Fernhill Ltd v Kuria Maha Land Group Incorporated [2025] PGSC 113; SC2818 (28 October 2025)

SC2818

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP 79 OF 2024

BETWEEN:
FERNHILL LTD
Appellant

AND:
KURIA MAHA LAND GROUP INCORPORATED
First Respondent

AND:
RAGA KAVANA
as Registrar of Titles, Department of Lands and Physical Planning
Second Respondent

AND:
BENJAMIN SAMSON
Secretary, Department of Lands and Physical Planning
Third Respondent

AND:
HON. JOHN ROSSO MP
Fourth Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

WAIGANI: HARTSHORN J
16, 28 OCTOBER 2025

SUPREME COURT – practice and procedure – application for leave to file notice of appeal out of time – extension of time to file a notice of appeal after leave to appeal has been granted- When leave to appeal has been granted a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such further time as the Court or Judge may allow on application filed and served within that 21 days - Order 7 Rule 6 Supreme Court Rules - when application for leave to appeal was granted and the time provided in Order 7 Rule 6 Supreme Court Rules had expired with no application being filed for further time within 21 days, the application for leave to appeal proceeding was completed – application for leave to file notice of appeal out of time refused

Cases cited
Small Business Development Corporation v. Totamu (2010) SC1054
Gire Gire Estate Ltd v. Barava Ltd (2018) SC1675
Wamu Abari v. William Gumaim (2020) SC1925
East Sepik Provincial Executive v. Marat (2020) SC2016
Taman v. Samson (2021) SC2148
Kowa v. Namah (2024) SC253
Peter Yama v. Ramsey Pariwa (2025) SC2722

Counsel
H. Leahy for the appellant
S. Ju for the first respondent

Oral decision delivered on
28^th October 2025

1. HARTSHORN J: This is a decision on a contested application. It seeks leave to file a notice of appeal out of time.
   

Background

2. The appellant was granted leave to file a notice of appeal on 17^th July 2025. The appellant had until 7^th August 2025 to file its notice of appeal, pursuant to Order 7 Rule 6 Supreme Court Rules.
   

Consideration

3. The applicant seeks leave to file its notice of appeal outside of the time period permitted for filing a notice of appeal stipulated in Order 7 Rule 6 Supreme Court Rules.
   
4. Reliance is placed upon Order 2 Rule 1 (h) Supreme Court Rules and Order 1 Rule 7 National Court Rules, amongst others.
   
5. In the judgment of Wamu Abari v. William Gumaim (2020) SC1925 at [10] the Supreme Court stated:
   

“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.”

See also East Sepik Provincial Executive v. Marat (2020) SC2016 at [7].

6. In this instance what is sought is in effect, an extension of time to file a notice of appeal after leave to appeal has been granted.
   
7. Order 7 Rule 6 Supreme Court Rules states:
   

“When leave to appeal has been granted a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such further time as the Court or Judge may allow on application filed and served within that 21 days.”

8. As to whether there is no provision in the Supreme Court Rules, Order 7 Rule 6 provides for a Court or a Judge to grant further time to file a notice of appeal when leave to appeal has been granted, upon application filed and served within 21 days immediately after the date on which leave is granted.

9. The applicant relies on the judgment in Small Business Development Corporation v. Totamu (2010) SC1054 in support of its application. The applicant in submissions acknowledges that this judgment was delivered before the amendment to the Supreme Court Rules in 2012 and to that extent I respectively do not find this judgment of assistance to the application now before this Court.

10. As Order 7 Rule 6 Supreme Court Rules does provide for an extension of time to be granted to file a notice of appeal after leave to appeal has been granted, it is a relevant provision in the Supreme Court Rules. Consequently, one of the three prerequisites referred to Wamu Abari v. William Gumaim (supra) at [10] has not been satisfied. Order 2 Rule 1(h) Supreme Court Rules and this Court’s jurisdiction has not been enlivened to consider Order 1 Rule 7 National Court Rules. The applicant, therefore, cannot successfully rely on Order 1 Rule 7 National Court Rules for the relief which it seeks.

11. Reliance is also placed on s. 155 (4) Constitution amongst others. It is trite law that s. 155 (4) Constitution may only be relied upon where there is an absence of other relevant law. Further, s. 155 (4) may not be relied upon if such reliance would produce a result which would be different to the result that other relevant law would produce: see Gire Gire Estate Ltd v. Barava Ltd (2018) SC1675, Peter Yama v. Ramsey Pariwa (2025) SC2722.

12. As there is other relevant law, Order 7 Rule 6 Supreme Court Rules, s. 155(4) Constitution may not be relied upon for the relief sought.

13. I also make reference to the judgment in Kowa v. Namah (2024) SC253. That judgment concerned on application for review which had not been filed within the 14-day limit prescribed after leave to review had been granted. Notwithstanding that the matter before this Court was an application for leave to appeal and appeal and not an application for leave to review and review, in my view the following passages at [17, 19 and 20] are relevant to this matter. They are:

“17. On the basis that no application for review has been filed by the applicant and no extension of time to file the application for review has been granted, when the 14 days after leave was granted had elapsed the application for leave proceeding was completed: Taman v. Samson (2021) SC2148 at [17]. The relief sought in the originating document that had commenced the application for leave had been granted and the time to bring further application under Order 5 Rule 18 had expired. No further relief could be obtained in that proceeding commenced by the application for leave.

19. It is the case that in instances where leave is required before a substantive proceeding may be commenced and filed, such as an application for leave to appeal and an application for leave to review, the practice is that the new substantive proceeding such as an appeal or an application for review are either filed with the application for leave under the same number allocated by the Supreme Court Registry or alternatively, the new substantive proceeding is given a new file and allocated a new number.

20. If an appeal or application for review is filed together with the application for leave which granted leave for the appeal or application for review to be filed, it does not detract from the appeal or application for review being a new proceeding commenced by an originating document – a notice of appeal or an application for review. It also does not detract from the application for leave proceeding being completed when leave has been granted or refused.”

14. In this instance, when application for leave to appeal was granted and the time provided in Order 7 Rule 6 Supreme Court Rules had expired with no application being filed for further time within 21 days, the application for leave to appeal proceeding was completed.

15. Given the above, it is not necessary to consider the other submissions of counsel apart from as to costs. In this regard, I am not satisfied that it has been demonstrated that an order other than costs on a party /party basis should be made.

ORDERS

1. The relief sought in the application of the applicant filed on 28^th August 2025 is refused.
   
2. The applicant shall pay the costs of the first respondent of and incidental to the said application on a party/party basis to be taxed if not otherwise agreed.

________________________________________________________________
Lawyers for the appellant: Pacific Legal Group
Lawyers for the for the first respondent: Wang Dee Lawyers