Gigmai Awal v Elamo Elema (As The Insurance Commissioner) and Motor Vehicles Insurance (PNG) Trust (2000) SC652

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Sevua J
• Judgment Date: 29 September 2000
• Court: Supreme Court
• Citation: [2000] PNGLR 288
• Year: 2000
• Judgement Number: SC652

Full Title: Gigmai Awal v Elamo Elema (As The Insurance Commissioner) and Motor Vehicles Insurance (PNG) Trust (2000) SC652

Supreme Court: Amet CJ, Kapi DCJ, Sevua J

Judgment Delivered: 29 September 2000

SC652

PAPUA NEW GUINEA

[In the Supreme Court of Justice)

SCA 68 of 1999

BETWEEN:

GIGMAI AWAL

Applicant

AND:

ELAMO ELEMA (as the

INSURANCE COMMISSIONER)

First Respondent

AND:

MOTOR VEHCLES INSURANCE

(PNG) TRUST

Second Respondent

Waigani: Amet CJ., Kapi DCJ., Sevua J.

23rd August, 29th September 2000

Practice and Procedure — Objection to Competency of Application for leave to appeal — there is no requirement for service of application leave to appeal under the Supreme Court Rules — therefore not a valid ground for Objection to Competency — Objection to Competency under O7 r 2(c) of the Supreme Court Rules considered.

K Kua for the applicant

A. Kandakasi for the respondents

29th September 2000

By The Court: The applicant applied for an extension of time within which to give notice of claim to the second respondent pursuant to s 54 (6) (b) of the Motor Vehicles (Third Party) Insurance Act (Cap 295). The National Court refused the application.

The applicant filed an application for leave to appeal against this decision.

The second respondent filed notice of objection to competency of the application for leave to appeal. The objection has come before us for determination on two grounds: (a) that the applicant has not served the application for leave to appeal promptly or within 40 days of the decision (b) that the application failed to comply with the requirements of O 7 r 2 in that it fails to state the nature of the case, the question and the reasons why leave should be given and failed to give particulars of the errors committed by the trial judge.

Service of Application for Leave to Appeal

During submissions, counsel for the respondent conceded the argument by counsel for the applicant that there is no provision for service of application for leave to appeal under the Supreme Court Rules. O 7 r 12 of the Rules regulates service of a notice of appeal, namely, a copy of notice of appeal shall be served on each party without delay.

Filing and service of an application for leave to appeal is regulated by O 7 Div 2 r 4:

"The provisions of Rule 10, with necessary modifications shall apply to an application for leave to appeal and notice of such application."

This provision adopts only the manner of giving notice of appeal for purposes of giving notice of an application for leave to appeal, namely, by filing the application in Court. Such procedure has been prescribed pursuant to s 17 of the Supreme Court Act. O 7 r 4 does not go so far as to adopt O 7 r 12 which deals specifically with service of notice of appeal.

This is to be contrasted with the former Supreme Court Rules (Cap 37) wherein s 22 adopted the requirement for prompt service of notice of appeal (under s 19 (4) of the former Rules) for the purposes of service of the application for leave to appeal. We can only conclude in accordance with the general principles of construction of statutes that the Judges in their rule-making power under s 184 of the Constitution, deliberately repealed the requirement for service of application for leave to appeal under the current Rules. Therefore, in our view, the failure of service of an application for leave to appeal cannot constitute a valid ground for objection to competency.

Counsel for the respondent has raised two other categories of grounds of objection to competency. The first relates to the requirement for application for leave to appeal pursuant to O 7 r 2 (c) of the Supreme Court Rules. The second ground of objection is worded more in terms of the...