Noah v Kimas [2022] PGSC 140; SC2341 (12 December 2022)

SC2341

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 40 OF 2021

BETWEEN:

LYDIA NOAH and ISMAEL PASINGAN
as landowners and representatives of the TIEN, NGUMA, VENGEVENGE, IANGA and SILAU Clans of Konomatalik, Patipai, Tsoi Island and Metamin Villages, Central New Hanover, Kavieng District, New Ireland Province
Applicants

AND:

PEPI KIMAS
as the Secretary for Department of Lands and Physical Planning & Others
First to Seventh Respondents

Waigani: Hartshorn J,
2022: 30^th November, 12^th December

SUPREME COURT -REVIEW - Application to review an administrative decision of the Deputy Registrar Supreme Court

Cases Cited:
Geita v. Samson (2019) SC1878

Counsel:

Mrs. E. Wohuinangu, for the Applicants
Mr. P Tabuchi, for the Fifth, Sixth and Seventh Respondents

Oral decision delivered on
12^th December, 2022

1. HARTSHORN J: This is a decision on a contested application for leave to review the administrative decision of the Deputy Registrar Supreme Court, Mr. David Gonol made on 30^th October 2021. That decision was to reject the applicants’ application for leave to appeal an interlocutory judgment of Tamade AJ (rejection decision). The reason for the rejection decision was because the application for leave to appeal had purportedly been filed outside of the 40 day period prescribed under s. 17 Supreme Court Act.

2. The applicants rely on Order 5 Rules 1, 3 and 4, Order 2 Rule 1(b) Supreme Court Rules and Order 2 Rule 18 National Court Rules and submit in essence that the Deputy Registrar incorrectly calculated the subject period of 40 days.
3. The fifth, sixth and seventh respondents (respondents) submit that there has been delay in serving this application and that the reliance upon Order 5 Supreme Court Rules is misconceived. This is because Order 5 is concerned with applications made pursuant to s. 155(2)(b) Constitution. Section 155(2)(b) vests power in the Supreme Court to review all judicial acts of the National Court. The rejection decision is not a judicial act of the National Court and so the reliance upon Order 5 is misconceived, it is submitted.

4. No submissions were made by the respondents on the applicants’ reliance upon Order 2 Rule 1(b) Supreme Court Rules and Order 2 Rule 18 National Court Rules.

Consideration

5. As to there being a delay in filing or serving this application, I am satisfied on the evidence or paucity thereof, that the respondents have not suffered any prejudice to the extent that this application should be prevented from proceeding.

6. I consider the application first pursuant to Order 2 Rule 1(b) Supreme Court Rules and Order 2 Rule 18 National Court Rules.

7. Order 2 Rule 1(b) Supreme Court Rules is as follows:

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

(b) The registry Order 2 Division 2”

8. Order 2 Rule 18 National Court Rules is in Division 2 of Order 2 and is as follows:

“Any Act or decision of the Registrar may be reviewed by a Judge who may make an order by way of confirmation, variation or otherwise as he thinks fit.”

9. In Order 1 Rule 6 National Court Rules, “Registrar” relevantly, “includes an acting, deputy or assistant Registrar”.

10. I am satisfied therefore that the jurisdiction of this Court may be enlivened by the reliance upon Order 2 Rule 1(b) Supreme Court Rules and Order 2 Rule 18 National Court Rules to review the rejection decision.

11. The applicants do seek leave to review the rejection decision, but leave is not necessary under these Rules relied upon. As mentioned, the respondents did not make submissions on the applicants reliance upon Order 2 Rule 1(b) Supreme Court Rules and Order 2 Rule 18 National Court Rules and this includes on whether leave is necessary.

12. I proceed on the basis therefore and pursuant to the inherent jurisdiction of this court if necessary, that the application before this court pursuant to Order 2 Rule 1(b) Supreme Court Rules and Order 2 Rule 18 National Court Rules is to review the rejection decision and is not an application for leave to review the rejection decision.

13. From a perusal of the reasons given for the rejection decision, it is clear with respect, that the Deputy Registrar has incorrectly interpreted s.11 Interpretation Act and has incorrectly relied upon the case of Geita v. Samson (2019) SC1878.

14. Section 11(2) Interpretation Act is as follows:

“(2) If the last day of a period prescribed or allowed by a statutory provision for the doing of an act falls on a Sunday or a public holiday, the act may be done on the day next following that is not a Sunday or public holiday.”

15. It is not controversial that the last day of the 40-day period within which the applicants could file an appeal or application for leave to appeal fell on 17^th October 2021. That date fell on a Sunday. Pursuant to s. 11(2) Interpretation Act, the applicants could have filed their appeal or application for leave to appeal on Monday, 18^th October 2021.

16. The Deputy Registrar was correct in interpreting s. 11(4) Interpretation Act to mean that the “Sunday in dispute” should be included in the computation of time. This, however, does not in some way override or render of no effect s. 11(2) Interpretation Act. As referred to, the 40^th day fell on a Sunday and so the applicants had the next day that was not a Sunday or Public Holiday to file their appeal or application for leave to appeal. That day was Monday 18^th October 2021.

17. Geita v. Samson (supra) does not support the interpretation of the Deputy Registrar and his reliance upon that decision to support his interpretation was with respect, incorrect.

18. Consequently, I am satisfied that the rejection decision should be set aside and quashed. I am also of the view that it is in the interests of justice that the rejection decision be reviewed and quashed. This is because it is not in the interests of justice that an applicant be denied his statutory right of appeal because of an incorrect interpretation of the law by a Supreme Court Registry Official and not a Judge, as has occurred in this instance.

19. As a consequence, I find that the application for leave to appeal of the applicants was correctly and validly filed on 18^th October 2021. Given this it is not necessary to consider the other submissions of counsel.

Orders

20. The Court orders that:

a) The decision of the Deputy Registrar, Supreme Court, Mr. David Gonol made on 30^th October 2021 to reject the application for leave to appeal of the applicants of the interlocutory judgment of Tamade AJ delivered on 7^th September 2021 in proceeding WS 1245/14 is set aside and quashed.

b) The application for leave to appeal of the applicants filed on 18^th October 2021 by IECMS is deemed to have been correctly and validly filed on 18^th October 2021 pursuant to s. 17 Supreme Court Act and s. 11(2) Interpretation Act.

c) The costs of the applicants of and incidental to this application shall be paid by the respondents.
__________________________________________________________________
Celcor Lawyers: Lawyers for the Applicants
Young and Williams: Lawyers for the Fifth, Sixth and Seventh Respondents