Kubor Earthmoving (PNG) Pty Ltd, The State v [1985] PNGLR 448 (20 December 1985)

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APPEALS - Practice and procedure - Notice of objection to competency - Application for leave to file out of time - No power to extend time - Supreme Court Rules, O 7, r 14.

PRACTICE AND PROCEDURE - Extension of time in which to do an act - No power - Orders necessary to do justice - When appropriate Constitution, s 155(4).

(1) The Court may exercise its power under the Constitution, s 155(4), to make whatever order it deems necessary to do justice, where the making of an appropriate order would avoid injustice; the power may not be used to avoid possible inconvenience.

(2) There being no power in the Court under the Supreme Court Rules to extend the time required to file a notice of objection to the competency of an appeal and no injustice to be avoided, no orders should be made to extend time.

This was an application by the respondent to an appeal for leave to file a notice of objection to competency of the appeal outside the time limited by the Supreme Court Rules.

WOODS J: I am being asked for directions which will result in the respondent being able to file a notice of objection to competency outside the period of fourteen days allowed by the Rules from the date on which the notice of appeal was served on the respondent: see Supreme Court Rules, O 7, r 14.

There is an affidavit on the file declaring that the notice of appeal was served on the lawyers for the respondent on 6 November 1985. No notice of objection to competency was filed by 21 November.

In effect I am being asked to extend the time required to do an act under the Rules. Unfortunately there is no general provision in the Rules allowing the Court to extend on such terms as it thinks fit the time required to do an act. There is a waiver of rules provision in O 11, r 10, but that is limited to preparation of documents or appeal books.

If it was a matter of the avoidance of injustice to the parties then perhaps the Court could act under its powers under the Constitution, s 155(4), and make whatever order it deems necessary to do justice. However in this case it is not a question of justice between the parties but would merely be a convenient way of dealing with one aspect of the appeal. It is not a question of a party being deprived of the opportunity to appear before the Court.

The applicant is saying I can act under O 11, r 9, there being lack of procedural provision. But this is not so. There is clear procedural provision, a clear time limit and no power in the Rules to waive or extend time. And as I have said I can see no injustice, merely possible inconvenience.

I note the respondent has a judgment, interest is running and the appeal is not a stay of proceedings.

Perhaps if the applicant really believes there is a basic objection to the competency of the appeal he could approach the Registrar to exercise his power under the Supreme Court Act (Ch No 37), s 11. Alternatively, if there is a basic incompetency which must be considered by the Court whether it is raised or not by a relevant notice, then the parties can agree to split the hearing.

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Papua New Guinea Law Reports

Kubor Earthmoving (PNG) Pty Ltd, The State v [1985] PNGLR 448 (20 December 1985)

Papua New Guinea Law Reports - 1985