Felix Bakani (General Secretary, Oil Palm Industry Corporation) and Oil Palm Industry Corporation Board v Rodney Daipo

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 09 January 2001
• Court: Supreme Court
• Citation: (2001) SC659
• Year: 2001
• Judgement Number: SC659

Full Title: Felix Bakani (General Secretary, Oil Palm Industry Corporation) and Oil Palm Industry Corporation Board v Rodney Daipo

Supreme Court: Gavara-Nanu J

Judgment Delivered: 9 January 2001

SC659

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No. 16 OF 2000

BETWEEN:

FELIX BAKANI

(General Secretary, Oil Palm Industry Corporation)

1st Appellant

AND:

OIL PALM INDUSTRY CORPORATION BOARD

2nd Appellant

AND:

RODNEY DAIPO

Respondent

WAIGANI: GAVARA-NANU, J

2001: JANUARY 2, 4, 5, 9.

PRACTICE AND PROCEDURE — Appeal — Supreme Court Appeal by Notice of Motion pursuant to O 10 rr1-3 of the Supreme Court Rules — Section 17 of the Supreme Court Act — Application for extension of time — Notice of Motion filed within time but without annexures — Whether 'notice' of appeal given — O 7 r10 of the Supreme Court Rules — Calculation of the 40 day period — "After the date of the judgement in question" — Meaning thereof — Locus standi — Power of Court — Merits of the appeal — In the interest of 'justice' — Meaning thereof.

Cases Cited:

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

The State v. Colbert [1988] PNGLR 138

New Zealand Insurance Company Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522

Jeffery Balakau v. Ombudsman Commission of PNG and The Public Prosecutor [1996] PNGLR 346

Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112

Avia Aihi v. The State [1981] PNGLR 81

Damane v. The State (Unreported SC 412)

Counsel:

R. Bradshaw for the Appellants/Applicants

R. Uware for the Respondent

GAVARA-NANU, J: This application is made before me, pursuant to Section 10(1) of the Supreme Court Act ('the Act' hereon). The application is for extension of time to annex documents required under O 10 rule 3(b) of the Supreme Court Rules ('the Rules' hereon) to the Notice of Motion which constitutes the appellants' Notice of Appeal pursuant to O 10 of the Rules, which was filed on 27th December 2000.

Section 17 of the Act regulates the time within which a notice of appeal to the Supreme Court, must be lodged. This Section is headed: 'Time for Appealing under Division 2', and provides:-

"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".

O 10 of the Rules is headed: "APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES". The sub heading is: 'Division 1 — Institution of appeal', O 10 rr 1 — 3 provide:-

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:

(b) have annexed —

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

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

(c) be in accordance with form 15;

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

(e) be filed in the registry.

O 7 r 10 provides that the notice of appeal is deemed to have been given as required by Section 17 of the Act, when it is filed within the 40 day period from the date of the judgement in question, and is in the manner prescribed by the Rules.

O 7 r 10 is under the sub heading: 'Division 4 — Filing and serving notice of appeal', and provides:-

Upon filing the notice of appeal, the appellant for the purposes of Sections 17 and 29 of the Act shall be deemed to have given notice of appeal in the prescribed manner.

The appellants' notice of appeal is by way of notice of motion pursuant to O 10 of the Rules because the appeal is from an order made under O 16 of the National Court Rules.

The order of the National Court was made on 17th November 2000, infavour of the respondent.

The 40 day period allowed by Section 17 of the Act for the appellants to lodge their appeal expired on 27th December 2000.

The lawyer for the appellants submitted that the last day of the 40 day period was 28th December 2000, because the period ran from 18th November 2000, which was the day 'after' the date of the judgement. He argued that calculation of the 40 day period in that sense is consistent with Section 17 of the Act because the notice of appeal or the application for leave to appeal as the case may be has to be given 'after' the date of the judgement in question. He further argued that, if the actual date of the judgement was meant to be included when calculating the 40 day period, Section 17 of the Act should say 'from' and not 'after' the date of the judgement in question. This argument is obviously misconceived. It suffices to say that this court has in a number of cases said that the 40 day period includes the actual date when the judgement was given. See Wood v. Watking (PNG) Pty Ltd [1986] PNGLR 88; The State v. Colbert [1988] PNGLR 138; and New Zealand Insurance Company Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522.

In Wood -v- Watking (supra), the court said, at p.89; "We consider that the phrase in Section 17 of the Act "within 40 days after the date of judgement" is not dependent on O12 r 3 for its interpretation. It simply means 40 days from the date the judgement was pronounced and, on the facts of this case, judgement was pronounced

on liability and damages on 28th November, 1985" (my underlining). So the Court said, the 40 day period started to run from the date the judgement was given.

In The State -v- Colbert (supra), the judgement was given on 28th October 1987, the appellant tried to file the notice of appeal on 8th December 1988, but the Registrar rejected it as being out of time. Kapi DCJ, at p.139 said, "The time allowed for appeal to the Supreme Court under the Supreme Court Act, (Ch. No.37) expired on 7th December 1987". His Honour went on to say in the same page, "That application (for extension of time) came before the Supreme Court on 21st March 1988. Of course, the Supreme Court dismissed the...