Respondents who object to the competency of an appeal are asking the Court to throw it out without a hearing. This case says the objection must itself be properly made.
Pacific Equities & Investments Ltd v Teup Goledu, Chairman of the Securities Commission, Melanesian Trustee Services Ltd and National Superannuation Fund Ltd [2009] PGSC 4; SC962
Supreme Court, Waigani — Davani, Cannings and Manuhu JJ, 28 April 2009. SCA 92 of 2008.
What happened
The Securities Commission directed Melanesian Trustee Services to terminate Pacific Equities as fund manager of the Pacific Balanced Fund and the Pacific Property Trust. Pacific Equities appealed to the National Court, which on 14 July 2008 dismissed the appeal for want of prosecution. Pacific Equities then appealed to the Supreme Court.
Melanesian Trustee Services, supported by the other respondents, filed a notice of objection to competency. Its single ground was that the grounds of appeal did not state the errors the primary judge had made.
What was argued
The respondents relied on the requirement in the Supreme Court Rules that a notice of appeal state the grounds briefly but specifically, and, where a judgment is said to be wrong in law, specify why. Pacific Equities said its grounds did exactly that, and that the objection itself did not identify any rule of law the notice of appeal had breached.
What the Court decided
1. The notice of objection failed to set out its jurisdictional basis and failed to state any law that the notice of appeal offended against. That rendered the notice of objection itself incompetent. It was also unsustainable on its merits, because the notice of appeal did state the errors alleged.
2. The grounds of appeal complied with the Rules.
3. The objection was dismissed.
Following Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322, the Court explained that the Rules impose three requirements on a ground of appeal. It must be stated briefly but specifically. If the complaint is that the judgment is against the evidence or its weight, the notice must specify with particularity the ground relied on to show that. If the complaint is that the judgment is wrong in law, the notice must specify with particularity the reasons why. A ground drafted only in the general words of the rule does not comply.
Did it make new law?
The Court applied earlier Supreme Court decisions, including Haiveta v Wingti (No 2) [1994] PNGLR 189 and Ipili Porgera; no National Court statement of principle was affirmed. Its contribution was to turn the pleading discipline around: the same specificity demanded of an appellant is demanded of an objector. An objection to competency is a jurisdictional challenge, and it must say which rule or section gives it life.
Why it matters
A notice of objection should name the provision the appeal is said to breach, whether Order 7 of the Supreme Court Rules, section 14 of the Supreme Court Act or section 17 on time, and then explain how. An objection that says only “the grounds are defective” risks being struck out with costs before the appeal is looked at. The objector must also be right on the facts: here the notice of appeal did state the errors alleged, so the objection failed on its merits as well.
The three requirements are a checklist for every ground. Later cases applying them, such as Lama v NDB Investments (2015) SC1423, have dismissed whole appeals where no ground survived.
What it does not decide
Pacific Equities was decided under the Supreme Court Rules 1984. The equivalent provisions are now Order 7 rules 9 and 10 of the 2012 Rules, and Order 7 Division 5 governs objections. The case does not deal with the further question, decided in Wilson v Kuburam (2016) SC1489, of what subject-matter an objection may properly raise: it must go to jurisdiction, not to the merits.
Recent cases applying it
- Landu v Hitron Ltd [2024] PGSC 14; SC2540 — the appellants relied on Pacific Equities to attack an objection for not pleading its jurisdictional basis; the Court found the basis was in fact pleaded and dismissed that complaint.
- Geru Holdings Ltd v Kruse [2022] PGSC 118; SC2318 — the three drafting requirements restated from Ipili Porgera, Pacific Equities and Lama.
- Vai v Tamaku [2022] PGSC 107; SC2304 — the Court explained that the Rules impose three requirements for drafting grounds of appeal, citing Pacific Equities.
- Rai v Imbuni [2021] PGSC 35; SC2080 — cited on an objection to competency.
Sources
- Pacific Equities & Investments Ltd v Goledu [2009] PGSC 4; SC962 (Davani, Cannings and Manuhu JJ, 28 April 2009)
- Supreme Court Rules 2012 — Order 7 rules 9, 10 and Division 5
- Supreme Court Act (Chapter 37) — ss 14, 17
- Haiveta v Wingti (No 2) [1994] PGSC 7; [1994] PNGLR 189
- Landu v Hitron Ltd [2024] PGSC 14; SC2540; Geru Holdings Ltd v Kruse [2022] PGSC 118; SC2318; Vai v Tamaku [2022] PGSC 107; SC2304; Rai v Imbuni [2021] PGSC 35; SC2080
Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322 is cited as it appears in the judgment and was not separately opened for this brief.
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