The Right Honourable Sir Julius Chan v The Ombudsman Commission of Papua New Guinea, Simon Pentanu, Joe N Wagula, Ninchib Tetang and Gregory Toop (1998) SC556

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Sakora J, Sevua J
• Judgment Date: 04 March 1998
• Citation: (1998) SC556
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC556

Supreme Court: Amet CJ, Sakora J, Sevua J

Judgment Delivered: 4 March 1998

SC 556

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]SCA APPEAL NO. 2 OF 1998

BETWEEN:

THE RIGHT HONOURABLE SIR JULIUS CHAN

Appellant

AND:

THE OMBUDSMAN COMMISSION

OF PAPUA NEW GUINEA

First Respondent

AND:

SIMON PENTANU

Second Respondents

AND:

JOE N. WAGULA

Third Respondent

AND:

NINCHIB TETANG

Fourth Respondent

AND:

GREGORY TOOP

Fifth Respondent

Waigani : Amet CJ, Sakora J & Sevua J

1998 : 25 February & 4 March

BY THE COURT : This is an objection to the competency of the appeal by the Respondents.

The initial matters before the National Court were as follows:

The Appellant first made an application under Order 16 Rule 3 of the National Court Rules for leave to apply for judicial review of the Investigation and Report of the Respondents into the purchase of the Cairns Conservatory by the Public Officers Superannuating Fund Board. This Application was made ex parte as permitted by Order 16 Rule 3, and leave was granted. The Respondents subsequently made application before another National Court pursuant to Order 12 Rule 8 (3) & (5) of the National Court Rules to set aside the orders granting leave and the other incidental orders. In that Notice of Motion the Respondents also purported to apply for leave to appear on the hearing of the Appellants application for leave to seek judicial review and sought an order that the Appellants application be refused. The National Court made orders that the orders of the National Court made earlier on 10th November 1997 be set aside and that leave for judicial review be refused, amongst other orders.

The Appellant has filed appeal by Notice of Appeal, the principal ground for which is that:

(I) The learned judge erred in law in setting aside the order of the Honourable Justice Woods made on 10th November 1997 granting leave to apply for judicial review.

The Respondents have filed objection to the competency of the appeal on three separate grounds, which are as follows:

1. Non-compliance with Order 10 of the Supreme Court Rules and Order 16 Rule 11 of the National Court Rules.

2. Non-compliance with Sections 4(2)(C) and 14(1)(C) of the Supreme Court Act.

3. Non-compliance with Section 14(3)(b) of the Supreme Court Act.

GROUND 1

The principal ground of objection to the competency of the appeal is that because the Appellant has inter alia purported to appeal against the refusal of the National Court to grant leave to apply for Judicial Review, the appeal should have been instituted by Notice of Motion in compliance with the requirements of Order 10 of the Supreme Court Rules and Order 16, Rule 11 of the National Court Rules and not by Notice of Appeal under Order 7 of the Supreme Court Rules.

Order 16, Rule 11 of the National Court Rules states that:

"An appeal by way of motion by Order 10 of the Supreme Court Rules to the Supreme Court may be made to set aside or discharge any order of the Court or a judge granting or refusing an application for leave under Rule 3 or an application for Judicial Review."

Order 10 of the Supreme Court Rules is headed:

"ORDER 10 —

Appeal from orders made under Orders 16 and 17 of the National Court Rules."

It was submitted that the combined effect of these Rules is that an appeal against the refusal of leave to seek judicial review must be made pursuant to Order 10 of the Supreme Court Rules.

The Appellant has responded to this principal objection to the competency of the form of the Notice of Appeal by reference to the fact that the application by the Respondents to Justice Salika principally to set aside all the orders made by Justice Woods was pursuant to Order 12, Rule 8 of the National Court Rules. Justice Salika made orders, inter alia, setting aside all the orders made by Justice Woods, relying on Order 12, Rule 8 (3) & (5) of the National Court Rules. It is these orders that have been...