SC2219

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 51 OF 2021 (IECMS)

BETWEEN:
THE UNIVERSITY OF PAPUA NEW GUINEA
Appellant

AND:
JOHN ROSSO, MP
AND OTHERS
Respondents

Waigani: Logan J
2022: 3rd & 7th March

PRACTICE AND PROCEDURE – application for extension of time to file notice of objection to competency – where applicant seeks leave outside of the 14-day period prescribed in Order 7, Rule 15 of the Supreme Court Rules 2012 – where application for extension of time made patent the grounds relied upon – Held: the Court has power to extend time for filing a notice of objection to competency pursuant to the powers in s 185 of the Constitution and Order 11, Rule 9 of the Supreme Court Rules – application granted

COSTS – disentitling conduct – where successful applicant seeks indulgence of the Court – costs awarded to respondent

Facts:

The National Capital District Commission (Commission) sought leave to file an objection of competency to a notice of motion filed by the appellant, the University of Papua New Guinea. The Commission’s application was filed 51 days outside the 14-day period stipulated under the Supreme Court Rules 2012. Evidence filed by the Commission demonstrated that the delay in filing the objection to competency was occasioned by the Commission making attempts to resolve the underlying issues in the proceedings.

Held:

1.	The grounds relied upon in the application for leave were patent from a specification of the orders sought. In those circumstances, the substance of what was required by form 4 was provided: Dii v Ekoya [2019] PGSC 21; SC1787 distinguished. 
2.	The Supreme Court may extend the time for filing an objection of competency prescribed in Order 7, Rule 15 pursuant to the powers in s 185 of the Constitution and Order 11, Rule 9 of the Supreme Court Rules 2012.
3.	Where a party seeks an indulgence of the court, in the usual course the party seeking that indulgency should not receive a cost order in its favour.  

Cases Cited:

Dii v Ekoya [2019] PGSC 21; SC1787

Legislation

Constitution of the Independent State of Papua New Guinea
National Court Rules 1983
Supreme Court Rules 2012

Counsel:

Mr. D Kamen, for the Appellant
Ms. D Herold, for the Fourth Respondent

Oral decision delivered on
7 March 2022

1.	LOGAN J: The fourth respondent, the National Capital District Commission (Commission), has made application for leave to file an objection to the competency of the notice of motion filed by the appellant, the University of Papua New Guinea (University).  

2.	Order 7, Rule 15 of the Supreme Court Rules 2012 provides that: 

“15.	A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal—
(a)	file an objection in accordance with form 9; and
(b)	serve a copy of the objection on the appellant.”

3.	Order 7 is directed to be general subject of appeals. However, Order 10 of the Supreme Court Rules makes separate provision in respect of appeals from orders made under Orders 16 and 17 of the National Court Rules 1983.  In other words, it makes separate provision in respect of what might generally be called judicial review proceedings.  Order 10 incorporates by reference particular rules within Order 7.  It does not expressly incorporate by reference Order 7, Rule 15.  

4.	However, the assumption upon which the Commission’s application is made is that, nonetheless, the time limit for which Order 7, Rule 15 applies is applicable.  Assuming that to be so, the University submits that the form of the application for an extension of time within which to file a notice of objection to competency does not comply with form 4 in that the grounds are not specified.  

5.	In support of that, reference was made to a judgment given in the original jurisdiction of this court, Dii v Ekoya [2019] PGSC 21; SC1787.  But that case concerned an application for a stay in which the initiating application was deficient in that it failed to state the grounds upon which the stay was sought.
  
6.	In this particular case, the grounds are patent from a specification of the orders that are sought.  In other words, it is sought to file out of time a notice of objection to competency.  Mr Kamen who appeared for the University was unable to identify any misapprehension or misleading quality or ignorance on the University’s part as to the nature of the application which the Commission sought to make upon the application for leave filed on 29 November 2021.  I fail to see how application for leave did not observe the requirements of procedural fairness in terms of putting other parties on notice as to what exactly was sought.  

7.	Court forms must be read having regard to the nature of the particular application.  In many, if not most cases, the standard form 4 will be appropriate.  In the present case, the substance of what form 4 requires is observed by the statement in paragraph 1(i) of the application for leave: 

“Pursuant to Order 11, Rule 9 of the Supreme Court Rules 2012 and section 185 of the National Constitution, leave be granted to the Fourth Respondent to file and serve a Notice of Objection to competency of appeal out of time.”
[Emphasis in original]  
8.	This is a case where the insistence, even if it be necessary on the terms of form 4 would work to deny justice rather than promote it.  Rules of court are meant to be the handmaiden of justice, not the master.  
9.	There is no express provision in the Supreme Court Rules, even assuming that Order 7, Rule 15 is applicable, in respect of the granting of an extension of time.  That was a point made for the University.  In effect the University’s submission was 14 days is 14 days, and this is well out of time given that the application was brought 51 days outside the 14-day period.  But if, truly, there is no jurisdiction to entertain the notice of motion, the court of its own motion would be entitled to raise that issue irrespective of an objection to competency. 
 
10.	It is quite apparent from the affidavit in support that the Commission was, during and after the time within which the objection to competency could have been filed within 14 days, doing its level best to try and resolve essentially the underlying issue in the proceedings, which particularly concerned the compulsory acquisition of the land occupied by the fifth respondent, Helios No. 67 Limited trading as Port Moresby Nature Park.

11.	Section 185 of the Constitution of the Independent State of Papua New Guinea provides that: 

“If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

12.	That particular constitutional provision, referred to in the Commission’s application, is echoed by Order 11, Rule 9 in the Supreme Court Rules, which provides that: 
“Where a person desires to take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a Judge for directions.”

13.	It is in my view a very moot point indeed as to whether Order 7, Rule 15 had any application in this case.  Assuming though that it did, I am satisfied, having regard to the affidavit in support, that there was good reason why a notice of objection to competency was not filed within 14 days.  

14.	A notice of objection to competency should be filed promptly, even if that not be a formal requirement applying from Order 7, Rule 15.  So, I am in turn satisfied that there is something in the nature of an indulgence to the Commission in respect of allowance of the filing of the notice of objection to competency at this stage.  

15.	I am also satisfied that there is power to grant an extension of time.  That is because there is power to give such directions as are necessary where there is no particular procedural provision.  The Supreme Court is invested with such power under the Constitution which with such powers as are necessary to do justice.  That is augmented by s 185 in relation to particular procedural provision where necessary.  Thus, in the orders that I make, I am exercising the Court’s jurisdiction to make procedural direction in respect of the filing of an objection to competency in respect of an appeal proceeding instituted by a notice of motion where the rules of court as found in Order 10 do not make an express provision either for a notice of objection to competency or the time within which such a notice of objection should be filed.  By analogy with the provisions in respect of other appeals as found in Order 7, Rule 15, I consider that, in the ordinary course, such a notice of objection should be filed within 14 days.  But in respect of this case, I am disposed to allow the filing of a notice of objection to competency, and to allow that within a period beyond the 14-day period.

Costs
16.	There is a question as to what to do in respect of costs.  The Commission itself seems to me to have recognised by the very nature of the order sought that there was an element of indulgence entailed even by particular procedural direction in allowing longer than 14 days.  The University has been put to the expense of meeting such an application.  It was entitled to make submissions as to why an extension ought not be granted.  The point is one which is a nice procedural issue in respect of which I was not taken to any particular earlier precedent authority. 
 
17.	In the ordinary course of events where indulgence is sought, at the very least, the party seeking that indulgence should not receive a costs order in its favour.  The most benign outcome as to costs would be an order that the other parties’ costs be that party’s costs in the proceedings in any event.  

18.	In this case, I am persuaded that the unique nature of the application was one where the University was entitled to make particular submissions especially based on what appeared to be at least an analogous position in Order 7, Rule 15.  Even in that regard, it would be possible in my view for the court to extend time in the interests of justice and that because no amount of tardiness could confer jurisdiction if truly none existed. 
 
19.	The order that I propose to make therefore in this case in respect of costs is that the Commission pay the University’s costs of and incidental to the application to extend time.  That will, in my view, recognise that there is indulgence entailed in giving particular direction and that the University has been put to the expense of tenders.  

20.	Having regard to the terms of the draft notice of objection to competency, it seems to me that the interests of justice favour that objection being heard at the same time as the substantive notice of motion.  That will avoid any unnecessary delay by a two-step process whereby an objection is heard and then, if it has no merit, the court is then left on a separate date to confront the substantive notice of motion. 
 
21.	It also seems to me desirable that an application which is pending for the amendment of the notice of motion be heard at the same time both as the substantive notice of motion as filed as well as the objection to competency.  It will though be necessary for that application in conjunction with the orders made today to be served by the University as appellant on all parties.

Orders

1)	The fourth respondent have leave to file a notice of objection to competency in the form of the draft annexed to the affidavit in support of Lari Raula, filed 29 November 2021.
2)	The notice of objection to competency be served by the fourth respondent on the appellant and the other respondents forthwith. 
3)	The objection to competency be heard and determined by the Court at the same time as the hearing of the appellant’s substantive notice of motion. 
4)	Subject to such further order, if any, that the court may make upon application pursuant to liberty to apply by a party, the appellant’s application for leave to amend its notice of motion be heard and determined by the Court at the same time as the hearing of the substantive notice of motion and objection to competency. 
5)	The appellant prepare, file and serve forthwith a supplementary application book containing its application for leave to amend, the notice of motion, the affidavit in support thereof and the notice of objection to competency. The supplementary application book to be indexed, paginated and separately tabbed. 
6)	The appellant serve a copy of the orders made on this day on each of the respondents. 
7)	There be liberty to apply. 
8)	As to the application for leave to file and serve the notice of objection to competency, the fourth respondent pay the appellant’s costs of that application, to be taxed if not agreed.
9)	Save as aforesaid, costs be reserved.

__________________________________________________________________
Kamen Lawyers: Lawyers for the Appellant
National Capital District Commission Legal Services: Lawyers for the Fourth Respondent