SC2218

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 1 OF 2022

BETWEEN:
PNG POWER LIMIED
Appellant

AND
PARATHY SARARTHY
Respondent

Waigani: Logan J
2022: 4th March

PRACTICE & PROCEDURE – appeals – time to bring application to extend the time to give notice of appeal – where application filed but not heard within 40 days of date of the decision the subject of appeal – application dismissed 

Facts:

The applicant, PNG Power Limited (PNG Power), was aggrieved by orders made by the National Court. Those orders were pronounced and the learned primary judge provided a summary of the reasons for making those orders on 24 December 2021. The learned primary judge’s full reasons were made available to the parties on 21 January 2022. 

Section 17 of the Supreme Court Act 1975 requires an appeal or an application for leave to appeal to be filed within 40 days of the date of the judgment in question. Any application to extend this time must also be filed within 40 days. The 40-day period in the present circumstances expired on 2 February 2022. PNG Power filed an application for an extension of time within which to lodge an appeal. However, that application was not heard until after the 40-day period had expired. 

Held:

1.	An application to extend the time within which to appeal or to apply for leave to appeal must be made by the applicant within 40 days of the judgment from which the right of appeal lies: Mann v Alpar Trading Limited [2013] PGSC 69; SC1229 and Talu v Petroleum Exploration Joint Venture Limited [2016] PGSC 85; SC1621 applied. 
2.	It is not necessary for an extension of time application to be determined within 40 days for it to be considered “made”. All that is required is for the application to be brought before the court within 40 days of the decision the subject of appeal: Mann v Alpar Trading Limited [2013] PGSC 69; SC1229 applied; Talu v Petroleum Exploration Joint Venture Limited [2016] PGSC 85; SC1621 distinguished. 

Cases Cited:
Mann v Alpar Trading Limited [2013] PGSC 69; SC1229
Talu v Petroleum Exploration Joint Venture Limited [2016] PGSC 85; SC1621

Legislation:

Supreme Court Act 1975
Supreme Court Rules 2012

Counsel:

Mr. E Tummul, for the Applicant
Ms. E Parua, for the Respondent

Oral decision delivered on
4th March 2022

1.	LOGAN J: On 28 January 2022, PNG Power Limited (PNG Power) filed in this court an application for an extension of time within which to lodge an appeal against orders made in the National Court on 24 December 2021 in WS 1307 of 2016 – Parathy Sararthy v PNG Power Limited (the National Court Orders).

2.	At the time when the National Court Orders were pronounced, the learned primary judge offered a summary of reasons but as is deposed to on behalf of PNG Power.  Reasons as revised were not then published.  Rather, these became available via the associate to the learned primary judge on 21 January 2022. 
3.	The National Court orders dealt with a controversy arising from the termination, on 30 August 2016, of the respondent, Mr Sararthy. The orders made by the National Court were:
“1)	Judgement on liability is entered in favour of the plaintiff, Partha Sarathy for unlawful termination of the Contract of Employment entered into between PNG Power Limited and himself dated 31 March 2015.

2)	The claim for damages in the sum of AUD$3.868 million is refused.

3)	The plaintiff is awarded six months base salary, superannuation, leave entitlements plus the annual bonus calculated for the year in accordance with Clause 4 of the Contract of Employment entered into between PNG Power Limited and himself dated 31 March 2015 less K90,635.04 paid on termination, the exact amount to be settled by the parties themselves or alternatively the parties may return to the Court at a later date for this purpose only.

4)	Interest at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 shall apply from the date of filing of the writ of summons to the date of judgment and the same rate shall apply post-judgment.

5)	Except for specific costs orders made previously, costs shall follow the event, ie, the defendant shall bear the plaintiff’s costs of and incidental to the proceedings.”

4.	PNG Power now wishes to challenge those orders on appeal.  By s 17 of the Supreme Court Act 1975, it is provided that: 

“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.”   
5.	An exercise of appellate jurisdiction entails a challenge to the orders that were made in the original jurisdiction. The term “judgment” where it appears in s 17 of the Supreme Court Act is a reference to the orders that are sought to be challenged, not to the reasons for judgment.  In respect of s 17 of the Supreme Court Act, time runs from within 40 days after the date of the “judgment” in question, in other words, after the orders in question were made.  In this case, that means that the 40-day time limit for the filing of an appeal against the orders made on 24 December 2021 expired on 2 February 2022.  The application was therefore filed before the expiry of the 40-day period but it was neither heard nor determined within that period.  Does this matter?  

6.	The point is certainly not one which is free from authority.  In Mann v Alpar Trading Limited [2013] PGSC 69; SC1229, it fell to the Supreme Court constituted as a Full Court to determine whether a particular application for extension of time within which to lodge a notice of appeal was or was not competent.  The timelines against which that case was decided are important in understanding the outcome.  The order which was sought to be challenged was made on 18 December 2012.  An application for extension of time in which to lodge an appeal was filed on 23 January 2013.  On 25 January 2013 a judge of this court embarked upon a hearing but made orders that the extension of time application and a related stay application be returnable and argued before a Supreme Court motions judge on 8 February 2013.  There was a further extension of the appointed hearing date such that it was extended to 11 February 2013.  

7.	The Supreme Court observed of s 17 of the Supreme Court Act at paragraph 34, “the key point arising from reference to section 17 is that the application must be made to a judge within the 40 day period” (emphasis in original).  Their Honours then made further reference to Order 7, Rule 2 of the Supreme Court Rules 2012.  They stated at paragraphs 35 and 36 the following: 

“35.	Clearly while it is desirable that any matter which comes before the Court be determined as expeditiously as possible, practicalities may in any particular case force an adjournment. Further, it is not within the power of parties to require the Court to determine an application within 40 days of the application being lodged. To that extent the “natural intendment” of Order 7, Rule 2 is that an application for extension of time for lodgement of a notice of appeal must be brought before the Court within 40 days of the decision the subject of the appeal.

36.	The decisions of Bakani v Daipo [2001] PGSC 19 and Bakani v Daipo [2002] PGSC 14 upon which the respondent relies are distinguishable from the facts of this case. In Bakani v Daipo it was clear that the application was dismissed because it was filed outside the prescribed 40 days time limit. Indeed, the full bench of the Supreme Court cited State v James Robert Colbert [1988] PNGLR 138 and Avia Aihi v The State (No 1) [1981] PNGLR 81 as authority for the proposition that the Supreme Court has no discretionary power to extend time for an application which is made outside the same 40 days [sic] time limit. In this case the application for an extension of time was filed, served and heard by Davani J on 25 January 2013. Her Honour made orders, and the application has been the subject of subsequent orders of this Court. Court lists and the practicalities of litigation can require the adjournment of a matter on one or more occasions. In our view the events in this case have not taken the matter outside the parameters of Order 7, Rule 2 of the Supreme Court Rules.”
8.	Later in time but decided by a single judge of this court and apparently without the benefit of having his Honour’s attention being drawn to Mann v Alpar is Talu v Petroleum Exploration Joint Venture Limited [2016] PGSC 85; SC1621, a judgment of the then Chief Justice, Sir Salamo Injia.  In that case also, there was a controversy in relation to the competency of an application for an extension of time within which to file a notice of appeal.  It too, like Mann v Alpar, and for that matter the present case, concerned orders which were pronounced in the latter part of December.  It is apparent that the learned Chief Justice was of the view (at paragraph 4) that s 17: 

“… Collectively read, they mean what they say: the application to extend time to give notice of application for leave to appeal must be made by the applicant and allowed by the Judge within the same 40 days; and, if allowed, the notice of the leave application must be given within that extended period.” 
(emphasis added)
9.	As is apparent from the words emphasised, the understanding of s 17 voiced in Talu is, with respect, at odds with the understanding evident in Mann v Alpar to the extent that his Honour expresses the view that the extension of time application must not just be heard but also determined within the 40-day period.    
  
10.	In Mann v Alpar, the application was filed and its hearing before a judge commenced within the 40-day period but it was not finally determined until after that 40-day period.  But the outcome in Mann v Alpar was that the extension of time order was nonetheless lawfully made.  In other words, the application for the extension was competent.  

11.	I consider that I am bound to follow the evident approach of a Full Court of the Supreme Court in Mann v Alpar.  That being so it must necessarily follow that this particular application is not competent and the objection to it is well taken.  Though the application was filed within the 40-day period there was no commencement of hearing of that application within that period.  

12.	The two cases to which I have made reference and the present case highlight what may very well be a particular law reform issue for the Parliament to consider.  It is however the constitutional duty of judges to interpret and having interpreted, apply legislation validly enacted.  Whilst the legislation remains as construed by the Supreme Court in Mann v Alpar, it behoves the profession to move with due dispatch, even allowing for the difficulties that undoubtedly does entail in relation to the law vacation period.  

13.	I respectfully agree with everything Chief Justice Injia observed in that regard in Talu.  The only departure which I have from his Honour’s reasoning is in respect of a need for the extension of time application also to be determined, not just heard within the 40-day period.  That departure is one which I consider obligatory given the binding authority on a single judge of a decision of a Full Court of the Supreme Court: pertinently Mann v Alpar. 
         
14.	It is also desirable to make this observation in relation to the form of the application for an extension of time.  It was not apparent on the face of the application precisely what the basis of challenge to the orders made on 24 December was.  If not annexed to an application, there should at least be annexed to an affidavit in support, a draft notice of appeal which sets out in a manner which would be applicable to a notice of appeal if filed particularized grounds, proposed grounds of appeal.  That on the hearing of this case, this particular application entailed some difficulty in itself for PNG Power although the precise basis of proposed challenge was, it must be said, highlighted in oral submissions.

15.	It is not necessary, in light of the conclusion reached in relation to the incompetency of the application, in light of violation of s 17 of the Supreme Court Act, to make any observation in relation to whether or not any of those grounds as outlined in oral submissions was arguable.  Indeed, given that, it may alternatively be possible to secure, from this court, leave to review under the Constitution the orders made on 24 December 2021 it would be doubly undesirable to make any observation as to whether or not grounds identified in oral submissions were or were not arguable.

16.	For these reasons then the application for an extension of time within which to file a notice of appeal must be dismissed.  

Costs  
17.	It was common ground between the parties, as with respect it ought to have been, that costs in respect of the dismissal of the application must follow the event.  There was however a question raised on behalf of Mr Sararthy as to whether those costs should be directed to be taxed on a solicitor/client basis rather than as is usual a party and party basis.

18.	I do not, with respect consider, that particular application for a special order as to costs to have been a bold one.  It is apparent that there was a careful and respectful canvasing prior to the hearing of particular authorities which were said to support, and as it happens, have indeed supported Mr Sararthy’s objection to the competency of the leave application.

19.	Those authorities however have in my view a particular clarity in hindsight that they may well not have had in prospect.  Regard to Talu discloses a particular canvasing by Injia CJ of earlier authorities which, were they accepted as correct, would have supported the validity of the course taken by PNG Power.  In that case, his Honour’s disagreement with those earlier authorities is patently, with respect, emphatic.  As to Mann v Alphar, whilst I consider that to be binding, it must be said with respect that the principal focus of the court in that case was on Order 7, Rule 2 of the Supreme Court Rules, rather than s 17 of the Supreme Court Act.  However, on a close reading of the court’s reasons for judgment in that case against the facts of that case, it is apparent enough that their Honours were of the view that it was enough to have commenced the hearing within the 40-day period.  

20.	It is in the nature of exercises of judicial power that because of their finality, they lend clarity to resolution of particular controversies which may not at all be present in prospect.  Thus whilst I consider the prior and respectful highlighting of a particular proposition on behalf of Mr Sararthy to PNG Power’s lawyers to be a model of good practice, I do not, for the reasons that I have given, consider this to be one of those cases where it would be apt to award costs on a solicitor/client basis.  That is not to say that in future cases where the same situation arises that similar understanding might be given to a party and the lawyers for that party who did not act with the dispatch so clearly envisaged by Chief Justice Injia in Talu.

21.	For these reasons the order as to costs will be that the applicant pay the respondent’s costs of and incidental to the application to be taxed on a party/party basis, if not agreed.  There will therefore be orders in the terms that I have indicated.

22.	I cannot but conclude these reasons for judgment without respectfully commending those acting on behalf of each of the parties for the quality of the submissions, both orally and in writing, made to the court.

Orders

1.)	The application for extension of time to file a notice of appeal be dismissed. 
2.)	The applicant pay the respondent’s costs of and incidental to the application, to be taxed on a party to party basis if not agreed. 

__________________________________________________________________
Allens: Lawyers for the Applicant	
Leahy Lewin Lowing Sullivan Lawyers:  Lawyers for the Respondent