Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Injia J, Davani J
• Judgment Date: 28 October 2002
• Citation: (2002) SC699
• Court: Supreme Court
• Year: 2002
• Judgement Number: SC699

Full Title: Felix Bakani and Oil Palm Industry Board v Rodney Daipo (2002) SC699

Supreme Court: Kapi DCJ, Injia J, Davani J

Judgment Delivered: 28 October 2002

1 Supreme Court—Appeal—Power to extend time to appeal—Application made to full Court upon refusal of similar application before single Judge of the Supreme Court—Whether application to the full Court under s10(2) should be made within the 40 days time limit prescribed by s17.

2 Avia Aihi v The State (No 1) [1981] PNGLR 81 and Independent State of Papua New Guinea v Colbert [1988] PNGLR 138 referred to

___________________________

SC699

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 16 of 2001

BETWEEN:

FELIX BAKANI & OIL PALM INDUSTRY CORPORATION BOARD

- Appellant –

AND:

RODNEY DAIPO

- Respondent –

Waigani : Kapi Deputy CJ., Injia & Davani JJ.

2002 : April 25, 28 October

Supreme Court – Appeal – Power to extend time to appeal – Application made to full Court

upon refusal of similar application before single Judge of the Supreme Court – Whether
application to the full Court under S.10(2) should be made within the 40 days time limit
prescribed by S.17.

R. Bradshaw for the Appellant

R. Uware for the Respondent

28 OCTOBER, 2002

BY THE COURT: This is an application by the appellant for extension of time to appeal under S.17 of the Supreme Court Act (hereinafter referred to as the “Act”). It is made to the full bench of the Supreme Court under S.10(2) of the Act following the refusal of a similar application made before a single judge of the Supreme Court pursuant to S.10(1) of the Act.

The background facts of the application briefly are these. On 17 November, 2000, the National Court granted the respondent’s application for judicial review of his dismissal by the appellant, which was filed under Order 16 of the National Court Rules. Consequently, the Court ordered his re-instatement to his former position without any loss of salary and other entitlements.

On 27 December, 2000 the appellant lodged an appeal against the said decision. The appeal was instituted by way of Notice of Motion under Order 10 of the Supreme Court Rules (hereinafter referred to as “Rules”). The Notice of Motion however did not annex the documents specified in Order 10 r3(b) namely, copies of the documents filed before the National Court and a certified copy of the National Court Order, because by the time the Notice of Motion was filed, the appellant had some difficulty in obtaining them. And so on 27 December 2000 the appellant also filed an application under S.17 of the Act seeking extension of time of 14 days to enable the applicant to comply with the requirement of Order 10 Rule 3(b). Between 2 – 5 January 2001, Justice Gavara-Nanu, sitting as a single judge of the Supreme Court, dealt with the application for extension of time. On 9 January 2001, His Honour dismissed the application because the application was filed outside the 40 days time limit prescribed by S.17 of the Act.

On 24/01/01, the applicant filed the present application for extension of time under S.10(2) of the Act. This application was argued before us and this decision relates to it. On 1 February, 2001, the applicant also filed an application for judicial review of the same decision under S.155(2)(b) of the Constitution but this application was not argued before us.

The argument advanced by the parties and the issues raised in this application involve the interpretation of S.10 and S.17 of the Act and Order 10 rule (3) of the Rules. It is convenient to set out these provisions in full at the outset.

Section 17 of the Act provides:-

“Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of 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.”

Section 10 of the Act provides:-

“Powers that may be exercised by Judge.

(1) Any power of the Supreme Court under this or any other Act—

(a) to give leave to appeal; or

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(4) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.”

Order 10 r1 – 3 of the Rules provide:-

“Order 10 – APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17

OF THE NATIONAL COURT RULES.

Division 1 – Institution of Appeal.

“1. An appeal under this Part shall be instituted by a notice of motion.

2. The notice of motion and all subsequent proceedings shall be entitled “In the Supreme Court of Justice” and shall be entitled between the party as appellant and the party as respondent.

3. The notice of motion shall—

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; and

(b) have annexed—

(c) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge’s Associate or the Registrar; and

(a) be in accordance with from 15; and

(b) be signed by the appellant or his lawyer; and

(c) be filed in the registry.”

It is not contended by the applicant that the procedure to be followed in instituting an appeal under S.17 of the Act, against a decision of the National Court made under Order 16 of the National Court Rules, is prescribed by Order 10 of the Rules. It is also not contended that the procedural requirements prescribed in Order 10(1) – (3) of the Rules are in mandatory terms and that an appellant must comply with all the requirements of rules (1), (2) and (3) in order to institute a valid appeal. It is on this basis that the appellant in this case after filing a notice of motion per se under Order 10 r (1) sought an extension of time to comply with the requirements of O 10 r 3 before Justice Gavara-Nanu. The appellant made some arguments before us as to whether the Notice of Motion per se was filed within time, that is, within 40 days “after the date of the judgment” of the National Court. We agree with Mr. Bradshaw that the Notice of Motion per se was filed within time in that it was filed on the 40th day. We accept his submission that time commences to run on the day after the date of the decision and not on the day on which the judgment is delivered. That is the ordinary meaning of the words “within 40 days after the date of the judgment in question.” (our emphasis).

It is accepted by both parties, and quite rightly so, that an application for extension of time to appeal under S.17 may be made before a single judge of the Supreme Court. This is clear from the reference to a “Judge” as opposed to “the Supreme Court” in S.17 and S.10. It is not contended by both parties that an application for extension of time to appeal made before the full bench of the Supreme Court under S.10(2) following refusal of a similar application under S.10(1) is a fresh application which the full Court considers and determines de novo. That is the correct interpretation of S.10(2). In other words, the full Court does not sit to review the decision of the single judge but to determine the application afresh without any reference to the decision of the single judge. The...