Beni Sarea & Ilaiah Bigilale v Dr Andrew Moutu, Director, National Museum And Art Gallery and National Museum And Art Gallery (2019) SC1893

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Hartshorn J, Yagi J
• Judgment Date: 23 December 2019
• Court: Supreme Court
• Citation: (2019) SC1893
• Docket Number: SCM NOS 30 & 31 OF 2018
• Year: 2019
• Judgement Number: SC1893

Full Title: SCM NOS 30 & 31 OF 2018; Beni Sarea & Ilaiah Bigilale v Dr Andrew Moutu, Director, National Museum And Art Gallery and National Museum And Art Gallery (2019) SC1893

Supreme Court: Cannings J, Hartshorn J, Yagi J

Judgment Delivered: 23 December 2019

SC1893

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NOS 30 & 31 OF 2018

BENI SAREA & ILAIAH BIGILALE

Appellants

V

DR ANDREW MOUTU, DIRECTOR,

NATIONAL MUSEUM AND ART GALLERY

First Respondent

NATIONAL MUSEUM AND ART GALLERY

Second Respondent

Waigani: Cannings J, Hartshorn J, Yagi J

2019: 16th, 23rd December

PRACTICE AND PROCEDURE – objections to competency of appeals – Supreme Court Rules 2012, Order 7, Rule 15 – whether non-compliance with Order 10, Rule 3 renders an appeal incompetent – whether objections to competency should be heard when notices are filed and served late

The respondents objected to competency of appeals against refusal of judicial review by the National Court on grounds of non-compliance with Order 10, Rule 3 of the Supreme Court Rules 2012. The appellants objected to the objections to competency being entertained on grounds of non-compliance with Order 7, Rule 15 of the Supreme Court Rules.

Held:

(1) The notices of objection to competency were non-compliant with Order 7, Rule 15 in that the notices were filed and served late and were not in the prescribed form. Further, the respondents did not seek leave to raise the objections. The respondents had no right to have the objections heard and ought to have sought the leave of the Court to have the objections heard.

(2) However, the Court has discretion to entertain an objection even if leave is not sought and notice of it is non-compliant with the Rules, and may of its own volition raise any issue as to jurisdiction of the Court, including competency of an appeal. It exercised that discretion here, as the notices of objection raised arguable grounds and the appellants had been put on notice of them. The objections were heard and determined on their merits.

(3) The objections were sustained as strict compliance with Order 10 is essential and the notices of motion filed by the appellants were non-compliant with the Rules in two respects: (a) did not annex a copy of the National Court order appealed from, certified by the Judge’s Associate or the Registrar (required by Order 10, Rule 3(b)(ii)); and (b) were not supported by affidavit (required by Order 10, Rule 3(c) and form 15).

(4) The appeals were therefore dismissed. As to costs, respondents to pay the appellants’ costs of the appeals as the notices of objection were filed and served late and were non-compliant with the Rules and the respondents did not seek leave to argue their objections.

Cases cited

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064

GR Logging Ltd v Dotaona (2018) SC1690

Hegele v Kila (2011) SC1124

Kuk v O’Neill (2014) SC1331

Lowa v Akipe [1991] PNGLR 265

Madang Timbers Ltd v Kambori (2009)

Mountain Catering Ltd v Punangi (2013) SC1225

National Capital Ltd v Bakani (2014) SC1392

Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642

Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646

OBJECTIONS

These were objections to competency of two appeals.

N Kopunye, for the Appellants

J Aku, for the Respondents

23rd December, 2019

1. BY THE COURT: Before the Court are objections to competency of two appeals. The appeals are against the decisions of the National Court of 2nd November 2018 to refuse judicial review applications by the appellants, Beni Sarea and Ilaiah Bigilale. The respondents to each appeal are Dr Andrew Moutu and the National Museum and Art Gallery.

2. The respondents have filed notices of objection to competency, on grounds of non-compliance with Order 10, Rule 3 of the Supreme Court Rules 2012. The appellants have responded by objecting to the objections to competency being entertained on grounds of non-compliance with Order 7, Rule 15 of the Supreme Court Rules.

3. The following issues arise:

1. Do the respondents have the right to have their objections heard?

2. Can the Court entertain the objections?

3. Do the objections to competency have merit?

4. What orders should the Court make?

1 DO THE RESPONDENTS HAVE THE RIGHT TO HAVE THEIR OBJECTIONS HEARD?

4. A respondent’s right to object to competency of an appeal is conferred by Order 7, Rule 15 of the Supreme Court Rules 2012, which states:

A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal—

(a) file an objection in accordance with form 9; and

(b) serve a copy of the objection on the appellant.

5. We uphold the appellants’ argument that the respondents’ objections to competency are defective in two respects. First, the notices of objection were filed and served very late. The notices of appeal were served on 18th December 2018. The notices of objection ought to have been filed and served within 14 days after service of the notices of appeal on the respondents, by 2 January 2019. The notices of objection were served on 28 March 2019, two months, three weeks and five days late.

6. Secondly, the notices of objection were not in accordance with form 9, which requires that the notice be set out as follows:

NOTICE OF OBJECTION TO COMPETENCY

OBJECTION to the competency of this appeal will be made at the Supreme Court, Waigani at . . . am on the . . . day of . . . 20

OBJECTION is made on the following grounds (set out concisely the whole of the grounds of the objection).

DATED:

Sgd _____________
(To be signed by
Respondent or his
Lawyer)

FILED BY: (Form 17)

7. It will be observed that the notice of objection must provide an address for service containing the particulars of form 17, which provides:

GENERAL FORM OF ADDRESS FOR SERVICE

FILED: Name (Personal) Name (Lawyer)

Address (O11 R4(a)(ii)) Address (O11 R4(a)(iv))

Address (Postal) Address (Postal)

Telephone Telephone

8. Here, both notices of objection lacked an address for service.

9. For those two reasons (lateness and absence of address for service) the notices of objection to competency are non-compliant with Order 7, Rule 15. The consequence is that respondents have no right to have their objections to competency heard. They ought to have sought leave to raise their objections. They have not done that, so the position remains that they have no right to have the objections heard (Lowa v Akipe [1991] PNGLR 265 Hegele v Kila (2011) SC1124).

2 CAN THE COURT ENTERTAIN THE OBJECTIONS?

10. Though the respondents have no right to have their objections heard, the Court still has discretion to entertain the objections. The Court can also of its own volition at any time raise any issue as to jurisdiction of the Court, including competency of an appeal (Amet v Yama (2010) SC1064, Mountain Catering Ltd v Punangi (2013) SC1225, Kuk v O’Neill (2014) SC1331, Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646).

11. We have decided to exercise that discretion here, despite leave to argue the objections not being sought, as the notices of objection have raised arguable grounds and the appellants have been put on notice of the grounds of objections. The objections will be heard and determined on their merits.

3 DO THE OBJECTIONS HAVE MERIT?

12. The respondents’ grounds of objections are based on Order 10, Rule 3 of the Supreme Court Rules, which requires that an appeal against a refusal by the National Court of judicial review be instituted by a notice of motion, which meets these requirements:

The notice of motion shall—

(a) show where appropriate the particulars set out in a notice of appeal under Order 7, Rule 9; and

(b) have annexed—

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and

(c) be in accordance with form 15; and

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry.

13. The grounds of objection are that the appellants’ notices of motion:

(1) do not annex copies of all documents which were before the Judge of the National Court appealed from (contrary to Order 10, Rule 3(b)(i));

(2) do not annex a copy of the order of the National Court certified by the Judge’s Associate or the Registrar (contrary to Order 10, Rule 3(b)(ii));

(3) are not in accordance with form 15...