Ondalane v Ekepa [2022] PGSC 12; SC2202 (2 March 2022)

SC2202

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 66 OF 2021

KIMALEYA ONDALANE
First Appellant

YANALE LARE
Second Appellant

V

MARK TONY EKEPA
First Respondent

HON JOHNSON TUKE MP, MINISTER FOR MINING
Second Respondent

MINERAL RESOURCES AUTHORITY
Third Respondent

INVESTMENT PROMOTION AUTHORITY
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Cannings J, Kariko J, Anis J
2022: 21^st February, 2^nd March

SUPREME COURT – practice and procedure – objection to competency of appeal – judgment the subject of appeal was interlocutory and leave to appeal not sought – grounds of appeal raise questions of fact and leave to appeal not sought – notice of appeal and supplementary notice of appeal not in proper form.

The appellants filed a notice of appeal against an order of the National Court refusing them leave to join the proceedings, then filed a supplementary notice of appeal, which amended some grounds of appeal in the original notice of appeal and added grounds of appeal against the final order of the National Court in the same proceedings. The respondents to the appeal objected to its competency on three grounds: (1) the appellants did not obtain leave to appeal, which was necessary as the first order appealed from was interlocutory in nature; (2) the appellants did not obtain leave to argue the grounds set out in the supplementary notice of appeal, which was necessary as the grounds of appeal raised questions of fact; (3) the notice of appeal and supplementary notice of appeal were incompetent due to want of form. The appellants raised a preliminary point that the notice of objection to competency was itself incompetent due to its late filing.

Held:

(1) The notice of objection to competency was non-compliant with the Supreme Court Rules in that it was filed and served late. The respondents had no right to have it heard and ought to have sought the leave of the Court to have it heard. However, the Court has discretion to entertain an objection even if leave is not sought. It exercised that discretion here, as the notice of objection raised arguable grounds and the appellants had been put on notice of them. The objections were heard and determined on their merits.

(2) The subject matter of the original notice of appeal was the order of the National Court refusing a joinder application and was interlocutory in nature, requiring leave. However, the original notice of appeal was superseded by the supplementary notice of appeal, which included grounds of appeal pertaining to the final order of the National Court. Those grounds of appeal were prima facie (subject to consideration of the second ground of objection) properly before the Supreme Court and did not require leave. As an objecting party must show that all grounds of appeal are not properly before the Court, the first ground of objection failed.

(3) The questions raised in the supplementary notice of appeal were of mixed fact and law and did not require leave, so the second ground of objection failed.

(4) The form used by the appellants to prosecute the appeal is the supplementary notice of appeal, which was compliant with the Rules, so the third ground of objection failed.

(5) All grounds of objection failed, therefore the objection to competency was dismissed, with costs.

Cases Cited

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205
Hamaka v Kombri SCA No 178 of 2019, 17.07.20 unreported
Hegele v Kila (2011) SC1124
Lowa v Akipe [1991] PNGLR 265
Mountain Catering Ltd v Punangi (2013) SC1225
Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646
Punagi v Pacific Plantation Ltd [2011] 2 PNGLR 92
Sarea v Moutu (2019) SC1893

Counsel

P Harry, for the Appellants
P Mawa, for the First Respondent
N Saroa, for the Second and Third Respondents
T Tanuvasa, for the Fifth Respondent

2^nd March, 2022

1. BY THE COURT: The second and third respondents object to the competency of the appeal. They are supported by the first and fifth respondents.

2. The appeal, SCA No 66 of 2021, is against two orders of the National Court made in the same proceedings, OS No 102 of 2021, which relate to identification of sub-clan representatives for purposes of negotiations regarding reopening of the Porgera gold mine, Enga Province.

3. The first order was made on 25 June 2021 when the appellants’ application to join the proceedings was refused by the primary Judge, Kandakasi DCJ. An appeal against that order was the subject of the original notice of appeal, filed on 1 July 2021.

4. The second order was made on 2 July 2021 when his Honour endorsed a draft consent order that put in place a process for validation of the election of 25 sub-clan representatives. It was a final order that determined the proceedings. The appellants filed a supplementary notice of appeal on 15 July 2021 which amended some grounds of appeal in the original notice of appeal and added grounds of appeal against the final order of 2 July 2021.

5. On 27 August 2021 the second and third respondents filed a notice of objection to competency of the appeal, citing three grounds of objection:

1. the appellants did not obtain leave to appeal, which was necessary as the first order appealed from was interlocutory in nature;
   
2. the appellants did not obtain leave to argue the grounds set out in the supplementary notice of appeal, which was necessary as the grounds of appeal raised questions of fact;
   
3. the notice of appeal and supplementary notice of appeal were incompetent due to want of form.
   

6. The appellants raised a preliminary point that the notice of objection to competency was itself incompetent due to it being filed late. We will deal with that issue first, then consider the grounds of objection.

OBJECTION TO NOTICE OF OBJECTION

7. We agree with the appellants that the notice of objection to competency has been filed well after the 14-day period (from the date of service) prescribed by O 7, r 15 of the Supreme Court Rules. The consequence is that the respondents have no right to have their objection to competency heard. They ought to have sought leave to raise their objection. They have not done that, so the position is that they have no right to have the objection heard (Lowa v Akipe [1991] PNGLR 265, Hegele v Kila (2011) SC1124). The objection to competency of the appeal is incompetent in that sense.

8. However, it does not follow that the Court should not consider the grounds of objection. The Court still has discretion to entertain the objection. The Court can also of its own volition at any time raise any issue as to jurisdiction of the Court, including competency of an appeal (Amet v Yama [2010] 2 PNGLR 87, Mountain Catering Ltd v Punangi (2013) SC1225, Kuk v O’Neill (2014) SC1331, Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646, Sarea v Moutu (2019) SC1893).

9. We have decided to exercise that discretion here, despite leave to argue the objection not being sought, as the notice of objection raises arguable grounds and the appellants have been put on notice of them. The objection will be heard and determined on its merits.

GROUND OF OBJECTION 1: APPELLANTS DID NOT SEEK LEAVE TO APPEAL AGAINST INTERLOCUTORY JUDGMENT

10. The respondents argue that the appellants required leave to appeal before filing their notice of appeal, as the appeal was against an interlocutory judgment of the National Court. It is argued that leave was required under s 14(3)(b) of the Supreme Court Act.

11. Section 14 (civil appeals to the Supreme Court) states:

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court—

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except—

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

12. The respondents argue that the order of 25 June 2021 is procedural in character, denying a joinder application, and therefore interlocutory. The order did not finally determine the proceedings in the National Court, which were ongoing, on that date. Therefore, leave of the Supreme Court was required for an appeal against such an order.

13. We would agree with the respondents were it not for the filing of the supplementary notice of appeal. The order of 25 June 2021 did not finally determine any issues between the parties, as the appellants were not parties. It was an interlocutory order (Punagi v Pacific Plantation Ltd [2011] PNGLR 92). Leave to appeal against it was required.

14. However, the original notice of appeal is defunct (Hamaka v Kombri SCA No 178 of 2019, 17.07.20 unreported). It has been superseded by the supplementary notice of appeal. It is the supplementary notice of appeal that must be the subject of the objection to competency. The supplementary notice of appeal includes grounds of appeal pertaining to the final order of the National Court. Those grounds of appeal are not against an interlocutory order and are prima facie (subject to consideration of the second ground of objection) properly before the Supreme Court and do not require leave.

15. As an objecting party must show that all grounds of appeal are not properly before the Court, ie that the Supreme Court’s jurisdiction has not been properly invoked in any respect (Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205), the first ground of objection fails.

GROUND OF OBJECTION 2: APPELLANTS DID NOT SEEK LEAVE TO APPEAL ON QUESTIONS OF FACT

16. The respondents argue that “most of” the grounds of appeal in the supplementary notice of appeal raise questions of fact, for which leave to appeal has not been sought under s 14(1)(c) of the Supreme Court Act.

17. This is a tacit concession that some grounds raise questions of law or questions of mixed law and fact. That being the case, there are some questions that do not require leave. There are some grounds of appeal that properly invoke the jurisdiction of the Supreme Court.

18. We have examined the grounds of appeal in the supplementary notice of appeal. It cannot be said that all of them require leave, due to them arguing against an interlocutory judgment or raising only questions of fact. There are clearly some that do not relate to the interlocutory judgment and are not questions of fact only. We are not inclined at this juncture to assess each of the 20 or so grounds of appeal in the supplementary notice of appeal for the purposes of determining which ones required leave and ought to be struck out and which ones should remain. That can be done at the hearing of the appeal. For present purposes, it is sufficient to say that there are some grounds of appeal that are properly before the Court. The second ground of objection fails.

GROUND OF OBJECTION 3: WANT OF FORM

19. The respondents argue that the notice of appeal and supplementary notice of appeal are incompetent due to want of form. Their point is that an application for leave to appeal should have been filed in accordance with form 7 of the Supreme Court Rules, rather than a notice of appeal in form 8, which has been filed by the appellants.

20. This ground of objection succeeds or fails depending on the determination of the earlier two grounds of objection. Grounds 1 and 2 have failed, so ground 3 fails.

CONCLUSION
21. All grounds of objection to competency of the appeal are refused. The objection to competency will be refused. The appeal will be referred to the Duty Judge. Costs will follow the event.

ORDER

1. The objection to competency is dismissed.
   
2. The appeal is referred to the Duty Judge to give directions for hearing the appeal in accordance with Order 13 of the Supreme Court Rules.
   
3. The second and third respondents shall pay the appellants’ costs of the objection to competency on a party-party basis, which shall, if not agreed, be taxed.

________________________________________________________________
Harry Lawyers: Lawyers for the Appellants
Mawa Lawyers: Lawyers for the First Respondent
Nelson Lawyers: Lawyers for the Second & Third Respondents
Solicitor-General: Lawyer for the Fifth Respondent