Small Business Development Corporation v Danny Totamu (2010) SC1054

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 08 June 2010
• Citation: (2010) SC1054
• Docket Number: SCA NO. 64 OF 2009
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1054

Full Title: SCA NO. 64 OF 2009; Small Business Development Corporation v Danny Totamu (2010) SC1054

Supreme Court: Injia, CJ

Judgment Delivered: 8 June 2010

SC1054

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 64 OF 2009

Between:

SMALL BUSINESS DEVELOPMENT CORPORATION

- Appellant-

And:

DANNY TOTAMU

-Respondent-

Waigani: Injia, CJ

2010: 8th June

SUPREME COURT – Practice and procedure - Application to extend time to appeal after grant of leave to appeal – Application made out of time – Whether application may be made at any time after grant of leave – Discretion – Test to be applied - Supreme Court Act (Ch. 37), s 17, s 29; Supreme Court Rules 1984, O 7 r 5.

Cases Cited:

Papua New Guinea cases

Application by Keremot and Watir [1974] PNGLR 66

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 12

Dingi Damane v The State [1991] PNGLR 244 at 248

Felix Bakani v Rodney Daipo (2001) SC 659

Felix Bakani v Rodney Daipo (2009) SC 699

Henzy Yakham and the National Newspaper v Stuart and Carol Merriam (1997) SC533

Independent State of Papua New Guinea v Colbert [1988] PNGLR 138

Jim Kas v The State (1999) SC 722

Joseph Kupo v Steven Raphael (2004) SC 751

Leo Duque v Andrew Paru [1997] PNGLR 378

Niko v Sawanga (2004) SC 734

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

Patterson v Lawyer’s Statutory Committee (2005) SC 822

Peter Nixon Donigi v Base Resources Ltd [1992] PNGLR 110

PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC 811

Secretary for Law v Tinsunak Nawok Domstock also known as Bisanoga [1974] PNGLR 246

SCA No. 09 of 2005, Was Neimari and others v Maria Iapential and Joseph Romen, Unnumbered and unpublished judgment dated 2nd October 2008.

Overseas cases:

R v Marshall (1935) 25 Cr. App. R. 45

R. v. Sunderland (1927), 28 S.R. (N.S.W.) 26

R. v. Ramsden [1972] Cr. L.R. 547

R v Rhodes (1910) 5 Cr. App. R. 35

R v Lesser [1935] 25 Cr. App. R 69

R v Cullum (1942) 28 App. R. 150

R v Boruta Unreported NSW Supreme Court judgment dated 29th October, 1957

The Queen v. Brown [1963] S.A.S.R. 190

Counsel:

C Kuira, for the Applicant

M Wilson, for the Respondent

8th June, 2010

1. INJIA, CJ: On 7th May 2009, the National Court sitting at Mt Hagen granted default judgment for damages to be assessed in favor of the respondent in an action for damages. On 22nd January 2010 this Court granted the applicant leave to appeal against the interlocutory judgment pursuant to O 7 r 5 of the Supreme Court Rules 1984 (SCR). The applicant failed to file a notice of appeal within 21 days from the date of grant of leave as required by O 7 r 5. The applicant now seeks leave to extend time to file a notice of appeal. The application is made under O 7 r 5. The respondent contests the application. I heard arguments of counsel and reserved my decision which I now deliver.

2. Four issues emerge for determination as follows:

(1) Does SCR, 0 7 r 5 give the Supreme Court jurisdiction to grant an extension of time to appeal after lapse of 21 days from the date of grant of leave to appeal?

(2) If so, what is the time within which an application is to be made?

(3) What are the relevant considerations that the Court should take into account in exercising its discretion?

(4) How should this Court exercise the discretion in the circumstances of this case?

Does SCR, 0 7 r 5 give the Supreme Court jurisdiction to grant an extension of time to appeal after lapse of the 21 days allowed?

3. SCR, O7 r 5 is in the following terms:

“5. When leave to appeal has been granted, the Supreme Court may treat the notice of application for leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow.”

4. This rule clearly gives jurisdiction to the Supreme Court to extend time to file an appeal, on its own motion or on application, made within or outside of the 21 days. The issue has arisen because of a submission to the contrary made by Mr Wilson of counsel for the respondent. Mr Wilson submits the phraseology of O 7 r 5 is such that the Supreme Court has the option of treating the notice of application for leave (hereinafter referred to as “the leave application”) as the notice of appeal but otherwise it allows the successful applicant only 21 days to file a notice of appeal. The Court has no jurisdiction or discretion to extend time after the lapse of 21 days. In this matter, the application was filed outside of the 21 day period and the Court should decline jurisdiction and dismiss the application.

5. Mr Kuira of counsel for the applicant submits O 7 r 5 gives the court discretion to extend time beyond the 21 days. In support of this proposition, he cited this Court’s decision in Patterson v Lawyer’s Statutory Committee (2005) SC 822; and Niko v Sawanga (2004) SC 734. In both cases, it was held that the Court may extend time to appeal on application by the applicant.

6. In my view O 7 r 5 clearly gives this Court power to extend time. I am surprised that an argument of the type advanced by Mr Wilson can be made on the face of this clear provision.

7. The purpose of O 7 r 5 and the different options under that provision have been considered in several decisions of this Court, two of which have been cited by Mr Kuira. In Henzy Yakham and the National Newspaper v Stuart and Carol Merriam (1997)SC533, Amet J (as he then was) said this:

“Order 7 Rule 5 provides that “when leave to appeal has been granted, the Supreme Court may treat the Notice of Application for Leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow”. This provision, to my mind, is clearly intended to safeguard the interests of a successful applicant for leave to appeal pursuant to Section 17. It envisages and allows for the notice of application for leave to appeal being made within 40 days after the date of the judgment in question, but the hearing of which and the grant of leave not being given until after the 40 days had expired. This rule therefore permits the Court, either to treat the notice of application for leave as notice of appeal, if it sufficiently incorporates the grounds of appeal for the purposes of Orders 7 Rule 8, or otherwise to allow the successful applicant for leave, to file a Notice of Appeal within 21 days immediately after the date on which leave is granted or such other time as the Court may allow.”

8. This statement was adopted and applied by the Supreme Court in Patterson v Lawyer’s Statutory Committee.

9. In Niko v Sawanga, this Court expressed the requirements of O 7 r 5 in terms of three options. First, the Court may, at the time leave is granted, treat the leave application for leave as the notice of appeal, in which case there is no need to file a separate notice of appeal. Second, the applicant must file a separate notice of appeal within 21 days from the grant of leave. Third, if no notice of appeal is filed within the 21 days, the applicant may make an application to the Court for leave to extend time to file a notice of appeal. Where the Court extends time, a notice of appeal must be filed within the time allowed by the Court.

10. It is now becoming apparent that some counsel or parties appearing on leave applications are still confused as to the requirements of O 7 r 5 after the grant of leave to appeal. It is for this reason that I briefly expound on those three options.

11. Immediately after the grant of leave to appeal, the applicant or his counsel must expressly invite the Court to treat the leave application as the notice of appeal. The Court may also invite the applicant’s counsel to indicate if the Court should treat the leave application as the notice of appeal but the initiative must always come from the applicant to seek the Court’s indulgence. The Court may then make a specific direction or order to that effect. Where the Court does not expressly make an order or direction to that effect, the onus falls on the applicant to file a notice of appeal within 21 days from the grant of leave. A direction or order from the Court is not necessary for that purpose. If the 21 days lapses without a notice of appeal been filed, the applicant may apply to the Court for extension of time to file a notice of appeal. It is in the discretion of the Court to grant or decline to grant the extension.

12. In the present case the application has been properly made in accordance with the third option.

What is the time within which an application for extension of time to

appeal is to be made under SCR, O 7 r 5?

13. SCR, O 7 r 5 does not prescribe a time limit for making an application to extend time to appeal. In the cases cited above, this Court did not consider the time within which an application should be made and how the discretion is to be exercised. It is for this Court to address those matters.

14. Mr Kuira submits the application may be made at any time either within the 21 days or after the 21...