SC2691

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 90 OF 2024 [ICEMS]

BETWEEN:
JOSEPH KLAPAT
Secretary, Department of Community Development 
Appellant

AND:
NATIONAL EXECUTIVE COUNCIL
 First Respondent 

AND:
THE PUBLIC SERVICE COMMISSION
Second Respondent

AND:
HON. SIR PUKA TEMU 
Minister for Public Service 
Third Respondent

AND:
HON. LOUJAYA TONI
Minister for Community Development
Fourth Respondent

AND:
ANNA SOLOMON
Secretary for Community Development
Fifth Respondent

AND:
ANO PALA, M.P. 
Acting Governor General & Acting Head of State
Sixth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Respondent

WAIGANI: HARTSHORN J
13 & 16 DECEMBER 2024

SUPREME COURT – PRACTICE AND PROCEDURE - application to dismiss appeal – incompetency and abuse of process as grounds for application to dismiss appeal pursuant to Order 13 Rule 16 (1) (a) Supreme Court Rules – appellant argues application to dismiss is incompetent as the decision the subject of appeal is from an order or judgment on contempt proceedings and not from a judicial review proceeding- whether single Supreme Court Judge has the power to summarily determine a proceeding for being an abuse of process -  appeal incompetent – single supreme court judge has power to summarily determine a proceeding for being an abuse of process

Cases cited:
Barrick (Niugini) Ltd v Naktel (2014) SC2092
National Capital District v Loi Bakani (2014) SC1392
National Superannuation Fund Ltd v Pacific Equities and Investments Ltd (2006) SC845
Marcella Hasifangu v Mark Mauludu (2022) SC2256

Counsel
C. Zazeng for the appellant
R. Yomilewau for the first, third, sixth and seventh respondents
L. Tangua for the fourth and fifth respondents

Oral decision delivered on
16th December 2024

1. HARTSHORN J: This is a decision on a contested application to dismiss this appeal for being incompetent and an abuse of process.

Background

2. The appellant commenced this appeal by Notice of Appeal.  The appellant appeals the decision in OS (JR) 324 of 2013, dated 14th June 2024, which amongst others, dismissed the plaintiff’s (appellant’s) application for contempt of court for being incompetent and an abuse of process (decision/appealed).

3. The decision appealed was made in proceedings which had been commenced in 2013 as a Judicial Review proceeding pursuant to Order 16 National Court Rules.

This Application 

4. The fourth and fifth respondents supported by the other respondents seek amongst others, to dismiss the appeal for being incompetent and an abuse of the court process.  Application is made pursuant to Order 13 Rule 16 (1) (a) Supreme Court Rules.

5. The grounds for seeking the dismissal are that the appeal was filed in breach of Order 10 Rules 1, 2 and 3 Supreme Court Rules which require an appeal from orders made under Orders 16 and 17 National Court Rules, to be instituted by a notice of motion.  Here, the appeal was commenced by a notice of appeal and not a notice of motion.

6. The appellant submits amongst others, that first, the application to dismiss is incompetent as it seeks that a single Judge of the Supreme Court substantively dispose of the appeal when a single Judge of the Supreme Court does not have that power. Second, this appeal is from an order and judgment concerning contempt proceedings and not from an order or judgment that concerned Judicial Review. The Judicial Review proceeding had been concluded when the contempt proceeding was filed. 

Consideration

7. The appellant submits that the application to dismiss is incompetent as it seeks relief which a single Supreme Court Judge does not have the power to grant.
First, it is submitted that s. 5 (1) Supreme Court Act, does not permit a single Supreme Court Judge to dismiss an appeal and this is reflected in s. 5 (1) (a) Supreme Court Act, which provides that “a direction not involving the decision on the appeal” may be made by a Judge.  Reliance is placed upon a single Supreme Court decision of Lay J in National Superannuation Fund Ltd v. Pacific Equities and Investments Ltd (2006) SC845.  That decision concerned an application for stay and so any comments concerning a single Judge’s power to dismiss a proceeding would be obiter dicta.  Secondly, s. 5 (1) (d) Supreme Court Act provides for a Judge to dismiss an appeal in any proceedings in certain circumstances.  It is not the case therefore that s. 5 (1) prohibits a single Supreme Court Judge from dismissing an appeal.  Thirdly, the decision in National Superannuation Fund Ltd v. Pacific Equities and Investments Ltd (supra) is persuasive only and not binding on this Court.

8. The appellant relies also on Order 3 Rule 2 (2) (d) Supreme Court Rules for the submission that a single Supreme Court Judge does not have the power to dismiss an appeal.  However, Order 3 Rule 2 cannot be relied on as it only applies to a matter within the original jurisdiction of the Supreme Court. This proceeding is not a matter within the original jurisdiction of the Supreme Court.  Consequently, these submissions and arguments of the Appellant as to the competency of this application are rejected. 

9. The appellant also argues that this application to dismiss is incompetent as it is an objection to competency in disguise.  The appellant’s counsel could not point to a Rule which prevents a respondent from filing an application to dismiss pursuant to Order 13 Rule 16 (1) Supreme Court Rules and which requires the reliance upon the objection to competency Rule only. This point is also rejected.

10. As to the appellant’s submission that this appeal is correctly commenced as it concerns an appeal from a decision on a contempt proceeding and not a judicial review proceeding as the judicial review proceeding had been concluded, it is not in dispute that the contempt application which was dismissed and which dismissal is the subject of this appeal, was filed in the Judicial Review proceeding OS JR 324 of 2013.  Further, the said contempt application concerned an alleged breach of orders made in the Judicial Review proceeding.

11. The appellant sought to rely on the judgment of Marcella Hasifangu v. Mark Mauludu (2022) SC2256 as an example of an appeal from a contempt order made in a Judicial Review proceeding being commenced by a Notice of Appeal.

12. From a perusal of that judgment, there is no reference or mention of the issue of whether the Appeal was correctly instituted.  That issue was not before that Court, was not raised before that Court and not referred to by that Court.  Consequently, it does not assist the appellant in this instance.

13. In this instance, the appeal is from an order made in a proceeding which was commenced pursuant to Order 16 National Court Rules. The decision appealed is therefore an order made in and under Order 16 National Court Rules.  As such, pursuant to Order 10 Rule 1 Supreme Court Rules, an appeal should have been instituted by a notice of motion.  It is not in dispute that the appeal has been commenced by a notice of appeal and not a notice of motion.  Consequently, the appeal is incompetent: National Capital District v. Loi Bakani (2014) SC1392.  Further, a single Supreme Court Judge has the power to summarily determine a proceeding for being an abuse of process pursuant to Order 13 Rule 16 (1) (a) Supreme Court Rules.  I rely on the case of Barrick (Niugini) Ltd v. Nekitel (2021) SC2092, in this regard. I am satisfied that the fourth and fifth respondents have satisfactorily made out that they are entitled to the relief which they seek.

ORDERS:
a)	This appeal is summarily determined pursuant to Order 13 Rule 16 (1) (a) 	Supreme Court Rules.
b)	The Appellant shall pay the costs of the Respondents of and incidental to 	this appeal.
________________________________________________________________
Lawyers for the appellant: Nova Lawyers
Lawyers for the first, third, sixth and seventh respondents: Solicitor General
Lawyers for the fourth and fifth respondents: Tangua Lawyers