Joshua Kalinoe—Chief Secretary to Government and Gabriel Yer—Acting Secretary for Finance and Simon Tosali—Secretary Department of Treasury and The Independent State of Papua New Guinea v Paul Paraka trading as Paul Paraka Lawyers (2007) SC874

• Jurisdiction: Papua New Guinea
• Judge: Jalina Gavara-Nanu and Batari JJ
• Judgment Date: 27 September 2007
• Court: Supreme Court
• Citation: (2007) SC874
• Docket Number: SCA NOS. 15 & 17 OF 2006
• Year: 2007
• Judgement Number: SC874

Full Title: SCA NOS. 15 & 17 OF 2006; Joshua Kalinoe—Chief Secretary to Government and Gabriel Yer—Acting Secretary for Finance and Simon Tosali—Secretary Department of Treasury and The Independent State of Papua New Guinea v Paul Paraka trading as Paul Paraka Lawyers (2007) SC874

Supreme Court: Jalina, Gavara-Nanu and Batari, JJ

Judgment Delivered: 27 September 2007

SC874

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NOS. 15 & 17 OF 2006

BETWEEN:

JOSHUA KALINOE – Chief Secretary to Government

-First Appellant-

AND:

GABRIEL YER – Acting Secretary for Finance

-Second Appellant-

AND:

SIMON TOSALI – Secretary Department of Treasury

-Third Appellant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fourth Appellant-

AND:

PAUL PARAKA trading as PAUL PARAKA LAWYERS

-Respondents-

Waigani: Jalina, Gavara-Nanu and Batari, JJ.

2007: 3 May & 27 September

PRACTICE AND PROCEDURE – Supreme Court – Supreme Court Rules – O 7 r. 14 and r.53 – Objection to competency - Application to dismiss for want of prosecution.

Case cited

Tenge Kaiulo v. Acting Public Prosecutor [1981] PNGLR 148

Dan Kakaraya v. Michael Somare & Others SC 762

Felix Bakani & Oil Palm Industry Corporation v. Rodney Daipo SC 699

General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33

Jeffery Balakau v. Ombudsman Commission [1996] PNGLR 346 SC 699

PNG Nambawan Trophy Ltd v. Wynasty Holding Ltd SC 811

Public Prosecutor v. Allen Ebu Marai [1996] PNGLR 81

Yema Gaiapa Developers Pty Ltd v. Hardy Lee SC 484

Paga No. 36 Ltd v. Jerry Luru & Others (3rd November, 2006)

Counsel

H. Nii, for respondent/applicant

P. Mawa, for fourth appellant/respondent

D. Stevens, for first appellants/respondents

G. Poole, for second and third appellants/respondents.

1. By the Court: The applicant/respondent has two notices of objections to competency, one is in respect of SCM No. 15 of 2006 and the other is in respect of SCM No. 17 of 2006. The applicant also has two applications to dismiss for want of prosecution. One application is in respect of SCM No. 15 of 2006 and the other is in respect of SCM No. 17 of 2006.

2. The objection to competency in respect of SCM No. 15 of 2006 is against the notice of appeal which is by way of a notice of motion filed pursuant to O 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules.

3. The objection to competency in respect of SCM No. 17 of 2006 is against the application for leave to appeal, filed pursuant to Order 7, Division 1 of the Supreme Court Rules.

4. At this juncture, it is convenient to note that the notice of objection to competency in respect of SCM No. 17 of 2006 was abandoned by the applicant at the hearing. We are therefore left with only the notice of objection to competency and application to dismiss for want of prosecution in respect of SCM No. 15 of 2006 and application to dismiss for want of prosecution in respect of SCM No. 17 of 2006 to determine.

(a) Notice of Objection to competency in respect of SCM No. 15 of

2006.

5. In regard to the objection to competency in respect of SCM No.15 of 2006, a preliminary issue was raised by the Court as to the competency of the notice of objection itself, after noting that the notice of objection appeared to have been filed outside of the time stipulated by Order 7 r 14 of the Supreme Court Rules. There is no dispute that the notice of motion constituting the appeal in SCM No. 15 of 2006 was filed on 17 November, 2006 and the notice of objection to competency was filed on 25 April, 2007.

6. Order 7 r 14 of the Supreme Court Rules provides that an applicant must file and serve his notice of objection on the appellant within 14 days after the service of the notice of appeal on him.

7. Whilst not disputing that the notice of objection was filed outside the 14 days period required under Order 7 r 14 of the Supreme Court Rules; Mr. Nii argued that the time limitation imposed by this rule does not apply in this case because the appeal being by way of a notice of motion under Order 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules is a special appeal, and therefore the 14 days time limit imposed by this Rule does not affect respondent/applicants’ notice of objection to appeal. Mr. Nii was not able to point out any other process which might apply to cure this apparent defect to his client’s notice of objection to competency, nor was he able to refer us to any other process pursuant to which his client filed his notice of objection to competency.

8. It is plain to us that Mr. Nii’s argument is either misconceived or is an attempt to avoid conceding that his client has made a fatal error. On this point, it is sufficient to simply emphasize what this Court said in Jeffery Balakau vs. Ombudsman Commission of PNG (1996) PNGLR 346, that appeals lodged pursuant to Order 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules are civil appeals and requirements of Order 7 r 14 of the Supreme Court Rules apply to them. See Jeffery Balakau vs. Ombudsman Commission of PNG (supra) at pp. 352, 353 and 354.

9. It follows that Order 7 r 14 of the Supreme Court Rules apply in this instance, thus the applicant’s notice of objection to competency of appeal in SCM NO. 15 of 2006 must comply with the mandatory requirements of the rule.

10. A notice of motion constituting an appeal filed pursuant to Order 10 of the Supreme Court Rules is subject to other provisions of the Supreme Court Rules including Order 7 r 14, where a notice of objection to competency is filed, as in this case. Order 10 of the Supreme Court Rules allows for appeals against orders made pursuant to Orders 16 and 17 of the National Court Rules to be instituted by way of a notice of motion instead of an ordinary notice of appeal. In that sense appeals lodged pursuant to Order 10 of the Supreme Court Rules are of special nature. See, Felix Bakani & Oil Palm Industrial Corporation v. Rodney Daipo SC 699. But that does not exempt such appeals from the mandatory requirements of Order 7 r14 of the Supreme Court Rules. Requirements of Order 7 r 14 apply equally to appeals lodged under Orders 10 and Order 7, the latter being either by way of an application for leave to appeal or by a notice of appeal. This is clear from the terms of Order 7 r 14 which provides:

“A respondent who objects to the competency of an appeal or for application for leave to appeal shall…”

11. The word “appeal” therefore also refers to an appeal by way of a notice of motion under Order 10 of the Supreme Court Rules.

12. It follows that the applicant’s notice of objection to competency of appeal in respect of SCM No. 15 of 2006 having been filed outside of the time stipulated by Order 7 r 14 is incompetent. See Jeffery Balakau -v- Ombudsman Commission of PNG (supra).

13. The respondent’s notice of objection to competency of appeal is therefore dismissed.

14. Mr Nii also argued that there are other grounds of objection raised in the notice of objection and they should be heard and determined by the Court despite the objection being filed out of time. We cannot accept this argument. It is clearly misconceived. Once the notice of objection has been found to be incompetent, every ground raised in the notice of objection is incompetent. In other words, once the notice of objection has been found to be incompetent; every thing else that can arise under or pursuant to the notice, such as lack of instructions and authority from the Attorney General for the appellants to lodge their appeal; lack of compliance with Order 10 Division 1 of the Supreme Court Rules by the appellant and so on, are incompetent.

(b) Application to dismiss the appeal in respect of SCM No. 15 of 2006 for want of prosecution.

15. Initially, this application raised nine grounds, but at the hearing, grounds 2, 5, 6, 7 and 8 were abandoned; the applicant therefore only argued grounds 1, 3, 4 and 9. These grounds are in following terms:

I. Consistent with principles in the Supreme Court decision in Smith Alvi & 127 Ors –v- Andeke Tepoka & Ors; SCA No. 16 of 2006, the appeal be dismissed in its entirety for lack of instruction and authority from the Attorney General for the commencement of the appeal proceedings in breach of the requirements of the Attorney General Act and the Supreme Court decision in State –v- Manoburn Earthmoving Ltd; SC 716.

In the alternative, the appeal be dismissed for lack of compliance of the (sic.) Order 10, Division 1 of the Supreme Court Rules, in that:

(a). All the appellants, either by themselves individually and or by or through their respective lawyers did not sign the notice of motion instituting the appeal as required in mandatory terms by Order 10 r 3(d) and Form 15 of the Supreme Court Rules; and

(b). The appeal has not been filed in accordance with Form 15 of the Supreme Court Rules in breach of Order 10 r 3 (c) of the Supreme Court Rules in that:-

(i). Each of the appellants did not file separate affidavits by themselves in support of the motion.

(ii) The appeal did not comply with the General Form of Address for Service set out in Form 17 of the Supreme Court Rules.

4. Further or in the alternative, the appeal be dismiss for want of prosecution pursuant to Order 7 r 15 (a); Order 7 r 48 and Order 11 r 29 (a) of the Supreme Court Rules.

9. In further alternatives, directions be given in the conduct of the appeal including the setting down of a date for an expeditious hearing by way of a special...