Akipe v Lenturut [2023] PGSC 115; SC2463 (26 September 2023)

SC2463

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 4 OF 2022 (IECMS)

JOHN AKIPE as Secretary for Department of Defence
Appellant
-v-
DORIS LENTURUT
First Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kassman, Toliken & Shepherd, JJ
2023: 01^st June & 26^th September

OBJECTION TO COMPETENCY – notice of objection to competency of appeal – appellant’s challenge to respondent’s notice of objection - whether failure to state the jurisdictional basis in the notice of objection is fatal – whether failure to observe Order 7 Rule 15 and Order 13 Rule 15 of Supreme Court Rules renders an objection to competency incompetent – challenge to objection upheld - notice of objection dismissed.

Cases Cited:

Dekenai Construction Ltd v National Airport Corporation Ltd (2015) SC1417
Kalasim v Mond (2006) SC828
Kore v Lapa (2021) SC2013
Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
Nandali v Curtain Brothers Ltd (2012) SC1483
National Superannuation Fund Ltd v Yawenaik Holdings Ltd (2018) SC1709
Pacific Equities & Investments Ltd v Goledu (2009) SC962
Papua New Guinea Law Society v Cooper (2016) SC1553
State v Kalaut (2021) SC2094
Vitolo v Mararea Land Group Inc (2020)

Counsel:
Mr S F Babanem, for the Appellant
Ms D Koim, for the First Respondent
Mr H Wangi, for the Second Respondent

26^th September 2023

1. BY THE COURT: This is a ruling which has arisen from the first respondent’s objection to the competency of an appeal by the Secretary of the Department of Defence against a decision of the National Court which ordered the reinstatement of the first respondent to the position of First Assistant Secretary-Corporate Affairs within the Department. The appellant has in turn challenged the objection of the first respondent.
   
2. The first respondent’s appeal is against the decision of the National Court given on 3 February 2022 in judicial review proceedings OS (JR) No. 67 of 2020: Doris Lenturut -v- John Akipe as Secretary for Department of Defence & The State. The trial judge in those proceedings granted the review and issued an order of mandamus which directed the Secretary for the Department of Defence to implement the Public Service Commission’s decision to reinstate the first respondent to her former position following termination of her employment.
   
3. The first respondent’s appeal was instituted pursuant to Order 10 Rule 1(a) of the Supreme Court Rules 2012 (as consolidated to 2021) (SCR) by notice of motion filed on 11 March 2022. The appeal documentation was not served on the appellant until almost 8 months later, on 1 November 2022.
   
4. By notice filed on 7 November 2022 the first respondent has objected to the competency of the appeal. The grounds for the first respondent’s objection are three-fold and are summarised below:

1. The appeal was filed for the appellant in breach of Section 7(1) of the Attorney General’s Act and Section 4(1) of the Claims By and Against the State Act in that the appellant’s lawyer had not been authorised and instructed by the Attorney General to institute the appeal prior to its filing.

2. The appeal was instituted without annexing to the requisite notice of motion the certified copy of the Court order made by the trial judge on 3 February 2022, in breach of Order 10 Rule 3(b)(ii) SCR.

3. The notice of motion was belatedly served on the first respondent in breach of Order 7 Rule 13 SCR, which required the notice of motion to be served without delay.

APPELLANT’S CHALLENGE TO FIRST RESPONDENT’S NOTICE OF OBJECTION

5. The appellant has submitted as a preliminary but potentially determinative issue that the first respondent’s notice of objection to competency is itself defective for failure to cite its jurisdictional basis and should therefore be dismissed.
6. At the hearing, counsel for the first respondent conceded that the jurisdictional basis of the objection had not been stated in the notice of objection but maintained that the notice was in the proper form. Apart from that concession, counsel for the first respondent concentrated on submissions at the hearing that went to the grounds set out in the notice of objection rather than the appellant’s challenge.
7. The State as second respondent has taken a neutral position. By its counsel, the State neither supported nor opposed the first respondent’s objection and made no response to the appellant’s challenge to that objection.
8. When an appellant challenges the validity of a notice of objection to competency of an appeal, it is well established procedural law that the proper approach is for the Court to determine the challenge as a threshold matter. This is because if it is determined by the Court that the notice of objection is itself incompetent, that is the end of the respondent’s objection to competency and the appeal should be allowed to take its course to substantive hearing.
9. In Dekenai Construction Ltd v National Airport Corporation Ltd (2015) SC1417 (Gavara-Nanu, Batari, David JJ) the Supreme Court dealt with a challenge by an appellant to a respondent’s objection to competency in this manner:

“ We propose to decide the preliminary objection to the competency of the respondent’s objection to competency of the appeal raised by the first appellant first because the outcome of that decision may determine whether we should consider the respondent’s objection to competency of the appeal or not.”

10. We adopt the same approach to the present appellant’s challenge to the first respondent’s notice of objection as was taken by the Supreme Court in Dekenai Construction Ltd v National Airports Corporation Ltd.
    

CONSIDERATION

11. Order 10 SCR relates generally to the procedure for appeals to the Supreme Court from orders made in judicial review and habeas corpus proceedings in the National Court.
12. The primary procedural requirements for a notice of objection to competency of an appeal in a judicial review matter are separate from Order 10 and are set out in Order 7 Rule 15, Order 13 Rule 15 and Order 11 Rule 28 SCR.
13. Order 7 Rule 15 SCR provides:
    

Division 5 – Objection to competency of appeal

15. A respondent who objects to the competency of any appeal or of an application for leave to appeal shall, within 14 days after service of the notice of appeal or application for leave to appeal—

(a) file an objection in accordance with Form 9; and

(b) serve a copy of the objection on the appellant in any manner including by service on the appellant’s lawyers in the National Court proceedings.

14. Order 13 Rule 15 SCR relevantly states:
    

Division 15 - Applications

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

15. Order 11 Rule 28 SCR provides:
    

Division 14 – Other Rules of General Application

28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:

(a) Order 7 Division 7 (Objection to competency);

(b) Order 7 Division 19 (Time and want of prosecution).

16. Order 11 Rule 28 SCR was introduced into the current Supreme Court Rules 2012 to expressly allow for a respondent to a judicial review appeal filed under Order 10 SCR to in turn file a notice of objection. This procedure was previously not possible under the former Supreme Court Rules 1984 as a notice of objection could only be filed in respect of non-judicial review appeals: see Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886.
17. Form 9 of the First Schedule, referred to in Order 7 Rule 15(a) SCR, is reproduced below:

FORM 9

(Heading as in Form 8)

NOTICE OF OBJECTION TO COMPETENCY

OBJECTION to the competency of this appeal will be made at the Supreme Court, Waigani at ... am/pm on the ... day of ... 20....

OBJECTION is made on the following grounds (set out concisely the whole of the grounds of the objection).

DATED: Signed ..................................................

(To be signed by Respondent or his Lawyer)

FILED BY: (Form 17)

We observe that in this instance the first respondent’s notice of objection to competency prima facie conforms with Form 9 in that its text and content follows the prescribed format. However, we further observe that the first respondent’s notice of objection nevertheless failed to state the Court’s jurisdiction to grant the orders sought, which is in clear breach of Order 13 Rule 15 SCR. A notice of objection to competency is an interlocutory application and must therefore comply with Order 13 Rule 15 SCR by stating the Court’s concise jurisdiction to deal with the objection.

18. The appellant argues that the omission of any reference to Order 13 Rule 15 SCR in the first respondent’s notice of objection to competency is a fatal flaw because the Court’s jurisdiction has not been invoked by that notice.
    
19. We find that the case law supports the appellant’s challenge to the competency of the first respondent’s notice of objection.
    
20. It was held by the Supreme Court in Pacific Equities & Investments Ltd v Goledu (2009) SC962 (Davani, Cannings, Manuhu JJ) that a notice of objection must set out its jurisdictional basis and state any law that the appellant’s notice of appeal offended against. Failure to do so renders a notice of objection incompetent.
    
21. In Nandali v Curtain Brothers Ltd (2012) SC1483 (Hartshorn, Makail, Logan JJ) the appellant submitted that the respondent’s objection to competency was defective as it did not expressly state its jurisdictional basis nor did it state the law that the notice of appeal was alleged to have offended. The appellant contended that the notice of objection was therefore incompetent and should be dismissed. In answer, the respondent submitted that Order 7 Rule 14 under the former Supreme Court Rules 1984, now Order 7 Rule 15 SCR, did not require that the jurisdictional basis or the law that the notice of appeal offended to be stated and that its notice of objection was in accordance with Form 9. The respondent further submitted that Pacific Equities was not binding on the Supreme Court and that there could be no doubt as to the Rule pursuant to which its application concerning the competency of the appeal had been made.
    
22. The Supreme Court in Nandali v Curtain Brothers Ltd rejected the respondent’s argument and said this at para.5:
    

“Given the requirement of Order 13 Rule 15 and in the absence of argument as to why we should depart from the decision in Pacific Equities (supra), we are of the view that the notice of objection to competency should be dismissed as being incompetent.”

23. In Papua New Guinea Law Society v Cooper (2016) SC1553 (Manuhu, Yagi, Sawong JJ) the Court’s jurisdiction was not pleaded in the notice of objection to competency and therefore the respondent’s objection was found to be incompetent and was dismissed. The Court stated at para.8:
    

“ ... the notice of objection to competency must itself be competent. It has to plead the appropriate provision and comply with the Supreme Court Rules. Failure to comply would be fatal.”

24. Subsequent decisions of the Supreme Court which have dismissed notices of objection to competency for failure to have cited the correct jurisdictional basis include National Superannuation Fund Ltd v Yawenaik Holdings Ltd (2018) SC1709 (Hartshorn, Higgins, Frank JJ), Vitolo v Mararea Land Group Inc (2020) SC2006 (Manuhu, Hartshorn, Miviri JJ), Kore v Lapa (2021) SC2013 (Manuhu, Anis, Kassman J) and State v Kalaut (2021) SC2094 (Gavara-Nanu, David, Anis JJ).
    
25. In State v Kalaut the Court, when dismissing the respondent’s objection to competency after challenge by the appellant, said this at para. 27:
    

“It is quite apparent that the Objection does not state the jurisdictional basis for the Court to grant the orders being sought ... The Objection should have expressly referred to Order 7 Rule 15 of the Supreme Court Rules as its jurisdictional basis.”

26. For these reasons we find that the first respondent’s notice of objection is incompetent for failure to have cited Order 7 Rule 15 SCR, with the result that the objection has not invoked the jurisdiction of this Court and must therefore be dismissed.
    
27. As this Court has no jurisdiction to entertain the first respondent’s objection in the form as filed, we consider that no utility would be achieved if the Court were to embark on a hypothetical consideration of the merits of the first respondent’s three grounds of objection. The first respondent is at liberty, subject to the discretion of the Court, to raise those grounds of objection at any time before final determination of this appeal: Kalasim v Mond (2006) SC828 (Kapi CJ, Injia DCJ, Hinchliffe J).
28. The appellant has succeeded in its challenge to the first respondent’s notice of objection. Costs will accordingly follow the event. In the exercise of the Court’s discretion, we will direct that the first respondent is to pay the appellant’s costs of the objection proceedings on a party/party basis.
29. There will be no order for payment by the first respondent of the second respondent’s costs. This is because the State remained neutral throughout the objection to competency hearing and took no active role to address the appellant’s challenge to that objection.
    

ORDER OF THE COURT

30. The terms of the Order of the Court are as follows:

1. The first respondent’s notice of objection filed on 7 November 2022 is dismissed.

2. The first respondent shall pay the appellant’s costs of and incidental to the objection application on a party/party basis, such costs to be taxed if not agreed.

3. This proceeding is referred to the Listings Judge to allocate a hearing date for the substantive appeal.
________________________________________________________________
Raurela Lawyers: Lawyers for the Appellant
Tangua Lawyers: Lawyers for the First Respondent
Solicitor-General: Lawyer for the Second Respondent