National Executive Council, The Independent State of Papua New Guinea, Hon Patrick Prauitch, MP Minister for Forests, National Forest Board of PNG Forest Authority v David S Nelson (2004) SC766

• Jurisdiction: Papua New Guinea
• Judge: Salika J, Kirriwom J, Lay J
• Judgment Date: 29 October 2004
• Citation: (2004) SC766
• Docket Number: SCM 4 of 2004 and SCA 44 of 2004
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC766

Full Title: SCM 4 of 2004 and SCA 44 of 2004; National Executive Council, The Independent State of Papua New Guinea, Hon Patrick Prauitch, MP Minister for Forests, National Forest Board of PNG Forest Authority v David S Nelson (2004) SC766

Supreme Court: Salika J, Kirriwom J, Lay J

Judgment Delivered: 29 October 2004

___________________________

SC766

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCM 4 of 2004 & SCA 44 of 2004

BETWEEN:

NATIONAL EXECUTIVE COUNCIL

First Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Appellant

AND:

HON. PATRICK PRAUITCH, MP.

MINISTER FOR FORESTS

Third Appellant

AND:

NATIONAL FOREST BOARD OF PNG FOREST AUTHORITY

Fourth Appellant

AND:

DAVID S. NELSON

Respondent

WAIGANI : SALIKA, KIRRIWOM & LAY, JJ

2004 : 27 September & 29th October.

Practice and Procedure – Supreme Court Rules - O7 Div 1 and 2 – Form 7 - O10 – Form 15 - National Court Rules O16 r11 –leave to appeal – appeal from grant of leave to review – National Court Rules – O16 r3 – leave required – interlocutory order - procedure for seeking leave.

Facts

The Respondent was granted leave by the National Court to review the Appellants decision to terminate his employment as Managing Director of the National Forest Board. The Appellants filed a Form 7 under the Supreme Court Rules seeking leave to appeal. They also filed a Notice of Motion by way of appeal pursuant to O10 of the Supreme Court Rules. The Respondent objected to the competency of the appeal because leave was sought by filing Form 7, because the O10 motion was filed out of time and because there was delay in serving both sets of proceedings.

Held

Applying Garamut Enterprises Limited v Steamships Trading Co Limited (1999) SC625, leave is required to appeal from the grant of leave for judicial review under National Court Rule O16 r3. Form 7 is the proper procedure to adopt to seek leave. The application for leave is competent. The Notice of Motion appeal is premature. An application relating to delay should be brought in Form 11 and not in an Objection to Competency.

Cases Cited:

Ombudsman Commission v Donohue [1985] PNGLR 346

Jeffrey Balakau v Ombudsman Commission of Papua New Guinea [1996] PNGLR 346

Application by Jeffrey Balakau [1998] PNGLR 437

The Rt. Hon. Sir Julius Chan v Ombudsman Commission of Papua New Guinea,

Simon Pentanu, Joe Wagula, Ninchib Tetang & Gregory Toop (4/3/98) SC556

Sir Julius Chan v Ombudsman Commission (5/6/1998) SC557

Yakham v Merriam [1998] PNGLR 555

Garamut Enterprises Limited v Steamships Trading Co Limited (1999) SC625

SCR13/02 An Application by Anderson Agiru (2002) SC686

29th October 2004

BY THE COURT : This is the hearing of a Notice of Competency filed by the Respondent in the proceedings entitled SMC 4 of 2004, an appeal pursuant to O. 16 r. 11 of the National Court Rules and O. 10 of the Supreme Court Rules, by way of Notice of Motion against the decision of the National Court to grant leave to the Respondent to review a decision made by the Appellants.

Background

On the 14th April 2004 the National Court granted leave for judicial review to proceed against the decision of the Third & Fourth Defendants made on the 16th of October 2003 revoking the Plaintiffs appointment as Managing Director of the National Forest Authority .

The Appellant sought to appeal against that judgment by filing an application for leave to appeal on the 6th of May 2004 which is entitled SCA 44 of 2004 pursuant to O. 7 Div. 1 of the Supreme Court Rules and a Notice of Motion by way of an appeal pursuant to O. 10 of the Supreme Court Rules was filed on 1st of June 2004 and those proceedings are entitled SCM 4 of 2004.

At the hearing Counsel for the Applicant Respondent said that although the Notice of Objection was entitled in relation to SCM 4 of 2004 only, he had come to Court on the understanding that the objection related to both SCA 44 of 2004 and SCM 4 of 2004. Counsel for the First, Second and Third Appellants said that they had also come to argue the objection in respect of both proceedings and Counsel for the Fourth Appellant said that his client would not be prejudiced if the Objection was argued in relation to both matters. The Court then proceeded to deal with the Objection to Competency as if it related to both sets of proceedings.

Submissions

The Applicant Respondent submitted that the Application for Leave to Appeal, whilst filed within the 40 days stipulated under s. 17 of the Supreme Court Act, did not conform with the requirements of O. 10 of the Supreme Court Rules and O. 16 r. 11 of the National Court Rules in that it was not a Notice of Motion in Form 15 of the Supreme Court Rules. And it was submitted the application did not have annexed to it the documents required by O. 10 (3)(a) and (b). Further the Respondent argued SCM 4 of 2004, commenced by a Notice of Motion by way of appeal, was filed outside the time allowed by s. 17 of the Supreme Court Act being filed some 47 days after the decision appealed from. Finally that there had been considerable delay in serving the Respondent with both sets of proceedings contrary to the requirement of O10 r11, 12 and 13.

The Respondent Appellants replied that O. 16 r. 11 of the National Court Rules is subject to s. 14 (3)(b) of the Supreme Court Act. They submitted an order granting leave to appeal for judicial review is not a final order but interlocutory and consequently leave is required to appeal from such an order . Because O. 10 of the Supreme Court Rules does not make provision for an application for leave to appeal, the provisions of O. 7 Div. 1 should be followed and the application in Form 7 should be filed. The Appellant argument went that the application was filed within time and the appeal so far was thus competent. If the application for Leave was determined in favour of the Appellants it was argued that the motion by way of appeal already filed could be amalgamated with the Application for Leave. Counsel for the Fourth Appellant also submitted that O. 10 of the Supreme Court Rules and Form 15 do not apply until leave is granted. He also submitted that leave must be granted by the procedures in O. 7 Division 1 and Form 7 of the Supreme Court Rules and this is confirmed by comparing & contrasting the different nature of Form 7 and Form 15.

Counsel for the Respondent and Counsel for the First and Second Appellants both submitted that leave was required for the appeal and we understood Counsel for the Third and Fourth Appellants to have adopted the submissions of Counsel for the First and Second Appellants.

The Law

The issue of whether or not leave is required to appeal from a decision to grant leave pursuant to O. 16 r. 3 of the National Court Rules or related issues have been argued before the Supreme Court on no less than five occasions. The first was in the case of Ombudsman Commission v Donohoe

[1985] PNGLR 346

1 a decision of Pratt, Amet, and Wood, JJ. The issue was not fully argued and the matter before the Court had been instituted before the Supreme Court Rules came into force. The Court was conscious of the fact that any observations it made “would not pose any problem of judicial comity for a subsequent Supreme Court.” per (Pratt, J.) as a subsequent Court would be dealing with matters under the new Supreme Court Rules. Pratt, J. doubted that the Supreme Court Act s. 14 (3) was applicable and he was “unimpressed with the submission that a National Court Order may be treated as a final order and not as an interlocutory one.” He finally concluded:

“although I am far from totally convinced of the applicability of the Supreme Court Act, s. 14 (3), in the circumstances such as the present, the matter is at least arguable and I would proposed the granting of leave but in the ultimate dismiss the appeal.”

Amet, J. said:

“I agree with the comment of Pratt, J. in relation to this issue and treat the order as one ‘ in the nature of a final decision’ under s. 14 (3)(b)(ii) of the Act as the jurisdictional basis for consideration of the substantive issues raised”.

Woods, J. said:

“ without creating a precedent as the matter is now covered by the Rules I would accept this appeal as an appeal under s. 4 and s. 14 of the Supreme Court Act for which leave is not required.”

Their Honours were clearly of the view that the then newly introduce Supreme Court Rules would resolve the issue and that their decision would not be applicable in the future.

In Jeffrey Balakau v Ombudsman Commission of Papua New Guinea and Public Prosecutor

[1996] PNGLR 346 per Amet CJ Kapi DCJ and Los J.

2 the Appellant appealed against the refusal of the National Court to grant leave, in accordance with the provisions O. 16 r. 3 of the National Court Rules, to apply for judicial review of the decision of the Ombudsman Commission, to refer allegations of misconduct in office by him to the Public Prosecutor. The matter came before the Supreme Court on an Objection to Competency one of the grounds of which was that “the Appellant did not...