Talu v Petroleum Exploration Joint Venture Ltd [2016] PGSC 85; SC1621 (11 March 2016)

SC1621

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP 1 of 2016

BETWEEN:
STANIS TALU
First Appellant

AND:
DANIELNERE
Second Appellant

AND:
PUKIA HEREBE
Third Appellant

AND:
PETROLEUM EXPLORATION JOINT VENTURE LTD
Respondent

Waigani: Injia, CJ
2016: 11^th February, 11^th March

APPEAL - Practice and Procedure - Leave to appeal- Time period fixed by statute - Application for extension of time to appeal filed within time but made outside 40 day period - No discretion in the Court or Judge to waive or dispense with time prescription - Supreme Court Act (Ch 37), s 17.

STATUTORY INTERPRETATION - Meaning of - "within such further period as is allowed by a Judge on application made to him within that period of 40 days" in s 17 of Supreme Court Act (Ch 37) - Principles of statutory interpretation - Words in statute clear and plain- No room for construction- Plain meaning applied- Supreme Court Act (Ch 37), s 17.

LAWYERS - Fault in missing time limit in making the application to extend time - Onus on appellants or their lawyer to act promptly in observing time period imposed by statute.

Cases cited:

Henzy Yakam v Stuart Hamilton (1998)5C533
SBDC v Totamu (2010) 5C1054
NZ Ins. Co. Ltd v Chief Collector of Taxes [1988-89] PNGLR 522

Counsel:

A Kimbu, for the Appellant
G Gileng, for Respondents, amicus curiae

11^th March, 2016

1. INJIA CJ: This is a case in which the application for extension of time to give notice of application for leave to appeal (leave application), though filed within time, was not made by the Appellants and allowed by the Court within time. The Appellants now apply for an extension of time to give notice of the leave application.
2. The application raises issues of statutory interpretation pertaining to the meaning of the phrase "within such further period as is allowed by a judge on application made to him within that period of40 days" appearing in s 17 of the Supreme Court Act (Ch 37). Section 17 provides:
   

“17. Time for appealing under Division 2.

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 judgement in question, or within such further period as is allowed bv a Judge on application made to him within that period of 40 davs."(my underlining)

3. It has been long held that when the words of a statute are plain and clear, there is no room for judicial construction of those words to ascertain their meaning. The Courts need to do no more than apply the words of the statute as they are.
4. In my view, the words in the phrase "within such period as is allowed by a judge on application made to him within that period of 40 days" are as clear and plain as can be that they leave no room for construction. The operative words in that phrase are "on application made to him", "allowed by a Judge" and "within that period of 40 days". Collectively read, they mean what they say: the application to extend time to give notice of application for leave to appeal must be made by the applicant and allowed by the Judge within the same 40 days; and, if allowed, the notice of the leave application must be given within that extended period.
5. I am aware of the prevailing practice that has developed in this jurisdiction whereby a leave application filed within time is heard and determined outside of the 40 days. This practice finds support from a statement made by Chief Justice Amet in Henzy Yakham v Stuart Hamilton (1998) 5C533. The rationale for this practice, it seems to me, is grounded in the wording in s 17 that requires an Appellant to simply "give .. notice of his application for leave to appeal ... within 40 days". The giving of the notice of the leave application meets the requirement of s 17. The actual hearing and grant of the application for leave is left open-ended.
   

6. The time prescription for making and allowing extension of time to give notice of the leave application is imposed by statute. Unless the Court is given express power, the enabling statute to waive or dispense with the statutory time prescription, the Court has no such power. That power is nowhere found in s 17 or elsewhere in the Supreme Court Act. The rules of Court and case law, including SBDC v Totamu (2010) SC 1054, relied upon by the Appellants to support their argument that the Court has such power, are of no relevance to the case at hand.

7. The Appellants filed their application for extension of time within time but owing to confusion over the reckoning of the court vacation period, the hearing and determination of the application was deferred to a date after the commencement of normal Court business in the new year. On 15^th December 2015, five (5) days prior to the commencement of the Court recess period, the National Court made the interlocutory decision the subject of the application. The Court recess period ran from 20 December 2015 to 31^st January 2016: see National Court Rules 1987, 0 2 r 3. In this period, normal business of the high Courts were suspended except for pressing matters which were dealt with by a small number of judges assigned for vacation duties. The time for filing the leave application was to expire on 25^th January 2016. The Appellants chose not to file the leave application because their lawyers needed more time to prepare the leave application together with a stay application: see paragraph 2 (ii) of the Leave Application. Instead, on 18^th January 2016, they filed the application for extension of time. On 19^th January 2016, the application came before Sakora J. The Appellants' counsel was prepared to argue the application but the Judge did not deal with the application and deferred the hearing because (according to the appellants' lawyers) the Judge was of the view that the 40 days did not include the Court recess period. The matter came before me after the Courts commenced normal business on 1^st February 2016.
8. It is now correctly accepted by the Appellants' counsel that the reckoning of the Court recess period fixed by the rules of court in the National Court Rules 1987, 0 2 r3 has no application to the time prescription imposed by statute: NZ Ins Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522 at 523. It is unfortunate for the Appellants that they missed the opportunity to move their application before the Court within time, however, the Appellants are not completely blameless. They were slow in filing their application, giving themselves little time to assess and ascertain the correct legal position on the point taken by the Judge, return to the Court and then make the application. It took them over a month to file a simple application. Then on the 19^th of January 2016, the Appellants' lawyers were unprepared to assist the Judge with the correct legal position over the reckoning of the Court recess period, and to insist on the application being heard then. The end result is that the application was not moved, determined and extension of time allowed within time. This Court has no power to entertain and allow an application for extension of time that is made outside of the 40 days imposed by s 17 of the Supreme Court Act (Ch 37).

9. A statement of the full Court made in Bakani v Dipo (2002) SC699 with regard to the onus placed on Appellants and their lawyers to conduct the appeal with due diligence and in a timely manner, is apposite to the circumstances of the case at hand. The Court said:

"A person who is aggrieved by a decision of the National Court who intends to appeal against that decision must act promptly in pursuing and preserving his appeal rights. If he anticipates practical difficulties in complying with any one or all of the mandatory procedural requirements of Order 10 r 3 within 40 day period prescribed for filing an appeal, then he must make an application before the Supreme Court, either before a single judge or before the full bench, within 40 days from the date of the decision of the National Court. If he chooses to go before a single judge first, in order to preserve his right to re-apply afresh before the full bench in the event of a refusal, then he must do so promptly to give himself sufficient time so that if and when a single judge refuses the application, he will still have enough time to make a fresh application before the full bench within the same 40 day period. There are advantages and disadvantages associated with the two different options and appellants or their lawyers should do well to assess the different options and make tactical decisions which would best safeguard their appeal rights .... An appellant or his lawyer who wastes time and acts on the last day or on the 11th hour does so at his own peril and has only himself to blame. Time is a priced commodity here and it is of essence. Time runs from the day after the decision is made. The clock cannot be rolled back, so to speak, to accommodate the interest of lax appellants or their lawyers."

10. The Appellants argue in the alternative that Justice Sakora's views should be construed as amounting to grant of extension of time. It is clear to me that Sakora J did not deal with the merits of the application.
11. For the foregoing reasons, I dismiss the application. Parties shall bear their own costs of the proceedings.

__________________________________________________________
Greg Manda Lawyers: Lawyers for the Appellants
Ashurst Lawyers: Lawyer for the Respondent