SC1392
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 24 OF 2011

BETWEEN:

NATIONAL CAPITAL LIMITED
Appellant

AND:

LOI BAKANI, GOVERNOR, BANK OF PAPUA NEW GUINEA
First Respondent

AND:

BANK OF PAPUA NEW GUINEA
Second Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Injia CJ, Gavara-Nanu & Kawi JJ

2013: 29th August
2014: 08th October

PRACTICE AND PROCEDURE – Objection to competency – Supreme Court Rules,1984; Order 10 – Appeal against refusal by the trial court to grant leave for judicial review – Appeal by notice of motion – Mandatory requirements of the Supreme Court Rules not complied with – Such non-compliance fatal to the appeal.

PRACTICE AND PROCEDURE – Application to dismiss appeal for abuse of process – Supreme Court Rules, Order 7 r 12 – Requirement for a copy of the notice of appeal to be served "without delay" – Notice of appeal served almost a month after appeal was filed – Whether such delay could amount to an abuse of process. 

Cases cited

Anderson Agiru v The Electoral Commission (2002) SC687 
Coca Cola Amati (PNG) v. Kennedy (2012) SC1221
Dr Arnold Kukari v. Honourable Don Pomb Polye [2008] PGSC 4; SC907 
Haino v. Sai [2006] PGNC 5; N3063
Haiveta v. Wingti (No.2) [1994] PNGLR 189
Isaac Lupari v. Sir Michael Somare, MP – Prime Minister & Chairman of the National Executive Council & Ors SC1071
Madang Timbers Ltd v Kambori [2009] PGSC 18; SC992 
Palang v. Pelgens Ltd [2010] PGNC 219; N4567
Rabaul Shipping Ltd v. Ruru [2000] PGNC 74; N2022
SC Ref. No.3 of 2006: In the Matter of s. 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC917
Special Constitutional Reference No. 4 of 1987; Central Provincial Government and National Capital District Commission [1987] PNGLR 249 
Special Reference by Morobe Provicial Executive (2010) SC1089
Talibe Hegele v. Tony Kila (2011) SC1124
The Right Honourable Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557.
The State v. Peter Painke [1976] PNGLR 210 

Counsel

R.J.Webb SC, with G.Geroro, for the Appellant
I. Molloy with K. Imako, for the Respondents

8th October, 2014 

1.	BY THE COURT: The appellant appealed against a judgment of the National Court delivered on 18 November, 2011, refusing the appellant leave to apply for judicial review pursuant to Order 16 of the National Court Rules (NCR). The appeal was commenced by way of a notice of motion, which was filed on 22 December, 2011 pursuant to Order 10 r. 1 of the Supreme Court Rules, 1984 (SCR). 

2.	A copy of the notice of motion was not served on the respondents until 18 January, 2012, which was almost a month after the appeal was filed. A copy of the judgment was annexed to the notice of motion. On 4 April, 2012, the orders of the Court were entered. The orders were as follows: 

 1. The plaintiff's leave application is refused.
 2. Costs are awarded to the Third Defendant. 

3.	Before us are the respondents' notice of objection to competency of the appeal (objection to competency) and application to dismiss the appeal for abuse of process. 

4.	Firstly, in regard to the objection to competency, the respondents argued that the appeal fails to comply with the requirement of Order 10 r 3 (b) (ii) of the SCR which the respondents argued are mandatory. Order 10 r 3 (b) (ii) is in these terms:

 3. The notice of motion shall –

 (b) have annexed –

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar. 

5.	It was argued that the requirement under r 3 (b) (ii) is a matter that goes to the jurisdiction of the court, equal to the requirement under Order 10 r 1 that an appeal be instituted by a notice of motion (and not by a notice of appeal). The respondents relied, inter alia, on Dr Arnold Kukari v. Honourable Don Pomb Polye [2008] PGSC 4; SC907 for this argument. In that case the Supreme Court said as follows in relation to Order 10:

"In the instant case, we are considering non-compliance with the mandatory requirements of Order 10 of the Rules by the appellants. There is no dispute that the appellants have invoked a wrong provision in instituting their appeal. It follows that the failure by the appellants to comply with the mandatory requirements of Order 10 of the Rules is fatal to the appeal. In Felix Bakani v. Rodney Daipo SC699, the Supreme Court emphasised this point when it said:

"The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural requirements of Order 10, in particular Order 10 r 3 are also restrictive and onerous. They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant".(Our underlining).

6.	It was submitted in this case that the appellant's failure to comply with the requirements of Order 10 r 3 (b) (ii) means that the jurisdiction of the court has not been validly invoked, thus effectively rendering the appeal incompetent. Other cases relied on by the respondents relate to the general requirement that the SCR must be complied with. 
7. In regard to the respondents' application to dismiss the appeal for abuse of process, it was argued that the delay of almost a month for the appellant to serve a copy of the notice of motion was excessive. It was argued that such delay was in breach of Order 7 r 12 of the SCR, which provides as follows:

12. A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party – 

 (a) affected by the relief sought by the notice of appeal;

 (b) interested in maintaining so much of the judgment as is appealed from. 

8.	The respondents argued that the appeal was not served "without delay". They submitted that there was no communication by the appellant that the appeal would be or had been filed before service on 18 January, 2012. It was also argued that the appeal can also be dismissed for failure to follow mandatory procedural requirements. The respondents relied on Haino v. Sai [2006] PGNC 5; N3063; Rabaul Shipping Ltd v. Ruru [2000] PGNC 74; N2022; and Palang v. Pelgens Ltd [2010] PGNC 219; N4567. 

9.	The application to dismiss the appeal for abuse of process is raised by the respondents as an alternative ground to dismiss the appeal. 

10.	The appellant submitted that the respondents' objection to competency and application to dismiss are misconceived and should be dismissed with costs.

11.	The appellant relied on Coca Cola Amatil (PNG) v. Kennedy (2012) SC1221, to argue that the appeal is competent. In that case, the Supreme Court, in discussing the effect of Order 7 r 14 of the SCR, said that the competency of an appeal relates to the appeal itself and not to the notice of appeal. Thus, the appeal here is competent if the notice by which the appellant has sought to initiate it has properly invoked the jurisdiction of the Supreme Court. It was submitted that the observations made in Coca Cola Amatil should apply with equal force to objections to competency of appeals commenced by notice of motion pursuant to Order 10 r 1 of the SCR. Thus, it was argued that in this case the objection to competency is to the appeal itself and not to the notice of motion. It was submitted that this point had been expressly acknowledged by the respondents in pleading their objection to competency, viz. that the objection is "…to the competency of the appeal".

12.	The appellant has also relied on other cases besides Coca Cola Amati. One thing common about these cases is that they all relate to civil appeals which are authorised by s. 14 of the Supreme Court Act and prescribed and regulated by Order 7 r 8 of the SCR. These appeals are different from appeals which are authorised by Order 16 r 11 of the NCR and prescribed and regulated by Order 10 of the SCR. The difference between the two types of appeals was emphasized by the Supreme Court in Felix Bakani v. Rodney Daipo SC659. In Dr Arnold Kukari v. Honourable Don Pomb Polye (supra), the Supreme Court in reaffirming the difference between these appeals, said: 

"An appeal instituted by way of a Notice of Motion under Order 10 of the Rules is authorized by Order 16 r 11 of the National Court Rules and Order 10 of the Rules prescribes and regulates such an appeal. See, The Right Honourable Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557. Whereas an appeal instituted by way of a Notice of Appeal, as in this case, or an Application for Leave to Appeal is authorized by s. 14 of the Supreme Court Act and is prescribed and regulated by Order 7 Divisions 1, 2, 3 & 4 of the Rules. Thus, an appeal instituted by way of a Notice of Motion under Order 10 of the Rules and a Notice of Appeal or an Application for leave to Appeal instituted under Order 7 of the Rules are two different types of appeals both in form and substance. See, Felix Bakani v. Rodney Daipo SC659. Even a Notice of Appeal is different from an Application for Leave to Appeal. See, Haiveta v. Wingti (No.2) [1994] PNGLR 189 at 193 and Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112. Thus, they must each comply strictly with the stringent mandatory requirements set out in the rules which regulate them. Thus, a non-compliance with the mandatory requirements of those rules by any of these appeals would render it incompetent. In Haiveta v. Wingti (supra), the Supreme Court made this very point at page 192 when it said:
 
"An appeal may be incompetent if it does not comply with the Supreme Court, Act, Chapter 37 (hereafter referred to as the Act) and the Supreme Court Rules (hereafter referred to as the Rules), which regulates appeals to the Supreme Court". (Our underlining). 

13.	The appellant also relied on Madang Timbers v. Kambori & Others [2009] SC 992. We will discuss the decision in that case in a bit more detail because it purports to support the appellant's argument. The respondents in that case applied for directions that they be granted leave to file and serve an objection to competency. The respondents were seeking to have the appeal dismissed as incompetent on a number of grounds. The court refused the application on the grounds that the application, though prosecuted expeditiously was not filed and served expeditiously and did not raise any issues that could render the appeal incompetent. The court also said that the respondents could not be unduly prejudiced by the refusal of the application because the hearing of the appeal would proceed expeditiously. The court said it was not in the interest of justice to grant leave.

14.	It is significant to note that the court in that case noted that the trial judge's orders were not annexed to the notice of motion as required under Order 10 r 3 (b) (ii); what was annexed to the notice of motion was the judgment of the trial court which included the orders of the court. The orders were subsequently entered on 27 November, 2008. 

15.	The other notable reason given by the court in that case in refusing to grant leave to the respondents was that the National Court Act, NCR, Supreme Court Act and the SCR did not provide for any particular mode of certification of the orders given by the trial court for the purposes of Order 10 r (3) (b) (ii). Therefore, the fact that the judgment of the court was annexed to the notice of motion was not fatal to the appeal. The court said the fact that the Registrar had subsequently signed and entered the orders on 27 November, 2008, amounted to certification of the trial judge's orders for the purposes of the requirements of Order 10 r (3) (b) (ii). 

16.	The other reasons given by the court in Madang Timbers v. Kambori (supra) for refusing to grant leave were that the respondents were not genuinely aggrieved by the refusal by the court to grant leave because they failed to set aside the orders from which the appeal arose before they were entered. Furthermore the respondents had already certified the appeal book, thus, they could not then turn around and challenge the competency of the appeal. The court concluded that the considerations favouring the refusal to grant leave to the respondents "heavily" outweighed the considerations for the grant of leave. Thus, the court said that none of the proposed grounds of objection to competency by the respondents could render the appeal incompetent. The appellant in this case urged the court to adopt the approach taken by Madang Timbers v Kambori (supra) and dismiss the objection to competency.

17.	In regard to abuse of process as a ground to dismiss the appeal, the appellant argued that the period taken by the appellant (between 22 December, 2011 to 18 January, 2012), to serve a copy of the notice of appeal did not amount to procedural irregularity or a breach of the Rules. Thus as submitted by the appellant the respondents did not suffer any prejudice or disadvantage. It was submitted that nothing in Order 7 r 12 required prior notice to service. It was also submitted that there has to be something more than procedural irregularity for there to be an abuse of process. The appellant relied on The State v. Peter Painke [1976] PNGLR 210 which was cited with approval by the Supreme Court in Anderson Agiru v. The Electoral Commission [2002] SC687. 

18.	We note that, in regard to the objection to competency, unlike in Madang Timbers Ltd, the respondents in this case had applied to a single judge (Chief Justice) for leave to file an objection to competency pursuant to Order 11 r 9 of the SCR. This complies with what the Supreme Court said in Talibe Hegele v. Tony Kila (2011) SC1124, that such application can be made either under s. 185 of the Constitution or under Order 11 r 9 of the SCR before a single Judge. In this case, the Chief Justice gave directions and granted leave on 13 February, 2012. Consequently, on 17 February, 2012, the respondents filed their objection to competency. No issue therefore arises in regard to the validity of the objection to competency.

19.	The need to comply strictly with the mandatory procedures and requirements of the SCR was strongly and firmly emphasized by the Supreme Court in Dr Arnold Kukari v. Honourable Don Pomb Polye (supra) by drawing an analogy with the approach taken by the Supreme Court in SC Ref. No. 3 of 2006: In the Matter of s. 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC917. The court said: 

"The need for strict compliance with the mandatory requirements of the Rules was emphasised by the Supreme Court in the case of; In the Matter of Section 19 of The Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006). In that case, the issue was whether the Reference should be struck out for non-compliance with the mandatory requirements of Order 4 r 1(e) of the Rules, which provide that a Reference – "be signed by the person, court, tribunal, or authority or proper officer on behalf of the authority as required by law, making the reference." The Reference in that case was signed by the lawyer acting for the Fly River Provincial Executive, who was not an authorized officer under the rule. Thus, the Reference clearly did not comply with the requirements of Order 4 r 1 (e) of the Rules. At the time of hearing, an application was made by the lawyer acting for the Fly River Provincial Executive for the Court to direct that the Reference be signed by a proper officer of the Fly River Provincial Executive to cure the error and to validate the Reference. In rejecting the application, the Court said:

"It follows that we reject the argument that a breach of Order 4, Rule 1 (e) can be remedied by giving a direction to the referrer to get the reference properly signed. The reference has been put before the court and it is incumbent on the referring authority and its lawyer to ensure that the reference meets the requirements of the Rules. This is not a mere technical requirement. It is not a matter of the court nitpicking, insisting on a referrer filing in a correct form and getting it signed by the right people. The signing requirement is something that goes to the validity of the reference. If the court is to hear and determine a Section 19 reference it must be satisfied that the jurisdiction of the court has been properly invoked and that the referring authority has made a considered decision to make the reference. The court can only be satisfied of those things if the reference is properly signed.

It is necessary to insist on strict compliance with Order 4 Rule 1 (e) to preserve the integrity of the Section 19 procedure and to ensure that the power to make such a reference is properly controlled. It is not sufficient, as suggested by Mr Narokobi, to comply with the other requirements of the Rules and miss out on Rule 1 (e).

We conclude that breach of Order 4 Rule 1 (e) is fatal to a Section 19 reference.The present reference is therefore incompetent and must be struck out" (Our underlining). 

20.	In SC Ref. No. 3 0f 2006; Reference by Fly River Provincial Executive (supra); the Court said that even if there was substantial compliance with the Rules, it still would not cure any defect as a result of non-compliance with the mandatory requirements of the Rules. See also, Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249 and Special Reference by Morobe Provincial Executive (2010) SC1089. 

21.	Order 10 of the SCR is a regulatory provision intended to regulate the appeals authorised by Order 16 r 11 of the NCR: The Right Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1998) SC557. Order 16 r 11 is in these terms: 

11. Appeal.
 
An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review. 

22.	This Rule restricts an appeal against an order made under Order 16 of the NCR to be by way of a notice of motion. The Rule imposes a mandatory requirement, which if not complied with will result in the appeal being invalid and incompetent. For example, if such an appeal is instituted by a notice of appeal under Order 7 of the SCR, the appeal would be null and void and incompetent for the reason that an appeal instituted by way of a notice of motion under Order 10 of the SCR is different in form and substance from a notice of appeal or an application for leave to appeal instituted under Order 7 of the Rules: Felix Bakani v. Rodney Daipo SC 659 and Dr Arnold Kukari v. Honourable Don Pomb Polye (supra). It is to be noted that Order 16 r 11 of the NCR, which authorises appeals under Order 10 makes it mandatory for such appeals to be instituted by a notice of motion. Thus, it is incumbent on the appellant of such an appeal to comply strictly with the requirements of Order 10: Felix Bakani v. Rodney Daipo SC699 and The Independent State of Papua New Guinea v. John Tuap and Others (2004) SC765. 

23.	The relevant parts of Order 10 which arise for consideration are rr 1 (1) and 3 which appear under Division 1. Order 10 regulates appeals authorised by Order 16 r 11 of the NCR. Both provisions make up a single legislative scheme. The two provisions must therefore be read together and the two provisions should be in harmony with each other. Order 10 must therefore be interpreted in the context of the mandatory requirement of Order 16 r 11, that appeals against orders given under order 16 must be by way of a notice of motion pursuant to Order 10. This makes it mandatory on an appellant instituting an appeal under Order 10 to strictly comply with the terms of Order 10, including r 3 (b) (ii), the interpretation of which is the central issue here. As a general rule of interpretation, Order 10 must be read and interpreted as a whole to ascertain its purpose and legislative intent. 

24.	Notably, Order 10 r 3 starts with a sentence that includes the word "shall", which subject to the context in which it is used, prima facie means that the whole of r 3 is mandatory. Thus, when one reads r 3 (b) (ii) in its proper context and ordinary meaning, it becomes very plain that first; the certification of a copy of the order of the trial court is to be done either by the Judge's Associate or the Registrar and second; such certified copy of the order of the trial court is to be annexed to the notice of motion before the notice of motion is filed. So, when the notice of motion is filed it should already have annexed to it a duly certified copy of the trial court's order. This requirement is mandatory. It follows that the certification of the trial court's order that is required under r 3 (b) (ii) cannot be validly made after the notice of motion is filed. To do so would amount to a serious breach of r 3 (b) (ii). This indicates clearly the intention of the legislature regarding Order 10 r 3 (b) (ii). It must be strictly complied with as a mandatory regulatory provision. Thus, in the instant case, the mandatory requirements of r 3 (b) (ii) had to be strictly complied with in order for the appeal to be valid and competent. Having reached this conclusion, it follows that we must respectfully disagree with the view held in Madang Timbers Ltd v. Kambori & Ors (supra) that the certification of a copy of the trial court's order can be validly made after the notice of motion is filed. We also respectfully disagree that annexing the trial court's judgment to the notice of motion and the subsequent entry and signing of the trial court's orders by the Registrar would meet the requirements of r 3 (b) (ii). We are also respectfully of the view that the court in Madang Timbers Ltd considered irrelevant and extraneous matters which influenced its decision. We respectfully adopt and affirm the views held by the courts in Haiveta v. Wingti (No.2)(supra) and Dr Arnold Kukari v. Honourable Don Pomb Polye (supra) that Order 10 is mandatory and its requirements must be strictly complied with.

25.	Applying the principles enunciated in Haiveta v. Wingti (No.2) and Dr Arnold Kukari v. Honourable Don Pomb Polye to this case, we find that the failure by the appellant to annex a duly certified copy of the order made by the trial court to the notice of motion as required by Order 10 r 3 (b) (ii) is indeed fatal to the appeal. The requirement under r 3 (b) (ii) is that a duly certified copy of the order of the trial court must be annexed to the notice of motion before the notice of motion is filed in order for such appeal to be valid and competent. Therefore, the annexation of the judgment of the trial court to the notice of motion, and the subsequent signing and entry of the orders contained in that judgment after the notice of motion had been filed, was in serious breach of r 3 (b) (ii) effectively rendering the appeal invalid and incompetent. The argument by the appellant must therefore fail because it is inconsistent with the mandatory requirements of r 3 (b) (ii). The end result is that the appeal is incompetent and should be dismissed. 

26.	As noted, abuse of process is raised by the respondent as an alternative ground to dismiss the appeal. Given that we have found the appeal incompetent, it is not necessary for us to consider the alternative ground of abuse of process: Isaac Lupari v. Sir Michael Somare, MP – Prime Minister & Chairman of the National Executive Council & Ors SC1071.

27.	The appellant will pay the respondents' costs of and incidental to the objection to competency.

_______________________________________________________
Leahy Lawin Nutley Sullivan Lawyers: Lawyers for the Appellant
Allens Linklaters Lawyers: Lawyers for the Respondents