Balakau v Ombudsman Commission of Papua New Guinea and The Public Prosecutor [1996] PGLawRp 740; [1996] PNGLR 346 (15 March 1996)

PNG Law Reports 1996

[1996] PNGLR 346 - Jeffrey Balakau v Ombudsman Commission of Papua New Guinea and The Public Prosecutor

[1996] PNGLR 346

SC495

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JEFFREY BALAKAU

V

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA; AND THE PUBLIC PROSECUTOR

Waigani

Amet CJ Kapi DCJ Los J

28 February 1996

15 March 1996

APPEAL - Objection to competency - Quaere whether Supreme Court appeal - Appeal to Supreme Court - Failure to file within time limited - Supreme Court Act ss 14, 17, 22 & 29.

PRACTICE AND PROCEDURE - Supreme Court - By notice of motion under order 10 of Supreme Court Rules and Order 16 rule 11 of National Court Rules – Quaere whether s 17 of Supreme Court Act applies.

Facts

On an appeal to the Supreme Court by notice of motion pursuant to Order 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules, objection is taken to the competency of the appeal on the ground that the notice of motion of the appeal is filed outside of the time limit for giving notice of appeal under s 17 of the Supreme Court Act.

Held

N1>1.       An appeal by notice of motion under Order 10 of the Supreme Court Rules falls under the jurisdiction of the Supreme Court Act as a civil appeal.

N1>2.       Section 17 of the Supreme Court Act applies to appeals by notice of motion under Order 10 of the Supreme Court Rules.

N1>3.       Re-affirming that court vacation under Order 2 r 3(1) of the National Court Rules did not affect the time limited for filing appeal: New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522.

N1>4.       Re-affirming that there is no power in the Supreme Court to hear an appeal not filed within forty (40) days as required by s 17 of the Supreme Court Act.

N1>5.       The appeal is incompetent.

Cases Cited

Aihi v The State [1981] PNGLR 81.

Dillingham Corp. of PNG Ltd v Diaz [1975] PNGLR 262.

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

Shelley v PNG Aviation Services [1979] PNGLR 119.

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

Counsel

J Wal, for the appellant.

D Canning, for the first respondent.

C Maneu, for the second respondent.

15 March 1996

AMET CJ KAPI DCJ LOS J: The appellant Jeffrey Balakau had made application to the National Court seeking leave, in accordance with the provisions of O 16 r 3 of the National Court Rules, to apply for Judicial Review of the decision of the first respondent, the Ombudsman Commission of Papua New Guinea, to refer allegations of misconduct in office by him to the second respondent, the Public Prosecutor, for prosecution before a leadership tribunal. That application was refused by the National Court on 8 December1995.

The appellant filed appeal to the Supreme Court by way of notice of motion pursuant to O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rules, on 2 February 1996.

The respondents jointly filed notice of objection to competency of the appeal on 13 February 1996. It is this objection to competency that this judgment is concerned with.

The objection to competency of the appeal is made on the following grounds:

N2>1.       The appellant did not give notice of the appeal within forty (40) days after the date of judgment of the National Court; and did not apply for an extension of time within that period of forty (40) days.

The appeal is therefore incompetent, by virtue of s 17 of the Supreme Court Act (Ch 37).

N2>2.       The appellant did not apply for leave to appeal. Leave should have been sought, as all of the five grounds of appeal concerned questions of fact.

The appeal is therefore incompetent by virtue of s 4(2)(c) of the Supreme Court Act.

N2>3.       The appellant did not file an affidavit in support of the notice of motion.

The appeal is therefore incompetent by virtue of O 11, r 3(2)(c) of the Supreme Court Rules.

The appeal Filed Out of Time - s 17 of the Supreme Court Act (the Act).

Section 17 of the Act stipulates that:

“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 judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.”

The National Court declined the application for leave on 8 December 1995. Pursuant to s 17, the appellant had until 17 January 1996 to give notice of an appeal or notice of application for leave to appeal. Notice of motion of appeal was filed on 2 February 1996.

It is established that the court vacation from 20 December to 31 January, under O 2 r 3(1) of the National Court Rules did not affect the time limit prescribed for the filing of the appeal, which is fixed by Statute: New Zealand Insurance Co. Ltd v Chief Collector of Taxes [1988-89] PNGLR 522.

It was submitted that the law, in relation to appeal not being filed within 40 days as required by s 17 of the Act, was now settled by a long line of authorities. There is no power in the Supreme Court to hear such a matter. See Dillingham Corp. of PNG Ltd v Diaz [1975] PNGLR 262; Shelley v PNG Aviation Services [1979] PNGLR 119; Aihi v The State [1981] PNGLR 81; Tsang v Credit Corporation (PNG) Pty Ltd [1993] PNGLR 112.

The appellant’s first response to the respondents objection to the competency of the appeal was that the respondents did not have the right of audience in that they failed to give notice of appearance pursuant to O 11 r 2 of the Supreme Court Rules, which requires that:

“A person served with a document by which proceedings are instituted or by which leave or other order is sought under these rules and who desires to be heard at any stage of the proceedings shall, as soon as is practicable or within the time specified in the document or in any other order of the Court file an appearance in accordance with form 16.”

It was submitted that, the respondents, having failed to file and serve a notice of appearance were now precluded from taking objection to the competency of the notice of appeal. If the respondents had themselves not complied with the rules they cannot now complain that the appellant had not complied with the rules either.

This submission was not pursued and so it is not necessary to make any ruling on it.

It was submitted by the appellant that in fact the right of appeal was not by virtue of the Act and so the provisions of the Act and the Supreme Court Rules relevant to an appeal under the Act did not apply to this appeal. It was submitted that the appeal was by virtue of O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rules which provided for appeals from orders made under Orders 16 & 17 of the National Court Rules.

Order 16 r 11 of the National Court Rules provides that:

“An appeal by way of motion under Order 10 of the Supreme Court Rules to the Supreme Court may be made to set aside or discharge any order of the Court or a judge granting or refusing an application for leave under rule 3 or an application for Judicial Review.

Order 10 of the Supreme Court Rules provides that:

Division 1 - Institution of Appeal

N2>1.       An appeal under this Part shall be instituted by a notice of motion.

N2>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.

N2>3.       The notice of motion shall:

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

(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.

Division 2 - Certain rules to apply

N2>4.       The following rules shall apply to matters under this Part with regard to:

(a)      filing and service; Order 7 Division 4;

(b)      affidavits; Order 7 Rules 61, 62, 63, 64.”

It was submitted that an appeal pursuant to O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rules was a public law right appeal which the Act and the Supreme Court Rules did not apply to. Such an appeal by way of notice of motion, was neither a civil appeal nor a criminal appeal. Sections 17 and 29 of the Act prescribing time limits, within which to give notice of appeal or notice of application for leave to appeal, in respect of civil or criminal appeals respectively, therefore did not apply to this appeal.

Further reliance was placed on O 10 rr 3 & 4 which do not stipulate any time limits within which to appeal. Also, it was contended, that none of the provisions of O 10 incorporated ss 17 and 29 of the Act in particular, in relation to the time limits within which appeal notices were to be given.

Section 4 of the Act provides the general enabling right of appeal from a judgment of the National Court to the Supreme Court in the following terms:

N2>“4.      Right of appeal from National Court

(1)      An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.

Division 2 - ss 13-19 then provide additional provision relating to appeals in civil cases. Division 3 - ss 20-32 provide additional provisions relating to appeals in criminal cases.”

Section 14 provides for civil appeals to the Supreme Court in the following terms:

N2>“(1)    Subject to this section, 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.

Section 22 provides for criminal appeals:

A person convicted by the National Court may appeal to the Supreme Court:

(a)      against his conviction, on any ground that involves a question of law alone; and

(b)      against his conviction, on a question of mixed fact and law; and

(c)      with the leave of the supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal:

(i)       that involves a question of fact alone; or

(ii)      that appears to the Supreme Court to be a sufficient ground of appeal; and

(d)      with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.”

It seems to us that the regime of the Act recognizes that all appeals lying to the Supreme Court from a judgment of the National Court will be divided into two principal categories, civil or criminal proceedings. Divisions 2 & 3 thus provide the detailed requirements in respect of the two major categories. Subsection 4(2) of the Act recognizes a particular category of appeals to the Supreme Court from a judgment of the National Court sitting in its appellate jurisdiction.

The first issue from the totality of these provisions is whether an appeal by notice of motion pursuant to O 16 r 11 of the National Court Rules and O 10 of the Supreme Court Rules is a civil appeal falling within Division II of the Act to which s 17 applies.

Section 17 - Time for appealing under Division 2 - provides:

“Where a person desires to appeal 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 he manner prescribed by the rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.”

We are satisfied that an appeal by way of notice of motion under O 10 of the Supreme Court Rules and O 16 r 11 of the National Court Rules is an appeal which falls under the jurisdiction of the Act. It is a non-criminal appeal and so is a civil appeal falling within Division II of the Act. Firstly, O 10 r 3 (a) stipulates that ‘the notice of motion shall show where appropriate the particulars set out in a notice of appeal under O 7 r 8’, which are the requirements of the standard notice of appeal under Part 3 - Jurisdiction Under Supreme Court Act. Rule 4 also then incorporates O 7 Division 4 which are rules 10 to 13 relating to filing and serving notice of appeal. And finally rr 16 - 64 of O 7 relating to filing and service of affidavits are also incorporated for application.

Order 10 r 4 states:

“The following rules shall apply to matters under this Part with regard to:

(a)      filing and service; O 7 Division 4.”

Order 7 r 10 stipulates that:

“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.”

Section 29 is the equivalent of s 17 - the time limited for filing criminal appeals, under Division 3.

It seems to us that r 10 is stating that the physical act of filing the notice of appeal is sufficient to comply with the requirement under s 17 of the Act for the giving of notice of appeal, for the purposes of compliance with the time limited for filing of appeal under s 17. And so for the purposes of the computation of the 40 days within which the notice of appeal is to be given, time is calculated from the date of the filing of the notice of appeal. It might conceivably be argued also that the references to ss 17 and 29 of the Act under r 10 are simply for the purposes of deeming the filing of the notice of appeal to be the giving of notice as required by s 17, and not necessarily adoption and application of the time limit within which notice of appeal is to be given.

We are satisfied however, that the incorporation and application of other provisions of O 7 of the Rules, which are the Rules of Court referred to in s 17, prescribing the manner in which the notice of appeal is to be given, do affirm our conclusion that the appeal by virtue of the O 16 r 11 and O 10 of the Supreme Court Rules are nevertheless to be in accordance with the requirements of the Act under the appropriate Division.

We do not believe that inspite of the quite comprehensive adoption and - application of the Supreme Court Rules under Part 3 O 7 that the provisions of the Act pursuant to which these Rules are promulgated, should not apply. Nor do we believe that appeals, which have to comply with the requirements of these rules which are authorised by the Act should only be subject to and comply with the substantive enabling provisions of s 17 of the Act for the purposes of filing of the notice of appeal but not the time limit within which such notices of appeal are to be filed. It does not seem to us to be consistent with the intention of the legislature in adopting and applying of O 7 rr8, 10 and 11 and rr 16-64.

It would be most inconsistent with the intention of the legislature that whilst all other appeals, criminal and civil are subject to time limitations within which to give notice of such appeals under Divisions 2 and 3, that appeals from orders made under Orders 16 and 17 of the National Court Rules should have no time limitations within which to file them. If this contention were to be extended to its natural conclusion then other rules under O 7 or other provisions of the Rules of the Supreme Court that are adopted to be applied under O 10 would be inapplicable because those rules are promulgated under the Act, if the Act has no application to appeals under O 10. This clearly cannot be the conclusion or effect intended by the legislature.

Further, the additional requirements of s 14 of the Act which stipulate the form of the notice of appeal in civil cases and which are reinforced by O 7 of the Supreme Court Rules would strictly not be relevant for application to an appeal by notice of motion under O 10 of the Supreme Court Rules. The consequential effect of such a conclusion would be that an appeal by notice of motion under O 10 could be in any kind of form and would not have to be in compliance with s 14 of the Act nor O 7 rr 8 and 9 of the Supreme Court Rules.

The end result, in our view, is that the Supreme Court Act provisions of time limitations within which appeals to the Supreme Court are to be filed, apply to appeals under the Act as well as by notice of motion pursuant to the National Court Rules and O 10 of the Supreme Court Rules. The notice of motion giving notice of appeal in this case was clearly filed after the 40 days time limit prescribed by s 17 of the Act. The appeal is therefore incompetent.

Because this ruling disposes of the matter, it is not necessary to proceed to deal with the other two grounds of objection to the competency of the appeal.

Lawyers for the appellant: Joe Wal Lawyers.

Lawyer for the first respondent: Ombudsman Commission.

Lawyer for the Public Prosecutor: Public Prosecutor