National Capital Limited v Loi Bakani, Governor, Bank of Papua New Guinea and Bank of Papua New Guinea and Independent State of Papua New Guinea (2014) SC1392

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Gavara-Nanu & Kawi JJ
• Judgment Date: 08 October 2014
• Court: Supreme Court
• Citation: (2014) SC1392
• Docket Number: SCM NO. 24 OF 2011
• Year: 2014
• Judgement Number: SC1392

Full Title: SCM NO. 24 OF 2011; National Capital Limited v Loi Bakani, Governor, Bank of Papua New Guinea and Bank of Papua New Guinea and Independent State of Papua New Guinea (2014) SC1392

Supreme Court: Injia CJ, Gavara-Nanu & Kawi JJ

Judgment Delivered: 8 October 2014

SC1392

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 24 OF 2011

BETWEEN:

NATIONAL CAPITAL LIMITED

Appellant

AND:

LOI BAKANI, GOVERNOR, BANK OF PAPUA NEW GUINEA

First Respondent

AND:

BANK OF PAPUA NEW GUINEA

Second Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Injia CJ, Gavara-Nanu & Kawi JJ

2013: 29th August

2014: 08th October

PRACTICE AND PROCEDURE – Objection to competency – Supreme Court Rules,1984; Order 10 – Appeal against refusal by the trial court to grant leave for judicial review – Appeal by notice of motion – Mandatory requirements of the Supreme Court Rules not complied with – Such non-compliance fatal to the appeal.

PRACTICE AND PROCEDURE – Application to dismiss appeal for abuse of process – Supreme Court Rules, Order 7 r 12 – Requirement for a copy of the notice of appeal to be served “without delay” – Notice of appeal served almost a month after appeal was filed – Whether such delay could amount to an abuse of process.

Cases cited

Anderson Agiru v The Electoral Commission (2002) SC687

Coca Cola Amati (PNG) v. Kennedy (2012) SC1221

Dr Arnold Kukari v. Honourable Don Pomb Polye [2008] PGSC 4; SC907

Haino v. Sai [2006] PGNC 5; N3063

Haiveta v. Wingti (No.2) [1994] PNGLR 189

Isaac Lupari v. Sir Michael Somare, MP – Prime Minister & Chairman of the National Executive Council & Ors SC1071

Madang Timbers Ltd v Kambori [2009] PGSC 18; SC992

Palang v. Pelgens Ltd [2010] PGNC 219; N4567

Rabaul Shipping Ltd v. Ruru [2000] PGNC 74; N2022

SC Ref. No.3 of 2006: In the Matter of s. 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC917

Special Constitutional Reference No. 4 of 1987; Central Provincial Government and National Capital District Commission [1987] PNGLR 249

Special Reference by Morobe Provicial Executive (2010) SC1089

Talibe Hegele v. Tony Kila (2011) SC1124

The Right Honourable Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557.

The State v. Peter Painke [1976] PNGLR 210

Counsel

R.J.Webb SC, with G.Geroro, for the Appellant

I. Molloy with K. Imako, for the Respondents

8th October, 2014

1. BY THE COURT: The appellant appealed against a judgment of the National Court delivered on 18 November, 2011, refusing the appellant leave to apply for judicial review pursuant to Order 16 of the National Court Rules (NCR). The appeal was commenced by way of a notice of motion, which was filed on 22 December, 2011 pursuant to Order 10 r. 1 of the Supreme Court Rules, 1984 (SCR).

2. A copy of the notice of motion was not served on the respondents until 18 January, 2012, which was almost a month after the appeal was filed. A copy of the judgment was annexed to the notice of motion. On 4 April, 2012, the orders of the Court were entered. The orders were as follows:

1. The plaintiff’s leave application is refused.

2. Costs are awarded to the Third Defendant.

3. Before us are the respondents’ notice of objection to competency of the appeal (objection to competency) and application to dismiss the appeal for abuse of process.

4. Firstly, in regard to the objection to competency, the respondents argued that the appeal fails to comply with the requirement of Order 10 r 3 (b) (ii) of the SCR which the respondents argued are mandatory. Order 10 r 3 (b) (ii) is in these terms:

3. The notice of motion shall –

(b) have annexed –

(ii) a copy of the order made, certified by the Judge’s Associate or the Registrar.

5. It was argued that the requirement under r 3 (b) (ii) is a matter that goes to the jurisdiction of the court, equal to the requirement under Order 10 r 1 that an appeal be instituted by a notice of motion (and not by a notice of appeal). The respondents relied, inter alia, on Dr Arnold Kukari v. Honourable Don Pomb Polye [2008] PGSC 4; SC907 for this argument. In that case the Supreme Court said as follows in relation to Order 10:

“In the instant case, we are considering non-compliance with the mandatory requirements of Order 10 of the Rules by the appellants. There is no dispute that the appellants have invoked a wrong provision in instituting their appeal. It follows that the failure by the appellants to comply with the mandatory requirements of Order 10 of the Rules is fatal to the appeal. In Felix Bakani v. Rodney Daipo SC699, the Supreme Court emphasised this point when it said:

“The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural requirements of Order 10, in particular Order 10 r 3 are also restrictive and onerous. They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant”.(Our underlining).

6. It was submitted in this case that the appellant’s failure to comply with the requirements of Order 10 r 3 (b) (ii) means that the jurisdiction of the court has not been validly invoked, thus effectively rendering the appeal incompetent. Other cases relied on by the respondents relate to the general requirement that the SCR must be complied with.

7. In regard to the respondents’ application to dismiss the appeal for abuse of process, it was argued that the delay of almost a month for the appellant to serve a copy of the notice of motion was excessive. It was argued that such delay was in breach of Order 7 r 12 of the SCR, which provides as follows:

12. A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party –

(a) affected by the relief sought by the notice of appeal;

(b) interested in maintaining so much of the judgment as is appealed from.

8. The respondents argued that the appeal was not served “without delay”. They submitted that there was no communication by the appellant that the appeal would be or had been filed before service on 18 January, 2012. It was also argued that the appeal can also be dismissed for failure to follow mandatory procedural requirements. The respondents relied on Haino v. Sai [2006] PGNC 5; N3063; Rabaul Shipping Ltd v. Ruru [2000] PGNC 74; N2022; and Palang v. Pelgens Ltd [2010] PGNC 219; N4567.

9. The application to dismiss the appeal for abuse of process is raised by the respondents as an alternative ground to dismiss the appeal.

10. The appellant submitted that the respondents’ objection to competency and application to dismiss are misconceived and should be dismissed with costs.

11. The appellant relied on Coca Cola Amatil (PNG) v. Kennedy (2012) SC1221, to argue that the appeal is competent. In that case, the Supreme Court, in discussing the effect of Order 7 r 14 of the SCR, said that the competency of an appeal relates to the appeal itself and not to the notice of appeal. Thus, the appeal here is competent if the notice by which the appellant has sought to initiate it has properly invoked the jurisdiction of the Supreme Court. It was submitted that the observations made in Coca Cola Amatil should apply with equal force to objections to competency of appeals commenced by notice of motion pursuant to Order 10 r 1 of the SCR. Thus, it was argued that in this case the objection to competency is to the appeal itself and not to the notice of motion. It was submitted that this point had been expressly acknowledged by the respondents in pleading their objection to competency, viz. that the objection is “…to the competency of the appeal”.

12. The appellant has also relied on other cases besides Coca Cola Amati. One thing common about these cases is that they all relate to civil appeals which are authorised by s. 14 of the Supreme Court Act and prescribed and regulated by Order 7 r 8 of the SCR. These appeals are different from appeals which are authorised by Order 16 r 11 of the NCR and prescribed and regulated by Order 10 of the SCR. The difference between the two types of appeals was emphasized by the Supreme Court in Felix Bakani v. Rodney Daipo SC659. In Dr Arnold Kukari v. Honourable Don Pomb Polye (supra), the Supreme Court in reaffirming the difference between these appeals, said:

“An appeal instituted by way of a Notice of Motion under Order 10 of the Rules is authorized by Order 16 r 11 of the National Court Rules and Order 10 of the Rules prescribes and regulates such an appeal. See, The Right Honourable Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) SC557. Whereas an appeal instituted by way of a Notice of Appeal, as in this case, or an Application for Leave to Appeal is authorized by s. 14 of the Supreme Court Act and is prescribed and regulated by Order 7 Divisions 1, 2, 3 & 4 of the Rules. Thus, an appeal instituted by way of a Notice of Motion under Order 10 of the Rules and a Notice of Appeal or an Application for leave to Appeal instituted under Order 7 of the Rules are two...