SCM NO. 12 of 2012; Dr. Nicholas Mann, Chairman, Council Appeal Committee, University of Papua New Guinea and the University of Papua New Guinea and The Independent State of Papua New Guinea v Jacob Sanga Kumbu (2019) SC1799

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, DCJ, Kariko & Lindsay, JJ
• Judgment Date: 01 May 2019
• Citation: (2019) SC1799
• Court: Supreme Court
• Year: 2019
• Judgement Number: SC1799

Full Title: SCM NO. 12 of 2012; Dr. Nicholas Mann, Chairman, Council Appeal Committee, University of Papua New Guinea and the University of Papua New Guinea and The Independent State of Papua New Guinea v Jacob Sanga Kumbu (2019) SC1799

Supreme Court: Kandakasi, DCJ, Kariko & Lindsay, JJ

Judgment Delivered: 1 May 2019

SC1799

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 12 of 2012

BETWEEN:

DR. NICHOLAS MANN, CHAIRMAN, COUNCIL APPEAL COMMITTEE, UNIVERSITY OF PAPUA NEW GUINEA

First Appellant

THE UNIVERSITY OF PAPUA NEW GUINEA

Second Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Appellant

AND:

JACOB SANGA KUMBU

First Respondent

Waigani: Kandakasi, DCJ, Kariko & Lindsay, JJ

2018: 29th August

2019:1st May

APPEALS - Appeal against entry of judgement on taxed costs by single Judge of Supreme Court – Appeal pursuant Order 11 Rules 25 & 26, Supreme Court Rules – Whether order for judgement can be appealed to the full court – No reasons for decision – Effect of - Exercise of discretion.

PRACTICE & PROCEDURE - Appeal or review against decision of single Judge of the Supreme Court - Appeal pursuant Order 11 Rules 25 & 26, Supreme Court Rules – Whether order for judgement can be appealed to the full court – Among others, Rule 25 allows a party who is aggrieved by an order of a Judge given under the Supreme Court Rules or s.5 of the Supreme Court Act, to apply to the full court of the Supreme Court for “such order as appears just”.

JUDGEMENT & ORDERS – Decision makers to give reasons - No reasons for decision provided - Parties to obtain and include in appeal books trial judge’s reason for decision - Failure - Effect of - Exercise of discretion without good reason.

Cases Cited:

Powi v. Southern Highlands Provincial Government (2006) SC844

Mary ToRobert v. Henry ToRobert (2011) SC1130

NEC v. Dr Vele Pat Ila’ava (2014) SC1332

Joel Luma v. John Kali (2014) SC1608

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Philip Opa Kore v. Charles Lapa (2018) SC1699

PNG Power Ltd v. Gura (2014) SC1402

Papua New Guinea v. Stanley Barker [1977] PNGLR 386

Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488

Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1075

Canisius Karingu v Papua New Guinea Law Society (2001) SC674

Pius Sankin v Papua New Guinea Electricity Commission (2002) N2257

PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288

NCDC v. Yama Security Services Pty Ltd (2003) SC707

Legislation Cited:

Constitution

National Court Rules

Supreme Court Act

Supreme Court Rules 1984

Supreme Court Rules 2012

Counsel

Mr J Brooks, for the First and Second Appellants

Mr R Leo, for the Respondent

JUDGEMENT

1st May, 2019

1. BY THE COURT: This is an appeal against the order of a single Judge sitting as the Supreme Court whereby judgment in the sum of K685,982 was entered against the appellants as to the respondent’s taxed costs in relation to the Supreme Court appeal entitled SCM No. 12 of 2012: Dr Nicholas Mann, The University of Papua New Guinea & The Independent State of Papua New Guinea v Jacob Sanga Kumbu.

2. The State did not enter appearance on this appeal so the term “appellants” from hereon refers to the first and second appellants.

3. The appeal has been filed pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules. As we will explain later, this proceeding is essentially an application documented as though it is an appeal and referred to as such.

Brief background

4. We set out in summary the relevant background facts leading to the lodging of this appeal.

5. The Council of the University of Papua New Guinea (UPNG) headed by Dr Nicholas Mann, made a decision to exclude the respondent at the end of 2008 from the final year of his law studies on disciplinary grounds.

6. The respondent filed for judicial review of that decision and on 20th July 2012, the National Court found for him and effectively ordered his reinstatement as a student at UPNG.

7. On 29th August 2012, the appellants filed the appeal SCM No. 12 of 2012 against the orders of the National Court.

8. After a little over a year, the appellants sought and were granted leave to withdraw the appeal, as a result of which the Supreme Court ordered the appellants pay the respondent’s costs of the appeal on an indemnity basis.

9. By an amended bill of costs filed on 14th July 2014, the respondent claimed nearly K1.8 million in legal costs. The bill was allegedly served on the office of the Registrar and the Vice-Chancellor of UPNG rather than the appellant’s lawyer on record, Kamen Lawyers.

10. Taxation of the bill was subsequently set down for 12th September 2014. Again, notice of the scheduled hearing was served on the office of the Vice-Chancellor of UPNG and not Kamen Lawyers.

11. The only party who attended the taxation was the respondent in person. His costs were then taxed at K685,982.

12. The certificate of taxation was issued on 17th September 2014, and it was allegedly served on both the offices of the Registrar and the Vice-Chancellor of UPNG.

13. On 10th October 2014, the respondent filed an application seeking judgment on his taxed costs. That application was served on the Vice-Chancellor of UPNG and Kamen Lawyers.

14. In response, the appellants first filed an application to review the decision of the taxing officer. Later, however they filed another application on 14th November 2014, seeking withdrawal of the earlier motion, and leave for extension of time to lodge their application for review.

15. The pending applications were finally set down for hearing and came before the appealed Judge on 12th March 2015. The only party who appeared at that hearing was again the respondent in person. His Honour only dealt with the respondent’s application and entered judgement for the taxed costs of K685,982.

16. Aggrieved by that order, the first and second appellants filed this appeal in accordance with Order 11 Rules 25 and 26 of the Supreme Court Rules, arguing that the appealed Judge erred in exercising his discretion in favour of the respondent.

First hearing of appeal

17. On 17th December 2015, the appeal came before the Supreme Court (Lenalia, Hartshorn and Sawong JJ) who first heard and dismissed an objection to competency filed by the respondent. The same constituted bench subsequently heard arguments on the substantive appeal on 31st August 2016 and reserved its decision. Before the decision could be delivered, his Honour Sawong, J retired as a Judge. On 2nd May 2017 and in accordance with section 3(2)(a) of the Supreme Court Act, a re-hearing of the appeal was ordered upon the insistence of the respondent. The matter thus came before us.

Objection to competency

18. At the commencement of our hearing this appeal, Mr Leo of counsel for the respondent sought to argue an objection to competency based on the ground that Order 11 Rule 25 of the Supreme Court Rules does not allow the appellants the right to appeal the decision of another Supreme Court, even if constituted by a single Judge. After noting that the ground could have and should have been argued when the previous bench heard the objection to competency on 17th December 2015, we refused the application for the following reasons:

· All grounds of objection to competency should be heard at the same time and not on a “piecemeal” basis.

· The respondent had sufficient time to formally file and serve the application for the objection together with a supporting affidavit.

· The substantive matter had progressed to hearing.

· It was too late to entertain any objection to competency as of right.

· The requisite leave had not been sought to raise the objection.

19. Despite the ruling, Mr Leo, in his submissions on the substantive appeal, persisted with arguments consistent with the ground of objection he tried to raise earlier. While we could easily ignore or disregard those particular submissions given the Court’s earlier ruling, we will nevertheless discuss them as they touch on an interesting area of practice and procedure of this Court.

Order 11 Rules 25 & 26

20. The appellants contend that the only recourse available to them to challenge what they allege to be an erroneous judgement by the appealed Judge is an appeal pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules which together with Order 11 Rule 27 make up Division 3 (Appeal & application to court from orders or directions of judge). These Rules read:

“25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply.

27. Where a Judge refuses an order sought on an application pursuant to Section 10(1) of the Act,...