Independent State of Papua New Guinea v Maladina [2021] PGSC 26; SC2101 (14 May 2021)

SC2101

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 187 OF 2019

BETWEEN
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Appellant

AND
JIMMY MALADINA
Respondent

Waigani: Makail J
2021: 10^th & 14^th May

SUPREME COURT – Practice & Procedure – Application for joinder of party – Joinder sought after forty-day time-limitation to file an appeal – Whether joinder can be granted outside forty day time-limitation – Alternative application for leave to be heard – Leave refused –Supreme Court Rules – Order 11, rules 2 & 11

Cases Cited:

Kenn Mondiai v. Wawoi Guavi Timber Co Ltd & Ors (2007) SC886

Counsel:

No appearance, for Appellant
Mr.M. Muga, for Respondent
Ms. M. Nagari, for Interested Party (Applicant)

RULING

14^th May, 2021

1. MAKAIL J: This is an application for joinder by the applicant National Superannuation Fund Limited (Nasfund) filed 20^th November 2019 pursuant to Order 11, rule 11 of the Supreme Court Rules (SCR) and Sections 5 and 17 of the Supreme Court Act. Alternatively, it seeks leave to be heard on the appeal without being joined under Order 11, rule 2(a) & (b) of the SCR.
2. Order 11, rule 11 states:

“Division 8.—Adding parties and amendment

11. The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions”.

National Court Decision

3. Based on the National Court decision, the respondent was convicted by the National Court of offences of misappropriation and conspiracy to defraud a sum of K2.65 million, property belonging to the Nasfund on 21^st May 2015.

4. Pending sentence by the National Court, in restitution, the respondent paid a sum of K2.65 million to the State. This sum of money was paid by a company called Isles Builders & Contractors Limited which was said to be indebted to the respondent for provision of consultancy services.

5. He then appealed against the conviction to the Supreme Court. On 20^th April 2016 the Supreme Court upheld the appeal and quashed the convictions.

6. The respondent then commenced civil proceedings in the National Court to recover the sum of K2.65 million which he had paid as restitution to the State on the ground of mistake of fact.

7. Following a trial, on 11^th October 2019, the National Court entered judgment in his favour in the sum of K2.65 million.

8. The State has appealed that decision. The appeal is pending.

Applicant’s Submissions

9. The applicant asserts that it has an interest in the appeal because it was its money that the respondent misappropriated and defrauded. It filed the application within 40 days but for various reasons, was unable to move it until now. On 30^th November 2015, it received this sum of money: see para. 3 of the affidavit in support of Ian Tarutia filed 20^th November 2019. It will be prejudiced if it is not joined and heard.

10. As to why it did not participate in the National Court proceeding, Ms. Doris Gedare deposed at paras. 2, 3, 4 and 5 of her affidavit in support filed 20^th November 2019 that in her capacity as Manager Legal of the applicant, she learnt of the decision when she read about it in the newspaper on 14^th October 2019.

11. On 17^th October 2019 one of the applicant’s in-house lawyers contacted the appellant’s lawyers at the Solicitor General’s office to ascertain if an appeal was going to be filed against the National Court decision to the Supreme Court. On 20^th November 2019, the applicant received a sealed copy of the notice of appeal in this matter from the appellant’s lawyers.

Respondent’s Submissions

12. The respondent concedes that the application for joinder has been filed within time but submits that it was not moved or heard within 40 days of the time limitation under Section 17 of the Supreme Court Act. Consequently, the application is out of time and should be dismissed.

13. The respondent relies on Kenn Mondiai v. Wawoi Guavi Timber Co Ltd & Ors (2007) SC886 and submits that the Supreme Court held that the Supreme Court Rules are subject to the Supreme Court Act and particularly Section 17 and the requirement to join in the appeal must be by an application filed and heard within 40 days.

Time-limitation for Joinder

14. As there is no contest to the application for joinder being filed within 40 days, the pivotal question is whether it must be heard within 40 days. In Kenn Mondiai case the Supreme Court formed a view that as “An appeal does not take on a life of its own independent from the appellant........ [and] ...[i]f a further person is added as an appellant to an existing appeal then that person institutes their appeal when they are joined”.

15. The Supreme Court concluded that “We therefore consider that a person cannot be added as an appellant to an appeal outside the 40 days allowed by s.17 for instituting an appeal. To do so would be to allow the additional party to institute an appeal outside the statutory time frame. We therefore reject the submission that the Rules do not require the addition of an appellant to be done within the 40 day time period for appeal”.

16. With respect while it is accepted that a person cannot be added as an appellant to an appeal outside the 40 days, it is not clear from the decision of the Supreme Court if an applicant who has filed an application to join as an appellant within 40 days is caught out by the 40 days time-limitation.

17. However, it is logically true that if the person is to be added as an appellant within the 40 days, that person must file the application to join within 40 days. As a hearing is an integral part of the application, it logically follows that it must also take place inside the 40 days. Whether a decision is made within or outside the 40 days is inconsequential.

18. In this case the application to join was not heard within 40 days. It was heard on 10^th May 2021 some one year and six months after the 40 days had expired on 20^th November 2019. It is out of time and will be dismissed for this reason.

Leave to be heard on appeal

19. In the alternative, the applicant relies on Order 11, rule 2(a) and (b) of the SCR and submits it be granted leave to be heard at the hearing of the appeal based on the reasons it has advanced above.

20. The respondent submits that the alternative application is unheard of and unprecedented, except in a case of amicus curiae. It is so because there is not even a provision in the SCR allowing for intervenors in an appeal like in the Supreme Court application or reference under Section 18 and Section 19 of the Constitution: see Order 4, rule 19 of the SCR. Consequently, it would be wrong to allow an applicant, leave to be heard on an appeal.

21. Order 11, rule 2 states:

“2. A person served with a document by which proceedings are instituted or by which leave or other order is sought under these rules and who desires to be heard at any stage of the proceedings shall, as soon as is practicable or within the time specified in the document or in any other order of the court—

(a) file an appearance in accordance with form 16; and

(b) serve a copy of the appearance on each of the other parties.

(c) a party appearing by a ‘next friend’ who ceases to be under the disability which occasioned that appearance and who wishes to adopt the proceedings shall file and serve an appearance in their own name on every other party within 30 days of ceasing to be under that disability”.

22. There is some merit in the applicant’s submission. It appears according to Order 11, rule 2, the applicant may be described as a “person served with a document (notice of appeal) by which proceedings are instituted.....and desires to be heard at any stage of the proceeding (hearing of the appeal)”.

23. While it is not expressly stated in that Rule, the option of seeking leave to be heard may be open to the applicant at the full hearing of the appeal as a preliminary application. The matters it has identified in this application may be advanced in support of the application for leave at the hearing. Whether this option is an appropriate one for the Supreme Court to consider is another matter. For now, the application for leave before the single judge will be declined.

Order

24. The orders are:

1. The application for joinder filed 20^thNovember 2019 is refused.
   
2. Alternatively, the application for leave to be heard at the hearing of the appeal filed 20^th November 2019 is declined.
   
3. The costs of the application shall be paid by the applicant.

4. Time shall be abridged.

_______________________________________________________________
Solicitor General: Lawyers for Appellant
Simpson Lawyers: Lawyers for Respondent
Nasfund Legal Division: Lawyers for Applicant