“Incompetent” is the word the Supreme Court uses for a matter it has no power to entertain, or which is so defective that it cannot proceed. It is decided before the merits, and it ends the ground or the appeal.
Four ways a ground fails
1. It does not comply with Order 7 Rule 10. A bare allegation that the judgment is against the evidence, or wrong in law, without the particularity the rule requires.
2. Leave was required and not obtained. Either because the ground is a question of fact alone (section 14(1)(c)), or because the judgment is interlocutory and no exception applies (section 14(3)(b)).
3. No appeal lies at all. An order made by consent (section 14(2)), or a sentence fixed by law (section 22(d)).
4. The point is not open. A ground raising a matter that was never argued below, without leave to raise it.
The most common defect
It is not sufficient to allege that a judgment is against the evidence or the weight of the evidence, or that it is wrong in law. The notice must specify with particularity the grounds relied on, and the specific reasons why the judgment is alleged to be wrong in law.
A notice consisting of headings — “error of law”, “error of fact”, “against the weight of the evidence” — does not comply, however many of them there are.
Grounds stand or fall individually. An appeal with six grounds, two of which are non-compliant, does not necessarily fail as a whole — the defective grounds may be struck out and the appeal proceed on the rest.
That is a reason to draft each ground so that it can survive on its own, rather than as one long composite allegation.
Where leave was needed
Leave must be sought within the 40 days — Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 holds that an application for leave to appeal an interlocutory judgment must be filed within the 40-day limit, and that a supplementary notice filed outside it was incompetent.
And leave cannot be sought at the hearing: Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 held the Form 8 alternative to that effect was without legal basis and must be deleted, overruling Opai Kunangel v The State [1985] PNGLR 144.
By the time an objection is taken, the period will have expired. The protection is to file both documents where the position is arguable.
Raising something not argued below
In Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 the Supreme Court held that an appellant can raise an issue of law before the Supreme Court that was not raised in the trial, provided:
(1) it is set out in the notice of appeal;
(2) it does not concern a question of fact only; and
(3) the leave of the court is obtained to argue the point.
The first is the one that bites at the drafting stage: the point must appear in the notice of appeal. A new point cannot be introduced from the bar table, and it cannot be added by supplementary notice after the 40 days, because Order 7 Rule 26 bars the addition of a new ground after that period.
The position on review is stricter still. Application by Herman Joseph Leahy [2006] PGSC 21; SC855 requires, for each argument, that it was raised in the National Court.
The objection to competency
A respondent who objects shall, within 14 days after service, file an objection in accordance with Form 9 and serve a copy on the appellant. Any party may file affidavits (Rule 16).
The objection is heard and determined before the substantive matter is set down for hearing, unless a Judge decides in a special case that it is in the interests of justice to set down the matters together (Rule 17(2)).
The burden of establishing incompetency is on the party making the objection (Rule 18).
Rule 19: if notice of objection is not given and the appeal or application is dismissed as incompetent, the respondent shall not receive any costs of the appeal or application unless the Court or Judge on special grounds orders otherwise.
So a respondent who spots an incompetent appeal and waits until the hearing to say so risks winning without costs. The Rules encourage the point to be taken early. See objections to competency.
And the Registrar’s power
Where the Registrar is of the opinion that a notice of appeal, or a notice of an application for leave, does not show any substantial ground of appeal, the Registrar may refer the appeal to the Supreme Court for summary determination; and where the Court is satisfied the appeal is frivolous or vexatious and can be determined without a full hearing, it may dismiss the appeal summarily without calling on any person to attend.
The Act itself footnotes this with a reference to Constitution section 37, especially subsections (1), (5) and (15) — a reminder that summary dismissal must be read consistently with the protection of the law.
Sources
- Supreme Court Rules 2012 — O 7 rr 9, 10, 15–19, 25, 26; Form 9
- Supreme Court Act (Chapter 37) — ss 11, 14, 17, 22
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
- Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812
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.