Review Pursuant to Constitution s155 (2) (B); Stephen Mendepo v National Housing Corporation and Suas Properties and Investment Limited (2011) SC1169

• Jurisdiction: Papua New Guinea
• Judge: Davani, Hartshorn, Murray, JJ
• Judgment Date: 29 November 2011
• Court: Supreme Court
• Citation: (2011) SC1169
• Docket Number: SC REVIEW NO. 42 OF 2009
• Year: 2011
• Judgement Number: SC1169

Full Title: SC REVIEW NO. 42 OF 2009; Review Pursuant to Constitution s155 (2) (B); Stephen Mendepo v National Housing Corporation and Suas Properties and Investment Limited (2011) SC1169

Supreme Court: Davani, Hartshorn, Murray, JJ

Judgment Delivered: 29 November 2011

SC1169

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT MT HAGEN]

SC REVIEW NO. 42 OF 2009

BETWEEN

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b)

STEPHEN MENDEPO

Applicant

AND

NATIONAL HOUSING CORPORATION

First Respondent

AND

SUAS PROPERTIES AND INVESTMENT LIMITED

Second Respondent

Mt Hagen: Davani, Hartshorn, Murray, JJ

2011: 29th November

REVIEW – Application for leave to review – signed by lawyer for applicant, not applicant – Objection to competency of review – verbal application made at the hearing of the application for leave – no written application – O.5 R. 1 (f) of Supreme Court Rules.

REVIEW – Objection to competency of – no provision in the Supreme Court Act and Rules – objection can be raised at any time, at the discretion of the Court.

OBJECTION TO COMPETENCY – Courts authority to raise objection - can be by its own motion – Court to ensure the integrity of its own process – where abuse of process, Court must confirm its authority.

Facts

Before the commencement of the hearing of an application for leave to review, the first Respondent’s counsel raised a preliminary, threshold issue which was basically that the Review was incompetent because the applicant had not signed it, contrary to O.5 R. 1 (f) of the Supreme Court Rules.

The Court noted that although the Supreme Court Rules did not provide for objections to Competency of Reviews, the Court proceeded to consider the objection because it is a threshold issue the Court must rule on before the Review is progressed any further.

Issues

1. Do the Supreme Court provisions on incompetency of Appeals apply to Reviews?

2. When can an applicant raise the issue of the competency of a Review?

3. Should an objection to competency of a review be in writing or can it be verbally made?

4. How can the Court exercise its discretion when confronted with an objection to competency of a Review that is verbally made at the commencement of the hearing of the Review?

Reasons

1. Yes

2. It can be raised at any time, before judgment and at the discretion of the Court.

3. In matters concerning whether a proceeding is competently before the Court, it is essential that the Court has the power to properly consider matters before it. Therefore the Court should be able to determine competency issues or applications verbally (orally) made.

4. (i) The Court can raise an issue of competency at any time until judgment.

Bruce Tsang v. Credit Corp (PNG) Ltd [1993] PNGLR 112

(ii) The Court has an inherent power to control its own processes.

Ronald Rimbao v. Don Pandan [2011] SC 1098

(iii) The Court has the jurisdiction and authority to ensure the integrity of its process.

Tamali Angoya v. Tugupu Association Incorporated [2009] SC 978

(iv) The exercise of this authority can be by its own motion.

Tamali Angoya (Supra)

Therefore, because the mandatory provisions of O.5 R. 1 (f) of the Supreme Court Rules have not been complied with, the Review should be dismissed.

Orders

1. The Review is dismissed;

2. No order as to costs.

Cases cited:

Bruce Tsang v. Credit Corp (PNG) Ltd [1993] PNG LR 112

Don Polye v. Jimson Papaki (2002) SC 637

Chief Inspector Robert Kalasim and Tongane Koglwa (2006), SC 828

Tamali Angoya vs. Tugupu Association Incorporated (2009), SC 978

Ronald Rimbao v. Don Pandan (2011), SC 1098

Counsel:

Mr P. Kunai, for the Applicant

Mr P. Pera, for the First Respondent

Mr P. Kak, for the Second Respondent

DECISION

29th November, 2011

1. BY THE COURT: The Court adjourned temporarily to consider an application before it by Mr Kak, counsel for the Second Respondent.

Background

2. Before us is an application for leave to review under S. 155 (2) (b) of the Constitution.

3. At the beginning of the hearing, counsel for the second Respondent raised a preliminary objection in relation to the competency of the Review. The objection is that this application is signed by the lawyer for the applicant and not the applicant, contrary to the mandatory provisions of O. 4 R. 1 (f) of the Supreme Court Rules.

4. Counsel for the applicant in response submitted that the Second Respondent should not succeed with his objection as:

(a) No written application had been made,

(b) Pursuant to the Supreme Court Rules concerning objections to competency of appeals, such an application has to be made within 14 days and that this has not occurred here; and

(c) It would be unjust and unfair if the applicant was not permitted to proceed with this application for review at this late stage.

5. On perusal of O. 5 R. 1 (f) of the Supreme Court Rules it is clear to us that the requirement that an applicant signs his application and no one else, is mandatory.

6. In this regard, we refer to the decision of this Court in the special reference brought by the Morobe Provincial Executive (2010), SC 1089, where at paragraph 15, the Court referred to and confirmed its previous decision, that signing requirements are not a minor matter of form.

7. As to objections to competency, we note that although objections to competency of appeals must be in form 9 of the Rules, that there are no rules concerning objections to competency of Reviews.

8. As to the Second Respondent not filing a written application concerning the competency of the Review, we are satisfied that in matters concerning whether a proceeding is competently before the Court, as it is essential that the Court has the power to properly consider matters before it, the Court should be able to determine competency issues made orally and not in writing. In this regard we refer to Chief Inspector Robert Kalasim and Tongane Koglwa (2006), SC 828 where it has held that an objection may be raised at any time, before judgment, at the discretion of the Court.

9. And further in Bruce Tsang v. Credit Corp (PNG) Ltd [1993] PNG LR 112, the Court held that it can raise an issue of competency at any time until judgment.

10. So, in the circumstances, we are satisfied that the mandatory provisions of O.5 R. 1 (f) of the Supreme Court Rules have not been complied with and for this reason the Review should be dismissed.

11. Further, the Court also has an inherent power to control its own processes. We refer to Ronald Rimbao v. Don Pandan (2011) SC 1098, where the Court confirmed its authority where it determines there is an abuse of process. This is also confirmed in Tamali Angoya vs. Tugupu Association Incorporated (2009) SC 978, where the Court referred to the decision of Don Polye v. Jimson Papaki (2002) SC 637 where the Court said;

“The Court always has had authority and of course jurisdiction to ensure the integrity of its’ process”.

12. The exercise of this Courts authority can be by its own motion. We refer to the previously cited decision of Tamali Angoya (supra) to support this contention.

13. As we are satisfied that the Applicant’s lawyer signing the application instead of the applicant is an abuse of this Court’s process, pursuant to the Court’s inherent jurisdiction, it is ordered that the review is dismissed.

Costs

14. As to costs, given the late notice of the application and that it was made orally, we make no order as to costs.

Formal Orders

These are the Court‘s formal orders;

1. The Review is dismissed.

2. No order as to costs.

___________________________________________

Kunai & Co. Lawyers: Lawyers for the Applicant

In-House Lawyer- National Housing Corporation: Lawyers for the First Respondent

Paulus M Dowa Lawyers: Lawyers for the Second Respondent