Papua New Guinea Law Society v David Rickey Cooper
Jurisdiction | Papua New Guinea |
Judge | Manuhu, Yagi, Sawong, JJ |
Judgment Date | 30 November 2016 |
Citation | (2016) SC1553 |
Court | Supreme Court |
Year | 2016 |
Judgement Number | SC1553 |
Full : SCA NO. 102 OF 2016; Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553
Supreme Court: Manuhu, Yagi, Sawong, JJ
Judgment Delivered: 30 November 2016
SC1553
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 102 OF 2016
BETWEEN:
PAPUA NEW GUINEA LAW SOCIETY
Appellant
AND:
DAVID RICKEY COOPER
Respondent
Waigani: Manuhu, Yagi, Sawong, JJ.
2016: October, 29 & November, 30.
PRACTICE AND PROCEDURE – Competency – Conduct of appellant post-judgment – Estoppel, waiver and contract – Relevant principles.
Cases cited:
Marape v O’Neill (2016) SC 1486,
Neville v NEC & Ors [2015] PNGSC 17.
Counsel:
T. Griffiths, for the Appellant
The Respondent, In Person
30th November, 2016
1. BY THE COURT: This is the ruling on the Respondent’s objection to the competency of the appeal. The appeal is against the decision by Kariko J where the Appellant was ordered to issue an Unrestricted Practising Certificate for 2016 to the Respondent.
2. The grounds pleaded by the Respondent in the notice of objection to competency are:
· The parties have agreed by their conduct on and after 27 May 2016 that the Appellant would not appeal the judgment,
· The Appellant is stopped by its conduct on 27 May 2016 from appealing the judgment,
· The Appellant has waived or abandoned its right to appeal the decision of Kariko J.
3. The relevant factual basis in support of the said grounds are that after the pronouncement of the decision on 27 May 2016, the Appellant forwarded a tax invoice in the sum of K8,018 to the Respondent’s lawyers for his practising certificate fee. The fee was paid on 1 June 2016. On the same date, a practising certificate no 1098 was issued by the Appellant to the Respondent for period 27 May 2016 to 31 December 2016. The Appellant did not file a notice of appeal within 40 days, but was granted extension of time and eventually filed its appeal and application for stay of decision of Kariko J on 4 August 2016. The application for stay has not been moved.
4. We note and appreciate the arguments by both parties. There is no controversy about the principles of estoppels, waiver and contract in England, New Zealand, Australia and Papua New Guinea. However, before we consider the applicability of those principles, there are two procedural issues that must first be resolved. The first issue is, whether an objection to competency can be raised on the basis of those principles and the second is, whether the objection to competency is itself incompetent for failing to plead the jurisdiction of this Court.
5. The basis upon which an objection can be made against competency of appeal has been the subject of numerous previous decisions, some of which were summarised in Neville v NEC & Ors [2015] PNGSC 17, as follows:
“22. We state below some of the relevant principles which apply to an objection to competency of an appeal.
(i) An appeal may be incompetent if it does not comply with the requirements of the Supreme Court Act and or the SCR: Chris Haiveta v Paias Wingti & Others (1994) PNGLR 189.
(ii) A respondent who objects to the competency of an appeal or of an application for leave to appeal filed pursuant to Order 10 of the SCR can file an objection to competency of the appeal pursuant to Order 11 Rule 28 of the SCR.
(iii) The objection to competency must itself be competent, i.e., it must comply with the SCR: The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448; Patterson Lowa v Wapula Akipe [1991] PNGLR 265; PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717; Gregory Puli Manda v Yatala Limited (2005) SC795; Jeffrey Turia v Gabriel Nelson (2008) SC949, Pacific Equities & Investments Ltd v. Teup Goledu (2009) SC962.
(iv) An objection to competency of an appeal may be raised at any time before judgment at the discretion of the Court: Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC 828.
(v) A proper ground of objection to competency is one that goes to the Court's jurisdiction: Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd (1980) SC185; Jeffrey Turia v Gabriel Nelson (supra), Talibe Hegele v Tony Kila (2011) SC1124; Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221. In PNG Forest Authority v Securimax Security Pty Ltd (supra), Sakora, J held that an objection to competency must raise serious threshold issues concerning legality or viability or otherwise of a particular process.
“23. Some examples of what are considered as proper grounds of objection were identified in Jeffrey Turia v Gabriel Nelson (supra) at paragraph 7 of the judgment and these are:
(i) That the application for leave to appeal was not filed as a separate document, in cases where some of the grounds of appeal required leave and some did not: Yakham & The National v Merriam & Merriam (1997) SC533.
(ii) That the application for leave did 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 SCR: Gigmai Awal v Salamo Elema [2000] PNGLR 288; Placer (PNG) Ltd v Anthony Harold Leivers (2007) SC899.
(iii) 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.
(iv) 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 (supra).
(v) That the applicant for leave did 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) SC916.
“24. Some examples of grounds of objection that do not raise the question of jurisdiction were also identified in Jeffrey Turia v Gabriel Nelson (supra) at paragraph 9 of the judgment and these are:
(i) That the application for leave had been filed unnecessarily, i.e., 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 and The State v John Talu Tekwie (2006) SC843.
(ii) 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.
(iii) That the proposed grounds of appeal referred to in the application for leave to appeal lack merit: The State v John Talu Tekwie (supra).
“25. In Jeffrey Turia v Gabriel Nelson (supra), it was held that it is not a proper ground of objection to competency of an application for leave to appeal that the proposed grounds of appeal, amongst other things, are frivolous or vexatious.”
6. A recent Supreme Court case of Marape v O’Neill (2016) SC 1486 also held that:
“7. The wording of Order 7 Rule 15 Supreme Court Rules 2012 is clear. It...
To continue reading
Request your trial-
Alfred Kimbu v Serah Eme Pakira and Others
...of Papua New Guinea (2015) SC1431 Sylvester Kalaut v Royale Thompson (2015) SC1551 Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553 Tukuyawini Peter Philip v Manasseh Makiba (2018) SC1725 Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd (201......
-
National Superannuation Fund Limited v Yawenaik Holdings Limited also known as Yawanaik Holdings Limited and Chris Manda in his capacity as Surveyor General and Romilly Kila Pat as a delegate of the Minister of Lands and Physical Planning and Hon Benny Allan in his capacity as Minister of Lands and Physical Planning and Hon Powes Parkop in his capacity as Chairman and other Members of the National Capital District Commission Physical Planning Board and Benjamin Samson in his capacity as Registrar of Titles and the Independent State of Papua New Guinea and Sanamo Group Limited and Keith Lahui, Chairman & other Members of the Papua New Guinea Land Board and Delta Corporation Limited and Allan Baniyamai and Barrick Somi Temeri (2018) SC1709
...Equities & Investments Ltd v. Goledu (2009) SC962; Nandali v. Curtain Bros Ltd (2012) SC1483 and Papua New Guinea Law Society v. Cooper (2016) SC1553. 7. As the objections to competency do not cite the correct jurisdictional basis for making an objection to competency, ( see Order 11 Rule 2......
-
Francis Fayana v Michael Waipo in his capacity as Commissioner for Correctional Services and Others
...Limited (2017) SC1642 Palaso v Elliott (2020) SC2030 Nandali v Curtain Brothers Ltd (2012) SC1483 Papua New Guinea Law Society v Cooper (2016) SC1553 Kore v Lapa (2021) SC2103 Legislation: Supreme Court Rules 2012 (as amended) Counsel: Mr. L. Giyomwanauri, for the Appellant Mr. K. Kipongi, ......
-
SCM 3 of 2018; National Superannuation Fund Limited (Appellant) v Yawenaik Holdings Limited also known as Yawanaik Holdings Limited (First Respondent) and:Chris Manda in his capacity as Surveyor General (Second Respondent) and Romilly Kila Pat as a delegate of the Minister of Lands and Physical Planning (Third Respondent) and Hon. Benny Allan in his capacity as Minister of Lands and Physical Planning (Fourth Respondent) and Hon. Powes Parkop in his capacity as Chairman and other Members of the National Capital District Commission Physical Planning Board (Fifth Respondent) and Benjamin Samson in his capacity as Registrar of Titles (Sixth Respondent) and the Independent State of Papua New Guinea (Seventh Respondent) and Sanamo Group Limited (Eighth Respondent) and Keith Lahui, Chairman & other Members of the Papua New Guinea Land Board (Ninth Respondent) and Delta Corporation Limited (Tenth Respondent) AND ALLAN BANIYAMI (Eleventh Respondent) and Barrick Somi Temeri (Twelfth Respondent)(2019) SC1759
...Nandali v. Curtain Bros Ltd (2012) SC1483 Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412 Papua New Guinea Law Society v. Cooper (2016) SC1553 Counsel: Mr. I.R. Molloy and Mr. M. Tumul, for the Appellant Mr. P. Waraniki, for the First and Eighth Respondents Mr. W. Steven, for the Secon......
-
Alfred Kimbu v Serah Eme Pakira and Others
...of Papua New Guinea (2015) SC1431 Sylvester Kalaut v Royale Thompson (2015) SC1551 Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553 Tukuyawini Peter Philip v Manasseh Makiba (2018) SC1725 Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd (201......
-
National Superannuation Fund Limited v Yawenaik Holdings Limited also known as Yawanaik Holdings Limited and Chris Manda in his capacity as Surveyor General and Romilly Kila Pat as a delegate of the Minister of Lands and Physical Planning and Hon Benny Allan in his capacity as Minister of Lands and Physical Planning and Hon Powes Parkop in his capacity as Chairman and other Members of the National Capital District Commission Physical Planning Board and Benjamin Samson in his capacity as Registrar of Titles and the Independent State of Papua New Guinea and Sanamo Group Limited and Keith Lahui, Chairman & other Members of the Papua New Guinea Land Board and Delta Corporation Limited and Allan Baniyamai and Barrick Somi Temeri (2018) SC1709
...Equities & Investments Ltd v. Goledu (2009) SC962; Nandali v. Curtain Bros Ltd (2012) SC1483 and Papua New Guinea Law Society v. Cooper (2016) SC1553. 7. As the objections to competency do not cite the correct jurisdictional basis for making an objection to competency, ( see Order 11 Rule 2......
-
Kinoka Feo v Benjamin Samson and Others
...(2014) SC1392, Neville v National Executive Council of Papua New Guinea (2015) SC1431 at [22], Papua New Guinea Law Society v Cooper (2016) SC1553 at [5], Nipo Investment Limited vs Nambawan Super Limited (2017) 43. In Nipo Investment Limited v Nambawan Super Limited (2017) SC 1642 at [9], ......
-
Francis Fayana v Michael Waipo in his capacity as Commissioner for Correctional Services and Others
...Limited (2017) SC1642 Palaso v Elliott (2020) SC2030 Nandali v Curtain Brothers Ltd (2012) SC1483 Papua New Guinea Law Society v Cooper (2016) SC1553 Kore v Lapa (2021) SC2103 Legislation: Supreme Court Rules 2012 (as amended) Counsel: Mr. L. Giyomwanauri, for the Appellant Mr. K. Kipongi, ......