Abari v Gumaim [2020] PGSC 23; SC1925 (24 January 2020)

SC1925

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 25 OF 2017

BETWEEN:
WAMU ABARI & OTHERS
Listed in Schedule 1
Appellants

AND:
WILLIE GUMAIM
First Respondent

AND:
WINNIE HENAO
as Provincial Police Commander
of Eastern Highlands Province
Second Respondent

AND:
SAM INGUBA
as the Police Commissioner of the Royal
New Guinea Constabulary
Third Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Salika CJ, Hartshorn J, Dingake J
2019: 6^th June
2020: 24^th January

SUPREME COURT – practice and procedure - Application pursuant to Order 11Rule 25 Supreme Court Rules - Order given by a Judge to grant extension of time to serve an application made after disposal of proceedings - Order 11 Rule 32(1) considered

Cases Cited:
The State v. The Transferees (2016) SC1488
Napanapa Landowners Association Inc. v. Gaudi Logae (2017) SC1677

Counsel:

Mr. M. Pokia, for the Appellants
Mr. J. Siki, for the Respondents

24^th January, 2020

1. BY THE COURT: This is a decision on a contested application to discharge an order of a single Supreme Court Judge (subject order). The subject order amongst others, granted an extension of time to serve an application which seeks to set aside an order of the Supreme Court which dismissed this substantive appeal.

Background

2. The appellants appealed a decision in regard to the quantum of damages which they had been awarded by the National Court. The Supreme Court dismissed the appeal for want of prosecution. The appellants filed an application to set aside the dismissal but did not serve the application in the time permitted by Order 11 Rule 32(1) Supreme Court Rules. The appellants filed an application to extend the time within which the application to set aside could be served. A single Supreme Court Judge granted the application to extend. The respondents seek to discharge that subject order.

This Application

3. The respondents make application pursuant to s. 5(3) Supreme Court Act and Order 11 Rule 25 Supreme Court Rules to discharge the subject order.

4. The requirement to be satisfied to be able to rely upon s.5(3) is that the direction or order sought to be discharged was made under s. 5(1). In this instance the subject order was not made pursuant to s. 5(1) but was made pursuant to Order 2 Rule 1(h) Supreme Court Rules and Order 1 Rules 7,8 and 15 National Court Rules. Consequently, s. 5(3) Supreme Court Act may not be successfully relied upon by the respondents.

5. Order 11 Rule 25 Supreme Court Rules, may be relied upon by a party dissatisfied with a direction or order given by a Judge, "... under these rules..." As the learned Judge gave the subject order purportedly under Order 2 Rule 1(h) Supreme Court Rules amongst others, the respondents may rely upon Order 11 Rule 25 for the relief which they now seek.

6. The respondents rely upon Order 11 Rule 32(1) Supreme Court Rules. Order 11 Rule 32 is as follows:

"Division 16.—Applications subsequent to disposal of proceedings

32. (1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2) A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3) A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed."

7. The respondents submit that Order 11 Rule 32(1) Supreme Court Rules is clear in providing that, "An application of any nature made after disposal of the proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding." In this instance, the application to extend was not filed and served in time. The learned Judge fell into error in considering the application and in granting an extension of time pursuant to Order 2 Rule 1(h) Supreme Court Rules as Order 11 Rule 32(1) is mandatory. The cases of The State v. The Transferees (2016) SC1488 and Napanapa Landowners Association Inc. v. Gaudi Logae (2017) SC1677 are cited in support.

8. The appellants submit that by virtue of Order 2 Rule 1(h) the learned Judge was entitled to grant the extension of time pursuant to Order 1 Rules 7, 8 and 15 National Court Rules as in this instance, there is a relevant provision in the National Court Rules, no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed.

Consideration

9. Order 2 Rule 1(h) Supreme Court Rules is as follows:

"Application of National Court Rules

1. The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to—

........

(h) Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed."

10. For Order 2 Rule 1(h) Supreme Court Rules to be enlivened, there must be a matter where there is a relevant provision in the National Court Rules and no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed. All three prerequisites must be satisfied.

11. The matter in this instance, being what the appellants are seeking to achieve, is an application to extend the time prescribed in Order 11 Rule 32(1) Supreme Court Rules within which another application may be served. Both applications either have been or are to be made after the disposal of a proceeding. We reject the submission of the appellants that an application which seeks an extension of time to file an application under Order 11 Rule 32(1) is not an application of any nature made after the disposal of a proceeding.

12. Order 11 Rule 32(1) provides that an application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding. So Order 11 Rule 32(1) makes provision for an application to extend to be made after the disposal of a proceeding as such an application is an application of any nature. It is not the case therefore, that there is no provision in the Supreme Court Rules as submitted by the appellants, as there is provision in Order 11 Rule 32(1).

13. As one of the three prerequisites of Order 2 Rule 1(h) has not been satisfied, Order 2 Rule 1(h) has not been enlivened. The learned Judge was not able to grant the subject order pursuant to the jurisdiction relied upon by the appellants and with respect, the learned Judge fell into error in this regard.

14. Further, the learned Judge should not have entertained the application to extend as it was filed and served outside of the time prescribed in Order 11 Rule 32(1) which is mandatory: The State v. The Transferees (2016) SC1488 and Napanapa Landowners Association Inc. v. Gaudi Logae (2017) SC1677. By hearing the application to extend, the learned Judge fell into error.

15. For the above reasons we are satisfied that the respondents are entitled to the relief which they seek. Given this, it is not necessary to consider the other submissions of counsel.

Orders

16. It is ordered that:

a) Pursuant to Order 11 Rule 25 Supreme Court Rules the orders of Hon. Justice Makail made on 3rd April 2019 are discharged;

b) The appellants shall pay the respondents costs of and incidental to the application of the respondents filed 10^th April 2019.
__________________________________________________________________
Mirupasi Lawyers: Lawyers for the Appellants
Greg Manda Lawyers: Lawyers for the Respondents