Mary Torobert v Henry Torobert (2011) SC1130

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kariko J, Murray J
• Judgment Date: 26 September 2011
• Citation: (2011) SC1130
• Docket Number: SCA NO 69 0F 2010
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1130

Full Title: SCA NO 69 0F 2010; Mary Torobert v Henry Torobert (2011) SC1130

Supreme Court: Cannings J, Kariko J, Murray J

Judgment Delivered: 26 September 2011

SC1130

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 69 0F 2010

MARY TOROBERT

Appellant

V

HENRY TOROBERT

Respondent

Waigani: Cannings J, Kariko J, Murray J

2011: 2, 26 September

PRACTICE AND PROCEDURE – appeal to full court of Supreme Court against decision of single Judge of Supreme Court to extend time to appeal against judgment of National Court – whether any jurisdiction for an appeal – whether necessary to serve on opposing party an application for extension of time to appeal – exercise of discretion as to extension of time – Supreme Court Act, Sections 10, 14, 17.

A single Judge of the Supreme Court granted under Section 10(1)(b) of the Supreme Court Act an extension of time to appeal against a judgment of the National Court. Aggrieved by the extension of time, the other party to the National Court proceedings applied to the full court of the Supreme Court for leave to appeal against the decision to extend time. Leave was granted. This was the hearing of the appeal.

Held:

(1) Per Cannings J and Kariko J; Murray J dissenting: The full court of the Supreme Court has no jurisdiction to hear an appeal against a decision of a single Judge of the Supreme Court to grant an extension of time to appeal. For that reason alone the appeal must be dismissed, notwithstanding that leave to argue it had been granted.

(2) By the Court: The appeal would in any event have been dismissed on its merits as an application for an extension of time may be heard ex parte. It is not necessary for the applicant to satisfy the Judge that exceptional or other similar circumstances exist. Neither is it necessary to set out any proposed grounds of appeal, let alone satisfy the Judge that the proposed grounds of appeal are serious or substantial or have merit. The Judge made no error of law in the exercise of his discretion to grant an extension.

Case cited

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064

Avia Aihi v The State (No 1) [1981] PNGLR 1

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

Felix Bakani v Rodney Daipo (2002) SC699

Gigmai Awal v Salamo Elema [2000] PNGLR 288

In The Matter of an Application by Linah Edward (2005) N2804

Lowa v Akip [1991] PNGLR 265

National Capital Ltd v Port Moresby Stock Exchange (2010) SC1053

Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962

The State v John Tuap (2004) SC765

Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

William Powi v Southern Highlands Provincial Government (2006) SC844

APPEAL

This was an appeal to the full court of the Supreme Court against a decision of a single Judge of the Supreme Court granting an extension of time to appeal against a judgment of the National Court.

Counsel

G Gorua, for the appellant

I Molloy & W Neill, for the respondent

26 September, 2011

1. CANNINGS J & KARIKO J: Chief Justice Sir Salamo Injia, sitting as a single Judge of the Supreme Court, granted an extension of time to the respondent, Henry ToRobert, to appeal against a judgment of the National Court. Aggrieved by the extension of time, the other party to the National Court proceedings, the appellant, Mary ToRobert, applied to the full court of the Supreme Court constituted by Sakora J, Manuhu J and Murray J for leave to appeal against the Chief Justice’s decision. Leave was granted and the appeal has been heard before us. Two issues arise. First, do we have jurisdiction to hear the appeal? Secondly, does the appeal have merit?

1 THE ISSUE OF JURISDICTION

2. Mr Gorua, for the appellant, submitted that the full court of the Supreme Court (ie the Court constituted by three or more Judges in accordance with Section 161(2) of the Constitution) has jurisdiction to hear this appeal under Section 14(3)(a) of the Supreme Court Act. In any event, he asserted that the question of jurisdiction was resolved by the decision of the full court of 1 July 2011, granting leave for the appeal. He pointed out that that decision was made following a contested hearing at which the issue of jurisdiction was fully canvassed, in the process of which the full court dismissed an objection to competency of the application for leave to appeal.

3. We are not bound by the decision of 1 July 2011 as the Supreme Court is by virtue of Schedule 2.9(1) of the Constitution not bound by its own decisions. We have, of course, closely considered it. It seems that it was confined to the question of competency of the application for leave to appeal rather than the appeal itself. But even if it is regarded as a decision that the full court has jurisdiction to hear the sort of appeal that has been set down for hearing before us it does not operate as a bar to reconsideration of the question of the Supreme Court’s jurisdiction, which remains open and can be determined by the court at any time. This is so, even in instances where no challenge to jurisdiction is raised by a party or where the question of jurisdiction is raised incompetently, eg where a notice of objection is filed outside the time permitted by the Supreme Court Rules (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, Lowa v Akip [1991] PNGLR 265, Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, Amet v Yama (2010) SC1064). The Court retains the power to determine whether an appeal is properly before it even in cases where, as here, leave for the appeal has been granted. All courts, and in particular the Supreme Court which is at the pinnacle of the hierarchy of the National Judicial System, must be vigilant in ensuring that it has jurisdiction to deal with the matter before it and that the jurisdiction of the court has been properly invoked (Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962, National Capital Ltd v Port Moresby Stock Exchange (2010) SC1053).

4. The decision to extend the time for appealing was made under Section 10(1)(b) of the Supreme Court Act, which states:

Any power of the Supreme Court under this or any other Act … to extend the time within which notice of appeal or of an application for leave to appeal may be given … may be exercised by a Judge in the same manner as it may be exercised by the Court.

5. Section 14(3)(a), the provision relied on by the appellant as the source of jurisdiction for this appeal, states:

No appeal lies to the Supreme Court without leave of the Supreme Court … from an order allowing an extension of time for appealing or applying for leave to appeal.

6. Having considered the competing arguments of the appellant and the respondent and the decision of the full court to grant leave and the invitation to reconsider the question of jurisdiction in the directions of the Chief Justice given in his capacity as the listings judge, we have come to the view that Section 14(3)(a) does not allow an appeal from a single judge allowing an extension of time to appeal to the full court of the Supreme Court, and that there is no other law that provides for such an appeal. Section 14(3)(a) does not say that there can be an appeal, it simply provides that if there is an appeal it can only be filed with the leave of the Court.

7. Mr Gorua submitted that by not specifying the court that makes the order allowing an extension of time, the provision is broad enough to cover orders made by a single Judge of the Supreme Court. He points to other provisions in Section 14, which refer expressly to the National Court, and argues that omission of a reference to the National Court in Section 14(3)(a) was deliberate. To appreciate the argument it is necessary to cite the whole of Section 14 (civil appeals to the Supreme Court), which states:

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court—

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except—

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

8. We can see that the omission of a reference to the National Court in Section 14(3)(a) at first glance creates some uncertainty as to whether the provision is talking about an order...