SC2193

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 2 OF 2022

NATIONAL EXECUTIVE COUNCIL
First Appellant

THE ATTORNEY GENERAL as the nominal defendant for and on behalf of the GOVERNOR GENERAL and HEAD OF STATE pursuant to Section 3 of the Claims By and Against the State Act 1996
Second Appellant

-V-

GILBERT TOROPO 
Respondent

Waigani: Manuhu J, Makail J & Kariko J 
2022: 7th, 8th & 14th February

SUPREME COURT - PRACTICE & PROCEDURE – jurisdictional basis to grant stay of appealed decision and proceedings below – application to discharge stay order of a single Judge – proper form 

SUPREME COURT - PRACTICE & PROCEDURE – application to discharge order made under Section 5 Supreme Court Act - application under Order 11 Rules 25 & 26 Supreme Court Rules – application by notice of motion – proper form

LAWYERS – duty to be competent – obligation to keep abreast of changes in laws and practice 

A single Judge of the Supreme Court granted leave to the appellants to appeal orders of the National Court in judicial review proceeding. Those proceedings are in respect of decisions of the National Executive Council relating to the revocation of the appointment of the respondent as Commander of the Defence Force of Papua New Guinea and the appointment of his replacement. The decisions came into effect by gazettal notice under the hand of the Governor General. The single Judge further ordered stay of the proceedings in the primary court and its order that stayed the implementation of the decisions. The respondent applies to the full court to have the stay ordered by the single Judge discharged or set aside.

Held

1.	The proper jurisdictional basis for a stay by a single Judge or full Court of this Court of orders or proceedings of the National Court pending appeal or review to the Supreme Court is found in s 19 and not s 5 of the Supreme Court Act.
2.	Application to vary or set aside a stay ordered under s 19 of the Supreme Court Act should be made under s 155(2) of the Constitution.
3.	Application to the full court to vary or discharge an interim order by a single Judge under s 5 of the Supreme Court Act may be sought pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules.
4.	Form 15 is not the form by which an application under Order 11 Rule 25 of the Supreme Court Rules is instituted.
5.	The form for notice of motion in the National Court Rules should be adopted with modifications to institute an application under Order 11 Rule 25 of the Supreme Court Rules. 
6.	(Obiter) Lawyers have a duty to keep abreast of changes in the law and its practice.
 
Cases Cited

Felix Alai v Nakot Waina (2015) SC1615 
Independent State of Papua New Guinea v Wingti (2021) SC2100
Joel Luma v John Kali (2014) SC1608 
Kalinoe v Paraka (2010) SC1024
Kavo v Maipakai (2010) SC1067
Kawari Fortune Resources Ltd v Louis Limbo Apurel (2015) SC1614
NEC v Dr Vele Pat Ila’ava (2014) SC1332 
PNG Forest Authority v Securimax Securities Pty Ltd (2003) SC717
Powi v Southern Highlands Provincial Government (2006) SC844 
ToRobert v ToRobert (2011) SC1130
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 

Counsel

Mr T Tanuvasa with Mr K Kipongi as Counsel Assisting, for the Appellants
Mr N Kopunye, for the Respondent

14th February, 2022

1.	BY THE COURT: Before us is an application by the respondent asking this Court to discharge or set aside the stay order issued on 5 January 2022 by Hartshorn J sitting as a single Judge Supreme Court. 

2.	This is our ruling on the competency of the application, an issue raised by the Court.

3.	Before discussing the issue, we consider it useful to briefly set out the relevant background leading to this application. 

BACKGROUND

4.	These facts are not in controversy.

5.	The applicant was the Commander of the Defence Force of Papua New Guinea (the Commander) whose term of appointment was to expire on 13 June 2022.

6.	On or about 15 December 2021, the Defence Council comprising the Minister for Defence and the Secretary for Defence, resolved to recommend to the National Executive Council (the NEC), the retirement of the applicant as the Commander and have him replaced by Colonel Mark Goina, as he then was. 

7.	The recommendations were submitted to the NEC which endorsed them. 

8.	The NEC duly forwarded the relevant advice to the Governor General as the Head of State who duly caused publication of the appropriate notice in National Gazette No. G859 dated 22 December 2021, which advised of:  

(a)	The revocation of the appointment of Major General Gilbert Toropo as the Commander; and
(b)	The appointment of Major General Mark Goina as the new Commander. 
(the Decisions)

9.	Aggrieved by the Decisions, the respondent filed judicial review proceedings OS(JR) No. 177 of 2021 in the National Court against the appellants on 29 December 2021. 

10.	Leave to apply for judicial review was granted on 31 December2021 by Wurr AJ, who also ordered a stay of the implementation of the Decisions. 

11.	Unhappy with the National Court orders, the appellants (the State) filed this proceeding, seeking: 

•	leave to appeal the orders; and 
•	stay of the orders and the judicial review proceedings, until determination of the appeal. 

12.	On 5 January 2022, Hartshorn J granted the applications by the State.

13.	The application by the State for the stay was based on s 5(1)(b) and s 19 of the Supreme Court Act and his Honour ordered the stay accordingly (the Stay Order).
 
14.	Dissatisfied, the respondent applied to a single Judge to have the Stay Order set aside on grounds alleging that his Honour erred in both fact and law in granting the order. 

15.	The application was commenced by Application (Form 4) and essentially relied on s 155(4) of the Constitution and the inherent powers of the Court as the jurisdictional basis for the application.

16.	Hartshorn J heard the application on 14 January 2022 and refused it for reasons, according to Mr Kopunye, that: 

•	the application properly should be heard by the full court; and 
•	the application ought to be made pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules. 

17.	The present application follows that decision. 

ORDER 11 RULES 25 & 26

18.	In opening his submissions, Mr Kopunye confirmed Order 11 Rules 25 and 26 as the jurisdictional basis for his client’s application. 

19.	Rule 25 relevantly states that a party who is dissatisfied with an interlocutory order made under s 5 of the Supreme Court Act may apply to the full court to vary or discharge the order.

20.	Section 5 permits a single Judge to issue interim and incidental directions and orders, including under s 5(1)(b), interim orders to prevent prejudice to the parties’ claims. 

21.	By virtue of s 5(2), the directions or orders given under s 5(1) are deemed to be made by the full court and pursuant to s 5(3) they may only be varied or discharged by the full court.

22.	Rule 26 provides for the procedure in making an application under Rule 25. 

23.	Mr Kopunye stated that he filed the application in accordance with Rule 26, but it came to light that he had relied on a repealed provision and not the replacement provision brought into force via the Supreme Court (Miscellaneous Amendments) Rules 2021 that came into effect on 1 November 2021.

24.	The previous Rule 26 stated:

26.	Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply. [Emphasis added]

25.	Rule 26 now provides:

26.	Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceeding seeking the same orders as were sought before the single judge. [Emphasis added]

26.	When the amended Rule was put to counsel, they acknowledged not being aware of the change and the Court adjourned to the next morning to allow counsel to research and take instructions regarding this point.

27.	Upon resumption, counsel informed the court they confirmed the amendment to Rule 26 but notwithstanding that, Mr Kopunye advised that his client wished to continue his application whereupon submissions were invited on the competency of the application.

DUTY TO BE COMPETENT

28.	Before we proceed to discuss the issue, we quickly underscore that a lawyer has a duty under Rule 3(c) of the Professional Conduct Rules 1989 “to be competent” in performing his or her professional activities. 

29.	This all-important obligation unavoidably requires a lawyer to maintain the required knowledge and skill, and this includes keeping abreast of changes in the law and its practice. 

30.	The amendment to Rule 26 was gazetted some 8 months ago and it has now been in force for 3 months. Notice of the Supreme Court (Miscellaneous Amendments) Rules 2021 is posted on the NJSS website, so there is no excuse for counsel not being aware of the recent changes to the Supreme Court Rules.

SUBMISSIONS

31.	Summarized, the applicant urged the Court to note that: 

•	The State applied for the Stay Order pursuant to s 5(1)(b) and s 19 of the Supreme Court Act.
•	Hartshorn J granted the Stay Order based on these provisions.
•	Hartshorn J suggested the appropriate mode for applying to set aside the Stay Order is pursuant to Order 11 Rules 25 & 26.
•	The application to set aside was instituted by a notice of motion as required by Rule 26.
•	The only form for a notice of motion in the Supreme Court Rules is found in Form 15 which was the form adopted in this case.
•	The current Rule 26 like its predecessor requires the application to be initiated by a notice of motion.
•	The notice of motion filed 20 January 2022 is therefore compliant with the Rules and is not incompetent.

32.	Mr Tanuvasa for the State argued in response that: 

•	Order 11 Rules 25 and 26 sets out the procedure for applying to vary or discharge interim orders made under s 5, but they do not allow for an appeal against such orders, which the respondent has in effect done. Independent State of Papua New Guinea v Wingti (2021) SC2100 (Batari, Makail & Anis JJ) was referred to.
•	The purported application to discharge the Stay Order does not concisely state the court’s jurisdiction to grant the application, contrary to Order 13 Rule 15. Kalinoe v Paraka (2010) SC1024 (Salika DCJ, Lenalia & Cannings JJ) was cited in support of this submission.
•	Form 10 has been incorrectly used as it is the form for instituting an appeal from judicial reviews in the National Court. 

CONSIDERATION

33.	It is settled law that the court may raise the issue of competency at any time before judgment, and upon its own motion: Felix Alai v Nakot Waina (2015) SC1615 (Injia CJ, Kanddakasi & Sawong JJ).

34.	The Court in ToRobert v ToRobert (2011) SC1130 (Cannings, Kariko & Murray) stressed that the Supreme Court as the highest court in this country “must be vigilant in ensuring that it has jurisdiction to deal with the matter before it and that the jurisdiction of the court has been properly invoked.”  

35.	The issue of competency involves a question of whether the court has jurisdiction to hear a matter: Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 (Kearney DCJ, Andrew & Kapi JJ), PNG Forest Authority v Securimax Securities Pty Ltd (2003) SC717 (Sakora J). 

36.	What is the proper jurisdictional basis for a stay by this Court of orders or proceedings of National Court pending an appeal or review to the Supreme Court? Is the basis s 5 or s 19 of the Supreme Court Act or both?

37.	We endorse the proposition that the proper jurisdictional basis for a stay by a single Judge or full court of this Court of orders or proceedings of National Court pending appeal or review to the Supreme Court is found in s19 and not s5. 

38.	Then Chief Justice Injia stated in Kavo v Maipakai (2010) SC1067 at [18] that:

This Court's jurisdiction to grant orders sought under s 19 and s 5 (1) (b) of the Act is not in issue. The relief under s 19 and s 5 (1) (b) are not the same. An order for stay stops the continuation of proceedings in the National Court pending determination of the appeal whereas an interim relief grants fresh orders which are necessary to "prevent prejudice to the claims of the parties" pending determination of the appeal. The principles on stay and interim relief are not necessarily the same although a few of the considerations may be common to both.
[Emphasis added]

39.	His Honour was a member of the court in Kawari Fortune Resources Ltd v Louis Limbo Apurel (2015) SC1614 (Injia CJ, Logan & Kangwia JJ) which followed the views he expressed in Havila Kavo’s case, relevantly stating:

23. 	Section 19 of the Supreme Court Act empowers the Supreme Court or a judge to stay the operation of the judgement under appeal or the subject of an application for leave to appeal. The interim order did not, in terms, stay the operation of the orders of the National Court. Instead, it appears to us that the statutory power under which it must be taken that his Honour sought to act was s 5(1)(b) of the Supreme Court Act…. 

24. 	An interim order made under s 5(1)(b) of the Supreme Court Act can, like a stay order under s 19 of that Act, have the effect of preserving the status quo pending the hearing and determination of an appeal or application for leave to appeal but these two types of relief are conceptually different. An interim order is typically an injunction addressed to an opposing party so as to protect an interest of the party seeking the interim order whereas a stay is not so addressed but rather suspends the operation of the judgement or decision under challenge…. 
[Emphasis added]
 
40.	In the recent case of Independent State of Papua New Guinea v Wingti (supra), the Court affirmed that an order granting a stay of National Court proceedings pending determination of an appeal against orders of the National Court, is made under s 19 and not under s 5. 

41.	In respect of an application to vary or discharge a stay ordered under s 19, the Court observed at [10] of its judgement that:

There is no apparent process in the legislation or the Supreme Court Rules to invoke the powers of the full Court to discharge or vary a stay of the National Court proceeding pending an appeal. But we consider that the applicant has resort to seek the inherent jurisdiction of the Supreme Court under s 155 (2) of the Constitution. 
[Emphasis added]

42.	As s 19 of the Supreme Court Act is the proper legal source to apply for a stay of the National Court proceedings giving rise to the appeal, we consider the respondent’s application incompetent as it should have been filed pursuant to the Constitution as was intimated by the Court in Independent State of Papua New Guinea v Wingti (supra), rather than under Order 11 Rules 25 and 26. 

43.	 Mr Kopunye explained that Order 11 Rules 25 and 26 is relied upon because the Stay Order was also issued under s 5 and Hartshorn J stated on 14 January 2022 that these Rules should be applied to vary the Stay Order. 

44.	That alleged direction by his Honour is not reflected in the Minute of the Orders of 14 January 2022, nor can it be properly verified in the absence of the transcript relating to the hearing that day.  

45.	Even if we accept that this was the advice by his Honour, the application is nonetheless incompetent because it is inconsistent with the requirements of Rule 26. 

46.	The application adopted Form 15 of the Supreme Court Rules, which is the form for an appeal arising from judicial review proceedings in the National Court. That was the requirement in the previous Rule 26 before its amendment last year and as we noted earlier, the respondent has relied on the previous Rule.

47.	The application commences with a statement that the respondent “appeals” from the Stay Order. In addition to incorrectly relying on a repealed Rule, the respondent did not modify Form 15 as prescribed by the repealed provision. 

48.	The law is settled that an application made under Rules 25 and 26 is an application and not an appeal; NEC v Dr Vele Pat Ila’ava (2014) SC1332 (Gabi, Sawong & Murray JJ); Joel Luma v John Kali (2014) SC1608 (Injia CJ, Sakora & Manuhu JJ).

49.	The law also does not permit an appeal from one Supreme Court to another. In Powi v Southern Highlands Provincial Government (2006) SC844 (Jalina, Gavara-Nanu & Kandakasi JJ), the Court emphasized the viewpoint this way:

… regardless of however the Supreme Court is constituted, there is no power in the Supreme Court to review the decision of another Supreme Court except as may be provided for by, any other law, such as the Supreme Court Act itself.
[Emphasis added]

50.	In the case before us, no exception applies. 

51.	To the submission that the current Rule 26 refers to an application instituted by notice of motion, and the only form for a notice of motion under the Supreme Court Rules is Form 15 which is the form used by the respondent, we acknowledge that Rule 26 does not state what form is to be used, but clearly Form 15 is not the correct form. Form 15 applies to appeals from judicial review proceedings in the National Court, but moreover the reference to it under Rule 26 has been repealed. 

52.	While it is true that there is no other form for a notice of motion in the Supreme Court Rules, we consider the respondent had two courses available which he could have pursued to ensure his application was properly instituted. 

53.	He could have applied to the Court for incidental directions pursuant to s 5 of the Supreme Court Act or ad hoc directions under s 185 (Lack of procedural provision) of the Constitution, but we think the more appropriate option would have been to act pursuant to Order 2 Rule 1(h) of the Supreme Court Rules which provides that where there is no provision in the Rules and there has been no order regarding the procedure to be followed, the relevant provisions of the National Court Rules may be used with necessary modifications. 

54.	Accordingly, the respondent could have used the form for a notice of motion contained in the National Court Rules (Form 11) and the related procedure found in Order 4 Division 5 – Motions, adjusted suitably.

55.	Adopting the notice of motion in the National Court Rules would make it simple, cheap and user friendly for an applicant to use to apply to discharge a stay order as opposed to Form 15 notice of motion which would require additional documents to be annexed to it, thus defeating the purpose of the change in Rule 26.

WITHDRAWAL OF APPLICATION   

56.	Towards the end of his submissions in reply, Mr Kopunye sought leave to withdraw his client’s application to set aside, but this was objected to by the State for it being moved too late in the hearing. 

57.	We agree with the State. The application was fully contested, and all that remains is our decision on the arguments.  

CONCLUSION

58.	For the foregoing reasons, we find the application filed to set aside or discharge the Stay Order incompetent, and we would dismiss it with costs.  

ORDER

1.	Leave to withdraw the respondent’s application to set aside the stay ordered by Hartshorn J on 5 January 2022 in this proceeding is refused.

2.	The respondent’s application to set aside the stated stay order is dismissed for being incompetent. 

3.	The respondent shall pay the appellants’ costs of and incidental to this application, to be taxed if not agreed. 

________________________________________________________________
Office of the Solicitor General: Lawyers for the Appellants
Kopunye Lawyers: Lawyers for the Respondent