 3.11, 3.15 and 3.16 raise new arguments in this Court that were never raised in the National Court and the appellants have not sought leave of the Court to raise these new arguments.

33. The appellants, supporting each other through their respective counsel, essentially contend that each of the sixteen grounds of appeal is competent because:

1. they briefly state with particularity the reasons for the error of law and fact or law committed by the National Court; and
2. Grounds allegedly raising new arguments in this Court and not raised in the National Court go to the merit of the appeal and not to jurisdiction.

34. The Second Appellant relying on the authority of Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221 also contended that this Court should not dismiss an appeal as being incompetent if it contains at least one ground by which the Court’s jurisdiction was validly invoked. The Objection does not specifically register an objection against Ground 3.13 of the appeal and that itself demonstrates a concession that the Court’s jurisdiction has been validly invoked and the appeal is competent.

Consideration

35. We accept the appellants’ submissions. In our view, the grounds of appeal as pleaded meet the requirements of Order 7 Rules 9(c) and 10 of the Supreme Court Rules. The Objection has no merit. The appeal is competent.

ADDITIONAL GROUND OF OBJECTION

36. The respondents, relying on the affidavit of Sylvester Kalaut sworn on 19 April 2021 and filed on 19 April 2021, sought leave to raise orally another ground of objection to the competency of the appeal viz, the Motion has not entirely met the mandatory requirements of Order 10 Rule 3(b) of the Supreme Court Rules alleging that a large volume of National Court documents have not been annexed to the Motion including the written judgment and transcripts. This affidavit was tendered at the hearing and allowed by the Court under protest and strong objection from the appellants. The respondents contend that the new ground, if allowed, will effectively amend the Objection and they relied on the case of Petroleum Exploration Joint Venture Ltd v Talu (2020) SC2019 where the Court invoked Order 11 Rule 11 of the Supreme Court Rules to allow an amendment to the notice of objection to competency filed a few days after the initial objection was filed and before the appeal was served, which would then be sufficient cause to dismiss the appeal for want of competency.

37. The appellants, again in support of each other through their respective counsel, argue that the oral application for leave to amend the Objection at the 11^th hour should be refused because all documents relied upon by the parties including the documents considered by the National Court at the hearing of the substantive review are all annexed to the Motion. It was also submitted that the documents which are not annexed to the Motion are affidavits of service, interlocutory motions and affidavits in support of those interlocutory motions and those documents were not before the National Court at the hearing of the substantive judicial review and were not relied upon by the parties then.

38. The Objection was fixed for hearing by the Court on material contained in the Objection to Competency Book filed on 4 March 2021. While this Court has held that non-compliance with the requirement to annex copies of all documents before the National Court appealed from is fatal to an appeal, the circumstances under which this application is made does not warrant this Court to entertain it: Palaso v Elliot (2020) SC2030. The Supreme Court Rules make no specific provision for this type of application and perhaps the only way to deal with the matter is in the exercise of the Court’s inherent jurisdiction or discretion under Order 11 Rule 11 of the Supreme Court Rules which was applied by the Court in Petroleum Exploration Joint Venture Ltd v Talu (2020) SC2019. This is a belated application and is not supported by any reasonable explanation provided by the respondents by affidavit as to why a proper application for leave to amend the Objection, whether within or before expiry of the 14-day period allowed under Order 7 Rule 15 of the Supreme Court Rules, was not filed and moved earlier. We also consider that the appellants have an arguable case on the question of compliance with Order 10 Rule 3(b) and so proper arguments should be ventilated at the hearing of the substantive appeal for the Court’s consideration and determination should the respondents maintain the objection and is raised in line with the principle enunciated in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 that issues of competency that implicate the jurisdiction of the Court to entertain a matter may be raised at any time.

39. For these reasons, we refuse leave to amend the Objection.

ORDERS

40. In the circumstances, judgment is entered against the respondents and the orders of the Court are:

1. The objection to competency of the appeal moved by Notice of Objection to Competency filed on 10 February 2021 is refused and dismissed.

2. The oral application seeking leave to amend the Objection to add a new ground as to want of compliance with Order 10 Rule 3(b) of the Supreme Court Rules is refused.
3. The respondents shall bear the appellants’ costs of and incidental to the objection to the competency of the appeal moved by Notice of Objection to Competency filed on 10 February 2021, which, if not agreed, shall be taxed.

_____________________________________________________________

Solicitor-General: Lawyer for the First, Third, Fourth, Fifth & Sixth Appellants
Ashurst PNG: Lawyers for the Second Appellant
Dotaona Lawyers: Lawyers for the Respondents