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Unas v Mumu [2025] PGSC 13; SC2704 (28 February 2025)

SC2704

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SCA NO 19 OF 2024 (IECMS)


BETWEEN:
PAUL MARKUS UNAS
Appellant


AND:
ROY MUMU in his capacity as Board Chairman of the Board of NATIONAL MARITIME SAFETY AUTHORITY
First Respondent


AND:
PETER HUMPHREYS, KAPAI CHOLAI, CAPTAIN KARO YAMA, JOHN WOHIEMANI, in their capacity as the Board of Directors of National Maritime Safety Authority
Second Respondent


AND:
MATHEW WOWONI in his capacity as the Acting Managing Director and Chief Executive Officer of National Maritime Safety Authority
Third Respondent


AND:
NATIONAL MARITIME SAFETY AUTHORITY
Fourth Respondent


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent


WAIGANI: DAVID J, NUMAPO J, CARMODY J
25 NOVEMBER 2024; 28 FEBRUARY 2025


SUPREME COURT – PRACTICE AND PROCEDURE – Judicial Review Appeal - Objection to competency – Requirement to annex to notice of motion a certified copy of the order - Nature of certification - Mandatory requirement - Objection Upheld – Appeal dismissed – Order 10 rule 3(b)(ii) of the Supreme Court Rules 2012 – Majority decision


Cases cited
Madang Timbers Ltd v Kambori [2009] PGSC 18; SC992
National Capital Limited v Bakani (2014) SC1392
Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642
GR Logging v Dotoana [2018] PGSC 34; SC1690
Fayana v Waipo [2023] PGSC 36; SC2389
Sarea v Moutu [2019] PGSC 112; SC1893
Vitolo v Mararea Land Group Inc [2024] PGSC 92; SC2615
Summit Development v Chan [2016] N6390


Counsel
B. Poki for the appellant
S. Ranewa for the first to fourth respondents


JUDGMENT


  1. DAVID J and CARMODY J: Before this Court is a Notice of Objection to Competency filed by the First to Fourth Respondents. The Respondents contend that the appeal instituted by an Amended Notice of Motion filed on 10 June 2024 is not competent as it fails to comply with Order 10 rule 3(b)(ii) of the Supreme Court Rules 2012 (“the SCR”).
  2. That provision requires the Amended Notice of Motion to have annexed to it “a copy of the order made, certified by the Judge’s Associate or the Registrar”. The Respondents’ Objection is that the document annexed to the Amended Notice of Motion fails to comply with that, they say, mandatory requirement.

BACKGROUND


  1. The substantive appeal is with respect to the decision of the National Court, made on 10 April 2024, to dismiss the Appellant’s judicial review proceedings. For the purposes of this Court the facts relating to those proceedings are not relevant.
  2. The Respondents’ Notice of Objection to Competency states:


OBJECTION is made pursuant to Order 7, Division 5, rule 15(a) and Order 11, Division 14, rule 28(a) of the Supreme Court Rules 2012 (Miscellaneous Amendments) Rules 2022, on the following grounds:


  1. The Court Order annexed to the Amended Notice of Motion dated and filed on 10th June 2024, document no. 14, is not certified by the Judge’s Associate or the Registrar contrary to the mandatory requirement of Order 10 Rule 3 (b(ii) of the Supreme Court Rules
  2. The Respondents rely on National Capital Limited v. Bakani (2014) SC1392 and Vitolo v Mararea Land Group Inc [2024] PGSC 92; SC2615. Their case is that a copy of the order bearing the Registrar’s signature made when settling and entering the judgment is not a copy “certified by the Judge’s Associate or the Registrar”.
  3. The Appellant accepts, in written submissions before this Court, that compliance with Order 10 rule 3(b)(ii) is mandatory. However, his case is that the order is appropriately certified. The dispute, therefore, is confined to the issue of what is the requisite certification. The Appellant’s arguments are twofold.
  4. First, the Appellant takes issue with the Notice of Objection to Competency itself and contends that it is vague and defective on the face of it. Reliance is placed on the affidavit of Belinda Poki filed on 16 July 2024. Ms Poki asserts that the Notice “does not specify or identify which court order annexed to the Amended Notice of Motion” is the subject order. The Notice of Objection to Competency states that the subject order is “The Court Order annexed to the Amended Notice of Motion dated and filed on 10th June 2024, document no. 14, ...”. The Amended Notice of Motion and annexures, being document 14, identifies the order the subject of the appeal in paragraph 1. Paragraph 4 (b) states the order is annexure (b). Annexure (b) is the relevant order. We do not find that the Notice is vague and defective.
  5. Secondly, the Appellant relies on a line of authorities such as Madang Timbers Ltd v Kambori (2009) PGSC18; SC992 and Fayana v Waipo [2023] PGSC 36; SC2389. In those cases, it was held that the Notice complied with Order 10 rule 3(b) (ii):

THE OBJECTION TO COMPETENCY


  1. Objections to competency are governed by Orders 7 and 11 of the SCR. Order 11, Division 14, Rule 28 provides that objections to competency are governed by Order 7, Division 5 in addition to appeals – “Appeals” being the heading attributed to Order 7. Order 7, Division 5, Rule 15 (a) is in relation to the filing of a Notice of Objection to Competency.
  2. The Appellant’s judicial review appeal is governed by Order 10 of the SCR. Order 10 is applicable to judicial review orders made pursuant to Order 16 (Applications for Judicial Review) of the National Court Rules 1983 (“NCR”).
  3. Order 10 Rule 3 states:

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-
(c) be in accordance with Form 15; and
(d) be signed by the appellant or his lawyer; and
(e) be filed in the registry.

(this Court’s underlining)


WHAT IS CERTIFICATION?


  1. The “certification” of a document is a long-established legal procedure by which an authorised person signs and, in many cases, affixes a seal, to a document with a notation attesting to the document being a true copy of the original document. A common notation is “Certified to be a true copy of the original seen by me”.
  2. “Certification” can also refer to an authorised person or entity certifying as to a state of affairs. For example:
    1. Order 7 rule 36(b) of the SCR provides for the settling of an appeal book and requires “a copy of the notes of evidence taken by the primary judge certified by his Associate or other authorised person” to be produced, if required, to the Registrar.
    2. Order 7 rule 43(10) of the SCR requires a certificate by the lawyers or parties to the appeal that the appeal book has been examined and is correct.
    1. Section 25 (3)(b) of the Lawyers Act 1986 requires a certification from an appropriate overseas authority “that the applicant was admitted to practise in a country prescribed by the Rules made under the Admission Council”.
    1. Section 13 (2) of the Claims by and Against the State Act 1996 provides for the registrar, clerk or other proper officer of the court to certify, by way of a Certificate of Judgement, that a party obtained a judgment against the State in his favour.
    2. Section 211 (4)(b) of the Capital Market Act 2015 requires a statement from the trustee certifying that in its opinion any modification, alteration or addition to a deed “does not materially prejudice the interests of members and does not operate to release the trustee from any responsibility to its members”.
  3. There are countless other examples. In some instances, a specific form is provided for the purposes of the certification. In others it is not. Historically, the need for certification arose to prevent the use of fraudulent documents.

THE ANNEXED ORDER


  1. In purported compliance with Order 10 rule 3(b)(ii) the Amended Notice of Motion had annexed to it a copy of a court order bearing the words in bold and capitals “BY THE COURT” under which is a signature beneath which is recorded, again in bold and capitals, the word “REGISTRAR”. There is a faint imprint of what appears to be the court seal to the left of the order. In addition, the cover sheet has a stamp bearing the document number (being 40), initials and the date 11 April 2024.
  2. The third term of the order states: “Time for entry of these Orders be abridged to the date of settlement by the registrar which shall take place forthwith”. The only other contents are the balance of the terms of the order, the date of the orders being 10 April 2024, the title, location and parties.
  3. Given the dates 10 and 11 April 2024 on the order and cover sheet respectively it is clear that the Registrar signed the order almost immediately after it was pronounced in Court by the presiding Judge.
  4. On the face of it there is nothing to distinguish the document from the standard order, whether it be signed by the presiding Judge or the Registrar, issued shortly after the pronouncement of the order by a Judge. For the purposes of this judgment, we will describe the document as a “standard order” meaning an order in the standard form with no additional certifying notation.

PREVIOUS DECISIONS RE ORDER 10 RULE 3 (b)(ii)


  1. Order 10 rule 3(b)(ii) has been considered by the Supreme Court time and time again. A number of those decisions were relied upon by the parties in their submissions. Those decisions were Madang Timber Ltd v. Kambori [2009] PGSC18; SC992, National Capital Limited v. Bakani (2014) SC1392, Nipo Investment Ltd v. Nambawan Super Ltd (2017) SC1642, GR Logging v Dotaona [2018] PGSC 34; SC1690, Fayana v Waipo [2023] SC2389 and Vitolo v Mararea Land Group Inc.; [2024] SC2615.
  2. Those cases demonstrate a divergence of views either in support of or against the contention that Order 10 rule 3(b)(ii) requires a specific certification which is something more than an order in the “standard form”. The precise nature of the divergence was expressed in Vitolo v Mararea Land Group (supra):

60. We acknowledge there has been some controversy on the question of certification and there have been cases that have taken a more liberal or purposive approach as opposed to a strict interpretation of Order 10 rule 3(b)(ii).


  1. We are mindful that this decision will be yet another exposition of an already extensively considered provision of the SCR. For that reason we have endeavoured below to identify the commonality of views expressed by some courts in support of both the liberal or purposive approach and the strict interpretation approach.

Madang Timbers Ltd v Kambori [2009] PGSC 18; SC 992 – the more liberal or purposive approach.


  1. Madang Timbers is a leading case relied upon on by subsequent courts which adopt the more liberal or purposive approach. The Court considered whether to make a direction to grant leave to proceed with an objection to competency in judicial review proceedings there being no express provision to that effect at the time.
  2. One of the issues was the certification of the order the subject of the appeal. The Court accepted the “standard order” signed and entered by the Registrar as being in compliance with Order 10 rule 3(b)(ii). The Court noted that the Registrar “had signed and entered the orders of 27th November, 2008, thereby certifying the trial judge’s orders announced on 22nd October, 2008 and which are contained in his published reasons”.
  3. The Court placed reliance on the definition of the word “certified” in the Oxford Dictionary as meaning “made certain, assured, certainly informed, attested by certificate, furnished with a certificate”. The Court held that, given the subject order bore the Registrar’s signature that meant that the Registrar had “made certain” these were the orders of the trial judge”. Further the Court relied on the fact that the relevant legislation did not provide for “any particular mode of certification, more particularly, they do not provide a form of certificate”. The Court stated:

26. ... We find that there is merit in the arguments advanced by the appellant because the meaning of the word “certified” in the Oxford English Dictionary 2nd Edition, to be “made certain, assured, certainly informed, attested by certificate, furnished with a certificate” meant that the Registrar “made certain” these were the orders made by the trial judge. This is endorsed by the fact that;


(i) The National Court Act, National Court Rules, Supreme Court Act and Supreme Court Rules do not provide for any particular mode of certification, more particularly, they do not provide for a form of a certificate;

(ii) The Registrar of the National Court signed and entered the orders of 27th November 2008, thereby certifying the trial judge’s orders announced on 22nd October, 2008 and which are contained in his published reasons. We also point out that the respondents are not genuinely aggrieved by this because if they were, they would have exercised the option available to them under Order 12 Rule 8(1) of the NCR to apply to set aside or vary a direction for entry of judgment, before the judgment was entered, or even after. They did not.

27. This ground will not render the appeal incompetent or does not demonstrate that the Court lacks jurisdiction to hear the appeal.


  1. The Court held that the order had been certified in compliance with Order 10 rule 3(b)(ii).

National Capital Limited v Bakani [2014] PGSC 34; SC 1392 – the strict interpretation approach


  1. In National Capital v Bakani the relevant issue was the belated annexure of the certified order to the appellant’s notice of motion. The Court noted that the National Court judgment was delivered on 18 November 2011. The appeal was commenced by notice of motion filed on 22 December 2011. A copy of the notice of motion was served on the respondents on 18 January 2012. Annexed to that notice was a copy of the judgment including the order of the court. It wasn’t until 4 April 2012 that the order was entered and therefore bore the signature of the Registrar.
  2. The Court noted, at paragraph 23, that:

...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...It follows that the certification of the trial court’s order that is required under r 3(b)(ii) cannot be made after the notice of motion is filed. To do so would be a serious breach of r 3 (b)(ii).


  1. Throughout the judgment the Court made frequent reference to the fact that strict compliance with Order 10 Rule (3) was mandatory and adopted the strict interpretation approach. Reliance was placed on the word “shall”:


22. ...The Rule imposes a mandatory requirement, which if not complied with will result in the appeal being invalid and incompetent...


and


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 a 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 rule 3 (b)(ii). ... 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.


  1. Reliance has been placed on Bakani over the years because of the finding that the requirements of Order 10 are mandatory – a principle accepted by both the appellants and the respondents in the case before us. However, that Court was addressing the issue of the notice of motion having been filed annexing the trial court’s judgment to the notice and the subsequent settling and entry of the trial court’s orders by the Registrar. It did not consider the specific issue of the precise nature of the certification and made only a fleeting reference to that requirement. The Court’s focus was on when the certified order should be annexed to the notice of motion. For that reason it is of limited assistance in the circumstances of the case before this Court.

Nipo Investment Ltd v. Nambawan Super Ltd (2017) SC1642 – the strict interpretation approach


  1. Nipo Investment is also of limited assistance in that the main issue for determination was which documents were required to be annexed to the notice of motion pursuant to Order 10 rule 3(b)(i) and (ii). The Court accepted the submissions of the respondent that not all documents before the trial judge were annexed to the notice of motion, a requirement of rule 3 (b)(i), and held that the errors in the application book were fatal to the appeal. The objection to competency was upheld.
  2. The issue of the precise nature of the certification was not addressed. Nipo Investment did, however, address the issue of the need for strict compliance with the Supreme Court Act and the SCR. The Court noted that the Supreme Court “has observed on multiple occasions, that an appeal may be incompetent if it does not comply with the Supreme Court Act and or the SCR: Havieta v Wingti (1994) PNGLR 189, Neville v National Executive Council of Papua New Guinea [2015] SC1431 at [22], Papua New Guinea Law Society v Cooper [2016] SC1553 at [5].
  3. The Court did provide a helpful explanation of the concept of “fairness” with respect to mandatory compliance with the SCR. This is an issue this Court will return to in this judgment:

9. In this case the material before the Court...shows that Order 3 (b)(i) and (ii) has not been complied with. The appellant refers to fairness in its submissions. While the strict interpretation of these rules can lead to what may appear to be a harsh result, the need for parties to comply with Rules of the Court is not an exercise in pedantic technicality. The Rules ensure that the difficult and often complex process of litigation occurs in an ordered manner, meeting the expectations of the Court and all parties. This court has been consistent in finding that breach of Order 10 Rule 3 (b) (i) and (ii) is fatal to an appeal. Bakani v Daipo (2001) SC659, Kukari v Polye (2008) SC907 and National Capital Ltd v Bakani (2014) SC1392 remain good law, and no reason has been advanced to persuade us that we should not follow those authorities.


GR Logging Ltd vs Dotana [2018] PGSC 34; SC1690 – the more liberal or purposive approach


  1. GR Logging (supra) was one of the few cases which specifically addressed the precise nature of the requirement for certification however consideration of the issue was necessarily limited. The Court itself noted that it was unable to judicially consider the issue due to the Fifth Respondent’s failure to file a notice of objection to competency. Nevertheless, the Court made a number of observations by way of obiter dictum. The Court applied the reasoning in Madang Timbers:

44. ... we note that Supreme Court authority supports the principle that compliance with Order 10 Rule 3(b)(ii) is mandatory. If, as the fifth respondent claims, there is a conflict of authority between Madang Timbers and Bakani, this case raises a very serious issue. Such an issue ought properly to have been the subject of a notice of objection to competency with all parties given the opportunity to make fulsome submissions, and the Court given the opportunity to consider whether the notice of objection should be determined separately prior to the hearing of the appeal.


  1. The failure on the part of the fifth respondent to follow proper procedure, in accordance with the Supreme Court Rules, thus preventing proper examination of the issue raised, militates against a grant of leave to object in these circumstances.
  2. Third [sic] and perhaps most importantly, the basis on which the fifth respondent claims that the appeal is incompetent is controversial. At the hearing of this appeal Counsel for the fifth respondent submitted, in essence, that compliance with Order 10 Rule 3(b)(ii) required a certification “stamp” or statement followed by the signature of the Judge’s Associate or the Registrar. However as the Supreme Court found in Madang Timber, none of the National Court Act, National Court Rules, Supreme Court Act or Supreme Court Rules provides for any particular mode of certification, and more particularly, they do not provide for a form of a certificate. We do not understand this finding to be in dispute. Further, although aspects of the decision in Madang Timber were the subject of criticism in Bakani, we do not understand that the Supreme Court in Bakani made findings as to the meaning of “certified” in Order 10 Rule 3(b)(ii).
  3. The orders of the primary Judge found in the appeal book at pages 701-704 bear the stamp of the National Court of Justice, a signature which appears to be “for” the Registrar (with the word “JUDGE” struck through) under the words “BY THE COURT” at appeal book page 704, and what appears to be an initial and date on page 703 of the appeal book.
  4. Prima facie, the form of order attached on page 704 bears the signature of the Registrar of the National Court. To the extent that the meaning of “certified” in Order 10 Rule 3 (b)(ii) is not defined we are not persuaded at this stage that the absence of a stamp including the word “certify” is critical to “certification” within the meaning of the Rule. Arguably, the form of order with the signature of the Registrar satisfies the provisions of Order 10 Rule 3 (b)(ii).
  5. Accordingly, the fifth respondent does not have leave to object to the competency of the appeal.
  6. We accept the observations made by the Court with respect to certification above as having some force flowing as they do from the decision in Madang Timbers (supra). However we note, as quite properly did the Court, that that issue was not before the Court and no opportunity was given for the parties to make fulsome submissions. For that reason, the views expressed must be approached with some caution.

Fayana v Waipo [2023] PGSC 36; SC2389 – the more liberal or purposive approach


35. The Court based its decision on Madang Timbers (supra) and accepted the annexed order as being duly certified. It reasoned that:


17. While these case authorities emphasize the requirement of strict compliance with Order 10 rule 3, in none of them has this court commented on the meaning of certification given in  Madang Timbers (supra) or otherwise determined its meaning and method of compliance. The case authorities in para.16 (e) above relate to a different issue of competence.


18.Based on the view expressed in  Madang Timbers (supra) and GR Logging (supra), and the fact that a sealed copy of the Orders under Appeal is annexed to the Notice of Motion, the respondents have not advanced any argument to persuade us of an alternative view to that expressed in  Madang Timbers (supra) as to the requirement and meaning of certification in Order 10 rule 3 (b) (ii) which might lead to the conclusion that the Notice of Motion is incompetent.


19.The appellant should therefore have the benefit of the meaning accorded in  Madang Timbers (supra) as we have not been persuaded to find that the Notice of Motion is incompetent.


  1. The Court also relied on the fact that in National Capital Limited v Bakani (supra) what was required by way of certification was not addressed:

13. Relevantly, to the issue at hand, this court in National Capital Limited (supra) did not suggest what certification in Order 10 rule 3 (b) (ii) means or entails.


  1. This Court makes the same observation. Consideration of the authorities relied upon by the parties demonstrates that very few cases have discussed the specific requirements for certification.

Vitolo v Mararea Land Group Inc [2024] PGSC 92; SC2615 – the strict interpretation approach


  1. Vitolo v Mararea Land Group is the latest relevant decision having been handed down in August 2024. The Court had before it two objections to competency - with respect to the issues of leave and certification. This was one of the few cases which considered in any detail the specifics of the subject order before the Court and what “certification”, in that Court’s view, meant.
  2. As was done in Madang Timbers the Court turned to the meaning of “certified”. It considered a more expansive range of definitions to reach the conclusion that, with respect to the “certification” ground, the objection was upheld:

55. To ‘certify’ according to the Cambridge online dictionary is “to officially approve of something after testing its quality and proving that it is acceptable”, The Oxford Learners online dictionary defines the word to mean “to state officially especially in writing that something is true”. The Merriam-Webster online dictionary defines the word to mean “to testify to the truth or genuineness or something”. The Macquarie Concise Dictionary (Revised Third Edition) defines the word as “to guarantee as certain; to give reliable information; to testify or to vouch for in writing”.


56. As variably described, what is clear and what is required by the rule is for a person with the requisite authority to approve the genuineness of the order to be appealed against, a process to be undertaken for the purposes of the rule by a Judges [sic] Associate or the Registrar.”


57. The order annexed to the appellant’s notice of motion (OB page 55) is an order with a court seal over the name of the Registrar with what purports to be a signature (not decipherable) over the word “Registrar”. There is no certification in the sense that there is no statement or acknowledgment by the Registrar that the order annexed to the motion has been verified as being the order made, the subject of the appeal. That is the intent of the rule. It is not a mere technicality to be disregarded lightly, rather one designed to ensure the integrity of the appeal process.


59. If the legislature had intended for a court seal accompanied by a Registrar’s signature to suffice for the purposes of the rule there would be no need to include the words “Judge’s Associate” as an alternate certifier.


61. In GR Logging Ltd v Dotaona the Court (Cannings, Collier & Dingake JJ) said at [44] that arguably the form of the order with the signature of the Registrar satisfies the provision of Order 10 rule 3(b)(ii). Respectfully, we are of the view that the rule envisages a written form of verification.

  1. The Court held that, with respect to the certification ground, the appellants had failed to annex a certified copy of the order in compliance with Order 10 rule 3 (b)(ii).

Sarea v Moutu [2019] PGSC 112; SC1893 – the strict interpretation approach


  1. There are other authorities which have considered Order 10 rule 3 (b)(ii) in addition to those relied upon by the parties. We have reviewed a number of those cases. They have not been referenced in this judgment as they offer nothing new. They have either relied on Madang Timbers (supra) or Bakani (supra) or can be distinguished on their facts. We note that a helpful analysis of a number of those authorities is set out in Fayana v Waipo (supra).
  2. For example in Sarea v Moutu the Court was addressing the belated filing of a certified copy of the National Court order after the notice of motion had been filed. The notice of motion had been filed annexing a copy of the judgment. A minute of the order was settled and entered after the filing of the notice of motion.
  3. The Court stated “substantial compliance with the requirement is not sufficient” and “... if there is nothing that can be regarded as a certified copy of the order annexed to the notice of motion” it is “materially defective”.
  4. In finding that the order was not certified in accordance with Order 10 rule 3(b)(ii) the precise nature of the requisite “certification” was not addressed.

CONCLUSION


  1. After careful consideration of the above decisions we have, respectfully, adopted the strict interpretation approach. We find that the order the subject of the appeal has not been certified in compliance with Order 10 rule (3)(b)(ii) for the following reasons:

20. Manner of Entry


(1) Where the entry of a judgement or order is authorized, a party or, subject to sub-rule (2) the Registrar, may enter the judgment or order by filing a minute of it signed by the registrar or, in the case of an order, signed by the Judge or officer making the order.

(2) The Registrar shall not exercise his powers under sub-rule (1) unless-

(a) the Court so directs; or

(b) a party so requests.


21. Sealing


On entry of a judgment or order, the Registrar shall seal the minute of the judgement or order with the seal of the Court.


(v) Even in circumstances where there is no “time is abridged order” the Registrar’s signature and court seal is not a certification but, as discussed, part of the procedure for the settling and entry of the order. The distinction being that a “time is abridged order” fixes the time from which an order takes effect.

(vi) Importantly, the Registrar’s signature was not a certification by the Registrar that it was a true copy of the order made on 10 April 2024. There was no independent act of verification by the Registrar to ensure that the document was a true copy of the relevant order (that is, the order the subject of the appeal) – being, no doubt, the intention of Order 10 rule 3 (b)(ii).

(vii) As stated in Vitolo (supra) the requirement for certification of the order “... is not a mere technicality to be disregarded lightly, rather one to ensure the integrity of the appeal process.” The requirement is, arguably, analogous to the procedures found in Order 7 – Appeals - Divisions 11 to 15 of the SCR. Those provisions relate to the settling of the appeal book and address the need for careful consideration and selection of the documents “which are relevant or necessary” for the purposes of an appeal – Order 7 rule 43 (12). The Registrar, together with the parties or their lawyers collate the relevant appeal documents and the parties or their lawyers certify that the appeal book has been examined and is correct – Order 7 rule 43(10).

(viii) The fact that no provision for a mode of certification nor a prescribed form is found in the Supreme Court Act, the National Court Act, the SCR or the NCR does not lend itself, in our respectful view, to the conclusion reached in Madang Timbers (supra) as there are other requirements within the SCR for certification none of which provide a mode of certification or a prescribed form.

(ix) For example, as discussed earlier, Order 7 rule 36 (b) of the SCR provides for the settling of the appeal book and requires “a copy of the notes of evidence taken by the primary judge certified by his Associate or other authorised person” to be produced, if required, to the Registrar. Order 7 rule 43 (10) of the SCR requires a certification by the lawyers or parties to the appeal that the appeal book has been examined and is correct. No provision for the mode of certification or prescribed form is provided in either case.

(x) It is this Court’s view that a provision directed to the mode of certification and a prescribed form would be superfluous given that, as earlier explained, “certification” is a long established legal practice well known to lawyers.

(xi) Order 10 rule 3(c) requires the notice of motion to “be in accordance with form 15”. Form 15 similarly requires a “certified copy” of the order to be annexed to the notice of motion.

(xii) Finally s. 5 of the National Court Act provides that the National Court shall have two seals. Section 5 (1) provides for the first seal being a seal of the Court for sealing documents issued by the Court which are required to be sealed. Section 5 (2) provides for the second seal or stamp “for the authentication of Court documents”:

5. SEAL OF THE COURT

[4](1) The National Court shall have a seal of the Court for the sealing of all writs and other instruments and documents issued out of the Court and requiring to be sealed.


(2) In addition to the seal provided for by Subsection (1), the Court shall, for the purposes of authentication of Court documents, have a seal or stamp with which any summons, office copy, certificate, report or other document requiring authentication may be sealed or stamped.


  1. Section 38 of the Supreme Court Act (Ch No 37) is in identical terms. The seal or stamp provided for in s. 5 (2) of the National Court Act and s. 38 (2) of the Supreme Court Act is to provide for authentication of Court documents by a seal, or stamp. The seal or stamp would necessarily be accompanied by a signature of the authorised person certifying the document to be a true and correct copy of the original.
  2. As stated earlier the issue of “fairness” was raised in Nipo Investment. The exact nature of the appellant’s concerns with respect to “fairness” was not specified in that case. However this Court envisages difficulties may arise when consideration is given to the authorities discussed in this decision in relation to mandatory compliance with Order 10 compared to authorities such as Summit Development v Chan [2016] N6390 which espouse a more liberal application of the Rules in certain circumstances. In Summit Development the Court stated that:

28. Of course, one needs to bear in mind the general principles that Rules are not an end in themselves but are a means to an end, and by reason of which, if rigid application of the Rules will result in injustice, including the denial of the right of a party to be joined .....then such rigid application of the Rules should be dispensed with, if to do so is in the interest of justice...


  1. This Court has an objection to competency before it with respect to an appeal of a decision in judicial review proceedings. Judicial reviews are not appeals. They are concerned with, amongst other things, the failure of the decision maker to follow due processes and procedures. In SCR1 of 1990 [1990] PNGLR441 it was stated that “Judicial review is not an appeal procedure. Judicial review does not consider the merits of any decision that may be challenged. Judicial review is only concerned with the validity of the decision; the subject matter of the decision always remains in the discretion of the relevant authority, otherwise the court would be assuming the powers delegated to others”.
  2. Returning to the issue of fairness, and in the context of judicial review matters, it is our view that a Court cannot be seen to waive the requirements of strict compliance with Court Rules on one hand and then criticise a relevant authority for non-compliance with due processes and procedures on the other.
  3. Finally, it seems to us that in circumstances such as these where the issue of “certification” is known to be controversial lawyers should prepare material which meets the higher standard of the diverging views. An appellant should request, in a timely manner, a copy of the order the subject of the appeal to be “certified” by the Registrar or the Judge’s Associate as a true copy, prior to the filing of the Notice of Motion.
  4. In conclusion we uphold the Notice of Objection to Competency. The amended Notice of Motion does not have annexed to it of a copy of the order certified by the Judge’s Associate or the Registrar in compliance with Order 10 rule 3(b)(ii) of the SCR. The Notice of Motion is therefore materially defective. The appeal is dismissed.
  5. NUMAPO J (dissenting): This is a hearing of an objection to competency of an appeal filed by the 1st - 4th Respondents (hereinafter, “Respondents”). The State (5th Respondent) was not represented in Court nor was it represented although, the notice of appeal was served on them.
  6. On 19th June 2024, the 1st – 4th Respondents filed a Notice of Objection to Competency of the Appellant’s Amended Notice of Motion filed on 10th June 2024.
  7. The Objection to Competency alleged that the Court Order annexed to the Amended Notice of Motion dated and filed on the 10th of June 2024 is not certified by the Judge’s Associate or the Registrar contrary to the mandatory requirement of Order 10 Rule 3(b)(ii) of the Supreme Court Rules 2012 consolidated to Supreme Court (Miscellaneous Amendments) Rules 2022.

BACKGROUND


  1. The Appellant appeals the decision of the primary judge that summarily dismissed the National Court proceedings pursuant to Order 10 Rule 9A (15) (10) (b) and (20) (c) of the National Court Rules (NCR).
  2. The appeal lies without leave pursuant to section 14 (1)(a) &(b) of the Supreme Court Act and Order 10 Rules 1(a) and 3 of the Supreme Court Rules (SCR).
  3. The 1st - 4th Respondents filed a notice of objection to competency of the appeal pursuant to Order 7, Division 5, Rule 15 (a) and Order 11, Division 14, Rule 28 (a) of the Supreme Court Rules 2012 Consolidated to Supreme Court (Miscellaneous Amendments) Rules 2022 (hereinafter, the “Rules”) seeking to dismiss the appeal instituted through the Amended Notice of Motion filed on the 10th June 2024 for failing to annexed a Court Order to the appeal that is ‘certified’ by the Judge’s Associate or the Registrar as required by Order 10 Rule 3 (b) (ii) the SCR.
  4. The Respondents filed a formal notice of objection challenging the competency of the appeal on the basis of non-compliance of Order 10 Rule 3 (b) (ii) of the SCR.
  5. In his submission, counsel representing the Respondents, Mr Steven Ranewa submitted that Order 10 Rule 3 (b) (ii) of the SCR is a mandatory requirement requiring that the notice of motion shall have annexed to it a copy of the Court Order made, ‘certified’ by the Judge’s Associate or the Registrar.
  6. Mr Ranewa submitted that the copy of the Court Order annexed to the Amended Notice of Motion filed by the Appellant on the 10th of June 2024 was not certified by the Judge’s Associate or the Registrar rendering the appeal incompetent and should therefore, be dismissed. Appellant’s failure in annexing a certified copy of the Court Order, is contrary to the intent and spirit of Order 10 Rule 3 (b) (ii) of the Rules.
  7. Counsel referred to some recent case laws with varying and contrasting views on the requirement of Order 10 Rule 3 (b) (ii) of the Rules with regard to certified copy of a Court Order to be annexed to the appeal. Our initial observation of these case laws is that the Courts in the past have taken different approaches in determining the requirement of Order 10 Rule 3 (b) (ii). Whilst some take a stricter approach in the interpretation of the Rules, others took a liberal view of it.
  8. In response to the objection to competency, Ms Belinda Poki for the Appellant submitted that the objection is incompetent in that it does not specify the Court Order annexed to the Amended Notice of Motion hence, contrary to the mandatory requirement of Order 10 Rule 3(b) (ii) of the SCR. Furthermore, the ground of objection is ‘vague’ and ‘defective’ on the face of it and should be dismissed. Counsel, however, has not explained what she meant by vague and defective on the face of the record.
  9. Ms Poki further submitted that the form or process of ‘certification’ is not specifically prescribed or defined under the National Court Rules (NCR) or the Supreme Court Rules (SCR). Counsel referred to some recent case laws on point and made some comparative analysis on the interpretation and application of Order 10 Rule 3(b) (ii) of the SCR in the various decisions made by the Courts in the past.
  10. Counsel urged the Court to adopt the liberal approach taken in Madang Timber Ltd v. Kambori [2009] PGSC18; SC992 which was adopted and applied later in the case of GL Logging v, Dotaona [2018] SC1690 on the requirement and meaning of the word ‘certification’ to mean certified by the Registrar to comply with Order 10 Rule 3 (b) (ii) of the SCR.
  11. According to Ms Poki, if the Court apply the same principle as applied in the two cases above, it will find that the Court Order made on 10 April 2024 and filed on 11 April 2024 was sealed and signed (certified) by the Registrar in compliance with the mandatory requirement of Order 10 Rule 3 (b) (ii) of the Rules.
  12. On that basis, Ms Poki submitted that the Objection to Competency should be dismissed with costs and allow the Appeal to be heard.

THE LAW


  1. The jurisdiction on objection to competency of appeal is derived from Order 7 Division 5 and/or Order 11 Rule 28(a) of the SCR.
  2. Order 7 Division 5 provides:

Division 5 - Objection to Competency of Appeal


15. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal –


(a) file an objection in accordance with Form 9; and

(b) serve a copy of the objection on the appellant in any manner, including by service on the appellant’s lawyers in the National Court proceedings.


16. Any party may file affidavits.


17. (1) An objection of which notice has been given shall be determined by:

(a) in the case of an objection to a matter that is within the jurisdiction of a Judge, the Court, or any Judge; and

(b) in any other case, the Court.


(2) An objection to competency shall be heard and determined before the substantive matter to which the objection relates is set down for hearing unless a Judge decided in a special case that it is in the interests of justice to set down the matters together.


68. Upon hearing of an objection to competency the burden of establishing the incompetency of the matter, the subject of objection is on the party making the objection.


69. If notice of objection is not given and the appeal or the application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal or the application for leave to appeal unless the Court or Judge on special grounds orders otherwise.


70. Order 11 Rule 28(a) of the SCR provides:


“The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary.”


  1. Order 10 Rule 3(b) (ii) of the SCR provides:
    1. The notice of motion shall –
      • (a) where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; 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.

SUBMISSIONS BY PARTIES


  1. The issue is; whether the Appellant has failed to comply with Order 10 Rule 3(b)(ii) of the Rules by reason of lack of proper certification of the Court Order by the Registrar.
  2. The Appellant stated that the Court Order annexed to the Amended Notice of Motion filed on 10 April 2024 was sealed and signed (or certified) by the Registrar of the National Court in accordance with the mandatory requirement of Order 10 Rule 3(b)(ii) of the Rules.
  3. The Respondents contended that the Court Order annexed to the Amended Notice of Motion filed on 10 April 2024 was not certified by the Registrar therefore, it is in breach of Order 10 Rule 3(b)(ii) of the Rules, rendering the appeal incompetent and therefore, it should be dismissed.
  4. The Supreme Courts through the case laws have taken different approaches in interpreting Order 10 Rule 3(b)(ii). In some cases such as the National Capital Limited v. Bakani (2014) SC1392 followed by Nipo Investment Ltd v. Nambawan Super Ltd (2017) SC1642, the Courts said that substantial compliance with the requirement is not sufficient, there must be full compliance.
  5. The first case dealing with Order 10 Rule 3(b)(ii) was the Madang Timbers Ltd (supra), (Davani J, Cannings J, Kariko J) and commented on in GR Logging Limited (supra), (by Cannings J, Collier J, Dingake J) concerning the word “certified” as it appears in Order 10 Rule 3(b)(ii) that:

“...the word “certified” in the Oxford English Dictionary 2nd Edition, to be “made certain, assured, certainly informed, attested by certificate, furnished with a certificate” meant that the Registrar “made certain” these were the orders made by the trial judge. This is endorsed by the fact that (i) The National Court Act, National Court Rules, Supreme Court Act and the Supreme Court Rules do not provide for any particular mode for certification, more particularly, they do not provide for a form of a certificate; that (ii) the Registrar of the National Court signed and entered the orders of 27th November, 2008, thereby certifying the trial judge’s orders announced on 22nd October 2008 and which are contained in his published reasons.”


  1. The decision in Madang Timber case did not find support in the later of case of National Capital Ltd v. Bakani (2014) SC1392 (Injia CJ, Gavara-Nanu & Kawi JJ) where the Supreme Court emphasized strict compliance of Order 10 Rule 3(b)(ii) brought on by the use of the word “shall”, making it mandatory. The Court said the following:

“Notably, Order 10 Rule 3 starts with a sentence that includes the word “shall” which subject to the context in which it is used, prima facie means that whole of Rule 3 is mandatory. ....it becomes very plain that first; the certification 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 a notice of motion is filed it should already 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 Rule 3(b)(ii) cannot validly be made after the notice of motion is filed. To do so, would amount to a serious breach of Rule 3(b)(ii). This indicates clearly the intention of the legislature regarding Order 10 Rule 3(b)(ii). It must be strictly complied with as a mandatory regulatory provision....Having reached this conclusion, it follows that we must respectfully disagree with the view held in Madang Timber Ltd v Kambori & Ors 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).”


  1. In the Madang Timber case, the trial judge’s orders were not annexed to the notice of motion as required under Order 10 Rule 3(b)(ii). The only thing annexed to the notice of motion was the judgment of the trial court including the orders of the court. The orders were subsequently signed and entered by the Registrar which the court held to have met the requirements of Order 10 Rule 3(b)(ii). The decision in Bakani disagreed and said that this is in breach of Order 10 Rule 3(b)(ii).
  2. Although, the court in Madang Timbers found some defects in the notice of motion, it held that there was merit in the argument raised by the Appellant that the word “certified” in the Oxford English Dictionary 2nd Edition which means to be “made certain, assured, certainly informed, attested by certificate, furnished with a certificate” meant that the Registrar made certain these were orders made by the trial judge and endorsed by him as such. The court considered this to be sufficient to satisfy the requirements of Order 10 Rule 3(b)(ii). The court decided to apply the definition of the word “certified” in the dictionary because the National Court Act (NCA), the National Court Rules (NCR), the Supreme Court Act (SCA) and the Supreme Court Rules (SCR) did not prescribe any particular mode of the certification of the orders given by the trial court for the purposes of Order 10 Rule 3(b)(ii). This argument makes sense to me. The proposition finds support where the law is silent on the process of certification thereby opening the door wide on how Order 10 Rule 3(b)(ii) should be interpreted and applied.
  3. I say this, because in the Bakani case, apart from emphasizing the “strict compliance” of Order 10 r 3(b)(ii), the Court did not explain or specify what it meant by strict compliance and what process of certification is required in the absence of any prescribed process under the NCR or SCR to satisfy the “strict” compliance test of certification. It is not clear what the Court meant by strict compliance when it does not show what prescribed process or procedure that is to be applied and followed under the Rules to ensure strict compliance. Strict compliance is the requirement to comply with every letter of the law whilst substantial compliance means a person or entity has made a good-faith effort to meet the requirements of the law. The Court interpreted the word “shall” to mean strict compliance but as to how this mandatory requirement is given effect to and applied, is not clear.
  4. Order 10 Rule 3(b)(ii) in its ordinary meaning, in my view, requires a separate certification by the Judge’s Associate or the Registrar certifying the Court Order as the correct and true copy of the Order made by the trial judge. In my considered opinion, certification does not have the same meaning and/or application as with the signature and/or endorsement made on the Court Order by the Registrar. Putting it simply, a Court Order signed and sealed by the Registrar is not certification and cannot be regarded as such. Also, a copy of a judgment annexed to an appeal is not certification.
  5. The Supreme Court in Sarea v Moutu (2019) SC1893 (Cannings J, Hartshorn J and Yagi J), dismissed a notice of motion instituting an appeal for being incompetent which had annexed to it a copy of the judgment. The Court held that.

“Though there have been cases in which the issue has arisen whether the National Court order has been “certified” as required (eg. Madang Timbers Ltd v. Kambori (2009) and GR Logging Ltd v. Dotaona (2018) SC1690), if there nothing that can be regarded as a certified copy of the order annexed to the notice of motion, the notice of motion is materially defective, and the appeal is rendered incompetent.”


  1. A good number of appeal cases have been dismissed for failing to annex to the notice of motions certified copies of the National Court orders. In Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2001) SC659, the appellants did not annex a copy of the National Court Order, and the application was refused by Gavara-Nanu J (as he then was). A second application was made by the appellants pursuant to section 10 (2) of the Supreme Court Act before a full three-men bench (Kapi DCJ, Injia J and Davani J) seeking extension of time to annex a copy of the National Court Order. It was also refused for similar reasons.
  2. Appeals in the other cases were similarly dismissed as incompetent as the notice of motion instituting the appeal filed pursuant to Order 10 Rule 3 did not, in breach of Order 10 Rule 3(ii) have annexed to it a certified copy of the National Court (see: Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273; Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408; Nipo Investment Limited v. Nambawan Super Limited (2017) SC1642 and Palaso v. Elliot (2020) SC2939). The cases relate to different issues of competence. Some were dismissed because they did not plead the jurisdiction of the court that authorized its filing. Others were dismissed because the notice of motion did not have annexed to it a copy of the written submission of one of the parties.
  3. In their respective submissions, Counsels for the appellant and respondents have not commented on the meaning of “certification” and explained what is required to satisfy the requirements of Order 10 Rule 3(ii) in the absence of clearly prescribed or defined process under the NCR and SCR. It appears that Madang Timbers seems to be the only case law that tries to give meaning to the word certification and method of compliance.
  4. Whilst the Supreme Court in the National Capital Limited v Bakani (supra) and Nipo Investment Ltd v Nambawan Super Ltd (supra) emphasized strict and full compliance on certification, the court did not prescribe what specific process or procedure to employ that gives meaning to the word ‘certification.’ The situation is exacerbated further by the lack prescribed processes and guidelines under the NCR and SCR pertaining to certification. In the absence of such, I am left with no option but to give the appellant the benefit of the meaning accorded in Madang Timbers (supra). Respondents have not persuaded me of an alternative view to the one expressed in Madang Timbers as to the requirement and meaning of certification in Order 10 Rule 3(ii) which might lead to the conclusion that the notice of motion is incompetent.
  5. For these reasons, I rule in favour of the appellant and dismiss the notice of objection to competency. The respondents shall pay the appellant’s costs and incidentals relating to the notice of objection to be taxed, if not agreed.

ORDERS


Per: David J and Carmody J; Numapo J dissenting.


88. The Court, by a majority, orders that:


  1. The objection to competency of the appeal is upheld.
  2. The appeal is dismissed as being incompetent.
  3. The appellant shall pay the costs of and incidental to the appeal including the objection, to be taxed, if not agreed.

________________________________________________________________
Lawyers for the appellant: Warner Shand
Lawyers for the first to fourth respondents: Kawat Lawyers

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