SC954

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 28 0F 2007

ROYALE THOMPSON, FRAZER PITPIT, SIR KINA BONA,
PIUS KINGAL, NIGEL AGONIA, NET KOLEALA
& JOHNNY BOGOMBARI,
CONSTITUTING THE LAWYERS STATUTORY COMMITTEE
OF THE PAPUA NEW GUINEA LAW SOCIETY
Appellants

V

CANISIUS KARINGU
Respondent

Waigani: Injia CJ, Mogish J, Cannings J
2008: 25, 28 November

JUDGMENTS AND ORDERS – order that an appellant do an act within a set time, failing which appeal will stand dismissed – whether the order was complied with – whether appeal stands dismissed. 

WORDS AND PHRASES – "seek" an appointment – whether it requires getting or obtaining an appointment – whether requesting an appointment is sufficient – whether a written request must be served on intended recipient of request to constitute "seeking" an appointment – proof of service. 

The Supreme Court, when refusing an application for dismissal of an appeal for want of prosecution, ordered, under Order 7, Rule 53(b) of the Supreme Court Rules, that:

The appellants shall, within seven days, seek an appointment with the Registrar to settle the appeal book index, failing which the appeal will stand dismissed for want of prosecution.

The respondent to the appeal subsequently applied for dismissal of the appeal on the ground that the order had not been complied with, in two respects:

•	the appellants only requested an appointment, they did not get an appointment, which is a necessary component of "seeking" it; and

•	the appellants did not serve their request on the Registrar within seven days.

Held:

(1)	The words used in an order of a court are, unless connected with a statutory provision that defines the word, given their ordinary and natural meaning.

(2)	The ordinary meaning of the word "seek" is to ‘go in search of, look for, ask for, request’ something. It does not include ‘finding, getting, obtaining’ it.

(3)	Seeking something from someone requires, also, that the request be directed to and received by the recipient of the request. 

(4)	In this case, the wording of the request was sufficient to constitute ‘seeking’ an appointment with the Registrar.

(5)	However, though the request was directed to the Registrar, it was not received by him within the period required by the court’s order. 

(6)	The respondent proved on the balance of probabilities that the court’s order was not complied with and, in accordance with the court’s order, the appeal stands dismissed for want of prosecution. 

Cases cited

The following cases are cited in the judgment:
Canisius Karingu v PNG Law Society (2006) SC900
Hilary Singat v Commissioner of Police (2008) SC910
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
PLAR No 1 of 1980 [1980] PNGLR 326
SCR No 2 of 1995; Reference by Western Highlands Provincial Executive (1995) SC486
Thompson v Karingu SCA No 28 of 2007, 29.08.08

APPLICATION

This was an application for dismissal of an appeal on the ground that a previous order of the court was not complied with. 

Counsel

G Poole, for the appellant
C Karingu, the respondent, in person

28 November, 2008 

1. BY THE COURT: This is a ruling on an application by the respondent, Canisius Karingu, to dismiss an appeal that has been brought by the appellants, the members of the Lawyers Statutory Committee. 

2. The appeal is against a judgment of Los J in the National Court which, amongst other things, ordered that Mr Karingu be issued with a practising certificate and allowed to practise as a lawyer.

3. Mr Karingu argues that the appeal should be dismissed as the appellants have failed to comply with a Supreme Court order of 29 August 2008, which stated:

The appellants shall, within seven days, seek an appointment with the Registrar to settle the appeal book index, failing which the appeal will stand dismissed for want of prosecution.

4. That order was made when the court refused an application by Mr Karingu to dismiss the appeal for want of prosecution (Thompson v Karingu SCA No 28 of 2007, 29.08.08). Mr Karingu submits that the order has not been complied with, in two respects:

•	first, the appellants only wrote a letter requesting an appointment with the Registrar, they did not get an appointment, which is a necessary component of "seeking" an appointment; and

•	secondly, the appellants did not serve their request on the Registrar within seven days.

5. The issues we have to determine therefore are:

1	What does "seeking" something mean? 

2	Was the request served on the Registrar?

And, in light of our resolution of those issues:

3	Was the order of 29 August 2008 complied with?

4	What are the consequences if the order was not complied with? 

1	WHAT DOES "SEEKING" SOMETHING MEAN?

6. Mr Karingu submitted that seeking means to get or obtain. When the Supreme Court ordered that the appellants seek an appointment with the Registrar, this meant that they had to actually secure an appointment. Just asking for an appointment is not sufficient.

7. We reject this submission as it is plainly at odds with the ordinary and natural meaning of the word "seek". Unless the words used in an order of a court are connected in some way to a statutory provision or unless perhaps the meaning of words are coloured or qualified by the judgment of the court, the words are to be given their ordinary and natural meaning. This principle of interpretation (which is really just common sense) applies to interpretation of statutory provisions (PLAR No 1 of 1980 [1980] PNGLR 326; SCR No 2 of 1995; Reference by Western Highlands Provincial Executive (1995) SC486; Paru Aihi v Sir Moi Avei (No 2) (2003) SC720; Hilary Singat v Commissioner of Police (2008) SC910). It must apply with equal force to interpretation of court orders. 

8. Mr Karingu submitted that the text of the Supreme Court judgment handed down on 29 August 2008 shows that the Court was requiring the appellant to arrange a specific date with the Registrar, within the seven-day period referred to in the order. This is not so. We have considered the judgment and it is clearly apparent that the court was ordering the appellants to, within seven days, ask for an appointment. 

9. The ordinary meaning of the word "seek" is to ‘go in search of, look for, ask for, request’ something. It does not include ‘finding, getting, obtaining’ it. We have consulted many dictionaries and they all say the same thing. 

10. As does the Holy Bible. It prescribes, in Mathew 6.33, what should be sought:

But seek ye first the kingdom of God, and His righteousness; and all these things shall be added unto you.

11. The Holy Bible promises results, in Mathew 7.7, for the efforts of those who seek:

Ask, and it shall be given to you. Seek, and ye shall find. Knock, and it shall be opened unto you.

12. Clearly, when the appellants were ordered to seek an appointment, they were being ordered to request an appointment, not necessarily get or obtain one. 

13. We have considered a letter that the appellants’ lawyers, O’Briens, addressed to the Registrar of the Supreme Court, dated 2 September 2008. It states, amongst other things:

We have instructions to progress our clients’ appeal and would appreciate if you could appoint a date in the next fortnight for settlement of our clients’ draft index to the appeal book (copy attached). [Emphasis added.]

14. The italicised words – ‘we would appreciate if you could appoint a date’ – constitute a request and, subject to proof that the request was actually received by the Registrar within the time allowed, are sufficient to satisfy the requirement that the appellants "seek" an appointment. 

2	WAS THE REQUEST SERVED ON THE REGISTRAR?

15. Mr Karingu’s argument is that if the appellants, by their letter of 2 September 2008, were seeking an appointment, they nonetheless did not comply with the order of 29 August 2008 as the letter was not received by the Registrar within seven days.

16. We agree with the thrust of this submission. Seeking something from someone requires not only the utterance of a request but also that the request be directed to and received by the intended recipient of the request. 

17. We have considered the evidence carefully and find no evidence that the letter of 2 September 2008 was received by the Registrar. There is an acknowledgement stamp on the copy of the letter annexed to Mr Karingu’s affidavit of 20 October 2008. The acknowledgment was signed, it appears, by someone called "Mabata". Mr Karingu deposes that Mabata is an officer of the National Court Registry. That may or may not be the case. We do not consider it relevant. Mabata’s full name is difficult to read and Mabata’s designation (is he or she a clerk, a security officer, a cleaner, a librarian, a lawyer?) is not shown.

18. Mr Karingu states in his affidavit that he has been told by the Deputy Registrar of the Supreme Court, Ms Daingo, that the letter was not delivered to her. We regard this statement as hearsay and strike it out.

19. There is evidence of another letter from O’Briens to the Registrar seeking an appointment to settle the index. This one asks the Registrar to appoint a date "as a matter of urgency". It is dated 9 September 2008. That date is after the end of the seven-day period set by the Supreme Court, 5 September 2008.

20. Mr Poole has nothing in his affidavit of 8 October 2008 that proves that the letter of 2 September 2008 was received by the Registrar, and in any event we ruled that that affidavit could not be relied on for the purposes of these proceedings. There is no affidavit by any person who apparently delivered the letter to Mabata. So the court has little to go on.

21. Mr Poole argued that it was not up to the appellants to prove that the letter was received by the Registrar. The onus rests on the party making the application – the respondent, Mr Karingu – to prove that the letter was not received. We agree with Mr Poole to that extent. 

22. However, we consider the onus of proof has been discharged by the respondent. The ordinary and natural inference to be drawn from the evidence available is that the letter was not received by the Registrar by 5 September 2008 (that being the last day of the seven-day period allowed by the Supreme Court order of 29 August 2008). The appellants have not rebutted that inference. 

23. We find as a fact, on the balance of probabilities, that the letter of 2 September 2008 was not served on the Registrar within the time required. 

3	WAS THE ORDER OF 29 AUGUST 2008 COMPLIED WITH?

24. In view of our finding of fact regarding the failure of the appellants to serve the letter of 2 September 2008 on the Registrar, and there being no other evidence that the appellants sought, by 5 September 2008, an appointment with the Registrar, we conclude that the order of 29 August 2008 was not complied with. 

4	WHAT ARE THE CONSEQUENCES OF NON-COMPLIANCE?

25. To ascertain the consequences of non-compliance with the order, we need to revisit the terms of the order of 29 August 2008 and relate them to the source of the power to make the order.

26. The order stated:

The appellants shall, within seven days, seek an appointment with the Registrar to settle the appeal book index, failing which the appeal will stand dismissed for want of prosecution. [Emphasis added.]

27. The order was, according to the Supreme Court’s judgment, made under Order 7, Rule 53(b) of the Supreme Court Rules, which states:

Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may … fix a time peremptorily for the doing of the act and at the same time order that upon non compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed. [Emphasis added.]

28. The question arises whether the order of 29 August 2008 is self-executing. Or can the court, having heard the parties as to whether there were good reasons for not complying with the order, as an exercise of discretion, order that the appeal not be dismissed? A similar sort of issue arose in a case involving the same parties, Canisius Karingu v PNG Law Society (2006) SC900. 

29. Every case must be judged on its merits. Every order must be analysed separately to see whether it is genuinely self-executing. In this case, we are satisfied that the order of 29 August 2008 is self-executing in the sense that all that we need to be satisfied of is that it has not been complied with. We should not go into the reasons or justification for non-compliance. The order was not complied with, so it follows, as a matter of course, that the appeal stands dismissed. It will be dismissed with effect from the first day after the end of the seven-day period referred to in the order, ie from 6 September 2008. 

30. If we had taken a different view and considered that we had discretion to exercise, we point out that we were not invited to exercise any discretion in this way. No submissions were advanced to argue that there were good reasons for not complying with the court order. If such a submission had been made we would have been hard pressed to uphold it. The appellants’ lawyers, with respect, appear to have taken a casual attitude to complying with an order of the Supreme Court. They failed to accord the order the respect and attention to detail that it so obviously required.

ORDER

1	The application for dismissal of the appeal is granted. 

2	The appeal stands dismissed for want of prosecution with effect from 6 September 2008.

3	The appellants shall pay the respondent’s costs of the appeal on a party-party basis, to be taxed if not agreed. 

Judgment accordingly.

O’Briens: Lawyers for the appellant
Lawyers for the respondents:	Nil