SC2148
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 77 OF 2019

BETWEEN:
DEAN TAMAN
First Appellant

AND:
PASTOR DAVID KIAK in his capacity as Secretary of the
Madang-Manus Mission of the SDA PNG Mission Church
Second Appellant

AND:
SEVENTH DAY ADVENTIST (SDA) CHURCH OF PNG UNION MISSION
Third Appellant

V

LINETH PEL SAMSON
Respondent

Waigani: Manuhu J, Anis J, Kassman J
2021: 25th August & 17th September

APPLICATION TO DISMISS – Order 11 Rule 28(b) and Order 7 Rule 48(a) of the Supreme Court Rules – reasons – failure to file substantive review application within 21 days of grant of leave and delay of 13 months – Order 5 Rule 1 and Order 7 Rule 6 – Supreme Court Rules - effect of a review that is filed outside of the mandatory period of 21 days without seeking extension of time – whether default fatal to the review – whether matter concerning competency may be raised – competency issue based on Court’s own volition – failure to file review within the time granted by the leave Court – no extension sought within the 21 days period – effect – no review appeal pending or exist –application to dismiss cannot or does not arise - review incompetent

Cases Cited:

Simon Aoae Ovu v. Aisi Loko (2016) SC1526
Digicel (PNG) Ltd v. Hon Jim Miringtoro and Ors (2019) SC1850

Counsel:

P Daime, for the Appellants
D Kints, for the Respondent

17th September, 2021

1.	BY THE COURT:	This was an application to dismiss the review by the respondent.  The application was contested and after hearing, we reserved our decision.  We give our ruling now.

BACKGROUND

2.	Liability in the substantive proceeding before the National Court has been determined, and the matter is pending assessment of damages.  The respondent sued the appellants in 2018 in proceeding WS 595 of 2018, that is, for negligence as a result of a motor vehicle accident.  The accident occurred at Balama, Bruce Jeffcoth Highway in Madang Province on 11 October 2017.  The respondent had alleged that it was due to the negligence of the driver of a vehicle that was owned by the appellants, that had caused the appellants’ vehicle to collide with and damage her vehicle, which she had operated as a PMV at the time.

3.	On 19 February 2019, the trial Court entered default judgment in favour of the respondent with a further order for damages to be assessed.  The appellants were out of time to lodge their appeal against the said decision.  On 23 October 2019, they applied for leave to review before the Supreme Court.  Leave was granted on 4 March 2020.  On 13 April 2021, the respondent filed the present application to dismiss the review (application to dismiss).  Nine days later, on 22 April 2021, the appellants filed their substantive Application to Review (review application).  

APPLICATION TO DISMISS

4.	The application to dismiss seeks 2 main relief.  The second relief was abandoned by the respondent at the hearing so we will not address that.  The remaining relief sought is as follows:

(1)	that the proceeding be dismissed for want of prosecution pursuant to Order 11 Rule 28(b) and Order 7 Rule 48(a) of the Supreme Court Rules 2012 (SCR) for failure by the Appellants to comply with Order 5 rule 1 & 4 and Order 7 rule 6 of the SCR.

COMMON GROUND

5.	The parties are at common ground on the following.  The appellants filed their review application on 22 April 2021, which was after a period of about 13 months, or 1 year, 1 month and 18 days after the grant of leave to review.  The appellants had not filed an application and had not obtained an order for extension of time before they filed the review application.

6.	The appellants also do not dispute the delay in progressing the review.  But they qualify that to say they have valid reasons.

SOURCE

7.	The jurisdictional basis of this application was not contested.  For clarity, we note that the respondent cites Order 11 Rule 28 of the Supreme Court Rules 2012 (SCR) as one of its sources.  It reads in part: 

Division 14.—Other Rules of General Application

28.  The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:
(a)	Order 7 Division 5 (Objection to competency);
(b)	Order 7 Division 19 (Time, and want of prosecution); (Underlining ours)

8.	A review that is filed under section 155(2)(b) of the Constitution, in our view, qualifies under any proceeding before the Court within the words or requirements of Order 11 Rule 28 of the SCR.  And we note that the respondent has also invoked Order 7 Rule 48(a) of the SCR, which is under Division 19 of Order 7.  It reads in part, Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may… order that the appeal be dismissed for want of prosecution.

9.	And Order 7 Rule 6, which falls under Division 2, reads:

6.	When leave to appeal has been granted a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such further time as the Court or Judge may allow on application filed and served within that 21 days.

PRELIMINARY ISSUE

10.	The review is premised on Order 5 Rules (1) and (4) and Order 7 Rule 6, of the SCR.  Briefly, Order 5 permits an applicant such as the appellants herein, to seek leave of the Court to review where they have not exercised their rights of appeal.  Once leave is granted, Order 5 states that the provisions of Order 7 Rule 6 (under Division 2) shall apply.  Order 7 Rule 6 states that where leave to review is granted, the applicant shall file its substantive review or Application to Review, within 21 days thereafter.

11.	So, the immediate preliminary issue that arises given the undisputed fact that the review was filed outside the 21 days from the time of grant of leave and given that no extension had been sought by the appellants before they filed what may now be regarded as their purported review application, is this.  Whether there is any substantive Application for Review pending before the Supreme Court for this matter.

12.	We have brought this query to the attention of both counsel.  Counsel for the respondent submits that the purported review application is invalid or void as it was filed outside of the 21 days as required under Order 7 Rule 6 of the SCR.  Counsel also submits the appellants had also failed to file an application seeking extension of time within which to file the review.  Counsel submits that the review application was filed outside of the 21 days without an order from the Court granting extension of time to do so.  The appellants, on the other hand, submit that their review application, although filed late, was not void and that it was valid and is properly before the Court.  Counsel submits that they had delayed in filing and serving the review application because of the fact that they had had difficulties in locating and serving court documents upon the respondent who at that time did not have lawyers acting for her.  The appellants also submit that they have since filed their review application and as such, the matter should progress to trial without delay.  They also submit that they should be permitted or be given the opportunity to apply for an extension of time to file their review application; they submit that the opportunity to do so still exists and as such, the Court should not dismiss the review at this time.

13.	We note the submissions of counsel and the cited case authorities.

14.	The closest case on point we refer to for this purpose is Simon Aoae Ovu v. Aisi Loko (2016) SC1526, a decision of Higgins J sitting as a single judge of the Supreme Court.  Briefly, the appellants applied to the Supreme Court after they had failed to exercise their primary right of appeal.  They wanted to challenge a National Court consent order which the parties had agreed to in regard to assessment of damages.  The original cause of action was in contract for monies loaned by the first and second respondents to the appellants, to fund a litigation proceeding.  It was agreed that the monies would be repaid with interest.  Default judgment was entered and afterwards the parties entered into a consent order on 24 October 2014.  Details of the facts are not relevant for this purpose except to state or discuss the review process that was before the Supreme Court.  On 25 February 2016, the appellants filed an application to review under s 155(2)(b) of the Constitution.  A day later, on 26 February 2016, the appellants filed an interim or stay application.  And within the same month, on 29 February 2016, they filed their application for leave to review.  On 16 June 2016, Injia CJ (as he then was) granted leave to review and also stayed the National Court enforcement proceeding.  In so doing, His Honour also ordered that, The Applicant shall file and serve the substantive Application for Review within 7 days from today.  It was noted that the appellant failed to file their application for review as ordered by the Court either within 7 days as well as within the 21-days as required under Order 7 Rule 6 of the SCR.  His Honour stated at paragraph 58 of his decision:

58.  The position here is that an application for judicial review under s.155 (2) (b) was filed without leave and, then, an application for leave.  The latter has now lapsed leaving the original application still pending.

15.	Going back to paragraph 56, His Honour further stated:

56.  Nevertheless, it is clear that if, as is the case, the terms of the leave granted by the Chief Justice have not been complied with, the leave is no longer valid.  It was granted conditionally.  Those conditions have not been fulfilled.  That grant of leave has lapsed accordingly.  Indeed, even if the order for filing the substantive application had been silent on the time for filing it, a failure to comply with the Rules would have led to the same result.  [Underlining ours]

16.	In summarising, His Honour stated at paragraphs 61 and 64:

61.  In the first case under the 2012 rules, an application was made before Injia CJ for leave to review a number of decisions of the National Court.  Appeals had not been instituted and the right to appeal had been lost as a result.
……
64.  In this case, regrettably for the applicants, the leave granted has lapsed.  That does not preclude a further application given there has been no hearing on the merits of the application.  That is a matter for the applicants to pursue if so advised.

17.	We adopt these as the foundation of our decision to be reached.  We make these further observations.  Firstly, we note that the purpose for obtaining leave, in instances such as this where an applicant has lost his or her primary right of appeal, is to seek permission to file a substantive proceeding like Application to Review under Order 5 of the SCR.  When leave is granted, the rules require or make it mandatory for the applicant to file the substantive proceeding or an application to review, within 21 days.  At that juncture (i.e., after the grant of leave), the application for leave will have served its purpose and is regarded as complete.  With the permission at hand, the applicant must file the substantive proceeding or Application for Review within the prescribed period.  If that fails to occur, like in the present matter where the appellants have failed to file their review application within 21 days after the grant of leave, the opportunity for an applicant to assert his or her right over the matter in question lapses or ceases to exist.  We agree with what the Court said in Simon Aoae Ovu that an applicant may be at liberty to file a fresh or new leave to review application, but that it would be a separate matter for the applicant.  

18.	We note that the preliminary issue goes to the competency of the review proceeding.  We further note that no such application had been filed or is before us for consideration under its due process.  However, we note that the issue can be raised and determined by this Court on our own volition at any time before or at the time of hearing of the substantive review.  We also note that we have inherent powers to control and protect the Supreme Court’s processes against or from abuse.  In Digicel (PNG) Ltd v. Hon Jim Miringtoro and Ors (2019) SC1850, this Court stated:
4.  In the course of submissions, the competency of the appeal was raised by the State. Notwithstanding, that no objection to competency was filed and that there was no appearance on behalf of the State to oppose leave for appeal being granted, an objection to competency may be made at any time. I refer to Felix Alai v. Nakot Waina (2015) SC1615 and the cases cited therein.
5.  Further, this court has inherent power to control its own processes: Ronald Rimbao v. Don Pandan (2011 ) SC1098; Stephen Mendepo v. NHC (2011) SC 1169.

19.	We exercise our powers accordingly and, for the stated reasons in relation to the matter, find that there is no pending Application for Review that is filed in accordance with Order 5 Rule 1 and Order 7 Rule 6 of the SCR.  We find that the review application was filed outside of time and is therefore incompetent.  The review application must be dismissed for this reason.

SUMMARY

20.	In summary, we find that there is no Application for Review pending before us that requires determination.  We find the review application incompetent as having been filed outside the 21 days time period contrary to Order 7 Rule 6 of the SCR.  As there is nothing before us, we will, subject to our consequently orders, regard this as a concluded matter which shall be archived.  

COST

21.	The competency finding by the Court was based on its own volition.  We note that the respondent did not file any objection to competency application earlier as provided for under Order 11 Rule 28 and Order 7 Division 5, of the SCR.  Order 11 Rule 28(a) permits a respondent of a review matter such as this, to apply the provisions under Order 7 Division 5 if the respondent intends to object to the competency of the review.

22.	Consequently, Order 7 Rule 19 applies herein as to costs.  It states, If notice of objection is not given and the appeal or the notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the court on special grounds orders otherwise.

23.	We do not find any special grounds advanced to us by the respondent nor the existence of such a ground, where we could consider and order costs in favour of the respondent.  As such, we will order each party to bear their own costs of the review. 

ORDERS OF THE COURT:

1.	The Application for Review filed on 22 April 2021 is incompetent.

2.	The matter is remitted to the National Court to progress to trial on assessment of damages.

3.	Each party shall bear their own costs of the review.

4.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
________________________________________________________________
Peter Daime Kaii Lawyers:	Lawyer for the Appellants
Jema Lawyers:	Lawyers for the Respondent