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City Pharmacy Ltd v Lambu [2018] PGSC 84; SC1728 (31 October 2018)

SC1728

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 150 OF 2014

BETWEEN
CITY PHARMACY LIMITED
First Appellant

SONNY BUNGAY
Second Appellant

RAVI SINGH
Third Appellant

AND
DAVID LAMBU
Respondent

Waigani: Gavara-Nanu J, Frank & Neill JJ
2018: 29^th August and 31^st October

STATUTORY INTERPRETATION – PRACTICE & PROCEDURE – determining period to comply with orders

Cases Cited:

Jackson Tuwi & ors v Goodman Fielder International Ltd & ors [2016] SC1500

Legislation

National Court Rules

Counsel:

Mr H. Kevau, for the appellants
Mr D. Lambu, the respondent in person

JUDGEMENT

31 October, 2018

1. BY THE COURT: BACKGROUND: On 28 May 2014 the Respondent parked his vehicle in the car park that adjoined the shop of the First Appellant. He left his briefcase inside his vehicle. When he returned to the vehicle he saw that the vehicle had been broken into and the briefcase was gone.

2. The Respondent (as Plaintiff) filed Writ W.S. no. 764 of 2014 on 8 July 2014 claiming negligence, in summary, that the security personnel who were on duty in the car park did not prevent the thief of his briefcase. All appellants were named as defendants in the Writ. The Second Appellant and the Third Appellant were sued in their representative capacities of employment with the First Appellant and were respectively cited as defendants in that claim. For convenience, the First, Second and the Third Appellants will be generically referred to in this Judgement as appellants.

3. The appellants did not file their Notice of Intention to Defend or Defence within the times specified in the National Court Rules (NCR), and so the Respondent filed on 29 September 2014 an application for Default Judgement under Order 12 Division 3 NCR. The Respondent’s application came before Davani J on 13 October 2014 but the Court dismissed the Respondent’s application for Default Judgement. Instead, the Court directed the appellants to file their Notice of Motion seeking leave to file their documents in these terms:

“2. The Defendants have leave to file and serve an application to file its Defence out of time, which application must be filed and served within seven (7) days from today, and/or by 19 October 2014 before close of business.

3. In the event that such an application is not filed and served, the Plaintiff is at liberty to refile an application for Default Judgement”

4. The fact was that 19 October 2014 was a Sunday.

5. On 20 October 2014, the appellants filed their application for leave to file Notice of Intention to Defend and Defence out of time (application). The application was made pursuant to Order 1 Rule 15 of the NCR (that provides for extension of time fixed by the NCR), Order 12 Rule 1 (that provides for varying a judgement or order) and Order 7 Rule 6 (that provides for late filing of Notice of Intention to Defend). The application came before the same Court on 10 November 2014.

6. On 10 November 2014, the Respondent opposed the appellants’ application and the Respondent renewed his application for Default Judgement. The Court made the following orders:

“The Appellants’ Notice of Motion filed 20 17^th October 2014 seeking leave for an extension to file its Defence out of time is dismissed for being filed out of time, contrary to the Court Orders made on 13 October 2014.”

7. We note that the appellants’ application was filed on 20 October 2014 and not on 17 October 2014 as incorrectly recorded in those minutes of those orders.

8. Her Honour expressed her reasons as follows:

“...the orders were made on the 13^th which means steps should have been taken immediately and, you know, the application - at least the application and one affidavit filed well before Friday or at least on Friday if counsel knew that the 19^th fell on a Sunday.”

“...I will not hear the application, it will be dismissed because it is in breach of the court’s order of 13 October 2014. It is as simple as that.”

Law

9. Order 1 Rule 14 NCR provides as follows:

“14. Reckoning.

(1) Any period of time fixed by these Rules or by any judgement or order, or by any document in any proceedings, shall be reckoned in accordance with this Rule.

(2) Where a time of one day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event shall not be counted.

(3) Where, apart from this sub-rule, the period in question, being a period of five days or less, would include a day on which the Registry is closed, that day shall be excluded.

(4) Where the last day for doing a thing is a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open.”

10. A similar situation of calculating a time frame arose in Jackson Tuwi & ors. v. Goodman Fielder International Ltd & ors. [2016] SC1500 (David, Kariko & Murray JJ) where the National Court had calculated the last day for compliance with orders as including the day of the orders as the first day of the period for compliance. While the Supreme Court upheld the appeal on other grounds the Court held that the primary judge erred by including the day of the orders in calculating the period for compliance.

Analysis

11. The Order 1 Rule 14 NCR sets out three matters relevant to the Order made 13 October 2014 in regard to the appellants’ first leave application. The relevant part of the Order is copied as follows with emphasis:

...application must be filed and served within seven (7) days from today, and/or by 19 October 2014 before close of business

As to: “within seven (7) days from today”:

12. Order 1 Rule 14(2) NCR provides that the day of the “given day or event” shall not be counted in the time to be reckoned. Thus the calculation of the period for filing/serving the appellants’ leave application would be:

• seven days from and including 14 October 2014 but not including 13 October 2014. Thus the last day of the 7 day period would have been 20 October 2014.
  

As to: “and/or by 19 October 2014”

13. Order 1 Rule 14(3) NCR provides for excluding the day where the Registry is closed. As 19 October 2014 fell on a Sunday, the appellants were entitled to file and serve their application on Monday 20 October 2014.

As to: “before close of business”

14. As noted, 19 October 2014 was a Sunday and the Registry was closed. Though the appellant may have sought to open the Registry on that day, the appellants were entitled to rely on Order 1 Rule 14(3) NCR.
Furthermore, the Orders made on 13 October 2014 contemplated that filing would be done on a day when the Registry would be open. Plainly on Sunday the Registry would not have any “close of business” time.

As to: “7 days” - ambiguity

15. In addition to these matters, the Orders made on 13 October 2014 were ambiguous. Though the Orders provide for “7 days”, to follow the comments made by Her Honour that the appellants could have filed on the Friday i.e. 17 October 2014, that would have meant the appellants had only from Tuesday 14 to Friday 17 October 2014, namely 4 days.

16. With respect to granting leave, ordinarily, the appellants in the court below would have to adduce evidence demonstrating defence on merit. From the affidavit of Omprakash Seshadri sworn 10 October 2014 filed in the court below and from his affidavit sworn 20 November 2014 and filed in this appeal, firstly, the appellants say in defence to the Respondent’s claim in the court below, that the safety, security and risk associated with any motor vehicle or personal property brought into the car park that formed part of the premises is done by the owner at his or her own risk and that notices of this was given by sign boards installed within the premises. Secondly, that the entity which provided security at the premises is responsible for the conduct of its officers and the manner in which its security services were provided and for which the appellants are not vicariously liable.

17. Accepting that the Supreme Court has the powers of the National Court under section 6(2) of Supreme Court Act, it follows the court below erred in dismissing the appellants’ application on 10 November 2014. The orders made by the court below should be quashed, with the appellants’ application reinstated and granted.

18. The appellants should be allowed further time to file and serve their Notice of Intention to Defend and Defence. The further application by the Respondent for Default Judgement has no utility in these circumstances.

ORDERS

19. The Supreme Court orders that:

1. The Appeal is upheld.
   2. The Orders, made by the National Court on 10 November 2014 in cause W.S. no. 764 of 2014, when the National Court dismissed the application by the appellants for extension of time to file Notice of Intention to Defend and Defence, are quashed.
   3. The application filed on 20 October 2014 by appellants in that cause W.S. no.764 of 2014 for leave to extend the time for filing their Notice of Intention to Defend and Defence, is reinstated.
   4. The appellants’ application filed on 20 October 2014 in that cause is granted and is varied such that the appellants have seven (7) days, from the date of delivering this Judgement of the Supreme Court, to file and serve their Notice of Intention to Defend and Defence.
   5. The Respondent to pay the costs of the appellants on this Appeal and costs on a party and party basis on the application of the appellants in cause W.S. no. 764 of 2014, to be taxed if not agreed.
   6. In assessing the costs of the appellant, the three appellants shall be considered only as a single appellant.

________________________________________________________________
Rageau Manua & Kikira: Lawyers for the Appellants
David Lambu In person: Self-represented Respondent