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Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88 (25 March 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 88 - Richard HB Wood v Watking (PNG) Pty Ltd 

[1986] PNGLR 88

SC315

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

WOOD

V

WATKING (PNG) PTY LTD

Waigani

Kidu CJ Bredmeyer Los JJ

24-25 March 1986

APPEAL - Application for leave to appeal - Time for lodging - “Within 40 days after the date of the judgment” - Date of pronouncement not date of entry relevant date - Supreme Court Act (Ch No 37), s 17 - National Court Rules, O 12, r 3.

PRACTICE AND PROCEDURE - Appeal - Time for lodging - “Within 40 days after the date of the judgment” - Date of pronouncement not date of entry relevant date - Supreme Court Act (Ch No 37), s 17 - National Court Rules, O 12, r 3.

The Supreme Court Act (Ch No 37), s 17, requires that notice of appeal or application for leave to appeal be given “within 40 days after the date of the judgment in question”.

Held

(1)      Properly construed s 17 requires notice of an appeal or notice of an application for leave to appeal to be given within 40 days after the judgment is pronounced, and not after entry of judgment.

(2)      Entry of judgment is not an essential preliminary to the lodging of an appeal under the Supreme Court Act (Ch No 37).

(3)      Failure to enter judgment does not affect the running of the time limit prescribed by s 17.

Cases Cited

The Ship “Federal Huron” v OK Tedi Mining Ltd [1986] PNGLR 5.

Counsel

N Diacos, for the applicant.

T Griffiths, for the respondent.

25 March 1986

KIDU CJ BREDMEYER LOS JJ: This case is a dispute about whether an appeal has been lodged in time or out of time. Section 17 of the Supreme Court Act (Ch No 37) reads as follows:

“Time for appealing under division 2

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 upon application made to him within that period of 40 days.”

On 28 November 1985 Barnett AJ (as he then was) gave judgment for the plaintiff in a contested manner. He found both defendants liable jointly and severally to pay the plaintiff the sum of K34,584.17. The judgment was given in open court and sixteen pages of reasons were read out or handed down at that time. No minute of the judgment was entered. On 11 February 1986, Mr Diacos, lawyer for the defendant, attempted to file a notice of appeal to the Supreme Court at the Registry and was refused by the Registrar as being out of time. Mr Diacos has applied to this Court for a direction that his appeal is competent and is within the time-limit. On 21 March a formal order was extracted by the plaintiff. That order reads as follows:

“Order

The court orders that:

1.       Judgment for the plaintiff in the sum of K34,584.17 against the first and second defendants.

2.       Leave to apply within seven days.

3.       The proceedings be stood over until 19 December 1985 at 9.30 am on questions of interest and costs.

ordered: The 28th day of November 1985, and entered the 21st day of March 1986.

BY THE COURT

(sgd) L.M. Newell

Registrar.”

Mr Diacos has argued that he is within the 40 days time-limit because the judgment only took effect as of the date of entry. For this submission he relied on O 12, r 3(2) of the National Court Rules. Order 12, r 3 reads as follows:

“Date of Effect (40/3)

(1)      Where a judgment is entered pursuant to a direction of the Court the judgment shall take effect as of the date of the direction.

(2)      Where a judgment is entered otherwise than pursuant to a direction of the Court the judgment shall take effect as of the date of entry.

(3)      Subject to sub-rules (1) and (2) of this Rule, an order shall take effect as of the date on which it is made.

(4)      Nothwithstanding sub-rules (1), (2) and (3) of this Rule, the Court may order that a judgment of order take effect as of a date earlier or later than the date fixed by those sub-rules.”

Mr Diacos argued that in this case there was no direction by Barnett AJ as to when the judgment should take effect and thus the judgment is not covered by subr (1). He then argued that because the judgment entered on 21 March was not entered pursuant to a direction of a Court, then by subr (2) that the judgment “shall take effect as of the date of entry”. He thus argued that the 40 day appeal period commenced from 21 March 1986.

Mr Griffiths, counsel for the plaintiff who secured the judgment in the Court below, argued that the judge on 28 November in reality directed the entry of judgment for K34,584.17 as required to do by O 12, r 1 and thus O 12, r 3(1) is applicable. He argued that whenever a judge makes an order or a judgment, and irrespective of the words used, he is really directing the entry of such judgment or order, and is thus acting under O 12, r 1.

We consider that the phrase in s 17 of the Act “within 40 days after the date of the judgement” is not dependent on O 12, r 3 for its interpretation. It simply means 40 days from the date the judgment was pronounced and, on the facts of this case, judgment was pronounced on liability and damages on 28 November 1985. No objection has been addressed to us that, because this trial was divided into two parts, the first dealing with liability and damages and the second dealing with interest and costs, the judgment of 28 November was not final. Neither could any objection be taken to that course. It is quite proper in some cases to split a trial into several parts and the judgment when it issues on a part is a final judgment on that part of the trial, see The Ship “Federal Huron” v OK Tedi Mining Ltd [1986] PNGLR 5.

It is our view that the phrase “... after the date of judgment” in s 17, and in particular the word “judgement”, should not be interpreted in accordance with O 12, r 3 because a section in an Act should not be interpreted by a provision in a rule, a piece of delegated legislation. We consider that O 12, r 3 sets out when a judgment or order takes effect for the purposes stated in the National Court Rules only and not generally. Under O 12, not all judgments and orders need to be entered, which means being typed, signed and sealed by the Registrar and filed, see rr 15, 20 and 21. Entry is authorised in certain cases and in certain cases it is not required, see rr 10, 14 and 17. Entry is authorised where, for example, the order is to be served on a person (r 18(1)(b)), or where the order is to be enforced (r 18(1)(c)). The wording of those subrules makes it clear that entry has to be made where the order “is to be served” or “is to be enforced”; in other words entry is an essential preliminary to serving or enforcement. Not so with subr (d) where the wording is different.

Order 12, r 18(a)(d) reads as follows:

“(1)    An order shall be entered in the following cases:

(a)      ...

(b)      where a minute of the order is to be served;

(c)      where the order is to be enforced;

(d)      where there is an appeal from the order.”

That wording suggests that entry is required where there is an appeal, but that the entry need not necessarily be before the lodging of the appeal. If it was intended that entry should precede an appeal, the wording should have read: “An order shall be entered ... where an appeal is to be filed.” We see no conflict between s 17 and O 12, r 3 and, if there was a conflict, the rule could not determine the proper interpretation of the section.

We are firmly of the view that entry of a judgment is not an essential preliminary to the lodging of an appeal under the Supreme Court Act, neither does the failure to enter the judgment mean that the appeal period does not run.

Ruled accordingly

Lawyers for the applicant: Kirkes.

Lawyers for the respondent: Beresford Love Francis & Co.