SC699

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 16 of 2001

BETWEEN:

FELIX BAKANI &
OIL PALM INDUSTRY CORPORATION BOARD
- Appellant –

AND:

RODNEY DAIPO
- Respondent –

Waigani: Kapi Deputy CJ., Injia & Davani JJ.
2002: April 25, 28 October

Supreme Court – Appeal – Power to extend time to appeal – Application made to full Court upon refusal of similar application before single Judge of the Supreme Court – Whether application to the full Court under S.10(2) should be made within the 40 days time limit prescribed by S.17.

Counsel:
R. Bradshaw for the Appellant
R. Uware for the Respondent

28 OCTOBER, 2002

BY THE COURT: This is an application by the appellant for extension of time to appeal under S.17 of the Supreme Court Act (hereinafter referred to as the "Act"). It is made to the full bench of the Supreme Court under S.10(2) of the Act following the refusal of a similar application made before a single judge of the Supreme Court pursuant to S.10(1) of the Act.

The background facts of the application briefly are these. On 17 November, 2000, the National Court granted the respondent’s application for judicial review of his dismissal by the appellant, which was filed under Order 16 of the National Court Rules. Consequently, the Court ordered his re-instatement to his former position without any loss of salary and other entitlements.

On 27 December, 2000 the appellant lodged an appeal against the said decision. The appeal was instituted by way of Notice of Motion under Order 10 of the Supreme Court Rules (hereinafter referred to as "Rules"). The Notice of Motion however did not annex the documents specified in Order 10 r3(b) namely, copies of the documents filed before the National Court and a certified copy of the National Court Order, because by the time the Notice of Motion was filed, the appellant had some difficulty in obtaining them. And so on 27 December 2000 the appellant also filed an application under S.17 of the Act seeking extension of time of 14 days to enable the applicant to comply with the requirement of Order 10 Rule 3(b). Between 2 – 5 January 2001, Justice Gavara-Nanu, sitting as a single judge of the Supreme Court, dealt with the application for extension of time. On 9 January 2001, His Honour dismissed the application because the application was filed outside the 40 days time limit prescribed by S.17 of the Act.

On 24/01/01, the applicant filed the present application for extension of time under S.10(2) of the Act. This application was argued before us and this decision relates to it. On 1 February, 2001, the applicant also filed an application for judicial review of the same decision under S.155(2)(b) of the Constitution but this application was not argued before us.

The argument advanced by the parties and the issues raised in this application involve the interpretation of S.10 and S.17 of the Act and Order 10 rule (3) of the Rules. It is convenient to set out these provisions in full at the outset.

Section 17 of the Act provides:-

"Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of 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."

Section 10 of the Act provides:-

"Powers that may be exercised by Judge.

(1)	Any power of the Supreme Court under this or any other Act—

(a)	to give leave to appeal; or
(b)	to extend the time within which notice of appeal or of an application for leave to appeal may be given; or
(c)	to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2)	Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court."

Order 10 r1 – 3 of the Rules provide:-

"Order 10 – APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES.

Division 1 – Institution of Appeal.

"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; and
(b)	have annexed—
(i)	copies of all documents which were before the Judge of the National Court appealed from; and
(ii)	a copy of the order made, certified by the Judge’s Associate or the Registrar; and
(c)	be in accordance with from 15; and
(d)	be signed by the appellant or his lawyer; and
(e)	be filed in the registry."

It is not contended by the applicant that the procedure to be followed in instituting an appeal under S.17 of the Act, against a decision of the National Court made under Order 16 of the National Court Rules, is prescribed by Order 10 of the Rules. It is also not contended that the procedural requirements prescribed in Order 10(1) – (3) of the Rules are in mandatory terms and that an appellant must comply with all the requirements of rules (1), (2) and (3) in order to institute a valid appeal. It is on this basis that the appellant in this case after filing a notice of motion per se under Order 10 r (1) sought an extension of time to comply with the requirements of O 10 r 3 before Justice Gavara-Nanu. The appellant made some arguments before us as to whether the Notice of Motion per se was filed within time, that is, within 40 days "after the date of the judgment" of the National Court. We agree with Mr. Bradshaw that the Notice of Motion per se was filed within time in that it was filed on the 40th day. We accept his submission that time commences to run on the day after the date of the decision and not on the day on which the judgment is delivered. That is the ordinary meaning of the words "within 40 days after the date of the judgment in question." (our emphasis).

It is accepted by both parties, and quite rightly so, that an application for extension of time to appeal under S.17 may be made before a single judge of the Supreme Court. This is clear from the reference to a "Judge" as opposed to "the Supreme Court" in S.17 and S.10. It is not contended by both parties that an application for extension of time to appeal made before the full bench of the Supreme Court under S.10(2) following refusal of a similar application under S.10(1) is a fresh application which the full Court considers and determines de novo. That is the correct interpretation of S.10(2). In other words, the full Court does not sit to review the decision of the single judge but to determine the application afresh without any reference to the decision of the single judge. The procedure is similar to a situation where a single judge of the Supreme Court refuses leave to appeal or refuses to grant an application for bail and the applicant is entitled to make a fresh application before the full bench of the Supreme Court.

Proceeding on the basis that the application for extension of time before us is a fresh application made under S.10(2), questions as to whether the application made before Gavara-Nanu, J. were made within time and whether His Honour’s discretion under S.17 was wrongly exercised do not arise for consideration before us. The proper issue before us is whether the present application is made "within time" and if so, whether the discretion ought to be exercised in favour of the appellant. Section 10(2) does not stipulate a time limit within which an application under S.10(2) is to be made. If the time limit in S.17 were to apply, then this present application is well outside the 40 days. If the time limit in S.17 were not applicable to an application made under S.10(2) and there was a vacuum, the question then arises as to whether S.12 of the Interpretation Act applies, and if so, whether the present application was made "within reasonable time". If we find that the present application was made within time, then we will go on to consider whether the extension sought should be granted. If we find that the application was made out of time, then that is the end of the matter because the Court has no power to extend time for an application which is made out of time.

Counsel for the applicant Mr. Bradshaw submits that an application for extension of time under S.10(2) is different from an application for extension of time under S.17. In an application under S.17, it is clear from the mandatory wording in S.17 that an application for extension of time has to be made within 40 days of the decision sought to be appealed from and that this application is clearly out of time. But he submits the use of the word "Judge" in S.17 refers to a single judge of the Supreme Court, and not a full bench as indicated by the use of the "Supreme Court". To the extent that the word "Judge" is used in S.10(1), when read with 17, the time limit in S.17 applies to a single judge who deals with the application for extension of time, but where an application is made to the full Court of the Supreme Court under S.10(2), then the time limit under Section 17 does not apply. In the absence of any time limit in S.10(2), Section 12 of the Interpretation Act applies to an application under S.10(2). He submits that the various affidavits filed in support of the present application shows that it was filed promptly within reasonable time soon after the decision of Justice Justice Gavara-Nanu, that good explanation given as to why the appellant was unable to obtain copies of the documents to annex to the Notice of Motion and that the appellant’s grounds have merit. He submits that in these circumstances, this Court should exercise its discretion in its favour and grant the extension sought.

Counsel for the respondent, Mr. Uware submits S.10 is a special provision which must be read subject to S.17 and the time limit in S.17 is in mandatory terms and it also applies to an application made under S.10(1) and (2). The appellant having filed the present application out of time, is clearly incompetent and therefore, it ought to be struck out or dismissed.

It seems to us that parties have misunderstood the relationship between S.10 and S.17. Section 10 does not confer the powers enumerated in S.10(1) a-(c). Those powers enumerated in S.10(1)(a) – (c) are given under other provisions of the Act. This is made clear in the opening sentence of S.10(1) which says "Any power of the Supreme Court under this Act" relating to (a), (b), or (c). The power to extend the time limit to institute an appeal (or leave to appeal as the case may be) is provided by S.17. Section 10 prescribes the procedure for the exercise of those powers enumerated in s.17 by a single judge of the Supreme Court or a full bench of the Supreme Court where the single judge refuses the application, and nothing more. Therefore, S.10 must be read, subject to or together with S.17. Upon reading S.10 and S.17 together, an application for extension of time to appeal made under both S.10(1) before a single judge of the Supreme Court and under S.10(2) before the full bench of the Supreme Court must be made within the same 40 days prescribed by S.17. We do not consider that a time limit vacuum exists in S.10(2) which can be remedied by importing S.12 of the Interpretation Act.

A person who is aggrieved by a decision of the National Court who intends to appeal against that decision must act promptly in pursuing and preserving his appeal rights. If he anticipates practical difficulties in complying with any one or all of the mandatory procedural requirements of Order 10 r 3 within 40 day period prescribed for filing an appeal, then he must make an application before the Supreme Court, either before a single judge or before the full bench, within 40 days from the date of the decision of the National Court. If he chooses to go before a single judge first, in order to preserve his right to re-apply afresh before the full bench in the event of a refusal, then he must do so promptly to give himself sufficient time so that if and when a single judge refuses the application, he will still have enough time to make a fresh application before the full bench within the same 40 day period. There are advantages and disadvantages associated with the two different options and appellants or their lawyers should do well to assess the different options and make tactical decisions which would best safeguard their appeal rights.

Unlike ordinary appeals, an appeal under Order 10 is a special category of appeal. It is an appeal from a decision of the National Court under the review jurisdiction in Order 16 of the National Court Rules. This review jurisdiction of the National Court is available to a person aggrieved by the decisions of statutory administrative or quasi-judicial tribunals. The enabling statutes often contain provisions pronouncing the finality of the decision and preclude appeals. Therefore, the procedural requirements for invoking the review jurisdiction are stringent. The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural requirements of Order 10, in particular Order 10 r 3 are also restrictive and onerous. They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant. An appellant or his lawyer who wastes time and acts on the last day or on the 11th hour does so at his own peril and has only itself to blame. Time is a priced commodity here and it is of essence. Time runs from the day after the decision is made. The clock cannot be rolled back, so to speak, to accommodate the interest of lax appellants or their lawyers.

In the present case, we are satisfied that the application before us was made well outside the 40 days prescribed by S.17. The Supreme Court has no discretionary power to extend time for an application which is made outside the same 40 days time limit prescribed by S.17. see State v. James Robert Colbert [1988] PNGLR 138 and Avia Aihi v. The State (No. 1) [1981] PNGLR 81. The application before us is therefore incompetent. All other issues raised by the applicant including the manner in which the discretion is to be exercised are therefore irrelevant. For these reasons, we dismiss the application with costs to the respondent.
________________________________________________________________
Lawyer for the Appellant		:	Blake Dawson Waldron
Lawyer for the Respondent		:	Frazer Pitpit, Public Solicitor