Torobert v Torobert [2011] PGSC 28; SC1130 (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 of the National Court granting an extension of time to appeal (eg an order under Section 231 of the District Courts Act), an order of a single Judge of the Supreme Court granting an extension of time to appeal (made under Section 10(1)(b) of the Supreme Court Act), or both. The ambiguity is resolved by considering the provision in the context of the entire Section 14, which is dealing only with appeals from the National Court to the Supreme Court, not appeals from single Judges of the Supreme Court to the full court of the Supreme Court. In fact nowhere in the Supreme Court Act or in any other law does there exist a right of appeal from a single Judge of the Supreme Court to the full court of the Supreme Court. The full court of the Supreme Court is entitled in certain circumstances to reconsider issues that were before a single Judge of the Supreme Court but is not given appellate jurisdiction, as such. For example, Section 5(1) allows a single Judge of the Supreme Court to make various directions and orders when an appeal is pending before the Supreme Court. Section 5(3) provides that such a direction or order may be discharged or varied by the full court of the Supreme Court, but no indication is given that such an order could be made following an appeal. Section 10(1), in addition to conferring jurisdiction on a single Judge of the Supreme Court to extend the time for appealing (the jurisdiction exercised by the Chief Justice in the present case), allows the power to give leave to appeal and to admit an appellant to bail to be exercised by a single Judge of the Supreme Court. Section 10(2) provides that where a Judge refuses an application in relation to a matter specified in Section 10(1) the appellant may apply to the full court of the Supreme Court to have the matter determined by it, but such an application is a fresh application, not an appeal (Felix Bakani v Rodney Daipo (2002) SC699, The State v John Tuap (2004) SC765).

9. There is no avenue of appeal to the full Supreme Court against a decision of a single Judge of the Supreme Court made under Section 10(1). The only way that the issues the subject of a decision under Section 10(1) can be revisited is if the application under Section 10(1) is refused, in which case "the appellant" (ie the party making the application under Section 10(1)) may apply to the full court of the Supreme Court under Section 10(2) to have the matter determined by that court (William Powi v Southern Highlands Provincial Government (2006) SC844). A person aggrieved by a decision of a court in civil proceedings has no inherent or constitutional right of appeal to a higher court (Avia Aihi v The State (No 1) [1981] PNGLR 1). We do not consider that this is an anomaly in the law or that it is unfair to a party in the position of the present appellant who may disagree with the other party being granted an extension of time. Such a person's rights and interests are not directly prejudiced by the granting of an extension. Their interests are protected by their right of appearance at the hearing of the appeal against the judgment of the National Court. We agree with the views expressed by the Court in Powi's case that it makes sense to restrict challenges to interlocutory decisions of a single Judge of the Supreme Court, so that the hearing of substantive appeals can be set down expeditiously. We conclude that we have no jurisdiction to hear this appeal and for that reason alone it must be dismissed.

2 THE MERITS OF THE APPEAL

10. We heard argument on the merits of the appeal and although it is not necessary to express views on them we will do so as it may be of assistance when applications for an extension of time to appeal are heard in future. Ten grounds of appeal were argued but they are repetitious and overlapping. In summary it is argued that the Chief Justice erred by:

• allowing the application for an extension of time to be heard ex parte without insisting that the application and supporting affidavit be served on the appellant and that the respondent seek orders for dispensation with the requirements of service;
  
• failing to find that the respondent gave an inadequate explanation of the steps taken since the handing down of the National Court decision to file an appeal;
  
• failing to find that there was no evidence outlining serious grounds of appeal.
  

11. None of the grounds have merit. It is not necessary for an application for an extension of time to appeal to be served on any party prior to its being heard, just as it is not necessary for an application for leave to appeal to be served (Gigmai Awal v Salamo Elema [2000] PNGLR 288). It was quite proper for the application to be heard ex parte. It is nothing out of the ordinary for appellate courts to hear ex parte applications to extend time for appealing. This is the procedure sanctioned by Section 231 of the District Courts Act in the case of appeals from a District Court to the National Court (In The Matter of an Application by Linah Edward (2005) N2804).

12. As to the considerations that the Judge hearing the application should take into account, this is a matter for the Judge, subject to the requirement imposed by Section 17 of the Supreme Court Act that the application for an extension of time is made within the 40-day period. Provided the discretion is exercised judicially the requirements imposed on a person seeking an extension of time should not be regarded as onerous. 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. Provided the Judge is satisfied that there are genuine reasons for seeking more time and that the applicant is not engaging in time-wasting tactics or otherwise abusing the processes of the court and that there are no other matters of concern, it is reasonably to be expected that leave would be granted. The period of the extension is a matter of discretion, which should be exercised according to the circumstances of the case. It might be 40 days (as it was in the present case). It might be one day. It might be three months. Here the trial judge pronounced an oral decision in the National Court on 31 March 2010, thus setting the 40-day appeal period under Section 17 of the Supreme Court Act running. His Honour said at that time that he would publish a written judgment before expiration of the appeal period, which he did on 5 May 2010, day 35 of the appeal period. It was a 51-page judgment and the reasons for decision were more extensive than those summarised orally on 31 March 2010. It was a complex judgment covering issues of matrimonial property law. The respondent's lawyer had left the country for medical treatment on the day that the written judgment was handed down. He was contacted by another of his firm's lawyers in the period leading up to the expiry of the appeal period but he had just undergone surgery and his mind was in no condition to allow him to advise his client on whether an appeal should be made, take instructions from the client and, if necessary, draw up a notice of appeal. Evidence of these facts was in an affidavit filed in support of the application for an extension of time, which was made, heard and determined on the last day of the appeal period. In these circumstances we find no error in the exercise of the discretion to grant an extension of time of 40 days.

CONCLUSION

13. The full court has no jurisdiction to hear an appeal against a decision to grant an extension of time to appeal of a single Judge of the Supreme Court, and for that reason the appeal must be dismissed. If we had dealt with the appeal on its merits it would still have been dismissed as no error was made by the Judge whose decision has been appealed against. The stay order that has been in place since the granting of leave to appeal will be discharged. Costs will follow the event, subject to the award of costs in favour of the appellant that was made in granting leave to appeal.

14. MURRAY J: I have had the benefit of reading the draft judgment of Cannings J and Kariko J and while I agree with their Honours on the merits of the appeal I have a different view on the issue of jurisdiction, which view is the one expressed with Sakora J and Manuhu J in the decision of 1 July 2011 in the present proceedings. The unanimous view resulting in the decision of 1 July 2011 is that Section 14(3)(a) of the Supreme Court Act cannot be seen or read to be referring to an order made by the National Court but rather, it must be read to mean an order of a single Judge of the Supreme Court for the simple reason that, an application for an extension of time to lodge an appeal against a National Court decision can only be made in the Supreme Court pursuant to Section 10(1)(b) of the Supreme Court Act and not in the National Court where it does not have the power to hear such an application.

15. As to whether one has a right of appeal from a single Judge of the Supreme Court, I do agree there is no right of appeal. However, by virtue of Section 14(3)(a), one who is aggrieved by a decision of a single Judge of the Supreme Court granting an extension to appeal, can appeal to the full Supreme Court only if leave is granted. That is what the appellant in this case did on 27 June 2011. The appellant applied for leave pursuant to Section 14(3)(a) of the Supreme Court Act and leave was granted on 1 July 2011, resulting in the appeal which came before this Court on 2 September 2011.

ORDER

The following order is made by the Court in consequence of the above judgments:

(1) The appeal is dismissed.

(2) The stay, pursuant to order Nos 3 and 4 of 1 July 2011, of the order for extension of time to appeal, the notice of appeal and the application for leave to appeal in SCA No 68 of 2010, is discharged.

(3) Costs of the appeal, other than costs awarded to the appellant under order No 1 of 1 July 2011, shall be paid by the appellant to the respondent on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

_____________________
PNG Legal Services: Lawyers for the Appellant
Blake Dawson Lawyers: Lawyers for the Respondent