Jacob Sanga Kumbu v Dr Nicholas Mann, Chairman, Council Appeal Committee, University of Papua New Guinea and the University of Papua New Guinea and the Independent State of Papua New Guinea (2018) SC1710

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi,Yagi & Bona JJ.
• Judgment Date: 18 September 2018
• Court: Supreme Court
• Citation: (2018) SC1710
• Docket Number: SC REV 28 of 2018
• Year: 2018
• Judgement Number: SC1710

Full Title: SC REV 28 of 2018; Jacob Sanga Kumbu v Dr Nicholas Mann, Chairman, Council Appeal Committee, University of Papua New Guinea and the University of Papua New Guinea and the Independent State of Papua New Guinea (2018) SC1710

Supreme Court: Kandakasi,Yagi & Bona JJ.

Judgment Delivered: 18 September 2018

SC1710

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV 28 OF 2018

BETWEEN:

JACOB SANGA KUMBU

Appellant

AND:

DR. NICHOLAS MANN, Chairman, Council Appeal Committee, University of Papua New Guinea

First Respondent

AND:

UNIVERSITY OF PAPUA NEW GUINEA

Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Kandakasi,Yagi & Bona JJ.

2018: 28th and 31st August

18th September

PRACTICE & PROCEDURE – Objection to Competency of application for review against a National Court’s decision on review of taxed of costs – No provision either specifically permitting or barring appeals or review against such a decision in the National Court Rules – Meaning and effect of - Applicant filing review application pursuant to s.155 (2) (b) of the Constitution – Whether the provisions of s. 14(3)(c) of the Supreme Court Act apply? - No leave sought and obtained – Whether application for directions amount to or can substitute an application for leave? - All applications under s. 155(2)(b) require leave of the Court – Review against a decision on taxed costs attracts the application of s. 14(3)(c) of the Supreme Court Act – No leave sought and obtained – Application for review incompetent - Application for review dismissed.

Cases Cited:

Michael Kuman & Ors v. Digicel (PNG) Ltd (2017) SC1638

Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221

Paru Aihi v. Peter Isoaimo (2013) SC1276

Avia Aihi v. The State [1981] PNGLR 81

Aihi v. The State (No 2) [1982] PNGLR 44

Jacob Popuna v. Ken Owa (2017) SC1564

Counsel:

Applicant in Person

Mr. C. Joseph, for the First and Second Respondents

18th September, 2018

1. KANDAKASI J: The Applicant is seeking a review under s.155 (2) (b) of the Constitution of a decision of the National Court on a review of taxed costs without first seeking and securing leave to do so. The First and Second Respondents (the Respondents) have filed an objection to the competency of the application because the applicant has not sought and obtained leave under s. 14 (3) (c) of the Supreme Court Act (Chp.37). The applicant concedes to leave being required for an application for review under s. 155 (2) (b) of the Constitution. He also concedes to not seeking leave and instead simultaneously filing his application for review and an application for directions which he is asking the Court to treat as his application for leave much to the objection of the Respondents. As for the application of the provisions of s. 14(3)(c) of the Supreme Court Act, he claims the provision does not apply to an application like his for a review of a decision of the National Court on review of taxed costs under O.22, r. 60 of the National Court Rules.

Relevant Issues

2. Gathering from the parties’ arguments the following are the main issues for this Court to consider and determine:

(1) Is there any recourse available to a person who is aggrieved by a decision of the National Court on review of taxed costs under Order 22, Rule 60 of the National Court Rules?

(2) If the answer to question (1) is in the negative, can the provisions of s. 155 (2) (b) of the Constitution be invoked without formally seeking leave of the Supreme Court?

(3) Can leave of the Supreme Court for the purposes of s. 14 (3) (c) of the Supreme Court Act and or s. 155 (2) (b) of the Constitution be sought in a manner other than the process prescribed by the Supreme Court Rules?

Relevant factual background

3. All of these are legal questions. However, to appreciate the context in which the issues have arisen, it is necessary to make a quick mention of the relevant facts. The facts are not in any serious contest. The National Court came to a decision in favour of the Applicant on 14th September 2012 on a solicitor client basis. Based on that decision, the Applicant, then a law student produced a bill of his costs totalling K5,505,174.40. A taxation before an Assistant Register performing the tasks of a taxing master then followed and a total sum of K1, 165, 009.00 was allowed. Both the Applicant and the Respondents sought a review of the taxed costs. Those applications went before Makail J., who ultimately decided to allow for only K80, 139.87 for the Applicants costs. Being aggrieved by that decision, the Applicant filed the application for review now before this Court.

4. Upon being served with the review application, the Respondents filed objections to the competency of the application. The main basis for the objection is a failure by the Applicant in seeking and securing leave of the Court as required by s. 14 (3) (c) of the Supreme Court Act. On 21st May 2018, the Supreme Court gave certain specific orders and direction aimed at expediting a hearing of objection to the competency. The Applicant took the view that the Respondents failed to comply with those directions. Proceeding on that basis, he filed an application on 15th June 2018, seeking to dismiss the objection to the competency of the review application pursuant Order 5, Rule 37 (b) of the Supreme Court Rules. That application was fixed for hearing at the same time as the objection to the competency of the substantive application for review. Following a brief but a meaningful discussion of that application with the Applicant and the Court, he decided to withdraw his application. Accordingly, the Court granted him leave to do so, with the costs of that application being ordered to be costs in the substantive application for review. That left the parties and the Court to deal with the objection to competency.

Principles governing objections to competency of proceedings

5. Before dealing with the issues before us, I consider it important that we should remind ourselves and allow ourselves to be guided by the relevant principles of law on objections to competency of proceedings before this Court. In my dissenting judgment in the matter of Michael Kuman & Ors v. Digicel (PNG) Ltd,

(2017) SC1638.

21 I discussed and summed up the relevant principles of law in the following terms:

“3. Objections to competency of appeals, applications for leave to appeal and references and or other applications or process brought to the Supreme Court is a well-trodden road in Papua New Guinea. The principles governing such objections are well settled. I note as did the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 (per Cannings, David and Sawong JJ), the “law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v. Nelson (2008) SC949, per Kirriwom, Cannings, Yagi JJ. These have been elaborated and complimented upon by other decisions. According to these decisions, an objection to competency would properly be in Court if it raises issues that:

(1) draws the Court’s attention to a question of jurisdiction: See Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v. Gabriel Nelson (supra) and Talibe Hegele v. Tony Kila (supra);

(2) there are serious threshold issues concerning legality or viability of the appeal: See PNG Forest Authority v. Securamax Ltd (2003) SC717;

(3) leave has not being sought and obtained separately in cases where some of the grounds of appeal require leave and some do not: See Yakham & The National v. Merriam & Merriam (1997) SC533, per Amet CJ, Kapi DCJ and Los J;

(4) an application for leave or notice of appeal’s ground is false, misleading or is vague or not adequately stating the nature of the case, the questions involved and the reasons why leave should be given: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456, per Batari, David and Makail, JJ; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, per Amet CJ, Kapi DCJ and Sevua J; To validly plead the grounds they must briefly state but:

(a) specifically make grammatical and legal sense and be intelligible;

(b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that; and

(c) if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: See Jimmy Lama v. NDB Investments Ltd (2015) SC1423, per Cannings, Collier and Geita JJ;

(5) an application for leave or notice of appeal has being filed outside the 40 days period allowed by s. 17 of the Supreme Court Act without leave of the Supreme Court: See The State v. John Tuap (2004) SC765, per Sawong, Mogish and Cannings JJ;

(6) an application for leave includes questions...