SCA NO. 123 OF 2012; Mek Kuk v Hon. Peter O’Neill and The Independent State of Papua New Guinea (2014) SC1331

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (2014) SC1331
• Date: 28 February 2014
• Year: 2014

Full Title: SCA NO. 123 OF 2012; Mek Kuk v Hon. Peter O’Neill and The Independent State of Papua New Guinea (2014) SC1331

Supreme Court: Batari, Davani and Manuhu .JJ

Judgment Delivered: 28 February 2014

APPEAL—Judicial Review, O16 proceedings filed—appeal filed after dismissal of Judicial Review proceedings—objection to competency of appeal—Appeal must be by Notice of Motion—O10 r1 (1) (2) of Supreme Court Rules

JUDICIAL REVIEW—Judicial Review O16 proceedings filed—O12 r40 application filed—JR proceedings dismissed—O12 r40 application can be filed in O16 proceedings—O16 r8 (1) of National Court Rules

Facts:

The appellants filed a Notice of Appeal against a decision of the National Court in Judicial Review Proceedings where the appellant had applied under O12 r40 of the National Court Rules, for the proceedings to be dismissed and where the National Court dismissed the proceedings. The Respondent filed Objection to Competency of the appeal arguing that the appellant should have filed Notice of Motion, because the appeal emanates from O16 Judicial Review proceedings.

Held:

1. The appeal is against a dismissal of the Judicial Review proceedings, done upon application under O12. r40 of the National Court Rules. Because it is an appeal against a dismissal of the Judicial Review proceedings, that an appeal must be by way of Notice of Motion (O10 r1 of Supreme Court Rules and O16 of National Court Rules).

2. Order 16, Rule 8 does not exclude reliance upon O12 r40 applications because “any interlocutory applications” clearly fall within the ambit of the term “any proceedings” (O12 r40 (1). It means that an applicant in Judicial Review proceedings can ask for a dismissal of proceedings under O12 r40.

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

The appellant in Sir Julius Chan, filed Notice of Appeal against the National Court’s decision to set aside an earlier decision setting aside the granting of leave for Judicial Review, application made pursuant to O. 12 R 8 (3) (5) of the National Court Rules.

The Supreme Court held, amongst others that the Appellant quite properly filed Notice of Appeal because he was appealing against an order to set aside the order granting leave for Judicial Review.

Cases Cited

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

Sir Julius Chan v. Ombudsman Commission & Ors (1998) SC556

Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence, and 2 Ors (2013) SC1225

DECISION

28th February, 2014

1. BY THE COURT: Before the Court is Objection to Competency of Appeal filed on 25th March, 2013 by Ame Lawyers, (‘Objection’) for...