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National Housing Estates Ltd v Decision 2000 Ltd [2021] PGSC 86; SC2155 (1 October 2021)

SC2155

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 23 OF 2017

BETWEEN
NATIONAL HOUSING ESTATES LTD
First Appellant

AND
KOREA NUIGINI HOUSING LIMITED
Second Appellant

AND
DECISION 2000 LIMITED
First Respondent

AND
LUTHER SIPISON, Acting Secretary of the Department of Lands & Physical Planning
Second Respondent

AND
YANJOL APIN, Acting Registrar of Titles
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Berrigan J
2021: 29^th September and 1^st October

SLIP RULE – Application for leave to make a slip rule – objection to competency – application incompetent for non-compliance with timing provisions.

Cases Cited

The State v. The Transferees (2016) SC1488
Napanapa Landowners Association v Kore Kore & Ors (2017) SC1677
Covec (PNG) Ltd v Peter Kama (2020) SC1961
Naima Investment Ltd v Pokea & Associates Lawyers (2021) SC2152
Rex Paki v Motor Vehicle Insurance Ltd (2010) SC1015
Alina v Kumul Petroleum Holdings Ltd (2020) N8492

Cases References

Order 11 Rule 32, Order 13 Rule 15(1) Supreme Court Rules 2012

Counsel

Mr C Gagma, for the First Appellant
Mr D Mel, for the First Respondent

DECISION ON OBJECTION TO COMPETENCY OF AN APPLICATION FOR LEAVE TO MAKE A SLIP RULE APPLICATION

1 October 2021

1. BERRIGAN J: This is a decision on an objection to competency of an application for leave to make a slip rule application.
   

Background

2. This Court delivered its decision on the substantive appeal on 26 May 2021. The appeal was against the orders of the National Court which granted judicial review in favour of the First Respondent. The appeal was dismissed.
   
3. The First Appellant has filed an application for leave to make a slip rule application. Such a leave application is required pursuant to Order 11 Rule 32 (1) Supreme Court Rules 2012.
   
4. The First Respondent has filed an objection to competency to the leave application. The respondent objects to the competency of the First Appellant’s leave application on the basis it:
   
   1. is in breach of Order 11 Rule 32(1) of the Supreme Court Rules for not being served within 21 days of the order disposing of the proceedings;
   2. is in breach of Order 13 Rule 15 of the Supreme Court Rules.
      
5. The First Appellant concedes that an objection to competency would properly be before the Court if it raises an issue that draws the Court’s attention to a question of jurisdiction.
   

Objection to Competency

6. It is now well settled that non-compliance with a timing provision renders an application incompetent. In particular, this includes a failure to serve an application for leave within the 21-day limit prescribed by the Rules.
   
7. In Napanapa Landowners Association v Kore Kore & Ors (2017) SC1677 Hartshorn J considered this issue and dismissed applications for leave that had been served 22 days after the order disposing of the proceedings on the basis that the failure to do so was a matter going to jurisdiction. At paragraphs [9] and [10] he said (emphasis mine):
   

“9. As to non-compliance with a timing provision not being an issue of jurisdiction, in the decision of this Court in The State v. The Transferees (2016) SC1488 (Sakora, Gavara-Nanu, Ipang JJ), the Court said as to Order 11 Rule 32 (1) Supreme Court Rules at [4]:

“4. It is significant to note that this rule is in mandatory terms by reason of the word “shall”.”

and then at [9] and [10]:

“9. Filing of a slip rule application is regulated by Orders 11 r 32 and 13 r 15 of the Supreme Court Rules, thus the requirements under these rule (sic) being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetency and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412.

10. Order 11 r 32 of the Supreme Court Rules, grants power to the Court to hear a slip rule application as long as the application meets the requirements of the above mentioned rules viz; that it is competent.”

10. Cleary from that Court’s observations, its members were of the view that non-compliance with Order 11 Rule 32 renders an application incompetent. A requirement of Order 11 Rule 32 is as to time, - the time by which an application is to be filed and served. In my view therefore, an objection to competency may validly question the competency of an application because of a failure to comply with the time requirements of Order 11 Rule 32.”

8. The decision in Napanapa was adopted and applied by the Supreme Court (Salika CJ, Hartshorn, Dingake JJ) in Wamu Abari v Willie Gumaim (2020) SC1925 which quashed an order of a single judge who granted an extension of time to serve an application. At [14] the Court said:
   

“Further, the learned Judge should not have entertained the application to extend as it was filed and served outside of the time prescribed in Order 11 Rule 32(1) which is mandatory: The State v. The Transferees (2016) SC1488 and Napanapa Landowners Association Inc. v. Gaudi Logae (2017) SC1677. By hearing the application to extend, the learned Judge fell into error.”

9. Again, in Naima Investment Ltd v Pokea & Associates Lawyers (2021) SC2152, applications for leave were dismissed for being served one day outside the prescribed time in Order 11 Rule 32(1).

Consideration

10. It is not in dispute in this case that the First Appellant’s application, whilst filed on 16 June 2021, and within 21 days, was not served on the First Respondent until 21 June 2021, that is five days outside the requirements of the rule.
    
11. The First Appellant submits that there has been “substantial compliance” with the Rules. The application was served late because it took a number of days to locate the new address of the First Respondent’s lawyer. There is no affidavit evidence in support of this contention. Nor is that a matter capable of conferring jurisdiction in any event in my view: Naima at [9] and [10].
    
12. I have considered the authorities relied upon by the First Appellant. Neither assist it. Kuman v Digicel (PNG) Ltd (2017) SC1638 does not stand for the proposition that an application for leave to apply for a slip rule may be served late. The Court simply observed in that case that the Rules do not require an application for leave to appeal be served on other parties. That is different from the requirement under Order 11 Rule 32(1). As for Covec (PNG) Ltd v Peter Kama (2020) SC1961, Kandakasi DCJ refused an application to amend an application for leave filed outside the 21-day prescribed limit. Counsel’s submissions about what might have been said during exchanges between the bench and counsel are inappropriate and irrelevant. The decision speaks for itself.
    
13. In the circumstances the ground of the First Respondent’s objection to competency as to service of the application for leave is successful and is upheld, as one of the mandatory requirements of Order 11 Rule 32(1) of the Supreme Court Rules has not been complied with. That requirement is that any application of any nature made after disposal of a proceeding shall be filed and served in writing within 21 days of the order disposing of the proceeding.
    
14. Consequently, the application for leave to make a slip rule application should be dismissed. Given this it is not necessary to consider the other submissions of counsel, other than to costs.
    
15. First Respondent’s counsel seeks costs on an indemnity basis. He submits, supported by evidence, that he wrote to the First Appellant on 30 July 2021 setting out in some detail the basis on which the application for leave was incompetent, and that he would seek indemnity costs against the law firm itself in the event that the First Appellant failed to withdraw its application and the objection to competency was successful.
    
16. I have considered the cases relied upon the First Respondent in support of its application for indemnity costs. In Rex Paki v Motor Vehicle Insurance Ltd (2010) SC1015 the Supreme Court expressed the view that indemnity costs may be appropriate where the conduct of a lawyer or a party to the proceedings is “so improper, unreasonable or blameworthy” that it should be punished by such an order: [28]. The Court in that case found that the dereliction of the lawyer was “repeated, chronic and designed to conceal the true state of affairs”.
    
17. The law on the mandatory nature of time limits under Order 11 R 32(1) is clear. Having said that I am not satisfied that counsel’s conduct in this case can be described as improper such that it warrants punishment. Costs will, however, be ordered on a solicitor-client basis.
    

Orders

14. The formal Orders of the Court are:

a) The First Appellant’s application for leave to make a slip rule application is dismissed;

b) The First Respondent’s costs of and incidental to the said application shall be paid by the First Appellant on a solicitor-client basis.
________________________________________________________
Gagma Legal Services: Lawyer for the First Appellant
Mel & Henry: Lawyer for the First Respondent