Review Pursuant to Constitution, Section 155(2)(B); Application by James Lovika and 79 Other discharged members of Papua New Guinea Defence Force v Carl Malpo as Commander of Papua New Guinea Defence Force and Independent State of Papua New Guinea (2019) SC1895

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ, Bona & Shepherd JJ
• Judgment Date: 17 December 2019
• Court: Supreme Court
• Citation: (2019) SC1895
• Docket Number: SC REV NO. 22 OF 2014
• Year: 2019
• Judgement Number: SC1895

Full Title: SC REV NO. 22 OF 2014; Review Pursuant to Constitution, Section 155(2)(B); Application by James Lovika and 79 Other discharged members of Papua New Guinea Defence Force v Carl Malpo as Commander of Papua New Guinea Defence Force and Independent State of Papua New Guinea (2019) SC1895

Supreme Court: Kandakasi DCJ, Bona & Shepherd JJ

Judgment Delivered: 17 December 2019

SC1895

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 22 OF 2014

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

APPLICATION BY JAMES LOVIKA AND 79 OTHER DISCHARGED MEMBERS
OF PAPUA NEW GUINEA DEFENCE FORCE
Applicants

AND
CARL MALPO as Commander of Papua New Guinea Defence Force
First Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi DCJ, Bona & Shepherd JJ

2018: 29th August

2019: 17th December

PRACTICE AND PROCEDURE – Supreme Court - Objection to competency of application for review of National Court’s decision to dismiss claim by retirees from Defence Force for certain entitlements – Supreme Court Rules Order 7 Rule 15 and Order 11 Rule 28(a) –Inclusion in application for review of some grounds for which leave was granted and other grounds for which leave was not sought or granted - Effect of – Objection to competency upheld and Application to Review dismissed.

Cases Cited:

Papua New Guinea Cases

Michael Kuman v Digicel (PNG) Ltd (2017) SC 1638

Rea Joseph v. ManauSereva (2011) SC1152

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

Jacob Sanga Kumbu v. Dr Nicholas Mann (2018) SC1710

Lucas Dekena v Nick Kuman (2018) SC 1715

ParuAihi v. Peter Isoaimo(2013) SC1276

Overseas Cases:

Aviagents Ltd v Balstravest Investments Ltd [1996] 1 WLR 150

Legislation Cited:

Section 155(2)(b) Constitution

Order 7 Rule 15Supreme Court Rules 2012

Order 11 Rule 28(a) Supreme Court Rules 2012

Order 7 Rule 10 Supreme Court Rules 2012

Order 2 Rule 1(h) Supreme Court Rules 2012

Order 12 Rule 40 National Court Rules

Section 14(1) Supreme Court Act

Counsel:

Mr B Lai, for the Applicants

Mr D Levy, for the First and Second Respondents

DECISION

13thDecember, 2019

1. BY THE COURT: Before us is an objection made under Section 155(2)(b) of the Constitution. The objection conforms with the procedure allowed by O.7 Rule 15 and O.11 Rule 28(a) of the Supreme Court Rules 2012(SCR). It is an objection against a review application filed by the applicants.

2. The review application, which the respondents contend is incompetent, is against the decision of the primary judge in National Court proceeding WS No.780 of 2000 delivered on 19thNovember 2013 whereby it was ordered that the whole of that proceeding be dismissed and that an amount of K12,919,600 be paid out from the National Court Registrar’s Trust Account to the Papua New Guinea Defence Force. The reason for the dismissal was because the primary judge had earlier ruled on 7thOctober 2013 to the effect that the PNG Defence Force Manual of Personnel Administration is a set of administrative guidelines only and the application of those guidelines to the retirement circumstances of the applicants was not mandatory and was therefore not capable of legal enforcement at the behest of aggrieved retirees from the Defence Force .

The Objection

3. The applicants were granted leave by a single judge of the Supreme Court to review the primary judge’s dismissal decision of 19thNovember 2013 one year later, on 19thNovember 2014. It was an express condition of the orders for grant of leave to review that the applicants file and serve their application to review based only on grounds 3(b), 3(d) and 3(e) of their amended application for leave to review filed on 27th October 2014.

4. Term 2 of the orders dated 19thNovember 2014:

“The Applicants shall file and serve an Application for Review based on Grounds 3(b), 3(d) and 3(e) of the Amended Application for Leave to Review filed on 27th October 2014 within fourteen (14) days from the date of this Order.”

5. The applicants filed their review application within time on 3 December 2014. We observe that the application for review contains grounds additional to those which were approved by the orders of 19thNovember 2014.

6. Grounds 3(b), 3(d) and 3(e) in the applicants’ amended application for leave filed on 27 October 2014 were duly reproduced by the applicants as grounds 3(a), 3(d) and 3(h) in their application to review filed on 3rd December 2014. We set out hereunder those grounds in exactly the same terms as were pleaded, grammatical errors included, in the applicants’ review application:

“3(a) The learned Judge had erred in law when he proceeded to hear and determine the application by the First and Second Respondents in the National Court proceedings under W.S. Nos. 780 of 2000 – James Lovika & 79 Other and Daniel Tali & 36 Others -v- Carl Marlpo& The State to dismiss the entire proceedings when the First and Second Respondents had not demonstrated the urgency to have the application to dismiss the entire proceedings dealt with, notwithstanding the fact that the issue of liability had been determined, the Applicants had brought to the Court’s attention than an Appeal had been filed against the Judge’s earlier decision of 7th October, 2013, and as such the Court should not have proceeded to hear and determine the application to dismiss the entire proceedings, whilst the Applicant’s Application for Leave to Appeal was still on foot and had not been heard and determined on its merits as such the decision to dismiss the entire proceedings is harsh and oppressive and failed to take into serious consideration the relevant consideration of the Appeal on foot.

…

3(d) The learned trial Judged erred in the exercise of his discretion and acted unfairly when he dismissed the entire proceedings, as he had in dismissing the entire proceedings, relied on his earlier decision of 7th October, 2013, which was the subject of an application for leave to appeal and by dismissing the entire proceedings has dealt with matters that were subjudice and this has denied the Applicant the opportunity to have the issues it had raised with respect to the learned Judge’s earlier decision of 7th October, 2013 dealt with on its merits and this has denied the Applicants natural justice.

…

3(e) The learned Judge was misled by lawyers for the First and Second Respondents when they submitted that the K12,919,600.00 was for payment repatriation costs when the said monies were calculated for payment of the Applicants backdated salaries from 2000 – 2006.”

7. We observe that although ground 3(a) pleads alleged error of law on the part of the primary judge, ground 3(d) should have similarly pleaded alleged error of law and ground 3(e) should have pleaded alleged error of mixed law and fact or error of fact alone, but those two grounds did not do so contrary to section 14(1) of the Supreme Court Act which provides to the effect that civil appeals to the Supreme Court from the National Court lie on questions of law alone or mixed fact and law but that if the appeal is on a question of fact then only with leave of the Supreme Court. It is however not in dispute at this stage that grounds 3(a), 3(d) and 3(e) as contained in the applicants’ review application were permitted when leave to proceed with the review on those three grounds was expressly granted on 19th November 2014.

8. What is in contention between the parties is whether additional grounds 3(b), 3(c), 3(e), (f), (g) and (i) as pleaded by the applicants in their review application, being new grounds which were not raised by the applicants at the leave application and for which leave was not granted as grounds for the review, now render the applicants’ application to review incompetent such that the substantive review should be dismissed.

9. The text of the additional grounds which surfaced for the first time in the review application filed by the applicants on 3rd December 2014 is set out in full below:

“3(b) The learned Judge had erred in law when dismissing the proceedings on 19th November, 2013, as in dismissing the entire proceedings he has denied the Applicants natural justice and the right to be heard on the Appeal from his earlier decision made on 7th October, 2013, as such the dismissal of the entire proceedings is harsh and oppressive particularly when the Applicants had advised the Court that an Appeal had been filed and was pending hearing at the time of the dismissal of the National Court proceedings in W.S. No. 780 of 2000.

3(c) The decision of 19th December, 2013, to dismiss the entire National Court proceedings was based on the Judges own earlier decision of 7th October, 2013, a decision that did not take into serious consideration the express powers of the Defence Council of Papua New Guinea under Section 8(1)d) of the Defence Act 1974, as such the finding by the Judge that the Papua New Guinea Defence Force Manual of Personnel Administration (MPA) is not mandatory and later dismissing the...