Waiakali (trading as Rammah Trading) v Bemobile (PNG) Ltd [2021] PGSC 64; SC2140 (3 August 2021)

SC2140

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 16 OF 2021
BETWEEN
JONATHAN WAKI WAIAKALI t/a RAMMAH TRADING
Appellant

AND
BEMOBILE (PNG) LIMITED
First Respondent

AND

TELIKOM (PNG) LIMITED

Second Respondent
Waigani: Hartshorn, Toliken & Thompson JJ
2021: 29^th July, 3^rd August

APPEAL – objection to competency – whether notice of appeal filed within time – inconsistency between registry stamp and IECMS registration date – whether grounds of appeal sufficiently pleaded with particularity– ss 14 and 17 Supreme Court Act - O 7 rr 9 and 10 Supreme Court Rules
Counsel:

Mr D. Levy, for the Appellant
Mr C. Joseph, for the First Respondent

3^rd August, 2021

1. BY THE COURT: The appellant filed a Notice of Appeal against a decision of the National Court given on 17 November 2020, by which the court refused the appellant’s application to set aside an ex parte order of the National Court, for dismissal of the proceedings which had been filed in 2013.

2. Pursuant to s17 Supreme Court Act, an appeal is required to be lodged within forty days of 17 November 2020, namely, by 27 December 2020. The Notice of Appeal which was served on the respondent on 4 February 2021 and which was in the Application Book, shows on its face that it has a date-stamp of 23 December 2020, but that the SCA No. was No. 7 of 2021.

3. On 16 February 2021, the respondent filed a Notice of Objection to Competency (“the Objection”). There are two grounds for the Objection – first, that the Appeal is filed out of time, and secondly, that in any event, the grounds of appeal do not comply with s 14 of the Supreme Court Act and O 7 rr 9 & 10 Supreme Court Rules.

4. In support of the Objection, the respondent has filed an affidavit from the respondent’s lawyer. He deposes to the fact that on 5 February 2021, he emailed four of the Supreme Court registry staff re: SCA No. 7 of 2021, submitted his Notice of Appearance and requested that his IECMS account be linked to the Appeal. After a further exchange of emails with the registry staff, he was informed that the correct Appeal reference no. was SCA 16 of 2021 (IECMS) and not SCA 7 of 2021.

5. The lawyer deposes to the fact that on 10 February 2021, he conducted an online search of the IECMS register and took a screenshot of the search result, a copy of which was attached to his affidavit. This showed that a Notice of Appeal was filed online by Jeannette Asukusa on 6 January 2021. He deposes to the fact that, to the best of his information and belief, the date shown when a document is filed on the IECMS system, cannot be altered by the user, such as Ms Asukusa who had filed the Notice of Appeal and that therefore the Appeal was filed out of time.

6. The appellant’s lawyer did not file an affidavit in response, until 14 May 2021. On 5 July 2021 he obtained an order granting leave of the court to rely on that affidavit at the hearing of the Objection. Sufficient copies of the affidavit were not made available for each member of the court until the commencement of the hearing. The affidavit is over 23 pages in length. The court had further ordered that written submissions be filed and served by 19 July 2021. The respondent complied, but the appellant’s submissions were not filed until 26 July 2021.

7. No objection was taken by the respondent. Nevertheless, it should be noted that pursuant to O 11 r 16 SCR, a submission must not exceed 10 pages in length. The appellant’s submission was 16 pages in length, as well as being out of time.

8. We refer next to the appellant’s lawyer’s affidavit in response to the Objection. It annexes copies of email exchanges in February 2021 between himself, the respondent’s lawyer and six officers from the Supreme Court registry, all of whom had ‘pngjudiciary’ email addresses. They relate to a change in SCA number from SCA 7 to SCA 16. None of them refer to a December 2020 filing date. He also annexed a copy of a letter he had written to the respondents’ lawyers on 15 April 2021, in which he gave a hearsay explanation about a conversation with a registry staff member regarding the difference in filing dates. The letter concludes by saying that he wanted to put in evidence of the date when the Appeal was lodged, and that he “...should be able to get that evidence in anytime soon”.

9. He then says in his May affidavit that because the IECMS system in his office was down, “...he engaged the IT officers who worked on the IECMS system and it was restored this week and we are able to get the print out which shows that the Notice of Appeal was filed on 23 December 2020”. He says that “annexed hereto and marked with the letter C is a true copy of the IECMS system generated information ...”. Annexure C comprises two pages. The first page is an email of 11 January 2021 which does not show the name of the sender and is not from a ‘pngjudiciary’ email address. The second document appears to be a screenshot from the PNGIECMS dated 5 January 2021. Neither the email nor the screenshot were generated by the deponent and the author of each document is not identified.

10. Little or no weight is able to be attached to the contents of the letter of 15 April 2021 or of the documents in annexure C to the affidavit, as they are all hearsay. The third party who was said to have had a conversation with the lawyer, did not give evidence. The author of the email is not identified and did not give evidence. The author of the screenshot is not identified and did not give evidence. The registry officer whose name is shown on the date stamp is not identified and did not give evidence. There is no evidence or record identified or explanation given by any registry officer, showing how a document might have been filed on one date but recorded as being given a different filing date.

11. A discrepancy in filing dates is a matter which is capable of being explained by appropriate evidence. Where the appellant has been on notice since the Objection was filed in February, that this was a ground of objection to the very competency of the Appeal, the appellant knew that evidence was required, but did not obtain it.

12. A similar issue arose in Andrew Anis v. Grand Columbia Ltd and ors (2020) PGSC 111, where there was a difference between a manual filing date shown on a Notice of Appeal, and the electronic filing date. The court accepted that the evidence of the IECMS filing date was sufficient proof of the filing date, which therefore required the appellant to produce evidence to refute it, and explain the discrepancy in the dates. The appellant did not produce such evidence and as no error had been shown in the IECMS filing date, the IECMS date was accepted as showing that the appeal had been filed out of time.

13. The respondent in the present case has given direct evidence which is sufficient to show on the balance of probabilities, that the Appeal was filed on 6 January 2021, and is therefore filed out of time. The appellant’s hearsay evidence is insufficient to refute this, and so fails to shift the balance in favor of the appellant.

14. As the evidence is sufficient to establish that the Notice of Appeal was filed on 6 January 2021, it was filed outside the time prescribed by s 17 of the Supreme Court Act.

15. Nevertheless, the court considers the other grounds of the Objection.

16. Some of the Grounds of the Appeal, such as that the first respondent had not appeared at the hearing (which was contradicted by the judgment) or had not made submissions on prejudice, or that the delay was only three months and not ten months, or there was no finding that the delay was inordinate (which was contradicted by the judgment), are questions of fact for which leave to appeal is required under s 14 Supreme Court Act. Such leave has not been obtained.

17. The Grounds of Appeal are essentially against the way in which the judge had exercised his discretion, when considering the evidence and the weight of the evidence, and the law. O7 r10 SCR provides:

....it is not sufficient to allege that a judgement is against the evidence or the weight of the evidence, or that it is wrong in law...The notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence, and the specific reasons why it is alleged to be wrong in law.

18. The Grounds do not specify the particular evidence or reasons which show why the judge’s findings on the evidence are wrong, or any specific reasons why his findings of law are in error. For example, in Ground 3.4 it is said that the judge failed to give sufficient weight to the evidence and the submissions, without demonstrating specifically how the judgment is against the weight of the evidence or the submissions.

19. Each of the Grounds are couched in similar terms, although some are more confusingly worded than others. For example, Ground 3.6 says that the second respondent had not made submissions on the issue of prejudice during the hearing, when in fact the second respondent had not appeared at the hearing.

20. Other Grounds are mere submissions, and not valid grounds of appeal at all. For example, Ground 3.8 says that the case was a miscarriage of justice because it allowed previous orders to stand. We also note that those previous orders were not the subject of this Appeal.

21. The lack of specificity in each of the Grounds, was made clear during submissions by the appellant’s counsel. When asked by the court to identify the particular basis for the grounds, he referred to matters in his submissions, which are not in the Appeal. For example, in relation to Ground 3.1, that the judge erred in refusing to set aside an order which had been irregularly made, the appellant’s counsel referred to his submission that the judge had found that notices of the listings had not been given to the parties and that this was a breach of the appellant’s rights under s 57 Constitution. These are the specific matters which are required by O 7 r 10 to be specified in the Ground, but which are not referred to at all.

22. None of the Grounds specified with particularity the grounds relied on to demonstrate that the judgment was against the evidence or the weight of the evidence, or the specific reasons why the judgment was wrong in law.

23. The appellant submits that, pursuant to Coca Cola Amatil (PNG)Ltd and anor v. Marshall Kennedy (2012) PNGLR 205, if even one ground of appeal validly invoked the court’s jurisdiction, then the appeal was competent.

24. However, even if one ground had been shown to be compliant with O7 r 10 SCR, each of the grounds of appeal were filed outside the 40-day time limit, so that none of them validly invoke the court’s jurisdiction.

25. The Notice of Appeal was filed outside the time limit prescribed in s 17 Supreme Court Act, some Grounds fail to comply with s 14 Supreme Court Act, and each Ground fails to comply with the requirements of O 7 r 10 Supreme Court Rules.

26. For these reasons, the court makes the following orders:

(1) The Notice of Objection to Competency is upheld.

(2) The appeal proceedings SCA 16 of 2021(IECMS), are dismissed.

(3) The appellant shall pay the first respondent’s costs on a party/party basis, to be agreed or taxed.
__________________________________________________________________
Manase & Company Lawyers: Lawyers for the Appellant
Ashurst PNG: Lawyers for the First Respondent