SCA NO. 108 OF 2015; Digicel (PNG) Limited v Hon. Jim Miringtoro in his capacity as Minister for Communications and Information Technology and The Independent State of Papua New Guinea and National Information and Communications Technology Authority (2019) SC1850

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J, Hartshorn J, Polume-Kiele J
• Judgment Date: 06 September 2019
• Court: Supreme Court
• Citation: (2019) SC1850
• Year: 2019
• Judgement Number: SC1850

Full Title: SCA NO. 108 OF 2015; Digicel (PNG) Limited v Hon. Jim Miringtoro in his capacity as Minister for Communications and Information Technology and The Independent State of Papua New Guinea and National Information and Communications Technology Authority (2019) SC1850

Supreme Court: Gavara-Nanu J, Hartshorn J, Polume-Kiele J

Judgment Delivered: 6 September 2019

SC1850

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 108 OF 2015

BETWEEN:

DIGICEL (PNG) LIMITED

Appellant

AND

HON. JIM MIRINGTORO in his capacity as Minister for Communications and Information Technology

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

AND

NATIONAL INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY

Third Respondent

Waigani: Gavara-Nanu J, Hartshorn J, Polume-Kiele J

2019: 25th June & 6th September

APPEAL - Appeal against interlocutory ruling - Judicial review proceeding - Supreme Court Rules, 2012; Order 10 - Proper mode of appeal - Notice of motion- Mandatory requirement - Appeal by way of a notice of appeal - Appeal incompetent.

APPEAL - Wrong mode of appeal - No objection to competency filed - Inherent power of the Court - Appeal an abuse of process - Duty of the Court to protect its processes.

Cases Cited

Bruce Tsang v. Credit Corp. (PNG) Ltd [1993] PNGLR 112

Chief Inspector Robert Kalasim and Tongane Koglwa (2006) SC828

Christopher Haiveta, Leader of Opposition v. Pais Wingti, Prime Minister and Attorney

Don Polye v. Jimson Papaki (2002) SC637

Felix Alai v. Nakot Waina (2005) SC1615

Felix Bakani v. Rodney Daipo (2002) SC699

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

General and National Parliament [1994] PNGLR 189

Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273

Kukari v. Polye (2008) SC907

Lowa v. Akipe [1991] PNGLR 265

Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence and Ors (2013) SC 1225

NEC &Ors v. David Nelson (2004) SC766

Ronald Rimbao v. Don Pandan (2011) SC1098

Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408

Sir Arnold Amet v. Peter Charles Yama (2010) SC 1064

Stephen Mendepo v. NHC (2011) SC1169

Tamali Angoya v. Tugupu Association Incorporated (2009) SC978

Counsel

M.M. Varitimos QC with P. Tabuchi, for the Appellant

I. Mugugia, for the First and Second Respondents

No appearance, for the Third Respondent

6th September, 2019

1. GAVARA-NANU J: I have had the benefit of reading the decisions of Hartshorn J and Polume-Kiele J, and I respectfully concur fully with their Honours' reasons and conclusions and I have nothing further to add.

2. HARTSHORN J: I have had the opportunity to peruse the draft decision of Polume Kiele J. and respectfully agree with Her Honour’s conclusion concerning the competency of this appeal. I add a few paragraphs of my own.

3. This appeal is from an interlocutory decision of the National Court made in a judicial review proceeding. The judicial review proceeding had been reinstated by the Supreme Court following a successful appeal against a refusal of leave. The interlocutory decision was to refuse to refer two constitutional questions to the Supreme Court (decision appealed). Leave to appeal has been granted.

4. In the course of submissions, the competency of the appeal was raised by the State. Notwithstanding, that no objection to competency was filed and that there was no appearance on behalf of the State to oppose leave for appeal being granted, an objection to competency may be made at any time. I refer to Felix Alai v. Nakot Waina (2015) SC1615 and the cases cited therein.

5. Further, this court has inherent power to control its own processes: Ronald Rimbao v. Don Pandan (2011) SC1098; Stephen Mendepo v. NHC (2011) SC 1169.

6. In this instance, the decision appealed is an interlocutory decision made in a judicial review proceeding commenced pursuant to Order 16 National Court Rules.

7. Order 10 Rule 1(1) Supreme Court Rules, provides that, an appeal under this Order shall be instituted by a notice of motion. Here, however, this appeal was instituted by a Notice of Appeal.

8. That the procedural requirements of Order 10 Supreme Court Rules are mandatory has been consistently recognised by this Court: Felix Bakani v. Rodney Daipo (2002) SC699; Kukari v. Polye (2008) SC907; Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273 and Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408.

9. Consequently, as Order 10 Supreme Court Rules has not been complied with in the institution of this appeal, this appeal is incompetent and should be dismissed.

10. POLUME-KIELE J: Before the Court is an appeal against the interlocutory decision of the primary judge in OS (JR) No. 141 of 2015 delivered on the 13 August 2015, refusing to refer the two constitutional questions (above) to the Supreme Court pursuant to Section 18 of the Constitution. The questions are:

(i) Whether, on the proper interpretation or application of Section 59 of the Constitution, Section 130 (5) of the National Information and Communication Technology Act (NICTA Act), is unconstitutional, invalid and of no effect; and

(ii) Whether, on the proper interpretation or application of Section 59 of the Constitution a deemed decision by the Minister to accept a declaration recommendation under s 130 (5) of the NICTA Act is unconstitutional, invalid and of no effect?

11. In this present case, the appeal arose from an application moved by way of a Notice of Motion filed in pursuance of the substantive judicial review proceedings which is current for which leave has been granted on 2nd July 2015 for judicial review of the deemed decision made by the first respondent pursuant to Section 130 (5) of the NICTA Act 2009. Here, instead of the appellant pursuing the judicial review application before the National Court, the appellant is pursuing this appeal.

12. The Appeal is by way of a Notice of Appeal under Order 7 Division 3 Rule 8 of the Supreme Court Rules. However, the proceedings before the National Court were by Originating Summons pursuant to Order 16 of the National Court Rules. The appellant is seeking leave of the Court to apply for Judicial Review of a decision of the first respondent, the Minister for Communications and Information Technology made on the 27 of December 2014. However, as opposed to the grant or refusal to grant judicial review, this is an appeal against a decision arising from a judicial review proceedings and therefore the issue then arises as to whether, the principles applied in the case of Felix Bakani v Rodney Daipo (2002) SC699, Garamut Enterprises v Steamships Trading Co. Limited [1999] SC625 and NEC & Others v David Nelson (2004) SC766 are applicable to this present case?

13. In the decisions of Bakani v Daipo (supra) and Garamut v Steamships (supra) these cases affirm the principle that an appeal against a decision under Order 16 of the National Court Rules must be instituted by notice of motion pursuant to Order 10 of the Supreme Court Rules.

14. Given these circumstances, the question asked here is, whether the appeal filed is in compliance with the requirements of Order 10 Rule 1 (1) (a) of the Supreme Court Rules and Order 16 Rule 11 of the National Court Rules?

15. I note that leave to appeal was granted on the 15 of September 2015.

Competency of Appeal

16. In determining the appeal, I consider that there is only one matter for determination and this relates to the competency of the appeal; which may determine this appeal noting that Ms Mugugia for the first and second respondents did not raise any objections on the competency of the appeal.

17. With regard to the competency of the appeal, this Court has the power to properly consider matters before it, and in this regard, the Court should be able to determine competency issues even if not raised by the respondents. The exercise of this Courts authority can be by its own motion (see Tamali Angoya (supra) as applied in this present appeal. Furthermore, an objection may be raised at any time, before judgment, at the discretion of the Court (Stephen Mendepo v NHC (2011) SC1169 and Chief Inspector Robert Kalasim and Tongane Koglwa (2006) SC828. In addition, in Bruce Tsang v. Credit Corp (PNG) Ltd [1993] PNGLR 112, the Court held that it can raise an issue of competency at any time until judgment.

18. Further, the Court also has an inherent power to control its own processes (Ronald Rimbao v. Don Pandan (2011) SC1098) and confirmed its authority where it determined that there is an abuse of process (Tamali Angoya vs. Tugupu Association Incorporated (2009) SC978). In the decision of Don Polye v. Jimson Papaki Sauk (2002) SC637the Court said:

“The Court always has had authority and of course jurisdiction to ensure the integrity of its’ process”.

19. The exercise of this Courts authority can be, by its own motion (see Tamali Angoya (supra) and an objection may be raised at any time, before judgment, at the discretion of the...