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Barrick (Niugini) Ltd v Nekital [2020] PGSC 81; SC1996 (21 August 2020)

SC1996

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC (APP) 4 of 2020

BETWEEN:
BARRICK (NIUGINI) LIMITED
Appellant

AND:
STANLEY NEKITAL
First Respondent

AND:
JERRY GARRY
Second Respondent

AND:
MINERAL RESOURCES AUTHORITY
AND:
HON. JOHNSON TUKE
Fourth Respondents

AND:
HON. JAMES MARAPE
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

AND:
MINERAL RESOURCES ENGA LIMITED
Seventh Respondent

AND:
HON. DAVIS STEVEN
Eighth Respondent

Waigani: Hartshorn J,
2020: 20^th & 21^st August

SUPREME COURT – practice and procedure - Application to extend time to lodge an appeal – Section 17 Supreme Court Act, Order 7 Rules 1 and 2 Supreme Court Rules

Cases Cited:
Papua New Guinea Cases

ToRobert v. ToRobert (2011) SC1130
Lawrence Kalinoe v. Philip Kereme (2017) SC1631
William Duma v. James Puk (2019) SC1754

Overseas Cases

Gardner v. Jay (1885) 29 Ch 50

Counsel

Mr. D. Wood, for the Applicant

Oral decision
delivered on
21^stAugust 2020

1. HARTSHORN J: This is a decision on an application to extend the period within which a Notice of Appeal or an Application for Leave to Appeal shall be lodged. The said period is sought to be extended for 14 days after the delivery by the primary judge of written reasons for orders made on 17^th July 2020, in circumstances where the primary judge indicated that he would provide written reasons. The application was heard ex parte pursuant to Order 7 Rule 1(c) Supreme Court Rules. An oral application by the 2^nd, 6^th, 7^th and 8^th respondents to be heard on the application was refused by me in a separate ruling made ex tempore.

Background

2. The primary judge gave an oral judgment on 17^th July 2020. He indicated at that time that he would subsequently provide the published decision. The primary judge has reiterated on a number of subsequent occasions that he would do so.

3. The applicant wishes to challenge the decision of 17^th July 2020 by way of a Notice of Appeal or an Application for Leave to Appeal. The applicant wishes to consider and review the published decision and the reasons therein to enable it to formulate with certainty and clarity, all of its grounds of appeal.

The Application

4. The application is made pursuant to Order 7 Rules1 and 1(c) Supreme Court Rules, s. 17 Supreme Court Act, s. 155(4) Constitution and the inherent jurisdiction of the Court. The applicant relies on the affidavit evidence of Mr. Austin Edo, a senior associate at Ashurst Lawyers. Mr. Edo deposes as to the commencement of judicial review proceedings in the National Court which seek to quash a decision and purported decision, effectively to refuse an application by the applicant to extend the Porgera Special Mining Lease 1 over the Porgera Gold Mine.

5. Mr. Edo deposes concerning leave to apply to judicially review both decisions being granted, the hearing of an application for stay by the applicant on 13^th July 2020, the oral decision of the primary judge given on the stay application on 17^th July 2020 and the restraining orders issued against all parties. Mr. Edo also deposes that on a number of occasions in hearings in the proceedings when Mr. Edo has appeared for the applicant with Mr. Wood, in answer to queries by Mr. Wood as to when the primary judge’s written decision of 17^th July 2020 would be delivered, the primary judge has indicated that he would give a written judgment at a later date. Further, on 14^th August 2020, in answer to a further query by Mr. Wood, the primary judge indicated that he would give his written judgment after delivering a judgment on dismissal applications which he has heard.

6. It is not clear when the primary judge will give his written judgment in respect of the orders made on 17^th July 2020, and the applicant and its lawyers require time to consider the written judgment before deciding with certainty and clarity to file an Application for Leave to Appeal and/or a Notice of Appeal and to formulate all of its grounds of appeal.

Consideration

7. Section 17 Supreme Court Act reads:

“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 judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.”

8. Order 7 Rules 1 and 2 Supreme Court Rules are:

“Sub-Division 1.―Application to Extend Time

1. Where a person desires to make an application for a further period within which to lodge a Notice of Appeal or an Application for Leave to Appeal, the applicant shall, within 40 days after the date of the judgment in question:

(a) file an application in Form 4 setting out:

(i) the date of the judgment in question;

(ii) in general terms the grounds upon which the applicant relies for an extension of time;

(iii) the further period which the applicant seeks;

(b) file an affidavit:

(i) annexing a copy of the judgment in question, and the Judge’s reasons therefore if available;

(ii) deposing as to why it will not be possible for the applicant to file a Notice of Appeal or Application for Leave to Appeal within 40 days after the judgment in question, and

(iii) deposing as to why the additional amount of time being sought is required;

(c) list the matter for ex parte hearing before the Direction/Listings Judge of the Supreme Court.

2. The applicant must have the application filed, served and heard by the Court within 40 days of the judgement in question.”

9. In ToRobert v. ToRobert (2011) SC1130, the Supreme Court (Cannings J, Kariko J, Murray J), considered an application for an extension of time to appeal under the Supreme Court Act. At [11] the Court said:

“It is not necessary for an application for an extension of time to appeal to be served on any party prior to its being heard, just as it is not necessary for an application for leave to appeal to be served (Gigmai Awal v Salamo Elema [2000] PNGLR 288). It was quite proper for the application to be heard ex parte. It is nothing out of the ordinary for appellate courts to hear ex parte applications to extend time for appealing. This is the procedure sanctioned by Section 231 of the District Courts Act in the case of appeals from a District Court to the National Court (In The Matter of an Application by Linah Edward (2005) N2804).

12. As to the considerations that the Judge hearing the application should take into account, this is a matter for the Judge, subject to the requirement imposed by Section 17 of the Supreme Court Act that the application for an extension of time is made within the 40-day period. Provided the discretion is exercised judicially the requirements imposed on a person seeking an extension of time should not be regarded as onerous. It is not necessary for the applicant to satisfy the Judge that exceptional or other similar circumstances exist. Neither is it necessary to set out any proposed grounds of appeal, let alone satisfy the Judge that the proposed grounds of appeal are serious or substantial or have merit. Provided the Judge is satisfied that there are genuine reasons for seeking more time and that the applicant is not engaging in time-wasting tactics or otherwise abusing the processes of the court and that there are no other matters of concern, it is reasonably to be expected that leave would be granted. The period of the extension is a matter of discretion, which should be exercised according to the circumstances of the case.”

10. I also note under s. 17 Supreme Court Act, that there is no fetter on the exercise of discretion by a judge in deciding whether to allow a further period, so long as the application is made to the judge within the subject period of 40 days. On this point, I am reminded of the oft cited statement of Bowen LJ in Gardner v. Jay (1885) 29 Ch 50, at 59:

“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?”

11. This case and statement were referred to and approved by this Court in Lawrence Kalinoe v. Philip Kereme (2017) SC1631 and William Duma v. James Puk (2019) SC1754.

12. In this instance, I consider the application, being guided by the considerations in ToRobert’s case (supra) and being mindful of there being no fetter on how I should exercise my discretion. I am satisfied that the procedural requirements of s.17 Supreme Court Act and Order 7 Rule 1 Supreme Court Rules have been complied with. Here, the evidence is that the primary judge when delivering his decision on 17^th July 2020 stated, “I will try and have it printed in a printable version after today ... I do not expect to revisit and change my decision except to tidy it up and put it in a publishable form”

13. Then on numerous other occasions the primary judge in response to queries, has said that he would give a written judgment at a later date. Further, specifically on 14^th August, in answer to a query, the primary Judge stated that he would give his written judgment on 17^th July 2020, after giving a judgment on dismissal applications.The primary judge had previously stated that he expected to give a judgment on the dismissal applications within 30 days.

14. The primary judge pronounced his oral decision on 17^th July 2020, thus setting the 40 day appeal period under s. 17 Supreme Court Act running. If the primary judge gives his written decision within 30 days from 14^th August, there is a clear likelihood that it will be delivered after the period of 40 days expires on 26^th August 2020. To my mind, this is a genuine reason for the applicant to seek more time and by doing so the applicant is not engaging in time wasting tactics or otherwise abusing the processes of this Court. The further period of 14 days sought is not overly long and in my view, is appropriate in the circumstances. The applicant has properly made out that it is entitled to the relief which it seeks.

Orders
15.The Court orders that:

(a) Pursuant to s. 17 Supreme Court Act (Chapter 37) and/or Order 7 Rule1 Supreme Court Rules 2012, s. 155(4) Constitution and the inherent jurisdiction of the Court, the time within which the Applicant has to give notice of appeal and/or notice of application for leave to appeal, as the case may be, from the decision and orders of Deputy Chief Justice Kandakasi delivered and made on 17^th July 2020 in National Court proceeding OS (JR) No. 5 of 2020, between Barrick (Niugini) Limited and the Respondents herein, is extended to 14 days after delivery by the Deputy Chief Justice and receipt by Ashurst lawyers of written reasons for judgment.
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Ashurst: Lawyers for the Applicant