Madang Timbers Limited v Valentine Kambori, Wari Iamo, Bonnie Ninai, Aquila Tubal, Philip Upeguto, Kanawi Pouru, And Kivi & Anthony Honey, Members of the Papua New Guinea Forest Board and Belden Namah, Minister for Forest and Papua New Guinea Forest Authority and The Independent State of Papua New Guinea and Timbers (PNG) Limited and Patrick Pruaitch, Minister For Finance (2009) SC992

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 11 September 2009
• Citation: (2009) SC992
• Docket Number: SCM NO 16 0F 2008
• Year: 2009

Full Title: SCM NO 16 0F 2008; Madang Timbers Limited v Valentine Kambori, Wari Iamo, Bonnie Ninai, Aquila Tubal, Philip Upeguto, Kanawi Pouru, And Kivi & Anthony Honey, Members of the Papua New Guinea Forest Board and Belden Namah, Minister for Forest and Papua New Guinea Forest Authority and The Independent State of Papua New Guinea and Timbers (PNG) Limited and Patrick Pruaitch, Minister For Finance (2009) SC992

Supreme Court: Davani J, Cannings J, Kariko J

Judgment Delivered: 11 September 2009

SUPREME COURT PRACTICE AND PROCEDURE—whether an objection to competency can be lodged in an appeal under O10 of the Supreme Court Rules—application for direction that respondents be granted leave to file and serve notice of objection to competency—considerations to be taken into account when deciding whether to grant application.

Facts:

An appeal was filed under O10 of the Supreme Court Rules against the refusal by the National Court to uphold an application by the appellant for judicial review. Some respondents to the appeal wanted to object to the competency of the appeal and, there being no express provision in the Rules for such objections, applied for a direction that they be granted leave to file and serve a notice of objection to competency. The appellant opposed the application.

Held:

(1) The respondent to an appeal under Order 10 of the Supreme Court Rules does not have a right to object to the competency of that appeal but can apply for directions and be given leave to do so.

(2) When deciding whether to give a direction granting leave the Supreme Court should consider whether the application for directions has been filed and served expeditiously, whether it has been prosecuted expeditiously, whether the proposed grounds of objection raise issues that would obviously render the appeal incompetent and the interests of justice.

(3) Here, the application was not filed and served expeditiously, and, though prosecuted expeditiously, did not raise issues that would obviously render the appeal incompetent. Further the respondents would not be unduly prejudiced by refusal of the application as the hearing of the appeal can proceed expeditiously. Therefore, it was not in the interests of justice to uphold the application.

(4) The application was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699

Gregory Puli Manda v Yatala Limited (2005) SC795

Jeffery Balakau v Ombudsman Commission [1996] PNGLR 346

Joshua Kalinoe v Paul Paraka (2007) SC874

Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886

Korak Yasona v Castan Maibawa (1998) SC552

Patterson Lowa v Wapula Akipe [1991] PNGLR 265

The State v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448

APPLICATION

This was an application for a direction that the respondents be granted leave to file and serve a notice of objection to competency of an appeal.

1. BY THE COURT: Madang Timbers Limited has appealed against the refusal by the National Court of their application for judicial review of decisions of the first respondent, who are the members of the Papua New Guinea Forest Board (‘Forest Board’), regarding a timber rights purchase area in the Madang Province.

2. The first, second and third respondents (Forest Board, the Minister for Forest and the Papua New Guinea Forest Authority) wish to file a notice of objection to competency of the appeal but the Supreme Court Rules does not provide for such an application.

3. The appeal is against the refusal of an application for judicial review under Order 16 of the National Court Rules. It has therefore been filed under Order 10 of the Supreme Court Rules—not under Order 7, the order under which most civil appeals are filed. In Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886 the Supreme Court held that objections to competency should not be filed in Order 10 appeals as there is no equivalent in Order 10 to Order 7, Rule 14, which is the provision which expressly allows for objections to competency of Order 7 appeals.

4. The...