Jeffrey Turia and Michael Mckay v Gabriel Nelson and National Housing Corporation (2008) SC949

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Cannings J, Yagi J
• Judgment Date: 06 November 2008
• Court: Supreme Court
• Citation: (2008) SC949
• Docket Number: SCA NO 126 0F 2006
• Year: 2008
• Judgement Number: SC949

Full Title: SCA NO 126 0F 2006; Jeffrey Turia and Michael Mckay v Gabriel Nelson and National Housing Corporation (2008) SC949

Supreme Court: Kirriwom J, Cannings J, Yagi J

Judgment Delivered: 6 November 2008

SC949

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 126 0F 2006

JEFFREY TURIA

First Appellant

MICHAEL MCKAY

Second Appellant

V

GABRIEL NELSON

First Respondent

NATIONAL HOUSING CORPORATION

Second Respondent

Waigani: Kirriwom J, Cannings J, Yagi J

2008: 28 October, 6 November

PRACTICE AND PROCEDURE – objection to competency of application for leave to appeal – whether it is a proper ground of objection to competency that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary.

The appellants filed an application for leave to appeal against an interlocutory judgment of the National Court. The respondents objected to the competency of the application for leave, on various grounds, viz that the proposed grounds of appeal lacked merit and were frivolous or vexatious; that the second appellant was not a party to the proceedings; that the appellants failed to name proper parties; that the proposed grounds of appeal are not stated with sufficient particularity; and that the application for leave was unnecessary.

Held:

(1) A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction.

(2) It is not a proper ground of objection to competency of an application for leave to appeal that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary.

(3) It might, depending on the circumstances, be a proper ground of an objection to competency of an application for leave to appeal, that incorrect parties are named as appellants or that proposed grounds of appeal are not stated with sufficient particularity.

(4) In this case, all grounds of objection arguing that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary were not properly before the court and were refused.

(5) All other grounds of objection were also refused as not being sustainable in the circumstances of this case.

(6) Consequently the objection to competency was dismissed, with costs against the respondent.

Case cited

The following cases are cited in the judgment:

Boyepe Pere v Emmanuel Ningi (2003) SC711

Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882

Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279

Gigmai Awal v Salamo Elema [2000] PNGLR 288

Gregory Puli Manda v Yatala Limited (2005) SC795

Hii Yii Ann v Canisius Kami Karingu (2003) SC718

Ipili Porgera Investments Ltd v Bank South Pacific Ltd SCA 15 of 2006, 27.06.07

Kitogara Holdings v NCDIC [1988–89] PNGLR 346

Matiabe Oberia v Chief Inspector Michael Charlie and Others (2005) SC801

Oio Aba v MVIL (2005) SC779

Paul Bari v John Raim (2004) SC768

Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894

Porgera Joint Venture v Joshua Siapu Yako (2008) SC691

Sir Julius Chan v Ombudsman Commission (1998) SC607

The State v John Talu Tekwie (2006) SC843

The State v John Tuap (2004) SC675

Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Yakham & The National v Merriam & Merriam (1997) SC533

OBJECTION

This was an objection to the competency of an application for leave to appeal against a judgment of the National Court.

Counsel

N Kubak & N Aisi, for the appellants

E Geita & G Misina, for the first respondent

6th November, 2008

1. BY THE COURT: This is a ruling on an objection to the competency of an application for leave to appeal against a judgment of the National Court.

2. The judgment was by Justice Salika. It concerns a dispute over ownership and possession of a property at Gerehu in the National Capital District. His Honour ordered amongst other things that the person then in possession of the property, Michael McKay, give up vacant possession to Gabriel Nelson within 14 days and that Mr McKay be removed as a party to the proceedings. It was an interlocutory judgment, ie the orders were made subject to a pending trial.

3. Mr McKay and another person aggrieved by the orders, Jeffrey Turia, filed an application for leave to appeal against His Honour’s judgment. This was done under Section 14(3)(b) of the Supreme Court Act, which generally provides that (with some exceptions) if a person wishes to appeal against an interlocutory judgment of the National Court, leave to appeal must first be granted by the Supreme Court. Division 7.1 of the Supreme Court Rules sets out the manner and form in which an application for leave must be made.

4. Mr Nelson, the first respondent, subsequently filed an objection to competency of the application for leave. The objection was filed under Division 7.5 of the Supreme Court Rules.

THE GROUNDS OF OBJECTION

5. By an amended notice of objection filed on 5 April 2007, Mr Nelson relied on 20 grounds of objection, set out in four paragraphs and multiple sub-paragraphs. Many of the grounds are repetitious or overlap. We summarise them by saying that they fall into five major categories:

1. that the proposed grounds of appeal lack merit or are frivolous or vexatious;

2. that the second appellant, Mr McKay, was not a party to the proceedings in the National Court;

3. that the appellants failed to name proper parties;

4. that the proposed grounds of appeal are not stated with sufficient particularity;

5. that the application for leave to appeal was unnecessary.

GENERAL PRINCIPLES

6. Before we address those five matters we will summarise the principles emerging from cases where the Supreme Court has considered objections to competency, especially of applications for leave to appeal.

7. A proper ground of objection to competency is one that draws the Court’s attention to a question of jurisdiction (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185). For example, where the objection is based on one or more of the following grounds, the objection will, normally, properly be before the Supreme Court:

· That the application for leave to appeal was not filed as a separate document, in cases where some of the grounds of appeal require leave and some do not (Yakham & The National v Merriam & Merriam (1997) SC533).

· That the application for leave does not adequately state the nature of the case, the questions involved and the reason that leave should be given, as required by Order 7, Rule 2(c) of the Supreme Court Rules (Gigmai Awal v Salamo Elema [2000] PNGLR 288, Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC894).

· That the application for leave was, without leave, filed outside the 40-day period allowed by Section 17 of the Supreme Court Act (The State v John Tuap (2004) SC675).

· That the application for leave refers to questions of law or fact not raised in the National Court (Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC882).

· That the applicant for leave does not have a sufficient interest in the subject matter of the National Court decision that it wishes to appeal against (Porgera Joint Venture v Joshua Siapu Yako (2008) SC691).

8. The above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court as they raise the question of jurisdiction.

9. Examples of grounds of objection that would not properly be before the Court are:

· That the application for leave has been filed unnecessarily, ie where the objecting party points out that leave to appeal was not actually required. It is now settled law that an unnecessary application for leave to appeal is not necessarily incompetent (Boyepe Pere v Emmanuel Ningi (2003) SC711, Oio Aba v MVIL (2005) SC779, The State v John Talu Tekwie (2006) SC843; note that Paul Bari v John Raim (2004) SC768, decided oppositely to Boyepe Pere).

· That the application for leave to appeal was not served on the respondent (see Gigmai Awal v Salamo Elema [2000] PNGLR 288, where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties).

· That the proposed grounds of appeal referred to in the application for leave to appeal, lack merit (The State v John Talu Tekwie (2006) SC843).

10. The objection to competency must itself be competent. If it does not comply with the Supreme Court Rules it will be dismissed, eg if filed outside the 14-day period allowed by Order 7, Rule 14 (Gregory Puli Manda v Yatala Limited (2005) SC795).

11. We now consider the objections raised by the first respondent, Mr Nelson, under the five categories we referred to earlier.

CATEGORY 1: THE PROPOSED GROUNDS OF APPEAL LACK MERIT OR ARE FRIVOLOUS OR VEXATIOUS

12. Most of the 20 grounds of objection fall into this category. For example, ground 1.1 states:

The appellants’ leave to appeal is incorrect in that the appellants appealed against the court’s use of its discretionary powers for the second appellant to grant vacant possession of the property to the first respondent.

13. Ground 3.1 states:

The appellants’ contention that the first respondent did not claim vacant possession of the subject property in his cross-claim is wrong in...