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Serowa v Kunai [2025] PGSC 58; SC2763 (21 July 2025)

SC2763

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP 7 OF 2020

BETWEEN:
THOMAS SEROWA
trading as T. Serowa and Co.
Registered Public Accountants
Appellant

AND:
PAULUS KOIM KUNAI
of Kunai and Co. Lawyers
First Respondent

AND:
THE WESTERN HIGHLANDS
PROVINCIAL GOVERNMENT
Second Respondent

WAIGANI: HARTSHORN J
10, 21 JULY 2025

SUPREME COURT – Practice and procedure - Application for extension of time to file an appeal

Cases cited
ToRobert v. ToRobert (2011) SC1130
Barrick (Niugini) Ltd v. Stanley Nekital (2020) SC1996

Counsel
T. Serowa, the appellant, in person
D. Kipa of counsel, for the Respondents

1. HARTSHORN J: This is a decision on a contested application to extend the period within which to appeal a National Court judgment. The said period is sought to be extended for 25 days. Application is made pursuant to Order 7 Rule 1 Supreme Court Rules. An oral ruling of the judgment sought to be appealed was delivered on 20^th August 2020 and a written judgment was handed to the parties on 11^th September 2020.

Background

2. The applicant in the National Court, had sought summary judgment and the two respondents had sought to dismiss the National Court proceeding. The primary judge ordered that the applicant’s (plaintiff’s) claim in the proceeding was refused and that the applicant pay the respondents (defendants) costs.

3. The substantive relief which had been sought by the applicant is in effect, to prevent the first respondent from representing amongst others, the second respondent in litigation involving the applicant personally or through his accounting practice.

4. In this application the applicant seeks an extension of time of 25 days to appeal the judgment of the primary judge as he claims that he was denied natural justice by “procedural unfairness” as he was denied the usual 40 days within which he could appeal. Further, the applicant claims he was unable to expeditiously assemble the facts and legal issues to formulate grounds of appeal within the remaining 15 days from 11^th September 2020 because the legally allowed time of 40 days was denied by the primary judge when his ruling was withheld and then subsequently delivered.

The Application

5. The application is made pursuant to Order 7 Rule 1 Supreme Court Rules. No reference is made to s. 17 Supreme Court Act which is the relevant section in the Supreme Court Act. Section 17 Supreme Court Act provides the power for a Judge to allow a further period of time.

6. The question whether Order 13 Rule 15 Supreme Court Rules has been complied with was not raised by counsel for the respondents and so I do not consider the issue further, given also that a relevant Rule, Order 7 Rule 15 Supreme Court Rules, has been relied on.

Consideration

7. I reproduce [7] and [9] to [11] of my judgment in Barrick (Niugini) Ltd v. Stanley Nekital (2020) SC1996:

“Section 17 Supreme Court Act reads:

“7. 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.”
9. In ToRobert v. ToRobert (2011) SC1130, the Supreme Court (Cannings J, Kariko J, Murray J), considered an application for an extension of time to appeal under the Supreme Court Act. At [11] the Court said:....

12. As to the considerations that the Judge hearing the application should take into account, this is a matter for the Judge, subject to the requirement imposed by Section 17 of the Supreme Court Act that the application for an extension of time is made within the 40-day period. Provided the discretion is exercised judicially the requirements imposed on a person seeking an extension of time should not be regarded as onerous. It is not necessary for the applicant to satisfy the Judge that exceptional or other similar circumstances exist. Neither is it necessary to set out any proposed grounds of appeal, let alone satisfy the Judge that the proposed grounds of appeal are serious or substantial or have merit. Provided the Judge is satisfied that there are genuine reasons for seeking more time and that the applicant is not engaging in time-wasting tactics or otherwise abusing the processes of the court and that there are no other matters of concern, it is reasonably to be expected that leave would be granted. The period of the extension is a matter of discretion, which should be exercised according to the circumstances of the case.”

10. I also note under s. 17 Supreme Court Act, that there is no fetter on the exercise of discretion by a judge in deciding whether to allow a further period, so long as the application is made to the judge within the subject period of 40 days. On this point, I am reminded of the oft cited statement of Bowen LJ in Gardner v. Jay (1885) 29 Ch 50, at 59:

“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?”
11. This case and statement were referred to and approved by this Court in Lawrence Kalinoe v. Philip Kereme (2017) SC1631 and William Duma v. James Puk (2019) SC1754.”

8. In considering the exercise of the discretion of the Court in this instance, as referred to, in ToRobert v. ToRobert (supra) at [12] the Court remarked that:

“Provided the Judge is satisfied that there are genuine reasons for seeking more time and that the applicant is not engaging in time-wasting tactics or otherwise abuses the process of the court and that there are no other matters of concern,.....”

9. In this instance there has been considerable delay in presenting this application. The application was not set down to be heard at the behest of the applicant. The application was ordered to be heard by this Court after the proceeding was considered at a summary determination hearing called by the Court of its own volition. The application was moved over 4 years and 9 months after it was filed.

10. The first respondent submits that the principles to be considered in dismissing a proceeding for want of prosecution should be considered in this instance in respect of the time taken to move this application. If those principles are applied to this application, it is submitted that the application should be dismissed as the evidence does not adequately explain the reasons for the period of 4 years 9 months taken to move this application.

11. It is the position that an application or notice of motion in either a National or Supreme Court proceeding should be prosecuted or moved as soon as possible. This is reflected in Order 4 Rule 49 (16) – (18) National Court Rules. Specifically, Order 4 Rule 49 (17) provides that:

“The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”
Order 2 Rule 1 (h) Supreme Court Rules provides amongst others that the National Court Rules apply where there is a relevant provision in the National Court Rules and no provision in the Supreme Court Rules.

12. In such circumstances and following the reference in ToRobert v. ToRobert (supra) to “.... other matters of concern...”, the Court should and is entitled to consider the reasons for the period of delay in moving this application in determining the exercise of its discretion.

13. The reason given by the applicant for the delay is deposed to by the applicant as him being affected by other proceedings filed around the same time that the application was filed, which overloaded his concentrated attention. It is to be noted in this regard that of the six proceedings listed by the applicant, four were filed after the oral decision of the primary judge was delivered. Two of the proceedings listed were filed before the oral decision of the primary judge was delivered and continued after the delivery of that oral decision.

14. In an affidavit filed 5^th June 2025, the applicant deposes as to steps that he has taken to progress the proceeding since filing this application to extend time to appeal. These steps have included preparing and filing an application book and requesting and obtaining transcripts. There is no evidence of any action being taken to prosecute this application after 15^th October 2021 by the applicant. There is also no evidence concerning why the six proceedings listed that affected the applicant took precedence over the prosecution of this application to extend time to appeal. There is a lack of explanation for a period of over 3 years 8 months in which this application to extend time to appeal has not been pursued. This is in circumstances as referred to, in which this application was ordered to be heard by the Court after the proceeding was called by the Court of its own volition for a consideration of whether the proceeding should be summarily determined.

15. Following a consideration of the above, the Court is entitled to form the view that amongst others, that notwithstanding the submissions of the applicant, the applicant has not been and is no longer interested in pursuing this application and no longer has any genuine reasons for seeking more time to pursue an appeal. Further, another matter of concern is that it has taken 4 years 9 months for the application to be moved which, prima facie, without more, is an inordinate amount of time.

16. To put the period since the application to extend was filed into context, 4 years 9 months is over 43 times the statutory period to appeal of 40 days.

17. It is in the interests of justice to have finality in litigation. Here, an application to extend time to appeal remains outstanding and has not been prosecuted for 4 years 9 months without adequate explanation. Notwithstanding, there being no evidence of the rights of the other party being adversely affected by the inordinate delay, the elapse of such a length of time should be taken by the Court as prima facie, affecting such rights adversely.

18. Consequently, for the above reasons, I am not satisfied that it has been satisfactorily made out that this application for an extension of time in which an appeal may be filed, should be granted. Further, it is not in the interest of justice that the application be granted. Given the above it is not necessary to consider the other submissions of the applicant and counsel.

Orders

a) The application of the applicant filed 28^th September 2020 is refused.

b) The applicant shall pay the costs of the respondents of and incidental to the said application.
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Lawyers for the respondents: Kunai and Co lawyers