SC765

PAPUA NEW GUINEA

[In the Supreme Court of Justice in Waigani]

SCA 27 OF 2004

Between:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
(Appellant)

And:

JOHN TUAP on behalf of himself and the
1,189 people of Watarais, Marawasa and
Ragitzaria Villages
(First Respondent)

And:

GRAHAM NABU on behalf of himself
and the 721 people of Marasasa, Wankum
and Atzunas Villages
(Second Respondent)

And:

MARCONI IGIS on behalf of himself and
the 53 people of Ragisumang, Tumua,
Waritzian and Ragiampun Villages
(Third Respondent)

And:

BARNABAS SAGUM on behalf of
himself and the 115 people of Gainarum
Tofmora, Intsi, Zumara, Marafau,
Maiamsariang, Ngaruapum and Gudzuap
Villages
(Fourth Respondent)

And:

EDDIE SARUFA on behalf of himself and
the 72 people of Mutzing Village, Public
Servants and Markham Valley High
School and Ngaruburam Village
(Fifth Respondent)

WAIGANI : SAWONG J, MOGISH & CANNINGS JJ.
2004 : 1ST & 27TH OCTOBER

Supreme Court – Appeal – Application for leave to appeal refused by single Judge of the Supreme Court – Application made to full court upon refusal of similar application before single Judge of the Supreme Court – Whether application to Full Court under s.10 (2) should be made within 40 days time limit are described by s.17 of the Supreme Court Act – Whether application before Full Court to "reinstate" previous application that has been refused by single Judge is competent.

Held:

(1)	When an application for Leave to Appeal has been refused by a single Judge of the Supreme Court, an Applicant must make a fresh application to the full bench of the Supreme Court.

(2)	Such a fresh Application must not be by way of an Application to "reinstate" or "set aside" the previously refused application.

(3)	The fresh Application must be filed within the time limit prescribed by S.17 of the Supreme Court Act or within such extended time given by the Court.

Accordingly, in the present case as the Application was to "reinstate" an Application which had been refused, and as it was not filed within the time prescribed by s.17 of the Supreme Court Act, the Application is incompetent.

Cases Cited:
Felix Bakani v Rodney Diapo (2000) (Unreported Judgment No. SC699)

Counsel:
P. KUMAN, for the Appellant
A. MANASE, for the Respondent

DECISION

27th October, 2004

BY THE COURT: This is an objection to the competency of an application for leave to appeal filed by the appellant.

The brief background to the objection is that on the 20th of February, 2004 the National Court in WS No. 626 of 1997 allowed the respondents to amend their Writ of Summons. Being aggrieved by that decision, the appellant then on 20 March 2004, filed an application for leave to appeal. On the 24th of June, 2004 Kandakasi, J sitting as a single Judge of the Supreme Court, dismissed the appellant’s application for leave to appeal with costs to the respondent. The appellant has now filed the present application pursuant to s.10 (2) of the Supreme Court Act (the Act) seeking orders that:

1.	The application for leave to appeal filed on the 26th March, 2004 which was refused by Kandakasi J on 24th of June, 2004 be re-instated.

2.	The Supreme Court re-determines the application for leave forthwith.

The respondent objects to the application on several bases. Firstly, Mr Manase, counsel for the respondent, submits that the power conferred by s.10 (2) of the Act upon an appellant on refusal by a single Judge of the Supreme Court to give leave to appeal under s.10 (1) of the Act, must be exercised afresh, without reference to the decision of the single Judge for determination by the full Supreme Court. Mr Manase submits that the power given to the full Supreme Court by s.10 (2) of the Act to determine an application for leave to appeal afresh does not include the power to set aside or reinstate a decision of the single Judge of the Supreme Court refusing or dismissing an earlier application for leave to appeal. He submits that in the event of refusal, an applicant must file a fresh application to the full Court. Mr Manase submitted that s.10 (2) of the Act does not give power to the full Court of the Supreme Court to "re-instate" or "set aside" a dismissed or refused application for leave to appeal. He submitted that in such an event, the unsuccessful applicant must file a fresh application for leave to appeal.

Secondly, he submits that the fresh application for leave to appeal in accordance with s.10 (2) of the Act must be within the 40 days time limit prescribed by s. 17 of the Act. He submitted that in the present case the application was filed outside the 40 days time limit prescribed by s.17 of the Act, and therefore the application is incompetent.

He relied on the Supreme Court decision in Felix Bakani v Rodney Diapo (2000) (Unreported Judgment No. SC699).

Mr Kuman submitted that the case of Bakani was not relevant nor applicable because the facts of that case may be distinguished from the facts of the present case. He submitted that in that case, the case and the principles enunciated therein related to filing an application for extension of time under s.10 (2) of the Act and not with an application for leave to appeal. He submitted that the Court should re-look at the principles enunciated in Bakani’s case and depart from it. He submitted that the decision in Bakani’s case was wrong in that it failed to take into account the realities of filing of leave applications, the actual hearing and lapse of time involved in an appeal relating to O.10 of the Supreme Court Rules. He further submitted that the procedures under s.10 (2) of the Act are unclear and in that respect the "time" within which to file a fresh application must be "within reasonable time" as stipulated in s.12 of the Interpretation Act. Moreover, he submitted that the manner and form of a s.10 (2) application is again not clearly provided for either under the Supreme Court Act or the Supreme Court Rules and the court should in the circumstances invoke its powers under s.185 of the Constitution and this Court should give further directions and allow the application to be amended or corrected where appropriate and proceed to hearing. He submitted that the present application under s.10 (2) is competent.

Mr Kuman submitted that there was nothing in s.10 which prescribed the time limit within which to file an application under s.10 (2) of the Act. He submitted that the procedure under s.10 (2) of the Supreme Court Act is unclear and in that respect, the "time" within which to file such an application must be made "within reasonable time" as stipulated in s.12 of the Interpretation Act. He submitted that despite the interpretation given to s.10 (2) of the Act in Bakani’s case, the Court should deviate from that decision.

A third ground advanced by Mr Manase was that the application failed to specify with particularity the grounds relied on in support of the application to allege that single Judge of the Supreme Court had erred in law or in fact. Hence, the application is incompetent pursuant to O.7 r 8 and 9 of the Supreme Court Rule.

The arguments raised by the parties and the issues raised in this application involve the interpretation of s.10 and s.17 of the Act. It is therefore convenient to set out these provisions in full at the outset.

Section 10 of the Act reads:

"10. Powers that may be exercised by Judge.

(1)	Any power of the Supreme Court under this or any other Act. -

(a)	to give leave to appeal; or 

(b)	to extend the time within which notice of appeal or of an application for leave to appeal or maybe given; or

(c)	to admit an appellant to bail, 

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2)	Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court."

Section 17 of the Act reads:

"17. Time for appealing under Division 2.

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days."

We firstly consider the provisions of s.10 of the Act. The relevant provision is s.10 (2). We have considered the submissions put forward before us by both parties. We accept the submissions put to us by Mr Manase on the interpretation and application of s.10 (2) of the Act. It is clear to us that, where an application for leave to appeal has been refused by a single Judge of the Supreme Court, a fresh application must be made to the full bench of the Supreme Court under s.10 (2) which the full Court must consider and determine de novo. Further, this provision was considered in Felix Bakani v Rodney Daipo (supra).

The brief fact of that case was that the respondent successfully obtained a judicial review in the National Court against his dismissal. The appellant then lodged an appeal against that decision. The appeal was by way of a Notice of Motion under O.10 of the Supreme Court Rules. The Notice of Motion however, did not annex certain documents as required by O.10 r 3 (b). Subsequently, on the same date the appellant also filed an application under s.17 of the Act seeking extension of time to enable the applicant to comply with the requirements of O.10 r 3 (b). In January 2001, Justice Gavara-Nanu, sitting as a single Judge of the Supreme Court, dealt with the application for extension of time. His Honour dismissed the application because the application was filed outside the 40 days time limit prescribed by s.17 of the Act. Some two weeks later, the appellant filed a fresh application before the full Court for extension of time under s.10 (2) of the Act. The full bench refused the application. The Court said at p. 5:

"It is accepted by both parties, and quite rightly so, that an application for extension of time to appeal under s.17 may be made before a single Judge of the Supreme Court. This is clear from the reference to a "Judge" as opposed to "the Supreme Court" in s.17 and s.10. It is not contended by both parties that an application for extension of time to appeal made before the full bench of the Supreme Court under s.10 (2) following refusal of a similar application under s.10 (1) is a fresh application which the full court considers and determines de novo. That is the correct interpretation of s.10 (2). In other words, the full Court does not sit to review the decision of the single Judge but to determine the application afresh without any reference to the decision of the single Judge. The procedure is similar to a situation where a single Judge of the Supreme Court refuses leave to appeal or refuses to grant an application for bail. The applicant is entitled to make a fresh application before the full bench of the Supreme Court."

We accept the interpretation given in that case as the proper statement of the law and would adopt it as our own. We would only add that, where a single Judge of the Supreme Court refuses an application for leave or any of the other matters prescribed in s.10 (1) of the Act, the applicant must file a fresh application, if he so desires, to the full bench of the Supreme Court. The fresh application should be without reference to the previous application before the single Judge. The fresh application must not be an application to "set aside" or "reinstate" the application that was dealt with earlier by the single Judge. In such a situation, the full Court does not sit to review the decision of the single Judge nor does it have the power to "set aside" or "reinstate" the application that was dealt with by the single Judge. Any application to "reinstate" or "set aside" an application which had been refused by a single Judge previously, would be incompetent. The full bench of the Supreme Court will then have to consider and determine the fresh application de novo.

The application before us is an application for leave to appeal filed on 26th March, 2004 which was refused on the 24th June, 2004 by Kandakasi, J be "reinstated". As we said earlier, once a single Judge has refused a matter referred to in s.10 (1) of the Act, the appellant files a fresh application. Such an application cannot be by way of an application to "set aside" or "reinstate" the earlier application. To do so, would mean that an application to "set aside" or "reinstate" would be incompetent, as the full Court does not have such power under s.10 (2) of the Act. In the present case the application made references to the decision of Kandakasi, J. It also asks this Court to "reinstate" that decision. This is not permissible under this Court’s powers under s.10 (2) of the Act. Accordingly, we would dismiss the present application as being incompetent on that basis alone.

However for completeness, it is necessary to consider the other arguments put forward by the parties. The next ground of objection was that, the application was incompetent as it had been filed outside the 40 days time limit prescribed by s.17 of the Act. The issue before us is whether the present application was made within the 40 day time limit prescribed by s.17 of the Act.

We do not accept the submissions put by Mr Kuman on this issue.

In Bakani’s case the Supreme Court said at p.7:

"It seems to us that parties have misunderstood the relationship between s.10 and s.17. Section 10 does not confer the powers enumerated in s.10 (1) (a) to (c). Those powers enumerated in s.10 (1) (a) to (c) are given under other provisions of the Act. This is made clear in the opening sentence of s.10 (1) which says "any power of the Supreme Court under this Act" relating to (a), (b) or (c). The power to extend the time limit to institute an appeal (or leave to appeal as the case may be) is provided by s.17. Section 10 prescribe the procedure for the exercise of those powers enumerated in s.17 by a single Judge of the Supreme Court or a full bench of the Supreme Court where the single Judge refuses the application, and nothing more. Therefore, s.10 must be read, subject to or together with s.17. Upon reading s.10 and s.17 together, an application for extension of time to appeal made under both s.10 (1) before a single Judge of the Supreme Court and under s.10 (2) before the full bench of the Supreme Court must be made within the same 40 days prescribed by s.17. We do not consider that a time limit vacuum exists in s.10 (2) which can be remedied by importing s.12 of the Interpretation Act."

In our view the above passage states the correct principle of law. In so far as the present application is concerned, we would add that an application for leave to appeal made under s.10 (2) before the full bench of the Supreme Court must be made within the same 40 days time limit or any extension prescribed by s.17. We too consider that there is no time limit vacuum in s.10 (2) and therefore there is no need to import and apply s.12 of the Interpretation Act.

In the present case it is quite clear that the application now before us was filed outside of the 40 days period prescribed by s.17 of the Act. Consequently, the application for leave to appeal before us is incompetent.

In view of our conclusions, it is unnecessary to consider the third ground of the objection.

For these reasons, we would uphold the objection and dismiss the application for leave to appeal with costs to the respondents.
_____________________________________________________________
LAWYERS FOR THE APPELLANT : POSSMAN KUA AISI
LAWYERS FOR THE RESPONDENT : PATO LAWYERS