SC2152

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NOS 87, 88 AND 89 OF 2019

BETWEEN:
NAIMA INVESTMENT LTD and 
ELEANA TJANDRANEGARA
Appellants

AND:
POKEA & ASSOCIATES LAWYERS
First Respondent

AND:
SAMUEL IKISO, 
in his capacity as Taxing Master
Second Respondent

Waigani: Hartshorn J
          2021: 19th & 24th May

SUPREME COURT PRACTICE AND PROCEDURE - Objections to competency of applications for leave to make slip rule applications

Cases Cited:

Avia Aihi v. The State (No. 1) [1981] PNGLR 81 at 107
Felix Bakani v. Rodney Daipo (2001) SC659
Napanapa Landowners Association Inc. v. Logae (2017) SC1677
Emma Faiteli v. Guise Kula (2019) SC1757
Wamu Abari v. Willie Gumaim (2020) SC1925

Counsel:

Mr. B. Lomai, for the Appellants
Mr. R. Pokea, for the First Respondent

24th May, 2021

1.HARTSHORN J: This is a decision on three contested objections to competency of three applications for leave to make slip rule applications (leave applications) in three related appeals.

Background

2. The appellants had appealed National Court decisions which refused applications for leave to review the first respondent’s taxed costs. On 4th March 2021, the Supreme Court dismissed the three appeals for want of prosecution pursuant to Order 7 Rule 48(a) Supreme Court Rules. The appellants filed the leave applications on 25th March 2021.

3. It is not controversial that the leave applications were served on 26th March 2021, one day outside of the time prescribed in Order 11 Rule 32(1) Supreme Court Rules.

Objection to competency

4. The first respondent objects to the competency of the leave applications on the grounds that they were served out of time contrary to the time requirement of 21 days in Order 11 Rule 32(1) Supreme Court Rules. Further, the grounds and reasons in the leave applications lack substance, and do not disclose any strong prospects of success.

5. On the first ground the appellants do not dispute that the leave applications were served out of time as they were served one day late. It is submitted that this was caused by the inability to locate the first respondent’s offices and the sickness of one of the appellants which had delayed the execution of documents. It is in the interests of justice therefore that the leave applications be permitted to progress, it is submitted. On the second ground the appellants submit that they do have arguable grounds.

Consideration

6. No issue was taken by the appellants with the first respondent being able to move his objection to competency. In this regard I refer to my decisions in Napanapa Landowners Association Inc. v. Logae (2017) SC1677 at [7] and [8] and Emma Faiteli v. Guise Kula (2019) SC1757. As mentioned, it is not disputed that the leave applications were served out of time by one day.

7. In regard to whether non-compliance with a timing provision renders an application incompetent, I reproduce [9] and [10] of Napanapa v. Logae (supra):

“9. As to non-compliance with a timing provision not being an issue of jurisdiction, in the decision of this Court in The State v. The Transferees (2016) SC1488 (Sakora, Gavara-Nanu, Ipang JJ), the Court said as to Order 11 Rule 32 (1) Supreme Court Rules at [4]:

“4. It is significant to note that this rule is in mandatory terms by reason of the word “shall”.”

and then at [9] and [10]:

“9. Filing of a slip rule application is regulated by Orders 11 r 32 and 13 r 15 of the Supreme Court Rules, thus the requirements under these rule (sic) being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetency and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412.

10. Order 11 r 32 of the Supreme Court Rules, grants power to the Court to hear a slip rule application as long as the application meets the requirements of the above mentioned rules viz; that it is competent.” 

10. Cleary from that Court’s observations, its members were of the view that non-compliance with Order 11 Rule 32 renders an application incompetent. A requirement of Order 11 Rule 32 is as to time, - the time by which an application is to be filed and served. In my view therefore, an objection to competency may validly question the competency of an application because of a failure to comply with the time requirements of Order 11 Rule 32.”

8. I also reproduce the following passage from Wamu Abari v. Willie Gumaim (2020) SC1925 at [14]:

“14. Further, the learned Judge should not have entertained the application to extend as it was filed and served outside of the time prescribed in Order 11 Rule 32(1) which is mandatory: The State v. The Transferees (2016) SC1488 and Napanapa Landowners Association Inc. v. Gaudi Logae (2017) SC1677. By hearing the application to extend, the learned Judge fell into error.”

9. The appellants submit that it is in the interests of fairness and justice that the leave applications be permitted to continue because of the inability to locate the first respondent’s offices and the sickness of one of the appellants. These two factors upon which the appellants rely are not capable of conferring jurisdiction upon this Court which the Supreme Court Rules do not. Section 158(2) Constitution, if I understand correctly, upon which the appellants rely, provides that:

“In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”

10. The interpretation to be given to “justice” is justice according to law: Avia Aihi v. The State (No. 1) [1981] PNGLR 81 at 107 and Felix Bakani v. Rodney Daipo (2001) SC659. The law in this instance is Order 11 Rule 32(1) Supreme Court Rules.

11. As it is clear that the leave applications were served outside of the time requirement of Order 11 Rule 32(1) Supreme Court Rules, that this is conceded by the appellants and that no dispensation or extension of time in respect of Order 11 Rule 32(1) has been applied for or granted, a mandatory requirement of Order 11 Rule 32(1) concerning service has not been complied with and so the Court has no jurisdiction to hear the leave applications. Consequently, the first respondent is entitled to the orders that it seeks. Given this it is not necessary to consider the other submissions of counsel.

Orders

12.  It is ordered that:

a)	The applications for leave to make slip rule applications of the appellants filed 25th March 2021 are dismissed;

b)	The first respondent’s costs of and incidental to the said applications and to its objections to competency filed 6th April 2021 are to be paid by the appellants.	
__________________________________________________________________
Lomai and Lomai: Lawyers for the Appellants                      
Pokea and Associates: Lawyers for the First Respondent