SC2672

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 8 OF 2020 (IECMS]

BETWEEN:
PACIFIC MEDICAL CENTRE INC
Appellant

V

HON JUSTIN TKACHENKO, MINISTER FOR LANDS & PHYSICAL PLANNING
First Respondent

NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Second Respondent

HON POWES PARKOP, MP, GOVERNOR OF NATIONAL CAPITAL DISTRICT & CHAIRMAN OF NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

WAIGANI: MAKAIL J, ANIS J, ELIAKIM J 
27 NOVEMBER, 13 DECEMBER 2024

SUPREME COURT – OBJECTION TO COMPETENCY – objection made pursuant to Order 10 Rule 3(b)(i) of the Supreme Court Rules 2012 (as amended) – failure to comply with a mandatory requirement – ‘documents which were before the Judge of the National Court appealed from’ – interpretation of Order 10 Rule 3(b)(i) - types of documents to collate on appeals from interlocutory and final decisions of the National Court from proceedings filed under Order 16 of the National Court Rules- whether non- compliance fatal to the competency of the appeal.

Cases cited

John Akipe v Doris Lenturut & State (2013) SC2463
National Capital Limited v. Loi Bakani and Ors (2014) SC1392
The Right Honourable Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557
Beni Sarea v. Dr Andrew Moutu and 1 Or (2019) SC1893
Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642
Haiveta v. Wingti (No.2) [1994] PNGLR 189
Dr Arnold Kukari v. Honourable Don Pomb Polye (2008) SC907
Bakani v Daipo (2001) SC659
Kukari v Polye (2008) SC907
Betty Palaso v Paru Elliott (2020) SC2030
Martin Landu and 1 Or v. Hitron Limited and Ors (2024) SC2540

Counsel:

T. Tape for the appellant
R. Uware for the first & fourth respondents
L. Agdop for the second & third respondents

1.	BY THE COURT: The appellant was plaintiff in National Court proceeding OS No. 57 of 2018.  It had initiated Judicial Review proceedings challenging the decision of 29 November 2017, given by the first respondent as Minister for Lands & Physical Planning.  The decision of the Minister challenged was in rejecting recommendations made to him by Papua New Guinea Appeals Tribunal (Tribunal) to uphold an appeal that was lodged by the appellant to the Tribunal.  Following substantive hearing of the Judicial Review and consideration of counsels’ submissions, the primary judge found that the first respondent’s decision to refuse the appellant’s appeal was valid and consistent with duties imposed on him under s.7(1) of the Physical Planning Act.  The appellant’s Judicial Review application before the National Court was therefore dismissed in its entirety with costs.

2.	What returned before us on 27 November 2024, was an amended notice of objection to competency of the appeal by the first and fourth respondents (respondents) filed 6 September 2024 (Application).  We heard the Application and reserved our decision to a date to be advised.

GROUND

3.	The respondents plead one ground of objection in their Application.  They challenge the competency of the substantive Notice of Motion filed 29 June 2020 (SNoM) under Order 10 of the Supreme Court Rules as amended (SCR), on the basis that it contravenes a mandatory requirement that is stipulated under Order 10 Rule 3(b)(i) of the SCR.  The Application is made pursuant to Order 7 Rule 15 of the SCR. See cases: John Akipe v Doris Lenturut & State (2013) SC2463, National Capital Limited v. Loi Bakani and Ors (2014) SC1392 and The Right Honourable Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557.

ISSUE

4.	The issue for consideration before us is the interpretation of Order 10 Rule 3(b)(i) of the SCR, that is, what documents are or should be termed as “documents which were before the Judge of the National Court appealed from?”

LAW

5.	Order 10 Rule 3(b)(i) reads:

3.  The notice of motion shall—

*(a)  show where appropriate the particulars set out in a notice of appeal under Order 7 rule 9; and

(b)  have annexed—
(i)  copies of all documents which were before the Judge of the National Court appealed from; and
(ii)  a copy of the order made, certified by the Judge's Associate or the Registrar; and

(c)  be in accordance with Form 15; and

(d)  be signed by the appellant or his lawyer; and

(e)  be filed in the registry.

[emphasis in italics ours]

6.	The phrase “copies of all documents which were before the Judge of the National Court appealed from”, in our view, requires interpretation or qualification.  A substantive notice of motion that is filed under Order 10, unlike other appeals that are filed under s.14 of the Supreme Court Act Chapter No. 37 (SC Act) under the abbreviation SCA, may be compared or likened to an appeal book.  Order 10 Rule 3(b) requires documents that had been before the primary judge, including a certified copy of the order, to be annexed as part and parcel of a substantive notice of motion that is filed under Order 10.  What does that mean exactly?  Does it mean that the entire court documents from the National Court file (including submissions and exhibits) should be copied and attached to the substantive notice of motion?  Or does it mean only those court documents, including exhibits and submissions, that were relevant and used at the hearing (whether it was an interlocutory or substantive hearing that led to the appeal) should be the ones to attach to the substantive notice of motion?  We would say the latter interpretation is the correct one that should be adopted, which makes sense.

7.	We would further add by setting out these 2 scenarios.  In a judicial review matter that is before the National Court, if the appeal is against an interlocutory decision or a decision but where a review book has not been filed, then the following documents should be attached to the substantive notice of motion that is filed under Order 10, as relevant documents that were before the primary Judge, for purpose of complying with Order 10 Rule 3(b):

(i)	copies of the application documents including exhibits filed or relied upon by the appellant in the National Court proceedings;

(ii)	copies of any responding affidavits including exhibits filed or relied upon by the respondents to the application that was before the National Court;

(iii)	copies of written submissions if such were filed or relied upon by the parties in relation to the application or matter before the National Court;

(iv)	certified copy of the Court order of the National Court the subject of the judicial review appeal; and

(v)	certified copy of the transcript of proceedings of the National Court decision the subject of the judicial review appeal (optional).

8.	In regard to transcript of proceedings, there may be valid reasons why it is not included in the rules as a document that must be annexed with the substantive notice of motion because, and for a start, it cannot be regarded as part and parcel of the documents that were before the primary Court at the hearing.  Transcript of proceedings can only be generated after completion of a hearing, not before or during a hearing.  So, this may be an exception to the mandatory requirements under Order 10 Rule 3(b), that is, to say that requirement (v) or the requirement to attach a transcript of the proceeding is optional.  If it is not annexed in time to file together with the substantive notice of motion within the 40-day time limitation period for filing appeals, then it should be filed separately by way of an affidavit or upon issued directions obtained from the listings Court Judge of the Supreme Court.

9.	The second scenario is this. If a judicial review appeal arises out of a final decision of the National Court proceeding commenced under Order 16 of the National Court Rules, then the following documents must be attached to the substantive notice of motion, as documents that were before the primary Judge:

(i)	a complete copy of the review book or all the documents contained therein that were filed in relation to hearing of the substantive judicial review application before the National Court;

(ii)	copies of other relevant court documents including exhibits that were tendered before the primary Judge at the judicial review hearing;

(iii)	copies of written submissions of the parties that were relied upon at the judicial review hearing;

(iv)	certified copy of the National Court order the subject of the judicial review appeal; and

(v)	certified copy of the transcript of proceeding of the National Court decision the subject of the judicial review appeal (optional).

10.	In regard to transcript of proceedings, the same should apply as stated above where it should be optional and be treated separately, if necessary, before the listings Court.

CONSIDERATION

11.	In the present matter, the respondents assert that the following documents were not attached to the SNoM:

(i)	notice of intention to defend of the State dated 22 May 2018;
(ii)	notice of motion by MS Wagambie Lawyers filed 26 June 2018;
(iii)	affidavit of service by William Kamba filed 25 July 2018;
(iv)	State’s written submission filed 23 November 2019;
(v)	notice of motion filed by TL Cooper Lawyers filed 8 August 2018; and
(vi)	Court Order filed by MS Wagambie Lawyers which was ordered on 5 December 2018 and entered on 17 December 2018.

12.	The appellant concedes that these documents were not attached to the SNoM.  It became apparent at the hearing that a crucial document that was not attached was the State’s written submission.  Mr. Tape for the appellant has conceded to that.  The State’s written submission was referred to by the primary Judge in his final decision, which was brought to our attention by Mr. Agdop, counsel for the second respondent.

13.	Given our interpretation of Order 10 Rule 3(b)(i), and in view of the already established case law regarding mandatory compliance of Order 10 of the SCR, the failure by the appellant to include the written submission of the State is fatal to the competency of the SNoM.  See cases: Beni Sarea v. Dr Andrew Moutu and 1 Or (2019) SC 1893, National Capital Ltd v Bakani (supra), Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642, Haiveta v. Wingti (No.2) [1994] PNGLR 189, Dr Arnold Kukari v. Honourable Don Pomb Polye (2008) SC907, Bakani v Daipo (2001) SC659, Kukari v Polye (2008) SC907, Betty Palaso v Paru Elliott (2020) SC2030 and Martin Landu and 1 Or v. Hitron Limited and Ors (2024) SC2540.

14.	The only other relevant argument raised by the appellant which should require consideration is its reliance on Order 10 Rule 4 and Order 7 Rules 56, 57, 58, 59, of the SCR.  Division 2 of Order 10 and division 20 of Order 7 reads:

Division 2—certain rules to apply.

4.  The following rules shall apply to matters under this part with regard to—
(a)  filing and service: Order 7 Division 4; and
*(b)  affidavits:  Order 7 rules 56, 57, 58 and 59.
……

Division 20—Further evidence on appeal

52.  This Division applies to any application to the court to receive evidence in a proceeding on an appeal additional to the evidence in the National Court.

53.  This Division applies unless the court otherwise directs.

54.  Application shall be made at the hearing of the appeal.
55.  The application shall be—
(a)  by notice stating the nature of the evidence sought to be called; and
(b)  supported by an affidavit stating the grounds of the application.

56.  Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the court to receive shall be by affidavit.

*57.  The applicant shall file the Rule 55 notice and any affidavit not later than 21 days before the hearing of the appeal.

58.  The evidence of any other party to the appeal shall, unless the court or a Judge otherwise orders, be given by affidavit filed not later than 14 days before the hearing of the appeal.

59.  A party to the appeal shall, not later than the time limited for him to file an Affidavit under this rule—
(a)  lodge as many copies of the affidavit as the Registrar may direct; and
(b)  serve a copy of the affidavit on each other party to the appeal.

15.	We note the submissions of the parties on this.

16.	We uphold the submissions of the respondents on this issue.  Order 7 Division 20 does not support the appellant’s argument that the said rule may be invoked to correct deficiencies that may arise in a substantive notice of motion that is filed under Order 10 of the SCR.  Division 2 is relevant in a case where a party intends to rely on fresh evidence.  And secondly, such application can only be made at the time when the appeal is heard.  In the present case, the appellant is missing a crucial document which ought to have been included together with the SNoM.  This document is not alleged fresh evidence where Division 2 may be relevant to consider, thus the appellant’s argument in that regard is baseless and misconceived.

SUMMARY

17.	In summary, we are minded to uphold the objection and dismiss the appeal.

COST

18.	We will order cost to follow the event, on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

19.	We make the following orders:

1.	The First and Fourth Respondents’ objection to competency is upheld.

2.	The Notice of Motion filed 29 June 2020 (the substantive appeal) is dismissed in its entirety.

3.	Costs to follow the event, on party/party basis, to be taxed if not agreed.

________________________________________________________________
Lawyer for the appellant: Kandawalyn Lawyers
Lawyer for the first & fourth respondents: Solicitor-General’s Office
Lawyer for the second & third respondents: In-house Counsel