Wereh v Wamuk [2023] PGSC 78; SC2424 (19 May 2023)

SC2424

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 57 OF 2021

BETWEEN:
DAVID WEREH
Secretary for Works
and Implementation
First Appellant

AND:
DEPARTMENT OF WORKS
AND IMPLEMENTATION
Second Appellant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Appellant

AND:
JAMES WAMUK
Respondent

Waigani: Hartshorn J, Kassman J, Frank J
2023: 29^th March, 19^th May

SUPREME COURT – practice and procedure - Objection to competency – law on objections to competency of appeal - objections must always go to the competency of the appeal, not to the grounds of appeal per se - notice of objection to competency has to be filed within 14 days of the notice of appeal being served – whether lack of instructions to file appeal can be a valid ground of objection to competency - whether failure to attach copy of order or judgment of the primary court the subject of appeal can be a valid ground of raising an objection to competency – all grounds raised by respondent in objections to competency of appeal does not go to the jurisdiction of the court to hear and determine the appeal – objection to competency of appeal dismissed

Cases Cited:
Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185
Yambaki Surveys Ltd v. Nambawan Super Ltd (2020) SC1901
Independent State of Papua New Guinea v. Kalaut (2021) SC2094
Bank of Papua New Guinea v. Ruh (2021) SC2124
Joseph v. Rami (2021) SC2138

Counsel

Mr. R Uware, for the Appellants
Mr. J. Wamuk, Respondent in person

19^th May, 2023

1. HARTSHORN J and FRANK J: This is a decision on a contested objection to competency of the appeal.

Background

2. The appellants appeal against a National Court judgment which amongst others awarded K81,666.67 in general damages. The award was in relation to the respondent’s claim against the appellants concerning his former employment.

Objection to competency

3. The respondent objects to the competency of this appeal on the grounds which in essence are that the appellants had not given instructions for the Attorney General to give instructions to the Solicitor General to prosecute this appeal and the notice of appeal was filed without attaching a copy of the judgment appealed or a transcript of the ex tempore decision.

Law

4. There are many judicial pronouncements on objections to competency. We refer to Yambaki Surveys Ltd v. Nambawan Super Ltd (2020) SC1901 in which, after a detailed consideration of authority the Court stated at [24] that it recognised that objections must always go to the competency of the appeal, not to the grounds of appeal per se.

5. In Independent State of Papua New Guinea v. Kalaut (2021) SC2094 the Court at [5] said:

“5. A proper ground of objection to competency is one that goes to the Court’s jurisdiction: Waghi Savings and Loan to Society Ltd v Bank South Pacific Ltd (1980) SC185; Jeffrey Turia v Gabriel Nelson (supra), Talibe Hegele v Tony Kila (2011) SC1124; Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221. In PNG Forest Authority v Securimax Security Pty Ltd (supra), Sakora, J held that an objection to competency must raise serious threshold issues concerning legality or viability or otherwise of a particular process.”

6. In Bank of Papua New Guinea v. Ruh (2021) SC2124 at [15]:

“A proper ground of objection to competency is one that demonstrates that the Court has no jurisdiction to deal with the matter before it (Talibe Hegele v Tony Kila (2011) SC1124, Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221).”

Consideration

7. The appellants raise objection to the notice of objection to competency of the respondent on the ground that it was filed out of time. A notice of objection to competency has to be filed within 14 days of the notice of appeal being served. Here however, the notice of appeal was not personally served on the appellant. It was served on his lawyers who appeared for him in the National Court proceeding. No order for substituted service was obtained for such service. As there has been no service of the notice of appeal pursuant to the Supreme Court Rules, the notice of objection to competency cannot have been served out of the requisite time for its service. (The issue of whether a notice of objection to competency could be served notwithstanding that there has been no service of the notice of appeal pursuant to the Supreme Court Rules, was not raised and argued). Consequently, the objection of the appellants on this ground is refused.

8. As to the objection to competency of the respondent concerning any instructions to appeal given by the appellants to the Attorney General and the Attorney General to the Solicitor General, the only documentation relied upon by the respondent is the objection book filed 18^th November 2022 and his affidavit filed 9^th March 2023.

9. There is no evidence contained in these documents in support of the allegations of the respondent that the said instructions were not given. Order 7 Rule 18 Supreme Court Rules states that the burden of establishing the incompetency of the matter the subject of objection is on the party making the objection.

10. Further, once a party takes a point such as that a certain required notice has not been given, that party must give evidence to the effect that the subject notice has not been given. It would then be for the opposing party to prove on the balance of probabilities that the subject notice had been given. Here however, there is no evidence whatsoever that the said instructions were not given. (For an example of evidence being required see Joseph v. Rami (2021) SC2138 at [19] – [25]). Consequently, as there is no evidence to support this objection, there is no merit in the objection.

11. As to the objection to competency that the notice of appeal does not contain a copy of the judgment or transcript of the ex tempore decision, Order 7 Rule 9(a) Supreme Court Rules is open to the interpretation that it provides an option to an appellant whether to annex a copy of the appropriate order to the notice of appeal. Further, there is no requirement that a judgment or transcript of an ex tempore decision must be attached to a notice of appeal. Consequently, there is no merit to this objection.

12. Given the above, the notice of objection to competency should be dismissed.

Orders

a) The objection to competency of the respondent filed 5^th October 2021 is dismissed;

b) The respondent shall pay the costs of the appellants of and incidental to the said objection to competency to be taxed if not agreed otherwise.

13. KASSMAN J: We heard the Respondent’s objection to competency of this appeal on 29 March 2023. I have read the draft decision of my brothers Justice Hartshorn and Justice Frank. This is my decision on that objection.

14.The Appellant filed Notice of Appeal on 16 June 2021. The Respondent filed Objection to Competency on 5 October 2021.

Appearance by / for the Respondent

15. Soon after commencement of the hearing, a lawyer from the Office of the Public Solicitor Mr Giyomwanarru appeared five minutes later and announced his appearance for the Respondent and said he was there “to assist the court”. The lawyer said the Respondent was granted legal aid and had approached the Public Solicitor for assistance earlier but no formal or detailed instructions were received. The Public Solicitor filed Notice of Appearance on 16 December 2022 but no further instructions were received from the Respondent. The Respondent attended the Office of the Public Solicitor on 27 March 2023 and advised the matter was listed for hearing that day. The Respondent was also in court and was asked by the court whether he wanted to represent or speak for himself in court or if he wanted the lawyer from the Office of the Public Solicitor to appear for him. The Respondent said he would represent himself in court. Mr L. Giyomwanarru then withdrew from the bar table.

Documents before the court

16. Before the court were the Objection Book filed 18 November 2022, the Respondent’s Submission filed 9 March 2023 and the Appellant’s Submission filed 14 March 2023.

Preliminary issues raised to the objection

17. Although no issue was formally raised by the Appellant to the form of the Notice of Objection to Competency filed 5 October 2021, the Appellant argued the objection was not filed within time as allowed by the Rules of the Supreme Court. Order 7 Rule 15 of the Supreme Court Rules provides an objection to competency of an appeal must be filed and served within 14 days after service of the Notice of Appeal.

18. The issue then arose as to the date when the Notice of Appeal was served on the Respondent. Counsel for the Appellant said they served the Notice of Appeal on Saroa Lawyers on 9 September 2021 as that law firm was on record for the Respondent in the trial court. The Appellant’s lawyer conceded they were obliged to personally serve the Notice of Appeal on the Respondent and they also conceded they did not have orders granting substituted service on Saroa Lawyers. Furthermore, the Appellants’ lawyers conceded they did not have any communication from Saroa Lawyers confirming they had instructions to act for the Respondent in these Supreme Court proceedings and to receive the Notice of Appeal on behalf of the Respondent. However, they argued, at the time they filed and served the Notice of Appeal, Saroa Lawyers were still communicating with them pursuing payment on the Judgment amount awarded by the National Court, the subject of this appeal, and that is the reason they served the Notice of Appeal on the law firm Saroa Lawyers.

19. Service on Saroa Lawyers was in fact not refuted by the Respondent and we note neither did Saroa Lawyers write back to the Appellant’s lawyers refusing acceptance of service of the Notice of Appeal on 9 September 2021. Furthermore, I note the Respondent says he obtained extension of time of 14 days to file his Notice of Objection to Competency and his then lawyer HBest Wally Lawyers filed on 5 October 2021. That was not refuted by the Appellant’s lawyer. In my view, that put the issue to rest.

Grounds of the Objection to Competency of the Notice of Appeal

20. With respect, I agree with and adopt the outline of the law on objections to competency discussed above by my brothers Justice Hartshorn and Justice Frank.

21. The Respondent raised three grounds of objection to the competency of the Notice of Appeal.

22. The first two grounds are identical so I will address them together. In ground (a), the Respondent asserts there was no proof of expressed instructions from the Appellants to the Secretary for Justice and Attorney-General to file and prosecute this appeal. In ground (b), the Respondent asserts there was no proof of expressed instruction from the Appellants to the Solicitor-General to file and prosecute this appeal. Without such “instructions” from the Appellants, it is argued by the Respondent the Notice of Appeal is incompetent.

23. I accept the argument by the Appellants that the Respondent has failed to produce any evidence in support of this contention that the Appellants failed to give instructions to their lawyers to institute this appeal. The Appellant correctly cited Order 7 Rule 18 of the Supreme Court Rules which provides that the burden or responsibility to establish the contention by factual evidence is on the Respondent and he has failed to adduce that evidence but merely makes the contention in his notice. Until instructions are formally withdrawn and confirmed by the filing of a Notice of Ceasing to Act, a lawyer is taken to have instructions to act for a party in a legal proceeding where that lawyer has informed the court formally. Furthermore, any such communication would be protected by the special lawyer and client privilege or confidentiality. I also agree with the Appellant that this ground does not go to the jurisdiction of the court to hear and determine the appeal. I see no merit in these objections. Grounds (a) and (b) are dismissed.

24. In ground (c), the Respondent says the Appellant failed to attach a copy of the Judgment of the National Court, in particular the transcript of the ex tempore decision of the National Court, to the Notice of Appeal and for that reason the Notice of Appeal is incompetent.

25. My first response is that this ground does not go to the jurisdiction of the court to hear and determine the appeal. I agree with the Appellant that the appeal has been correctly instituted as required by Division 3, Order 7 of the Supreme Court Rules. The Appellant correctly states an appellant has the option to annex the National Court order or decision to the Notice of Appeal. It is not a mandatory requirement of the rules of court. It is an option open to an appellant. Ground (c) has no merit and is dismissed.

26. In the result, I dismiss the objection to competency filed 5 October 2021. Costs shall also follow the event so I also order the Respondent shall pay the Appellants’ costs of the objection to be taxed if not agreed.

ORDER OF THE COURT

1. The objection to competency of the respondent filed 5^th October 2021 is dismissed;

2. The respondent shall pay the costs of the appellants of and incidental to the said objection to competency to be taxed if not agreed otherwise.
__________________________________________________________________
Solicitor General: Lawyer for the Appellants
Respondent In person