Small Business Development Corporation v Totamu [2010] PGSC 44; SC1054 (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) SC659
Felix Bakani v Rodney Daipo (2009) SC699
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) SC722
Joseph Kupo v Steven Raphael (2004) SC751
Leo Duque v Andrew Paru [1997] PNGLR 378
Niko v Sawanga (2004) SC734
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Patterson v Lawyer's Statutory Committee (2005) SC822
Peter Nixon Donigi v Base Resources Ltd [1992] PNGLR 110
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811
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SCA No. 09 of 2005, Was Neimari and others v Maria Iapential and Joseph Romen, Unnumbered and unpublished judgment dated 2nd October 2008.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] NSWStRp 78; (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 days but within a reasonable time. The application in this case has been brought within a reasonable time.

15. Statutory prescription of time limit for filing an appeal or to seek an extension of time to file an appeal is an essential requirement that is intended to regulate the right of an aggrieved person to appeal the decision and to prevent abuse of the court process. In civil appeals, s17 of the Act requires an applicant to apply for an extension of time to appeal within 40 days from the date of decision of the National Court. The same time limit is prescribed for an extension of time to appeal in a criminal case: see s 29 (2) of the Act. However, in those Sections, no provision is made for filing of an appeal after leave is granted, the time for filing a notice of appeal and further allowance of time to file notice of appeal. Provision is made in s 41 of the Act for those matters to be provided for by the rules of the Supreme Court. The Supreme Court Rules 1984 addresses those matters. Whilst O 7 r 5 prescribes a time for the Court to treat the leave application as a notice of appeal, that is, immediately after the grant of leave to appeal; or for filing an appeal after grant of leave; this rule omits to state if the extension may be granted on the Court's own motion or on application by the applicant. The rule also omits to specify a time for making the application. In Niko v Sawanga, this Court decided that the jurisdiction may be exercised on application by the applicant. In my view, in consonance with the time prescriptions for instituting an appeal in ss 17 and 29 of the Act, it is desirable that O 7 r 5 should fix a time for bringing an application for extension of time. I would think that this rule should be amended to require an application to be made within the 21 days or within such other time as specified. That is a matter for the Judges to consider by way of rules change: Constitution, s 184; Supreme Court Act, s 41.

16. The absence of time limit in O 7 r 5 however does not preclude this Court from determining the present application or for future applications, based on a construction of that provision. As with the construction of other laws, SCR, O 7 r 5 is a subordinate legislation that should be fairly or liberally construed to achieve its purpose. SCR, O7 r 5 is intended to facilitate the filing of an appeal after grant of leave to appeal. In my view, a fair and liberal construction of the expression " or within such time as allowed by a judge or the Court may allow" in SCR, O7 r 5 allows an application for extension of time to be made at any time either within or after the 21 days. The applicant's failure to file the appeal within the 21 days and any delay in bringing the application for extension of time are matters to be taken into account in the exercise of the Court's discretion whether or not to grant the extension sought by the applicant.

17. I am aware that there are many cases decided by the Supreme Court on applications to extend time to appeal under s 17 and s 27 of the Act, in which the Court has declined jurisdiction to deal with such application and has expressed a general view that when a person fails to file an appeal within 40 days or within the time extended by the Court, the applicant has lost his or her right of appeal and the only recourse open is by way of review under Constitution, s 155 (2)(b): Dingi Damane v The State [1991] PNGLR 244 at 248; Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 12; Jim Kas v The State [1999] SC 722; Felix Bakani v Rodney Daipo (2001) SC 659; Felix Bakani v Rodney Daipo (2009) SC 659. The application for extension of time under O 7 r 5 is different in that the leave application having been made and granted within time in compliance with s 17 or s 29, the actual filing of the appeal appears to be a matter in the Court's discretion.

18. For the foregoing reasons I am of the view that the application in this case has been brought properly before this Court.

What are the relevant considerations the Court should take into account in exercising its' discretion?

Nature of Judicial discretion:

19. The judicial discretion given by SCR, 0 7 r 5 to allow an extension of time to appeal must be exercised on proper considerations and in appropriate circumstances. However there are no reported decisions on the test to be applied in exercising the discretion under this rule in a civil appeal.

20. In the absence of any case law on point, I adopt a passage from a pre-Independence Supreme Court decision in Secretary for Law v Tinsunak Nawok Domstock also known as Bisanoga [1974] PNGLR 246, in which the full Court (Frost ACJ, Clarkson J and Williams J) set out the principles on exercise of discretion in an application to extend time to appeal under s 34 (2) of the Supreme Court (Full Court) Act 1968. The Court said at p.248:

"From authorities cited before us we take the proper construction of s. 34 (2) to be that an extension of time will not be granted as a matter of course, but that the Court will in every case require substantial reasons to be advanced before granting such a concession. R. v. Sunderland [1927] NSWStRp 78; (1927) 28 S.R. (N.S.W.) 26, at p. 27.2."

21. In a civil appeal an extension of time to appeal under SCR, O 7 r 5 should not be granted as a matter of course. The applicant must demonstrate substantial reasons to warrant the grant of extension.

Relevant considerations:

22. Mr Kuira submitted relevant considerations include a reasonable explanation for the failure to file the appeal within time, a reasonable explanation for the delay in making the application and preserving the interest of justice in the particular circumstances of a case on appeal. I accept those considerations to be of relevance to an application for extension of time under O 7 r 5. Another considerations is the merits of the case on appeal. Also relevant to consider is the conduct of lawyers for the applicant in causing or contributing to the default.

23. I expound on those considerations for the purpose of civil case appeals under s 17 of the Act.

Failure to file appeal within time:

24. This consideration is distinct from the delay in filing an application for extension of time. The applicant must provide a reasonable explanation, by affidavit, for the default in appealing within time.

Delay in making application for extension of time:

25. The application must be made promptly and within a reasonable time after the lapse of 21 days. For purposes of computing period of delay, I am unable to find any reported decisions on a civil appeal. There are two reported criminal cases in which the pre- Independence Supreme Court dealt with applications for extension of time made outside of the 40 days prescribed by s 34 (2) of the Supreme Court (Full Court) Act 1968: see the equivalent of that provision in s 29 (2) of the Supreme Court Act. In Secretary for Law v Tinsunak Nawok Domstock also known as Bisanoga [1974] PNGLR 246, the application was made several months after the expiration of forty days. In Re Application by Keremot and Watir [1974] PNGLR 66, the application was also made several months after the 40 days prescribed by s 34 (2). In both cases, the Court did not deal with the question of delay. The applications were determined on the merits of the case on appeal. It appears the phrase "may be extended at any time" in s 34 (2) was understood by the Court to mean an application for extension of time could be made at any time and the Court would assume jurisdiction to deal with the application.

26. A similar practice in criminal appeals has developed in some Australian States and in the United Kingdom which have similar provision in their statutes. Many of those cases are referred to in Bisanog: see R. v. Sunderland [1927] NSWStRp 78; (1927), 28 S.R. (N.S.W.) 26, R v Boruta, Unreported judgment of the Supreme Court of N.S.W. dated 29th October, 1957, The Queen v. Brown, [1963] S.A.S.R. 190, R. v. Ramsden, [1972] Cr. L.R. 547, Queen v Brown [1963] S.A.S.R 190, R v Rhodes (1910) 5 Cr. App. R. 35; R v Lesser [1939] 25 Cr. App. R 69; and R v Cullum (1942) 28 App. R. 150, R v Marshall (1935) 25 Cr. App. R.49.

27. In Bisanoga and Kermot & Watir, the applications were several months out of time but the question of delay in making the applications did not arise and the court decided the case on the merits of the case on appeal. In the Australian and United Kingdom cases cited above, the length of delay range from a few days to several months. In criminal cases, a delay of two month is considered substantial or lengthy: see R v Marshall (1935) 25 Cr. App. R.49.

28. In Queen v Brown [1963] S.A.S.R 190 at 191, a case involving application for extension of time to appeal, the Supreme Court noted the following practice:

"The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively slight, say by a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration.

29. The Court in Queen v Brown adopted the practice in the English Court of Appeal in England set out in R v Rhodes (1910) 5 Cr. App. R. 35. The Court summarized the practice in the following terms:

" It follows that where the delay is substantial an application to extend time is by no means a matter of course. It is not sufficient that there would have been a question calling for serious consideration, if the appeal had been instituted in due time. When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is in the interests of justice that he should be permitted to institute and pursue his appeal."

30. Having had recourse to the test in Bisanoga as expounded by the practice in Australia and the United Kingdom in the cases referred to above as a guide, I consider that delay time in a civil appeal should be computed in terms of days and up to 2 weeks at the most. A delay by this period may be considered ordinary. A delay beyond this period may be considered lengthy or substantial. As evident from Bisanoga and the other cases cited, in criminal cases there is the special consideration that involves deprivation of personal liberty of the applicant and the Courts have been flexible in permitting an application to be made several months out of time. In civil appeals, there is no deprivation of personal liberty involved and the Court should restrict the application to be made promptly and within a reasonable time after lapse of the prescribed time.

31. The standard of persuasion required of the applicant is relative to the nature of the delay in bringing the application. If the delay is ordinary, the applicant should, by affidavit, offer a reasonable explanation. If the delay is lengthy, the applicant should, by affidavit, offer substantial reasons and exceptional circumstances.

Merits of the case:

32. In a civil case which involves the trial judge's exercise of discretion in a procedural matter within the trial Court's jurisdiction, the Court must be persuaded that the applicant has a strong case that the trial judge was wrong in the exercise of its discretion and that he or she is likely to succeed in the appeal. In SCA No. 09 of 2005, Was Neimari and others v Maria Iapential and Joseph Romen, Unnumbered and unpublished judgment of Sevua J, Batari J and Lay J dated 2nd October 2008, the Court said:

" Consideration of the merits of the case in a preliminary way does not determine any issue on the substantive action. However that consideration is made for the very good reason that the court should not exercise its discretion in favor of a party whose case is obviously hopeless at a glance. The case has to be at least arguable.

"In our view the same principles should apply when an application to extend time to appeal is made under s 231 of the District Courts Act. The delay may be very short and the reasons for it compelling. However, the court's discretion should not be exercised solely on that ground in favor of the applicant, if the grounds of appeal are clearly unarguable.

Conversely, where an applicant's case appears to be exceptionally strong, for example, where as a matter of law on undisputed facts the result in the District Court was wrong; or where there has been some blatant breach by the respondents of the applicant's constitutional right to a fair hearing, the merits may outweigh an unsatisfactory explanation for delay."

33. In Was Meimari, this Court was dealing with an appeal from a decision of the National Court refusing to extend time to appeal under s 231 of the District Court Act but the principle in that case is also applicable to an application to extend time made under O7 r 5 and I adopt it in this case.

34. The strong merits of the applicant's case on appeal is part of the applicant's duty to demonstrate how the decision effects his or her substantial rights and the interest of justice.

Substantial prejudice to applicant's rights /interest of justice:

35. The applicant must demonstrate substantial reasons as to how the decision complained of effects his or her substantive rights and a review of the decision on appeal is warranted. The applicant must also demonstrate that it is in the interest of justice that in all the circumstances of the case, it is in the interest of justice that the extension ought to be granted in order to facilitate a review of the decision on appeal.

Conduct of lawyers:

36. In civil appeals, also relevant to consider is the conduct of lawyers in causing or contributing to the default in filing the notice of appeal within time or in making the application promptly and within a reasonable time. This Court has accepted the general principle that in a civil case, the delay or negligence of a lawyer is not an adequate excuse for the defaulting party to avoid time constraints, because the client has another remedy available against his or her lawyer: Independent State of Papua New Guinea v Colbert [1988] PNGLR 138; PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC 811; Joseph Kupo v Steven Raphael (2004) SC 751, Leo Duque v Andrew Paru [1997] PNGLR 378; Peter Nixon Donigi v Base Resources Ltd [1992] PNGLR 110. All lawyers who are certified to practice law under the Lawyers Act 1986 are required by the Act to take up professional indemnity insurance which provides recourse to a lawyer to indemnify his or her client against loss as a consequence of professional negligence of a lawyer. An innocent respondent should not be made to suffer the loss of benefit deriving from the judgment and subjected to unnecessary expense and inconvenience in continuous litigation before this Court. This Court's precious time should also not be wasted.

Summary

37. I summarize what I have said so far in terms of the test to be applied in the exercise of discretion to extend time to file an appeal under O 7 r 5 of the Supreme Court Rules, as follows;

(1) An extension of time under O 7 r 5 of the Supreme Court Rules 1984 is a judicial discretion which is to be exercised on proper grounds and in appropriate circumstances. The discretion will not be granted as a matter of course. An applicant must satisfy the Court that there are substantial reasons to warrant the exercise of discretion in his or her favor.

(2) In a case where the applicant is in default of filing an appeal within time, the applicant must, by affidavit, offer a reasonable explanation for the default.

(3) The application must be made promptly and within a reasonable time. For purpose of determining what is a reasonable time, consistent with time stipulations in Supreme Court Act, ss 17 and 21 and Supreme Court Order, O 7 r 5, time should be computed in terms of days or up to 2 weeks at the most. A delay by this period may be regarded as ordinary or relatively slight. Delay in making an application beyond this period may be regarded as substantial, inordinate or lengthy.

(4) Where the delay is ordinary or relatively slight, the court may grant the extension if the applicant offers a reasonable explanation for the default in filing the appeal within time; there is a reasonable explanation for the delay in making the application for extension of time promptly and within a reasonable time; that there is a question that requires consideration by the court in the appeal; and that it is in the interest of justice that the extension should be granted.

(5) Where the delay is inordinate or substantial, leave should be refused unless the applicant demonstrates substantial reasons and exceptional circumstances as to why the appeal was not filed within time; substantial reasons and exceptional circumstances explaining the lengthy delay in making the application; that there is serious question that requires consideration by the court in the appeal; and that it is in the interest of justice that the extension should be granted.

(6) The applicant must also demonstrate that the decision complained of effects his or her substantive rights and a review of the decision on appeal is warranted. The applicant must demonstrate a strong case that is likely to succeed on appeal.

(7) Where an applicant is represented by a lawyer and the lawyer is at fault in filing an appeal within time or in failing to make an application promptly and within a reasonable time, it is relevant to consider the role of the lawyer in causing or contributing to the default. The lawyer must, by affidavit, offer substantial reasons and exceptional circumstances explaining the default. If the lawyer's default is serious and the client stands to suffer financial or other material loss as a result, the applicant's remedy lies against the lawyer. The application for extension may be refused for this reason alone.

How should this Court exercise its discretion in the circumstances of this case?

38. I will apply the test set out above to the circumstances of this case. But first, I consider the evidence placed before me.

Evidence

39. The only evidence before this Court is those filed on behalf of the applicant. It relies on the affidavit deposed by Mr Kuira and the affidavit deposed by Mr Vanua Karawa. Mr Kuira is the lawyer from the firm of Ketan Lawyers who has carriage of the matter. Mr Karawa is a clerk employed by that law firm and who assisted Mr Kuira in this particular matter. The affidavits give reasons as to why the appellant failed to file the notice of appeal within 21 days from date of grant of leave to appeal. They do not give reasons as to why it has taken the firm about 47 days to make this application.

40. The story is that this Court delivered an oral ruling on 22nd January 2010 and indicated it would deliver a written version of it later. The 21st day was to fall on 12th of February. The written ruling was received on 29th January. On 5th February (on which date he advised his client of the Court's decision and said he would file the notice of appeal) Mr Kuira drafted the notice of appeal and left it with Mr Karawa to file it in the Supreme Court registry. According to Mr Karawa, on 9th February, Mr Kuira instructed him to file a notice of appeal at the registry. On the same day he attended at the registry and lodged the notice of appeal and instructed the registry clerk to return the sealed notice of appeal before 12th February. On 11th and 12th February Mr Kuira and his client exchanged notes on the progress of the appeal. On 12th February Mr Kuira advised his client the notice of appeal had been filed. On 19th February, Mr Kuira searched his office file on the matter and discovered a sealed copy of the notice of appeal was not in the file and also discovered the notice of appeal had not been returned from the Supreme Court registry. Also on 19th February, Mr Kuira was in Lae attending to another matter. He instructed Mr Karawa to check with the Court registry and obtain the sealed notice of appeal. Mr Karawa arrived late at the registry after the registry had closed. On 22nd February, he checked at the registry and could not find the notice of appeal. Following discussions on the matter within the firm, the present application was filed.

41. The initial application was filed on 10 March 2010. The application was brought under SCR, O 7 r 53. When the application first came before this Court, the Court questioned the competency of the application. On 31st March 2010, the appellants responded by filing an amended application under O 7 r 5 which this court allowed.

42. Mr Kuira submits the applicant's lawyer has offered a good explanation for their failure to file an appeal within time; the delay by 47 days in filing a proper application for extension of time has been sufficiently explained; and that there are serious issues to be determined by the Supreme Court, particularly as to the bogus nature of the claim as noted by this Court in its ruling on application for leave. The applicant will suffer grave injustice if time is not extended and the trial on damages proceeds in the National Court.

43. In considering the evidence, I take particular note of the assertion in the affidavits that a notice of appeal was filed within time, apparently, two-three days before the time expired. However this assertion lacks supporting evidence. It is prudent business practice in law firms for lawyers to keep copies of documents filed in Court registries and for the filing clerk to record his attendances at the Court registry. A file copy of the notice of appeal that is said to have been filed is not annexed to the affidavits. Mr Karawa has not annexed to his affidavit any notes he kept on his attendances at the registry and the documents he filed to confirm the notice of appeal was in fact filed on the 9th of February. The notice of appeal is not registered on the Court file and a copy is nowhere to be found in that file. In the circumstances, I am unable to find that a notice of appeal was in fact filed as asserted.

Application of test to facts

44. Assuming the notice of appeal was filed on 9th February, the applicant's lawyer has explained the actions he took in the period of 12 days from the time a written copy of the ruling was received to the time the notice of appeal is said to have been filed. He was sorting out what to do. In my view, this is not a reasonable explanation. Premium time was wasted sorting out what to do.

45. Four weeks later, the initial application was filed. This in itself amounts to a lengthy delay. In any case the application was incompetent as it pleaded the wrong jurisdiction provision under which the application was made: see Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962. Premium time was wasted through poor drafting of an incompetent application. Three weeks later, a competent application was filed on 31st March. There was also undue delay in filing this application. It took the applicant's lawyer 47 days to make a competent application for extension of time. I find delay by this period to be substantial and lengthy. The appellant's lawyers have not offered substantial reasons and exceptional circumstances explaining the lengthy delay. Delay due to this sort of dilatory conduct can barely amount to substantial reasons or exceptional circumstances.

46. In terms of prejudice to the applicant's rights, it is assumed that this court is versed with the nature of the appellant's case because it dealt with the leave application. However the nature of the discretion to be exercised in an application for extension of time is different and proper explanation is required which has not been forthcoming.

47. In terms of the merits of the appeal, although when this Court determined the leave application, the Court found that the applicant had an arguable case, the issue of whether the applicant has a strong case on appeal is a different matter. I am not persuaded that the applicant has a strong case on appeal against the interlocutory judgment.

48. I also consider that the applicant will not be left without a statutory remedy to challenge the interlocutory judgment if the extension of time is not granted. If a trial on the question of damages results in awarding damages against the applicant, that judgment will constitute the final judgment in those proceedings. If the applicant is aggrieved by that decision, the applicant may be entitled to appeal the whole judgment, which may be inclusive of interlocutory judgment such as the one subject of this appeal. The reason simply is that there is no appeal against the interlocutory judgment. I am satisfied that the applicant will not suffer grave injustice if this application is refused.

49. This is also a case in which the applicant's lawyers seem to have badly handled the matter. First, the lawyer did not seek an order from the Court under O 7 r 5 to treat the leave application as the notice of appeal at the time leave was granted. Second, they wasted the 7 days doing nothing tangible to lodge an appeal in the Supreme Court registry, only to file a notice of appeal in the last 2 to 3 days before the expiry of 21 days, then they took little or no steps to pursue the matter with court registry officials. Assuming Mr Karawa filed the appeal on 9th February, he took no steps to follow up on the notice of appeal he had filed only to be instructed by Mr Kuira from Lae. Finally 47 days went by without a competent application under O 7 r 5 being filed. In the circumstances, I am satisfied that this is an appropriate case in which the client should seek redress from the lawyer for any financial and other material consequences that the applicant may suffer as a result of the dismissal of this application. The respondent is an innocent party and he is entitled to the benefit of the interlocutory judgment. He should not be made to suffer the consequences of the default on the part of the applicant's case matter by its lawyers. The Court's time should also not be wasted.

50. For the foregoing reasons, the application is dismissed with costs. The effect of this order is that the trial on damages will now proceed before the National Court.

Formal Orders

51. The formal orders of this Court are as follows:

(1) The amended application for extension of time filed on 31st March 2010 is dismissed.

(2) The appellant shall pay the respondent's costs of the application.

(3) The trial on assessment of damages in WS No. 768 of 1998 shall now proceed before the National Court at Mt Hagen.

_________________________________________

Ketan Lawyers: Lawyer for the appellant
Warner Shand Lawyers: Lawyer for the respondent