An objection to competency says the Court has no power to hear the matter, or that the document instituting it is so defective that it cannot stand. It is not a defence on the merits, and it is dealt with first.
Order 7 Rule 15
A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service upon him of the notice of appeal —
(a) file an objection in accordance with Form 9;
(b) serve a copy of the objection on the appellant.
The clock starts when the notice of appeal reaches you. Where service was late, your time starts late too.
Form 9 requires the objection to state the grounds. A general objection — “the appeal is incompetent” — gives the appellant nothing to answer and gives the Court nothing to determine.
Order 7 Rule 16
Any party may file affidavits in support of, or in opposition to, the objection.
Most objections turn on the face of the documents — the notice of appeal, the order appealed from, the dates. Affidavits matter where the point depends on facts outside the record: when the judgment was pronounced, whether an order was made by consent, whether leave was ever granted.
Order 7 Rule 17
(1) The objection shall be heard and determined before the substantive matter is set down for hearing.
(2) A Judge may in a special case decide that it is in the interests of justice to set down the objection and the substantive matter together for hearing.
The point of an objection is to avoid the cost of a full appeal that the Court cannot hear. Determining it first serves that purpose. Rule 17(2) exists for the case where the competency point and the merits are so intertwined that separating them wastes rather than saves.
A common example is where the competency argument is that the judgment appealed from is interlocutory, and the answer depends on characterising the very order under appeal.
Order 7 Rule 18
The burden of establishing that the appeal or application is incompetent lies on the party making the objection.
The appellant does not have to prove the appeal is competent; the respondent has to prove it is not. A doubtful objection fails.
Order 7 Rule 19
Where notice of objection to competency has not been given and the appeal or application for leave to appeal is dismissed as being incompetent, the respondent shall not receive any costs of the appeal or of the application for leave to appeal, unless the Court or a Judge on special grounds orders otherwise.
A respondent who spots an incompetent appeal, says nothing for a year, and then succeeds in having it dismissed at the hearing gets no costs.
The Rules put a positive obligation on respondents to raise competency early. This is the enforcement mechanism, and it is a strong one — particularly in a matter where the costs of a fully prepared appeal are the only real amount in issue.
What objections are usually about
| Ground | Source |
|---|---|
| Leave was required for an interlocutory judgment and was not obtained | s 14(3)(b) |
| A ground raises a question of fact alone and no leave was obtained | s 14(1)(c) |
| The order appealed from was made by consent | s 14(2) |
| The appeal is as to costs only, and no leave was obtained | s 14(3)(c) |
| The notice was filed outside 40 days | ss 17, 29 |
| The grounds do not comply with the particularity requirement | O 7 r 10 |
| The notice does not comply with Form 8 or omits a Rule 9 requirement | O 7 r 9 |
| The sentence appealed against is one fixed by law | s 22(d) |
Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 — an application for leave to appeal an interlocutory judgment must be filed within the 40-day limit; a supplementary notice filed outside it was incompetent.
Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 — leave cannot be sought at the hearing of the appeal; the Form 8 alternative to that effect was without legal basis and must be deleted.
Striking out grounds
Where some grounds are incompetent and others are not, the usual result is that the offending grounds are struck out and the appeal proceeds on the remainder.
That is a reason for a respondent to identify precisely which grounds are attacked, and on what basis, in the Form 9 itself. It is also a reason for an appellant to draft grounds that stand independently. See incompetent grounds.
Competency and jurisdiction
Rule 19 penalises a respondent who does not object, but it does not confer jurisdiction the Court lacks. Where no appeal lies at all — a consent order, a sentence fixed by law — the Court can and does raise the point itself.
Section 11 of the Supreme Court Act also allows the Registrar to refer an appeal showing no substantial ground to the Court for summary determination.
Sources
- Supreme Court Rules 2012 — O 7 rr 9, 10, 15–19; Form 9
- Supreme Court Act (Chapter 37) — ss 11, 14, 17, 22, 29
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.