Motor Vehicles Insurance Ltd v Susana [2022] PGSC 8; SC2194 (22 February 2022)

SC2194

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 15 OF 2021

BETWEEN:
MOTOR VEHICLES INSURANCE LIMITED
Applicant

AND:
MAKANO SUSANA
Respondent

AND:

SCREV 18 OF 2021

BETWEEN:
MOTOR VEHICLES INSURANCE LIMITED
Applicant

AND:
BEL WALEGEM
Respondent

AND:

SCREV 31 OF 2021

BETWEEN:
MOTOR VEHICLES INSURANCE LIMITED
Applicant

AND:
LOMANE LASENE
Respondent

Waigani: Logan, Dingake and Gora JJ
2022: 22^nd January

PRACTICE & PROCEDURE – Objection to competency – where no appearance by the objector to competency – where Supreme Court vested with power to review decision of National Court by section 155(4) of the Constitution – where objection does not go to jurisdiction of the Court to entertain at all a particular proceeding – application dismissed

Facts:

Motor Vehicles Insurance Limited filed 14 applications for review of decisions of the National Court pursuant to section 155(4) of the Constitution. The decisions under review related to claims for damages by the respondents for personal injuries.

Three of the 14 applications were listed for hearing of an objection to competency filed by the respective respondents in each of the proceedings. The objections to competency raised grounds, inter alia, that the judgments entered against Motor Vehicles Insurance Limited at first instance were entered by consent.

There was no appearance by the respective respondents at the hearing of the objection to competency.

Held:

1. An objection to competency must go to the jurisdiction of the court to entertain at all a particular proceeding: Wilson v Kuburam [2016] SC1489 referred to.
   
2. The Supreme Court has jurisdiction by section 155(4) of the Constitution to hear Motor Vehicles Insurance Limited’s application for leave for review. Whether leave for review should be granted is not a matter that goes to the competency of the application.
   

Cases Cited:

Wilson v Kuburam [2016] SC1489

Legislation:

Constitution of the Independent State of Papua New Guinea

Counsel:

Ms. R Kot, for the Applicant

Oral decision delivered on
22^nd February 2022

1. LOGAN J: Motor Vehicles Insurance Limited (MIVL) has instituted a series of applications for review, 14 in all, of several judgments in respect of claims for personal injuries and other loss and damage given in the National Court. Three of those, namely MIVL v Makano Sisano, SC Review 15 of 2021, MIVL v Bel Walegem, SC Review 18 of 2021 and MIVL v Lomane Lasene, SC Review 31 of 2021, are before the court today for the hearing of objections to competency made by the respective respondents. On the case being called on for hearing, there was an appearance on behalf of MIVL in each of the cases listed but no appearance by or on behalf of the respective respondents.
   
2. That absence of appearance does not of course mean that the court ought just dismiss the objections to competency for if truly the objection to competency was sound in the sense that the court had no jurisdiction to entertain the applications, the absence of an appearance by or on behalf of a respondent would not confer jurisdiction.
   
3. In those circumstances, it was appropriate to hear the submissions on behalf of MIVL on the subject of competency.
   
4. The substantive proceedings are each an application for leave to review the judgments in the National Court pursuant to the jurisdiction conferred on the Supreme Court by section 155(4) of the Constitution. The occasion for MIVL adopting that avenue of challenge rather than an appeal to this court is explained in affidavits which support the case for MIVL in respect of the objection to competency. The long and the short of it though is that there are reasons associated with the prevailing pandemic which made it rather difficult indeed for MVIL and lawyers acting for it to access court documents relating to the proceedings in the National Court within the time prescribed for the institution of an appeal.
   
5. It is something of an abstraction given that the substantive proceeding is an application for leave to review rather than an appeal that there is controversy as to whether or not the judgments given in the National Court were on the basis of consents. Of course, that would be relevant jurisdictionally were these substantial proceedings appeals but the fact that they are consents is a matter which goes at most, even if that be the case, and that is controversial, to whether the Supreme Court as a matter of discretion would grant leave. There is no question that the Supreme Court does have a constitutionally entrenched review jurisdiction. Whether it is to be exercised does not go to jurisdiction but rather to discretion in the circumstances of a particular case.
   
6. One case relied upon by the MIVL is apt. In Wilson v Kuburam [2016] SC1489. In that case, I had occasion to emphasise that an objection to competency must go to the jurisdiction of the court to entertain at all a particular proceeding. The objections made on behalf of the respondents are in that sense misconceived.
   
7. The Supreme Court does have jurisdiction to hear the applications for leave to review. Whether leave should be granted is a matter which will fall for determination on the hearing of those review applications. What necessarily follows is that for this reason alone, and there may be others relating to matters of form, but it is overwhelming and desirable to confront the essential flaw in the respondents’ objection, the objections must be dismissed. They must be dismissed because the Supreme Court, contrary to the foundation of each of the three objections with which we are seized, does have jurisdiction to review the National Court’s judgments.
   

Costs

8. There was also an application on behalf of MIVL for costs. MIVL has been put to the expense of retaining lawyers to appear to respond to the objections to competency today. In those circumstances, in my view, it would not be appropriate merely to reserve the costs in respect of the objections to abide the outcome of the applications for leave to review. This is a discrete step taken by the respondents to the review applications and it is a misconceived step.
   

Disposition

9. In those circumstances, the orders that I would propose in respect of each of the three objections to competency listed today are:
   
1. The objection to competency be dismissed.
   
2. The respondent to the review application (the objector to competency) pay the costs of and incidental to the objection to competency of the applicant (respondent to the objection) to be taxed if not agreed.
   
10. Dingake J. I agree.
    
11. Gora J. I agree.
    

Orders

1. The objection to competency be dismissed.
   
2. The respondent to the review application (the objector to competency) pay the costs of and incidental to the objection to competency of the applicant (respondent to the objection) to be taxed if not agreed.

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AvRoss & Co. Lawyers: Lawyers for the Applicants