SC659

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No. 16 OF 2000

BETWEEN:

FELIX BAKANI
(General Secretary, Oil Palm Industry Corporation)
1st Appellant

AND:

OIL PALM INDUSTRY CORPORATION BOARD
2nd Appellant

AND:

RODNEY DAIPO
Respondent

WAIGANI: GAVARA-NANU, J
2001: JANUARY 2, 4, 5, 9.

PRACTICE AND PROCEDURE - Appeal – Supreme Court Appeal by Notice of Motion pursuant to O 10 rr1-3 of the Supreme Court Rules – Section 17 of the Supreme Court Act – Application for extension of time – Notice of Motion filed within time but without annexures –Whether ‘notice’ of appeal given - O 7 r10 of the Supreme Court Rules – Calculation of the 40 day period – "After the date of the judgement in question" - Meaning thereof – Locus standi – Power of Court – Merits of the appeal – In the interest of ‘justice’ - Meaning thereof.

Cases Cited:
Wood v. Watking (PNG) Pty Ltd [1986] PNGLR 88
The State v. Colbert [1988] PNGLR 138
New Zealand Insurance Company Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522
Jeffery Balakau v. Ombudsman Commission of PNG and The Public Prosecutor [1996] PNGLR 346
Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112
Avia Aihi v. The State [1981] PNGLR 81
Damane v. The State (Unreported SC 412)

Counsel:
R. Bradshaw for the Appellants/Applicants
R. Uware for the Respondent

GAVARA-NANU, J:	This application is made before me, pursuant to Section 10(1) of the Supreme Court Act (‘the Act’ hereon). The application is for extension of time to annex documents required under O 10 rule 3(b) of the Supreme Court Rules (‘the Rules’ hereon) to the Notice of Motion which constitutes the appellants’ Notice of Appeal pursuant to O 10 of the Rules, which was filed on 27th December 2000.

Section 17 of the Act regulates the time within which a notice of appeal to the Supreme Court, must be lodged. This Section is headed: ‘Time for Appealing under Division 2’, and provides:-

"Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal as the case may be, in the manner prescribed by the Rules of Court within 40 days, after the date of the judgement in question, or within such further period as is allowed by a judge on application made to him within that period of 40 days".

O 10 of the Rules is headed: "Appeal from orders made under Orders 16 and 17 of the National Court Rules". The sub heading is: ‘Division 1 – Institution of appeal’, O 10 rr 1 – 3 provide:-

1.	An appeal under this Part shall be instituted by a notice of motion.

2.	The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.

3.	The notice of motion shall –

(a)	show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8:

(b)	have annexed –

(i)	copies of all documents which were before the Judge of the National Court appealed from;

(ii)	a copy of the order made, certified by the Judge’s Associate or the Registrar;

(c)	be in accordance with form 15;

(d)	be signed by the appellant or his lawyer; and

(e)	be filed in the registry.

O 7 r 10 provides that the notice of appeal is deemed to have been given as required by Section 17 of the Act, when it is filed within the 40 day period from the date of the judgement in question, and is in the manner prescribed by the Rules.

O 7 r 10 is under the sub heading: ‘Division 4 – Filing and serving notice of appeal’, and provides:-

Upon filing the notice of appeal, the appellant for the purposes of Sections 17 and 29 of the Act shall be deemed to have given notice of appeal in the prescribed manner.

The appellants’ notice of appeal is by way of notice of motion pursuant to O 10 of the Rules because the appeal is from an order made under O 16 of the National Court Rules.

The order of the National Court was made on 17th November 2000, in favour of the respondent.

The 40 day period allowed by Section 17 of the Act for the appellants to lodge their appeal expired on 27th December 2000.

The lawyer for the appellants submitted that the last day of the 40 day period was 28th December 2000, because the period ran from 18th November 2000, which was the day ‘after’ the date of the judgement. He argued that calculation of the 40 day period in that sense is consistent with Section 17 of the Act because the notice of appeal or the application for leave to appeal as the case may be has to be given ‘after’ the date of the judgement in question. He further argued that, if the actual date of the judgement was meant to be included when calculating the 40 day period, Section 17 of the Act should say ‘from’ and not ‘after’ the date of the judgement in question. This argument is obviously misconceived. It suffices to say that this court has in a number of cases said that the 40 day period includes the actual date when the judgement was given. See Wood v. Watking (PNG) Pty Ltd [1986] PNGLR 88; The State v. Colbert [1988] PNGLR 138; and New Zealand Insurance Company Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522.

In Wood –v- Watking (supra), the court said, at p.89; "We consider that the phrase in Section 17 of the Act "within 40 days after the date of judgement" is not dependent on O12 r 3 for its interpretation. It simply means 40 days from the date the judgement was pronounced and, on the facts of this case, judgement was pronounced on liability and damages on 28th November, 1985" (my underlining). So the Court said, the 40 day period started to run from the date the judgement was given.

In The State –v- Colbert (supra), the judgement was given on 28th October 1987, the appellant tried to file the notice of appeal on 8th December 1988, but the Registrar rejected it as being out of time. Kapi DCJ, at p.139 said, "The time allowed for appeal to the Supreme Court under the Supreme Court Act, (Ch. No.37) expired on 7th December 1987". His Honour went on to say in the same page, "That application (for extension of time) came before the Supreme Court on 21st March 1988. Of course, the Supreme Court dismissed the application as the Supreme Court has no discretion to extend time for applications which are made outside the 40 day time limit". In that case, the appellant was late by one day to lodge its appeal.

In New Zealand Insurance Company Ltd –v- Chief Collector of Taxes (supra), at p.523, Bredmeyer, J said "….On 25th November 1988, Woods J delivered a written judgement against the applicant company. Under Section 17 of the Supreme Court Act, (Ch.No. 37), a person who desires to appeal must do so within 40 days after the date of the judgement in question, or within such further period as is allowed by a judge on application made to him within that period of 40 days. The 40 day period expired on 4th January 1989. The applicant company thought that the time did not run during the court vacation. That is a mistake on his part because the appeal period is fixed by statute, by Section 17 of the Supreme Court Act which I have quoted and not by the National Court Rules". Again, the Court held that the 40 day period under Section 17 of the Act started to run from the date of the judgement.

So whether it is to lodge an appeal or to apply for extension of time to lodge the appeal, it must be made within 40 days, from the date of the judgement.

In this case, the notice of motion having been lodged on the last day of the 40 day period, was lodged within time but without the annexures prescribed by O 10 r 3(b). This omission or error is fundamental.

The appeals under O 10 r 3 of the Rules are different from the other appeals prescribed by Divisions 1 and 3 of the Act, in that there is a further requirement under O 10 r 3(b), that apart from showing the appropriate particulars set out in O 7 r 8 as in other appeals, the notice of motion must have annexed to it all the documents which were before the trial judge and a copy of the order made, certified by the Judge’s Associate or the Registrar. The appellants have not complied with that requirement.

This application therefore seeks extension of time so that the appellants can comply with O 10 r 3(b).

The application itself was not made until 2nd January 2001. That is the day when the hearing of the application commenced before me. The application is therefore out of time.

Counsel for the appellants said, that he tried to make the application on 28th December 2000, but could not because a number of judges contacted could not hear it. I am the vacation judge but this matter was not brought to my attention until 2nd January 2001, that is the same day when it came before me in Court. In any case, 28th December 2000 was outside the 40 day period, so had the application been made on that date, it would have been still out of time.

I have been urged by the counsel for the appellants to grant the extension sought in the interest of justice because the notice of motion was filed within time, but for the annexures prescribed by O 10 r 3(b). In exercising my discretion whether to grant the extension or not, I must be guided by proper principles. In other words, I must exercise my discretion properly. To grant the extension sought by the appellants would offend against Section 17 of the Act and O 10 r 3(b) of the Rules as I discussed earlier and it would not be in the interest of justice. To exercise of my discretionary that way would not be proper and judicial. Justice is to be according to law. See Avia Aihi –v- The State [1981] PNGLR 81 at p.107. There, his Honour, Kapi J (as he then was) was discussing ‘justice’ in the context of Section 155(4) of the Constitution. His Honour said, "…."Justice" under this provision means justice according to law". Here, the term is used in a different context, but the principle stated by his Honour, is relevant in the circumstances of this case and I respectfully adopt it. The 40 day period still runs during court vacation because it is fixed by the statue, by Section 17 of the Act, see New Zealand Insurance Company Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522 at p.523.

An application for extension of time must likewise be made within the 40 day period. This is clear from the second leg of Section 17 of the Act which says: "….or within such further period as is allowed by a judge on application made to him within that period of 40 days". (my underlining). The appellants’ application is out of time and they have lost their right to come to this court to invoke Section 17 of the Act. The court therefore does not have the jurisdiction to grant the orders they are seeking. See Avia Aihi (supra), see also The State –v- Colbert (supra) at p.139.

The requirements under Section 17 of the Act and O 10 r 3(b) of the Rules are mandatory by virtue of the word "shall" in those provisions.

The notice of motion not being in the manner prescribed by O 10 r 3 as required by Section 17 of the Act, is in breach of those provisions.

For the appellants to give ‘notice’ of their appeal or application for extension of time as required by Section 17 of the Act, they had to file the appeal or the application within the 40 day period in the manner prescribed by the Rules. Order 7 r 10 gives effect to this. This was not done by the appellants, therefore, in law, no ‘notice’ of appeal was given by the appellants. See Jeffery Balakau v. Ombudsman Commission of PNG and The Public Prosecutor [1996] PNGLR 346, at p.353, where the Court in discussing this point said, "It seems to us that r 10 (O 7 r 10) is stating that the physical act of filing the notice of appeal is sufficient to comply with the requirement under Section 17 of the Act for giving of notice of appeal, for the purposes of compliance with the time limited for filing of appeal under Section 17".

The failure by the appellants to comply with the mandatory requirements of Section 17 and O 10 r 3 puts an end to the appellants’ application because they have lost their right to appeal and to apply for extension of time. In Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112, Supreme Court in adopting the observations made by Kapi DCJ in Damane –v- The State (Unreported SC 412 – 5th August 1991) at page 116, noted: "….Where an appellant fails to appeal within time, either personally or through his lawyer, that is the end of the matter as far as the Act and the Rules are concerned". See also Avia Aihi (supra), where Kapi, J (as he then was), at p.106, said "….The right which may be enforced under this provision is the right of appeal according to law. According to law and in this case, according to the Supreme Court Act, S.27, a person has a right to appeal or make an application for leave to appeal within forty days. According to the Supreme Court Act, a person may only have the right to extend time within the forty day period. However, when the forty day limit period has expired and the person convicted has not invoked that right, that person loses the right to come before the court". There, the Supreme Court was considering S.27 of the then Supreme Court Act, which is equivalent to Section 29 of the current Act, which regulated the Criminal Appeals. Although that section dealt with criminal appeals, the principal enunciated there, as to the right of an appellant to appeal or to apply for extension of time or the loss of it, is applicable and relevant to this case, I therefore respectfully adopt it.

The delay or the lateness by the appellants in filing their notice of motion in accordance with O 10 r 3(b) and Section 17 of the Act, cannot be excused. According to the lawyer for the appellants, his firm received instructions from the appellants for an opinion and the firm had advised the appellants on their case, well before the 40 day period expired. The appellants’ lawyer also had in his possession at least seven (7) documents, which were before the trial judge including the decision of the court well before the 40 day period expired. This is deposed in paragraph 5 of his affidavit. There is also evidence from his affidavit that the appellants instructed their lawyers on 19th December 2000, to lodge the appeal. There was more than ample time between 19th and 27th December 2000 for the appellants lawyers to prepare the notice of motion with appropriate annexures in compliance with O 10 r 3(b). It was submitted for the appellants that enquiries were made at the National Court Registry counter for the file on this matter before 28th December 2000 but the file could not be located. The file was finally given to their lawyer on 28th December 2000.

Nelly Lindsay, who is the secretary to the trial judge, deposed in her affidavit that the file was all the time in the office of the judge’s Associate and herself. It was only released to the appellants’ lawyer on 28th December 2000 upon his request. I am sure, had they received the request earlier, the file would have been released to him before 28th December 2000.

It was also submitted that the enquiries for the file were made only with the Registry clerks because O 2 rr 6, 10 and 15 of the National Court Rules provide that the files are to be kept at the Registry and not in the judges’ associates’ offices. The O 2 rr 6, 10 and 15 are general provisions which merely describe the official place where the court files are to be filed, processed and kept, and it is only common sense for lawyers to appreciate that files are distributed to judges every now and then when they are working on them and the judges keep the files until they finish with them. There is nothing stopping lawyers from enquiring with associates or secretaries to the judges who have or might have the files, if cases are pressing and urgent for their clients. Lawyers only do injustice to their clients when they do not make diligent searches for files, as was the case here. When clients instruct lawyers to institute proceedings on their behalf and the lawyers accept such instructions, it is incumbent on those lawyers to act diligently and institute proceedings for their clients in accordance with the Rules of the Courts. I do not find the argument by the appellants’ lawyer that the notice of motion could not be filed in accordance with the Rules because the Registry clerks could not find the file, at all convincing.

As to the argument by the appellants that their appeal has merit and therefore I should grant extension of time, my view in the circumstances of this case is that once the appellants lost their right to appeal or to apply for extension of time, that is the end of the matter. However, since the appellants raised it, I have this to say; the fact that the respondent was charged under a law which had already been repealed is in my view fatal to them. This error is fundamental which was brought to their notice by the Public Services Commission when the Commission investigated this matter before the matter was tried in the National Court, however they chose to ignore that advise. They were also advised by Mr Liosi who represented them in the National Court of this fundamental error before the trial of the case. Mr Liosi advised that the error would affect their chances of succeeding. I appreciate that the opinion provided to them by their current lawyers differs from that given by the Public Services Commission and Mr Liosi. However, the trial judge also found that the error was fundamental and found in favour of the respondent. The text of the advises given to the appellants by the Public Services Commission and Mr Liosi are both contained in Annexure ‘A’ to the respondent’s affidavit sworn on 2nd January 2001. As I said, the error is fundamental to the appellants’ appeal.

For these reasons the appellants’ application is dismissed.
____________________________________________________________
Lawyer for the Appellant	:	Blake Dawson Waldron
Lawyer for the Respondents	:	Public Solicitor