Molu v Wawoi Guavi Timber Company Ltd [2016] PGSC 10; SC1494 (18 April 2016)

SC1494

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA.NO. 155 OF 2013

BETWEEN

JOHN MOLU & ORS
Appellants

AND

WAWOI GUAVI TIMBER COMPANY LTD
First Respondent

AND
MR. TIONG JUK CHUONG, OPERATIONS MANAGER, WAWOI GUAVI TIMBER COMPANY LTD
Second Respondent

AND
MR. WONG KEH YEE, MANAGER, STRAITS MARINE, WAWOI GUAVI TIMBER COMPANY LTD
Third Respondent

AND
SECURITY GUARDS GERO BILLY, IDIE UGU, AIDE WAME, IVAN IBALE, GIDEON GAIWA AND ULE BAIWABA
Fourth Respondent

AND
SENIOR SERGEANT GERRY BIAMAGA
Fifth Respondent

AND
CONSTABLE FRANK JOE
Sixth Respondent

Waigani: Makail J, Murray J & Higgins J
2016: 26th February & 18th April

PRACTICE AND PROCEDURE – Reinstatement of action – Application for leave to appeal – Application granted – Time under Order 7 Rule 6 SCR abridged – Validity thereof – Power of single Judge to extend time – Appeal instituted when Notice of Appeal filed – Meaning of 'pending' in S.5(3) Supreme Court Act.

PNG Cases Cited:
Avia Aihi v The State [1981] PNGLR 81
Application by Jeffery Balakau [1998] PNGLR 437
Hermit Island Ltd v National Fisheries Authority [2010] PGSC 14
Irish v Delta Service Station Ltd [1968] PGSC 18
Paki v Polye & Ors [2011] PGSC 11
State v Toka Enterprises Ltd [2013] PGSC 62
State v Toka Enterprises Ltd [2013] PGSC 62
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 113

Overseas case
R v Kane [1966] NZCA 24; [1967] NZLR 60
R v Savunara Nayagan & Walker [1968] 1WLR 1761; 52Cr App. R 637

Counsel:
Mr. J. Apo, for the Appellants
Mr. A. Mana, for the 1st, 2nd, 3rd & 4th Respondents
Mr. Cappo, for the 5th & 6th Respondents

JUDGMENT

18th April, 2016

1. BY THE COURT: This appeal relates to an action brought by the appellants against the respondents seeking damages for an allegedly unlawful raid instigated by the first respondent, its managers the second and third respondents and carried out by the remaining respondents in their respective capacities as security guards employed by the first respondent and police officers. The appellants claim wrongful arrest, assault, inhumane treatment and false imprisonment.
   
2. The current procedural controversy began with a decision by Murray J, to dismiss the proceedings for failure to give discovery and, in consequence, want of prosecution on 25th April 2013. There was an obvious difficulty in communicating with the then lawyers for the appellants, Jerewai Lawyers. On 15th August 2013, notice was given that Ame Lawyers acted for the appellants and were applying to set aside the orders of Murray J.
   
3. That application came before Kassman J, and was adjourned to 19th September 2013 for hearing. It was heard by Cannings J at Waigani and the application was granted following a contested hearing.
   
4. On 28th October 2013, the respondents filed an application for leave to appeal against that decision.
   
5. That application was heard by a single judge of the Supreme Court, Kassman J, who granted leave on 21st May 2014, and the following day gave directions including a direction that the respondents file and serve notices of appeal within 14 days.
   
6. The respondents were represented in court by Mr Asher Chillion of Allens Lawyers. Mr. Chillion erroneously recorded the order of Kassman J as requiring filing of the Notice of Appeal by 14 June 2014. Shortly after he left court on 22 May 2014, Mr. Chillion's attention was diverted by news that his father-in-law had died. He was on leave until 2nd June 2014. A clerk filed draft orders on behalf of Mr. Chillion on 3rd June 2014. Mr. Chillion proceeded to draft the Notice of Appeal. It was lodged with the Supreme Court Registry for filing on 6th June 2014.
   
7. As at that date, the Registry had not verified the orders taken out by the respondents' lawyers.
   
8. On 13th June 2014, the Registry advised the respondents' lawyers that the Notice of Appeal was filed out of time.
   
9. The Notice of Appeal is set out as annexure L to Mr. Chillion's affidavit of 18th June 2014. That affidavit was filed in support of an application to vary the orders of Kassman J referred to above so as to permit the late filing and service of the Notice of Appeal. That application was amended on 11th July 2014.
   
10. As amended it sought the following orders:
    

"1. Pursuant to Section 155(4) of the Constitution:

(a) The Court Directions issued on 22 May 2014 particularly term 4 of the Directions which directed the Appellants [present Respondents] to file and serve their Notice of Appeal by 4 June 2014, be varied as follows:

"The appellants are to file and serve their Notice of Appeal by 11 June 2014 in accordance with Order 7 Rule 6 of the Supreme Court Rules."

(b) The Appellants' Notice of Appeal lodged with the Registrar at the Supreme Court Registry on the 6th June 2014, be accepted, sealed, filed and dated as 6 June 2014; or

(c) Alternatively to (b) above, the Appellants be granted leave to file and serve their Notice of Appeal within 7 days from the date of this Order.

2. Alternatively, pursuant to Order 2 rule 1(h) of the Supreme Court Rules (Consolidated to 2012) and Order 12 rule 8(4) of the National Court Rules:

(a) The Court Directions issued on 22 May 2014 particularly term 4 of the Directions which directed the Appellants to file and serve their Notice of Appeal by 4 June 2014, be varied as follows:

"The appellants are to file and serve their Notice of Appeal by 11 June 2014 in accordance with Order 7 Rule 6 of the Supreme Court Rules."

(b) The Appellants' Notice of Appeal lodged with the Registrar at the Supreme Court Registry on the 6th June 2014, be accepted, sealed, filed and dated as 6 June 2014; or

(c) Alternatively to (b) above, the Appellants be granted leave to file and serve their Notice of Appeal within 7 days from the date of this Order.

3. Further alternative pursuant to Section 5(3) of the Supreme Court Act:

(a) The Court Directions issued on 22 May 2014, particularly term 4 of the Directions for the Appellants to file and serve their Notice of Appeal by 4 June 2014 be discharged for being in contravention of Order 7 rule 6 of the Supreme Court Rules.

(b) The Appellants' Notice of Appeal lodged with the Registrar at the Supreme Court Registry on the 6th June 2014 be accepted, sealed, filed and dated 6 June 2014 in accordance with Order 7 rule 6 of the Supreme Court Rules."

11. There is no cross-appeal questioning the grant of leave to appeal. However, the issue of the late filing of the Notice of Appeal did come before Manuhu J on 15th October 2015, as a single judge of this Court. As a matter of fact, his Honour accepted that despite his presence in Court on 22nd June 2014, Mr. Chillion had, in all good faith, on his return to work on 2nd June 2014, accepted his note specifying 14th June 2014, as the date by which Notice of Appeal was to be filed and served and did so on 6th June 2014, having forgotten the terms of the orders Kassman J had in fact pronounced.
    
12. Manuhu J accordingly made the orders now sought by the respondents "pursuant to Section 5(3)" of the Supreme Court Act.
    
13. The appellants now appeal against the orders of Manuhu J pursuant to Order 11 rule 25 of the Supreme Court Rules upon the following grounds:
    

"(a) That His Honour Justice Manuhu sitting as the [sic –'a'] single judge of the Supreme Court erred in law as His Honour did not have the jurisdiction to grant the Application to vary an order/Direction under Section 5(3) of the Supreme Court Act as the jurisdiction fell on the full bench of the Supreme Court.

(b) That His Honour erred in law in granting an application to vary under Section 5(3) of the Supreme Court Act when there was NO Appeal pending in the Supreme Court.

(c) That His Honour erred in law and in fact in not considering the Transcript of the 22nd May 2014, where the Respondents' lawyers were well and truly aware of the Orders of Justice Kassman given on the 22nd of May 2014 to file the Notice of Appeal by 4th of June 2014 which the Respondents failed to comply with."

14. Grounds (a) and (b) may be considered together. Ground (c) can be summarily disposed of. His Honour accepted as a fact that Mr. Chillion was genuinely mistaken as to the time for filing of the Notice of Appeal which Kassman J had specified. Even if it had been otherwise, discretion to allow the appeal to be instituted would still have left it open for Manuhu J to exercise that discretion, assuming that he was empowered to do so. If he was not so empowered then his decision is of no effect in any event. Nevertheless, the note Mr. Chillion took was mistaken and clearly had the potential to mislead him when, on 2 June 2015, he came to turn his mind to the issue.
    
15. Turning to the first ground, the role of the Rules and the Supreme Court Act 1975 is pivotal. Section 155 of the Constitution provides the constitutional basis for the Supreme Court to exercise a power of review over the orders of the National Court or any judge thereof.
    
16. Whether that power is exercisable by a Full Court or a single judge depends on the terms of the Supreme Court Act 1975 and/or the Rules.
    
17. Under Section 10 of that Act "a Judge" is empowered to grant leave to appeal. It follows that once leave is given, the applicant for leave to appeal must institute that appeal. A Judge may also (per s.10 (1) (b)) ... "extend the time within which notice of appeal or of an application for leave to appeal may be given..."
    
18. Pursuant to S.161(2) of the Constitution "the Supreme Court shall consist of at least three judges" – but under S.162(2):
    

"In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single judge of that Court, or by a number of judges sitting together."

19. One such provision is made by S.19 of the Supreme Court Act:
    

"Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal does not operate as a stay of proceedings."

20. It follows from the above that Kassman J was empowered to exercise the jurisdiction of the Supreme Court to grant leave to appeal in this matter.
    
21. A question is raised as to whether Kassman J had power to abridge the time within which Notice of Appeal was to be filed.
    
22. The effect of filing Notice of Appeal is made clear by Order 7 rule 7:
    

"An appeal shall be instituted by a Notice of Appeal."

23. The time within which Notice of Appeal is to be filed after leave to appeal is granted is prescribed by Order 7 rule 6:
    

"When leave to appeal has been granted, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such further time as the Court or Judge may allow on application filed and served within that 21 days."

24. Order 5 rule 39 provides:
    

"The Court or a judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law."

25. That, however, is a provision relating to a review not an appeal.
    
26. Under the Appeal rules, Order 7 rule 47 states:
    

"The Court or a judge may at any time make such orders as appear just for the expediting of the appeal."

27. Does that rule support the abridgement of time allowed under Order 7 rule 6 as directed by Kassman J? Certainly Order 11 rule 7 (waiver of rules) provides no answer. It relates only to compliance with "rules relating to the preparation of documents or appeal books for the Court."
    
28. Certainly a judge may extend the time for filing of a notice of appeal under Order 7 rule 6 but no express power to abridge that time appears. Time in respect of appeals is of great importance.
    
29. In Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 113, Kapi DCJ, Sheehan & Brown JJ held that a failure to appeal or seek leave to appeal within the 40 days allowed by the Supreme Court Act rendered any subsequent appeal incompetent. Put simply any right of appeal or to apply for leave to appeal or to extend time for those purposes is irrevocably lost if no appeal, application for leave to appeal or extend the time so allowed is made within that period of 40 days. Whether there ought to be some amelioration of this situation in deserving circumstances is a matter for the Legislature.
    
30. That decision was affirmed by the Supreme Court (Kapi CJ; Sevua & Lenalia JJ) in

Hermit Island Ltd v National Fisheries Authority [2010] PGSC 14.

31. It follows that a Notice of Appeal, whether one filed as of right or pursuant to leave granted, must be filed within the time allowed or the appeal is incompetent. It is noteworthy that Order 7 rule 6 whilst expressly addressing enlargement of time for compliance with the filing of Notice of Appeal does not address abridging the time so as to reduce the appeal rights of an applicant for leave to appeal. To purport to abridge the time allowed drastically alters the appeal rights of an appellant. Such a consequence is not consistent with the terms of Order 7 rule 6.
    
32. It therefore follows that the order of Kassman J was ineffective insofar as it purported to restrict the time within which the applicants could institute their appeal to a period less than 21 days. It follows further that the refusal to accept the notice of appeal when presented for filing within that 21 days was wrong. The Notice of Appeal should be declared to have been validly filed and the appeal validly instituted on the date it was presented for filing, namely, 6 June 2015.
    
33. That leaves the issue as to Section 5 of the Supreme Court Act.
    
34. That Section reads:
    

"(1) Where an appeal is pending before the Supreme Court –

(a) a direction not involving a decision on the appeal; or
(b) an interim order to prevent prejudice to the claims of the parties; or
(c) ... (security for costs)
(d) ... (default of security)
(e) ... (bail)

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed a direction or order of the Supreme Court.

(3) A direction or order made whether subsection (1) may be discharged or varied by the Supreme Court."

35. Section 5, it is to be noted, has application only, if an appeal is "pending". For the purposes of contempt proceedings, a prosecution may be "pending" once a charge has been laid whether or not there is, as yet, a committal for trial. (R v Savunara Nayagan & Walker [1968] 1WLR 1761; 52Cr App. R 637.
    
36. Analogously, an attempt to pervert the course of justice encompasses more than acts interfering with or impeding proceedings that have actually been commenced – R v Kane [1966] NZCA 24; [1967] NZLR 60. Such proceedings at least must be in contemplation, by reason, for example, of current investigations.
    
37. However, although proceedings in contemplation may be sub judice and, hence protected by such provisions that does not settle the meaning of the term "pending" in S.5 (supra). If "pending" means that the appeal has been instituted that does not occur until a valid Notice of Appeal has been filed.
    
38. Section 10 of the Supreme Court Act is also relevant. It provides:
    

"(1) Any power of the Supreme Court under this or any other Act –

(a) to give leave to appeal; or
(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or
(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court."

39. On 15 October 2015, the orders subject to this appeal were made by Manuhu J sitting as a single Judge of the Supreme Court. The application made sought to vary direction given by Kassman J that the respondents file their Notice of Appeal by 11 June 2014. It was opposed by the appellants.
    
40. Purporting to act pursuant to S.5(3) of the Supreme Court Act, his Honour granted the respondents' application, thus acknowledging the filing of the Notice of Appeal on 6 June 2015 as effectively commencing the appeal from the orders made by Cannings J.
    
41. Mr. Apo for the appellants had conceded that his Honour could vary the orders of Kassman J pursuant to s.5 (3) (supra). Before this Court, the appellants resile from that concession and submit that only a Full Court can do so. This hearing is, of course, a Full Court hearing. The submission of the appellants to Manuhu J, however, ultimately was presented as being that, if Kassman J erred, it was necessary to appeal from his decision. That submission was rejected by Manuhu J. Mr. Mana was then put to an election as to the source of power for the orders he sought on behalf of the respondents. He chose s.5 (3) of the Supreme Court Act. As has been explained that was not the source of any such power.
    
42. The validity of those orders depends on whether an appeal was then 'pending' and further, whether, if so, the orders sought were a discharge and/or variation of the orders of Kassman J. If the latter, then power to grant the orders sought would reside in the Supreme Court, that is, a Full Court, not a single Judge.
    
43. The first point is that an application for leave to appeal is not an appeal. Hence no appeal is then "pending" when application is made for leave to appeal nor does the grant of leave itself commence the appeal. As Prentice CJ noted in Irish v Delta Service Station [1968] PGSC 18 in relation to an appeal to the High Court of Australia by leave:
    

"....the leave of the High Court is necessary before an appeal can be said to exist."

44. That is consistent with the decision of Hartshorn J in Paki v Polye & Ors [2011] PGSC 11. That involved an application for a stay of the orders the subject of the application for leave to appeal. It was in any event refused on the merits.
    
45. Section 19 of the Supreme Court Act provides that neither an appeal nor an application for leave to appeal operates as a stay of the orders under challenge unless otherwise ordered by the Supreme Court or a Judge.
    
46. It follows that power to make orders pursuant to s.5 (3) is only available when an appeal is instituted as of right or after leave to appeal is granted and Notice of Appeal is filed. If either of those conditions is satisfied, a single Judge may make the orders referred to in that subsection. They may be varied or discharged, however, only by "the Court", that is, a Full Court (S.5 (3) Supreme Court Act).
    
47. Pursuant to s.10 of that Act, a single Judge of the Supreme Court may grant (or refuse) leave to appeal or extend the time for filing of the application or Notice of Appeal as the case may be. If there is a refusal, it may be reversed only by a Full Court (S.10 (2) SCA).
    
48. Those provisions as to extension of time are subject to s.17 for civil appeals and s.29 for criminal appeals. The application for extension of such time limits also must be made within the 40 day period. The only other remedy is resort to s.155 (2) (b) of the Constitution. That course is referred to and approved by the Supreme Court in Avia Aihi v The State [1981] PNGLR 81. (per Kidu CJ, Kearney DCJ & Andrew J; Greville Smith & Kapi JJ) dissenting.
    
49. That decision was followed and explained in Application by Jeffery Balakau [1998] PNGLR 437. The power of review, however, where the statutory right of appeal has been lost is not lightly to be exercised, nor does it substitute for an appeal.
    
50. It would seem to follow from the above that if Kassman J could have restricted the time for filing Notice of Appeal, it was open to the appellants to apply under Order 7 rule 6 for any extension of the time within which Notice of Appeal was to be filed. Was the application before Manuhu J such an application?
    
51. It was not an application made within the time allowed under Order 7 rule 6. It follows that his Honour had no power to extend that time. Fortunately, in the circumstances of this case, it was not necessary to do so. The Notice of Appeal was presented to the Registry in time. In accordance with Order 7 rule 7 that document, when filed, instituted the appeal and satisfied s.17 of the Supreme Court Act by virtue of Order 7 rule 11.
    
52. The appeal, having been thus instituted was then "pending" for the purpose of S.5 Supreme Court Act. It was open to Manuhu J to give directions for the Registry to accept the Notice as filed and amend its records accordingly.
    
53. That was the effect of his Honour's orders though they were purportedly made pursuant to s.5 (3) of the Supreme Court Act.
    
54. Had the orders of Kassman J been valid, the filing of the Notice of Appeal would have been out of time. The only remedy for that would have been an application under s.155 (2) (b) of the Constitution. (see State v Toka Enterprises Ltd [2013] PGSC 62 (per Injia CJ)).
    
55. In the present case, however, it is sufficient to declare that the Notice of Appeal was validly filed on 6 June 2015 and to direct that the appeal proceed to hearing in accordance with the Rules.
    
56. Costs should follow the event.
    

__________________________________________________________________
Ame Lawyers : Lawyers for the Appellants
Allens Lawyers : Lawyers for the 1st to 4th Respondents
Wagambie Lawyers : Lawyers for the 5th & 6th Respondents