Bank of South Pacific Ltd v Genderiso [2012] PGSC 53; SC1265 (29 March 2012)

SC1265

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 141 of 2010

Between:

BANK OF SOUTH PACIFIC LIMITED
Appellant

And:

KII GENDERISO
Respondent

Waigani: Injia, CJ
2012: 29th March

SUPREME COURT – Practice and procedure - Application to extend time to appeal after grant of leave to appeal - Supreme Court Rules 1984, O 7 r 5.

Cases Cited
Small Business Development Corporation v Totamu (2010) SC1054.

Counsel

Mr Manrai, for the Applicant
Mr Gagma, for the respondent

29th March, 2012

1. INJIA, CJ: This application is made pursuant to O 7 r 5 (2) of the Supreme Court Rules 1984 (SCR). The applicant seeks an order extending time to appeal following its failure to file a notice of appeal within time following grant of leave to appeal on 9 December 2011. The respondent contests the application. Both parties relied on affidavits to support their respective positions. I heard arguments of counsel and reserved my decision which I now deliver.

2. The principles on the exercise of discretion under O 7 r 5 (2) are established in Small Business Development Corporation v Totamu (2010) SC1054. Counsel argued their cases based on the application of those principles to the circumstances of the case at hand. The criteria for grant of extension are summarized in that judgment. It is not necessary to restate those principles. I only make express mention of a consideration of the merits of the case, where the Court said:

"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."

3. Applying those principles, the 21 days deadline allowed by O 7 r 5(1) lapsed on 30 December 2011. The application to extend time was filed on 22/02/12, one month later. I agree with Mr Gagma that the delay is inordinate or lengthy such that "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."

4. The applicant seeks to discharge that onus by relying on two main grounds, as follows:

(1) The delay between 16 December to 19/01/12 (1 month) was caused by Port Moresby TNT's inability to deliver the consignment containing signed notices of appeal posted from Mt Hagen on 15 December 2011 to the appellant's city agents in Port Moresby. Although the entry on the consignment package shows the consignment was received by TNT Cargo on 16/12/11, it was collected by the applicant's lawyer on 19/1/12 after staff at TNT informed the applicant's lawyer. Hence, the appeal time lapsed whilst the consignment was in the custody of TNT. When it was picked up on 19th, three weeks had gone. The inability of TNT to deliver the consignment on time is an exceptional circumstance.

(2) Secondly, the appeal has merit. Judgment on liability was entered for various cash withdrawals made by the respondent at various eftpos machines in the total sum of K26,000 where receipts were signed by the respondent. The claim was a fraud and could have been dismissed by the Court if the matter went to trial. There was affidavit filed showing a defence on the merits and it was wrongly dismissed. When judgment on liability was entered by default, an application to set aside the judgment ex parte was refused wrongly.

5. The respondent contends the appellant's lawyers in Mt Hagen and their city agents in Port Moresby failed to engage in constant dialogue to ensure the consignment was delivered or collected on time. Their explanation is unsatisfactory. As to the merits of the case, no satisfactory explanation for the delay in allowing entry of default judgment and a defence on the merits was not shown. The appellant stands to suffer no prejudice to its rights to appeal the whole and final judgment, because if the trial proceeds to assessment of damages, as a matter of law, the appellant can still challenge the interlocutory judgment on liability and quantum of damages in the one appeal against the final judgment. I am referred to a passage from SBDC v Totamu case which says an interlocutory judgment on liability that for which leave to appeal is refused, may still be appealed against as part of the appeal against final judgment marked by award of damages.

6. I am of the view that the appellant's explanation does not amount to exceptional circumstances because the consignment was not followed through diligently to collect it from TNT or arrangements made to have it delivered on time at the lawyers office before the 30 December 2011 or within 2 weeks thereafter. There was lack of prompt communication between the two lawyers in Mt Hagen and Port Moresby in this critical period. Even then, the application for extension of time was filed one month after the consignment containing the notice of appeal was received. Further given the concession made by the respondent's counsel that the appellant still has the right to challenge the judgment on liability if it decided to challenge the award of quantum of damages, the extension of time will serve no useful purpose and no prejudice will be suffered by the appellant in the process. For those reasons I find the application to be without merit and dismiss it with costs.

Formal Orders:

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

(1) The amended application for extension of time is refused.
(2) The appellant shall pay the respondent's costs of this application. _______________________________________________

Mannrai Lawyers: Lawyer for the applicant
Sirae & Co Lawyers: Lawyer for the respondent