Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Anis v Grand Columbia Ltd [2020] PGSC 111; SC2022 (2 November 2020)

SC2022

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 17 OF 2020 (IECMS)

BETWEEN:
ANDREW ANIS
Appellant

V

GRAND COLUMBIA LIMITED
First Respondent

AND:
FINANCE CORPORATION LIMITED
Second Respondent

AND:
ANTHONY WITHAM
Third Respondent

AND:
KIEN JOO (ANDY) KUEK
Fourth Respondent

AND:
ALOIS KINGSLEY
Fifth Respondent

AND:
JOHN KIVUNG
Sixth Respondent

Waigani: Batari J, Anis J & Tamate J
2020: 30^th October, 2^nd November

SUPREME COURT- Appeal – Objection to competency of – whether appeal filed within statutory limit – s.17 Supreme Court Act – Cross-claim – dismissal of – stet dismissing Cross-claim – date of formal orders – 40 days within which to appeal – whether 40 days runs from date of judgment or date of formal orders – appeal filed outside 40 days of judgment’s incompetent - appeal dismissed.

Cases Cited:

Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88
Lucas Dekena v Nick Kuman (2018) SC1744

Counsel:

Mr. M Philip, for the Appellant
Mr. C Joseph, for the First, Second, Third and Fourth Respondents

2^nd November, 2020

1. BY THE COURT: This is an appeal against the whole of the judgment of His Honour Justice Kariko in WS No. 871 of 2019 – Grand Columbia & Ors. v Andrew Anis delivered at Waigani dismissing the appellant’s Cross-claim in its entirety.
2. In this application, the respondents are objecting to the competency of the appeal on the contention that:
   1. The appeal was not filed within the 40 days time limit under s.17 of the Supreme Court Act;
   2. The appeal is in relation to an interlocutory judgment of the National Court for which leave was not granted under s.14(3) of the Supreme Court Act.
3. The objection is contested. This is the ruling.
4. By way of background, the respondents issued proceedings against the appellant before the primary court seeking certain declaratory orders against the appellant claiming, the appellant had held himself out as shareholder and director of the first and second respondent companies. In his defence, the appellant also filed a counterclaim against the fourth respondent that he conspired with the fifth and sixth defendants to fraudulently transfer the appellant’s shares in three (3) other companies to form the first and second respondent companies.
5. On 1 November, the respondents filed a Notice of Motion seeking summary judgments on the reliefs sought, damages to be assessed and orders to strike out the appellant’s Cross-claim.
6. After hearing the arguments by both parties, the primary Judge on 11 March 2020, dismissed the appellant’s Cross-claim in its entirety. The formal Orders of 16 March 2020 included the Order’s dismissing the appellant’s Cross-claim.

Whether the appeal is statute – barred

7. If the appeal is found to be statute – barred, it will not be necessary to determine and decide the second ground of appeal on the question of leave as the appeal will be held to be incompetent.
8. The issue of time compliance is contested on the issue of whether the decision or judgment of the Court was delivered on 11 March or 16 March 2020. What is clear on the face of the records is that the written judgment of the Court was dated 11 March 2020. On the same date, the Court handed down its decision dismissing the appellant’s counterclaim in its entirety. The court then adjourned to 16 March 2020, for the parties to assist in formulating the appropriate terms of the injunction to be made. On 16 March 2020, the primary judge heard submissions on the terms of the permanent injunctive Orders to be sanctioned and after a brief adjourned, the Court issued formal Orders in which the Orders of 11 March 2020, dismissing the applicant’s counterclaim were incorporated.
9. The appellant then purportedly filed two (2) Notices of Appeal – one via, “manual filing” on 24 April 2020, and the second via, “electronic filing” on 30 April 2020, against the dismissal of the Cross-claim.
10. The respondents’ main arguments are that the decision of the Court dismissing the appellant’s Cross-claim was made on 11 March and hence, the appeal filed on 24 April is time barred. The respondents also rely on the evidence of the electronic filing on 30 April 2020, in their objection that the appeal is time-barred. The appellant on the other hand relies on the manual filing of the Notice of Appeal on 24 April 2020 and argues that the Orders of the Court being made on 16 March 2020, means his appeal is not out of time. Conversely, though the appellant does not concede, the Notice of Appeal filed on 24 April 2020, would be statute – barred if the decision was in fact and by operation of practice and procedure made on 11 March 2020.
11. The appellant’s argument is that the computation of time in this case is different from the ordinary because the ruling on 11 March 2020, was incomplete and dependant on the parties making further submissions on the type of injunction the primary Court should make. In normal circumstances, after the decision is read out and in closing, the Court would proceed to make the formal Orders. In this case, the formal Orders were taken out on 16 March 2020, and the appellants Notice of Appeal filed on 24 April 2020 was therefore filed in compliance with s.17 of the Supreme Court Act.
12. We note from the transcript of proceedings, the trial judge made two (2) substantive decisions on 11 March 2020. The trial judge determined and decided the substantive issue of whether the matter before the primary Court was an appropriate case for the entry of summary judgment against the defendant. In that same vein the trial judge considered whether judgment on the alternative ground in relation to the relief sought in prayers 1 to 9 of the Notice of Motion should be granted.
13. The trial judge was satisfied that summary judgment was supported on the facts and materials before the Court and adjourned for further submissions on the nature of the permanent injunctions to be ordered in connection with the orders for summary judgment.
14. The second issue the trial judge ruled on was the appellant’s Cross-claim. At page 166 of the Application Book, Notice of Objection to Competency, His Honour concluded:

“The nett effect is that the defendant’s Cross-claim is untenable and is therefore frivolous and vexatious and is an abuse of the Court process. It must be dismissed.”

15. It is apparent, the judgment dismissing the appellant’s Cross-claim was made on 11 March 2020. His Honour made it clear that after he heard submissions on what permanent injunctive orders to be made, he would then finalise the orders. The reference to finalizing the orders possibly extended to the orders dismissing the appellant’s Cross-claim. But there can be no doubt the judgment dismissing the appellant’s Cross-claim was made on 11 March 2020. The orders of 16 March 2020 merely formalized the orders.
16. Section 17 of the Supreme Court Act reads:

“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.”

17. There can be no doubt, the phrase, “within 40 days after the date of the judgment in question” in respect of “the judgment” simply means within 40 days after the date of the decision and not the date of finalising or entry of the Orders.
18. In Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88, a case law which the respondents relied on, the Supreme Court considered that the phrase in s.17 of the Act, “within 40 days after the date of judgment” is not dependent on O.12 r.3 for its interpretation. We adopt the same reasoning that the phrase simply means 40 days from the date the judgment was pronounced. On the facts of the case before this Court, judgment dismissing the appellant’s Cross-claim was pronounced on 11 March 2020.
19. The same issue of time limit and computation with reference to “judgment” and “Order” was comprehensively discussed in Lucas Dekena v Nick Kuman (2018) SC 1744, by His Honour Kandakasi J (as he then was). On the question of when does a judgment or order take effect, His Honour turned to the common law principle, in Halsbery’s Laws of England and concluded:

“As noted by the learned work in Halsbury’s Laws of England, the definitions do not make a clear distinction between the two words. Instead, these words could be used interchangeable. The clarity, however, is in the distinction between a formal minute taken out based on an order or a judgment given by a court. A decision of a court can be in the form of an order or a judgement. Sometimes a judgment might contain both a judgment with the reasons for the judgment and formal orders based on a judgment as was the case in this instance. What matters is the giving of a judgment or the making of an order by a court or a judge. Hence, formal minutes or orders follow based only on a judgment or orders of a court once made or arrived at. In other words, formal minutes do not come into operation on their own but based on an order or judgment given by a Court.

The Supreme Court made this clear in the case of Wood v Watking (PNG) Pty Ltd. There, the Court had to amongst others, deal with an argument around when the time for the purposes of appeals and s.17 of the Supreme Court Act runs. The Court said:

“It simply means 40 days from the date of judgment was pronounced ...”

Since the decision in Wood v Watking, the question of when time for appeals or review against a decision of the National Court runs has become settled. Time runs from the date of the Court. Of course, the only exceptions would be cases in which an Act of Parliament expressly provides to the contrary. Recent confirmation of that position can be found in a several recent decision of the Supreme Court such as the one in Jimmy Maladina v The State and Lord & Co. Ltd v Timothy Inapero.

Based on the foregoing, I am of the firm view that the term “order” as used in o.11 r.32(1) of the SCR means the date when a judgment or order is pronounced and not when a formal minute based on a judgment or order is taken out. Hence, time for the purposes of calculating the 21 days would run from the date when the judgment was pronounced.”

20. In that case, the respondent had objected to the hearing of a slip rule application on the basis that the application was not filed within 21 days pursuant to O.11 r.32 of the Supreme Court Rules. The application was filed 22 days of the Order disposing of the proceedings. In this case, the appellant is appealing the dismissal of his Cross-claim. The judgment dismissing the Cross-claim was made on 11 March 2020. Whether the appeal was filed on 24 April or 30 April 2020, it is time-barred.
21. There is a further and crucial issue against this appeal. There is no explanation before the Court for the anomaly in the existence of two (2) Notices of Appeal bearing two (2) different dates of lodgement or filing. There is no explanation for the necessity to file electronically on 30 April 2020, when manual filing on 24 April 2020, for all intents and purposes of complying with Statutory time limitations was sufficient. There is again no evidence or Affidavit filed explaining that the manual filing of the Notice of Appeal was in fact made on 24 April 2020. On the other hand, the transmission note on the electronic Notice of Appeal was particular as to who filed the appeal, the date and exact time of transmission. That appears to be more genuine and the respondents have not had any feedback from the Supreme Court Registry regarding the anomaly.
22. The electronic filing printout shows the appeal was filed by “Philip Moses on 30 April 2020 at 11:46 am”. Unless an error is reasonably made out regarding that entry, that is concrete evidence of the date the appeal was filed. In that case, the appeal is time-barred.
    
23. Court Orders:
    • (a) The appeal is dismissed for being time-barred.
    • (b) The Appellant shall pay the First, Second, Third and Fourth Respondents’ costs of the appeal on party-party basis to be taxed if not agreed.

_____________________________________________________________
Korerua & Associates Lawyers: Lawyers for the Appellant
Ashurst Lawyers: Lawyers for the First, Second, Third and Fourth Respondents