Madang Timbers Limited v Valentine Kambori, Wari Iamo, Bonnie Ninai, Aquila Tubal, Philip Upeguto, Kanawi Pouru, And Kivi & Anthony Honey, Members of the Papua New Guinea Forest Board and Belden Namah, Minister for Forest and Papua New Guinea Forest Authority and The Independent State of Papua New Guinea and Timbers (PNG) Limited and Patrick Pruaitch, Minister For Finance (2009) SC992

• Jurisdiction: Papua New Guinea
• Judge: Davani J, Cannings J, Kariko J
• Judgment Date: 11 September 2009
• Court: Supreme Court
• Citation: (2009) SC992
• Docket Number: SCM NO 16 0F 2008
• Year: 2009
• Judgement Number: SC992

Full Title: SCM NO 16 0F 2008; Madang Timbers Limited v Valentine Kambori, Wari Iamo, Bonnie Ninai, Aquila Tubal, Philip Upeguto, Kanawi Pouru, And Kivi & Anthony Honey, Members of the Papua New Guinea Forest Board and Belden Namah, Minister for Forest and Papua New Guinea Forest Authority and The Independent State of Papua New Guinea and Timbers (PNG) Limited and Patrick Pruaitch, Minister for Finance (2009) SC992

Supreme Court: Davani J, Cannings J, Kariko J

Judgment Delivered: 11th September 2009

SC992

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 16 0F 2008

MADANG TIMBERS LIMITED

Appellant

V

VALENTINE KAMBORI, WARI IAMO, BONNIE NINAI, AQUILA TUBAL, PHILIP UPEGUTO, KANAWI POURU, AND KIVI & ANTHONY HONEY,

MEMBERS OF THE PAPUA NEW GUINEA FOREST BOARD

First Respondent

BELDEN NAMAH, MINISTER FOR FOREST

Second Respondent

PAPUA NEW GUINEA FOREST AUTHORITY

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

TIMBERS (PNG) LIMITED

Fifth Respondent

PATRICK PRUAITCH, MINISTER FOR FINANCE

Sixth Respondent

Waigani: Davani J, Cannings J, Kariko J

2009: 4th, 11th September

SUPREME COURT PRACTICE AND PROCEDURE – whether an objection to competency can be lodged in an appeal under Order 10 of the Supreme Court Rules – application for direction that respondents be granted leave to file and serve notice of objection to competency – considerations to be taken into account when deciding whether to grant application.

Facts:

An appeal was filed under Order 10 of the Supreme Court Rules against the refusal by the National Court to uphold an application by the appellant for judicial review. Some respondents to the appeal wanted to object to the competency of the appeal and, there being no express provision in the Rules for such objections, applied for a direction that they be granted leave to file and serve a notice of objection to competency. The appellant opposed the application.

Held:

(1) The respondent to an appeal under Order 10 of the Supreme Court Rules does not have a right to object to the competency of that appeal but can apply for directions and be given leave to do so.

(2) When deciding whether to give a direction granting leave the Supreme Court should consider whether the application for directions has been filed and served expeditiously, whether it has been prosecuted expeditiously, whether the proposed grounds of objection raise issues that would obviously render the appeal incompetent and the interests of justice.

(3) Here, the application was not filed and served expeditiously, and, though prosecuted expeditiously, did not raise issues that would obviously render the appeal incompetent. Further the respondents would not be unduly prejudiced by refusal of the application as the hearing of the appeal can proceed expeditiously. Therefore, it was not in the interests of justice to uphold the application.

(4) The application was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699

Gregory Puli Manda v Yatala Limited (2005) SC795

Jeffery Balakau v Ombudsman Commission [1996] PNGLR 346

Joshua Kalinoe v Paul Paraka (2007) SC874

Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886

Korak Yasona v Castan Maibawa (1998) SC552

Patterson Lowa v Wapula Akipe [1991] PNGLR 265

The State v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448

APPLICATION

This was an application for a direction that the respondents be granted leave to file and serve a notice of objection to competency of an appeal.

Counsel

R J Webb, M Varitimos & R Bradshaw, for the appellant

I R Shepherd, for the 1st, 2nd and 3rd respondents

J Shepherd, for the 5th respondent

1. BY THE COURT: Madang Timbers Limited has appealed against the refusal by the National Court of their application for judicial review of decisions of the first respondent, who are the members of the Papua New Guinea Forest Board (‘Forest Board’), regarding a timber rights purchase area in the Madang Province.

2. The first, second and third respondents (Forest Board, the Minister for Forest and the Papua New Guinea Forest Authority) wish to file a notice of objection to competency of the appeal but the Supreme Court Rules does not provide for such an application.

3. The appeal is against the refusal of an application for judicial review under Order 16 of the National Court Rules. It has therefore been filed under Order 10 of the Supreme Court Rules – not under Order 7, the order under which most civil appeals are filed. In Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886 the Supreme Court held that objections to competency should not be filed in Order 10 appeals as there is no equivalent in Order 10 to Order 7, Rule 14, which is the provision which expressly allows for objections to competency of Order 7 appeals.

4. The first, second and third respondents are therefore making an application for a direction that they be granted leave to file and serve a notice of objection to competency. They are supported by the fifth respondent, Timbers (PNG) Limited, the company in whose favour the decisions of the Forest Board were made.

5. This is the Court’s ruling on that application.

6. The appellant opposes the application and says that no objection to competency of an Order 10 appeal can be made and that the objection has no merit. In the course of hearing the application we heard argument on the merits of the objection and indicated that in the event that the application is upheld, we would rule on the objection.

ISSUES

7. The issues we must determine are:

(i) Can a direction be given, granting leave to a respondent to file and serve a notice of objection to an Order 10 appeal?

(ii) If so, should a direction and leave be given in this case? That is, should the respondents’ application be upheld?

(iii) If leave is granted, should the objection to competency of the appeal be upheld?

1 CAN A DIRECTION BE GIVEN, GRANTING LEAVE TO A RESPONDENT TO FILE AND SERVE A NOTICE OF OBJECTION TO AN ORDER 10 APPEAL?

8. Mr Webb, for the appellant, submitted that the failure of the Supreme Court Rules (‘SCR’) to make provision for an objection to competency of an Order 10 appeal was deliberate, given the special nature of such appeals. He suggested that once judgment is given in a review of administrative action under Order 16 of the National Court Rules (‘NCR’) an appeal to the Supreme Court will have a valid jurisdictional foundation and there is no point in entertaining objections to competency of such appeals.

9. Certainly, it appears that the absence of provisions for objections to competency against Order 10 appeals is deliberate. This means that unless the Court directs that an objection be made or grants leave for making an objection, avenue available to an applicant under s.185 of the Constitution, or O.11 r.9 of the SCR, which we will discuss further below, it should be refused. That is how we interpret the Supreme Court’s decision in Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886. We are of the view that the Supreme Court was not suggesting that there could never be an objection to the competency of an Order 10 appeal.

10. There are a number of situations in which a respondent to an Order 10 appeal could raise valid objections to the competency of the appeal and the jurisdiction of the Supreme Court, e.g if the appeal is filed beyond the 40-day time limit set by Section 17 of the Supreme Court Act (Jeffery Balakau v Ombudsman Commission [1996] PNGLR 346) or if the notice of motion by which the appeal is instituted fails substantially to comply with Order 10, Rule 3 of the SCR (Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699).

11. Requiring the respondent to obtain directions and/or the leave of the Court to make an objection to competency would be consistent with the approach taken by the Supreme Court in Korak Yasona v Castan Maibawa (1998) SC552. That case concerned an objection to competency of an application under Section 155(2)(b) (the National Judicial System) of the Constitution for review of a National Court judgment. It was not an appeal instituted under Order 7 of the SCR, yet the respondent filed a notice of objection under Order 7, Rule 14 of the Rules. The notice of objection to competency was itself ruled incompetent. The Court said that what the respondent should have done was apply under Section 185 (lack of procedural provision) of the Constitution for directions as to the procedure to be adopted. Section 185 states:

“If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

12. To similar effect is Order 11, Rule 9 (lack of procedural provision) of the SCR, which states:

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