SC1325
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 3 OF 2007

HONOURABLE BIRE KIMISOPA MP, MINISTER FOR JUSTICE
First Appellant

WINNIE KIAP, SECRETARY TO THE NATIONAL EXECUTIVE COUNCIL
Second Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

V

PAUL PARAKA, TRADING AS PAUL PARAKA LAWYERS
Respondent

Waigani: Cannings J, Gabi J, Makail J
2009: 23, 27 November

PRACTICE & PROCEDURE – application to dismiss appeal – failure to comply with court orders – want of prosecution – appeals from applications for judicial review – delay – whether inordinate and inexcusable – exercise of discretion – Inherent jurisdiction – Constitution, Section 155(4) – Supreme Court Rules 1984: Order 7, Rules 43 and 53(a); Order 10, Rules 1, 2, and (3)(b)(i).

The appellants appealed against an order of the National Court dated 2 March 2007 compelling the Secretary for Treasury to identify funds and release a special warrant of K6,438,673.06 to the Secretary for Finance who was required to pay that sum to the respondent that day. During the course of pre-hearing procedures the Supreme Court ordered on 2 July 2009 that "the appellants file and serve a copy of the existing notice of motion in a form that complies with Order 10, Rule 3(b) of the Supreme Court Rules within 14 days". That order was not complied with strictly, in that certain documents were not filed as required. The respondents then applied for an order dismissing the appeal on two grounds: (1) the appellants' failure to comply with the order of 21 July 2009; and (2) want of prosecution.

Held:

(1)	The appellants failed to comply strictly with the order of 21 July 2009. However, there was an explanation for the failure, which was reasonable in the circumstances, so the application for dismissal was refused.

(2)	The respondent failed to show that the failure to prosecute the appeal was due largely to the conduct of the appellants, so the application to dismiss for want of prosecution was refused.

(3)	Therefore the application to dismiss the appeal was refused.

Cases cited

Central Provincial Government v National Capital District Interim Commission [1987] PNGLR 249
Dan Kakaraya v Sir Michael Somare (2004) SC762
Donigi v Papua New Guinea Banking Corporation Ltd (2001) SC691
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
The State v David Nelson (2004) SC766
The State v Raymond Turu (2008) SC904

Counsel

P Mawa, for the Appellants
R Inua, for the Respondent
G Poole, for Secretary, Department of Treasury
J Holingu, observer, for the Bank of Papua New Guinea

27th November, 2009 

1. BY THE COURT: This is the second time the respondent is asking the Court, pursuant to an amended application filed on 12 November 2009, to dismiss the appeal for:

•	first, the appellants' failure to comply with an order issued by the Court on 21 July 2009; and

•	secondly, want of prosecution pursuant to Order 7, Rule 53 of the Supreme Court Rules.

THE DECISION THE SUBJECT OF APPEAL

2. The decision of the National Court of 2 March 2007 which is the subject of the substantive appeal arises from an application for judicial review in OS No 876 of 2006 filed by the respondent on 29 November 2006. In that application for judicial review, the respondent sought to review the decision of the appellants to establish a "departmental inquiry" into brief-outs of all State cases by the State through the Attorney-General to private lawyers and law firms. On 14 December 2006 the National Court granted leave for judicial review. Pending the hearing of the substantive judicial review, on 29 December 2006, the respondent applied and obtained inter alia, an interim stay of the decision of the appellants and also an order for the appellants to pay legal fees to the respondent for provision of services to the third appellant out of funds legally available within the Department of Justice & Attorney-General.

3. In compliance with the Court order of 29 December 2006, which was further extended on 6 February 2007, the Department of Justice & Attorney-General approved or gave "clearance" to the Departments of Finance and Treasury for payment of legal fees to the respondent. The Departments of Finance and Treasury failed to pay.

4. As a result, on 2 March 2007, the respondent applied to the National Court and obtained inter alia what appears to us "an interim mandatory injunction", compelling the Secretary for Treasury, Mr Simon Tosali, or any officer acting in the capacity of Secretary for Treasury and in the absence, the Deputy Secretary, Ms Nino Saruva, to identify funds and release a special warrant of K6,438,673.06 to the Secretary for Finance, Mr Gabriel Yer, or any officer acting in the capacity of Secretary for Finance or in their absence, the Deputy Secretary, Mrs Doriga Henry, to pay that sum of money to the respondent by or before 3 pm on 2 March 2007. This is the decision which we said is the subject of the substantive appeal.

EVENTS CULMINATING IN ORDER OF 21 JULY 2009

5. Pending the substantive appeal, on 13 March 2007, the respondent filed an objection to competency and an application to dismiss the appeal. On 3 May 2007, the objection was argued before the Court, comprising Jalina J, Gavara-Nanu J and Batari J, and their Honours reserved their ruling to a date for parties to be advised. Unfortunately, Jalina J passed away before the ruling was delivered.

6. The objection and application to dismiss were re-listed for hearing on 29 June 2009 before the Supreme Court comprising Davani J, Hartshorn J and Yagi J. At the second hearing, it was argued by the respondent in relation to the application to dismiss, that the appellants did not annex copies of documents filed in the National Court in OS No 876 of 2006 to the notice of motion constituting the appeal, as required by Order 10, Rule 3(b)(i) of the Supreme Court Rules. For this reason, it was argued that the appeal was incompetent and should be dismissed.

7. On 21 July 2009, the Court handed down its ruling, dismissing the objection and application to dismiss and ordered that "the appellants file and serve a copy of the existing notice of motion in a form that complies with Order 10, Rule 3(b) of the Supreme Court Rules within 14 days".

ALLEGED BREACH OF ORDER OF 21 JULY 2009

8. We deal first with the application to dismiss the appeal based on failure to comply with the Court order of 21 July 2009. It is common ground amongst parties that on 21 July 2009, the Court dismissed the respondent's objection and application to dismiss and directed that "the appellants file and serve a copy of the existing notice of motion in a form that complies with Order 10, Rule 3(b) of the Supreme Court Rules within 14 days". It is also common ground that the 14 days expired on 4 August 2009. Finally, it is common ground, as it became apparent during submissions, that the appellants' lawyers filed the notice of motion on 4 August 2009, annexing documents filed in the National Court in OS No 876 of 2006, excluding three documents set out in paragraphs 4.5, 4.7 and 4.12 of the affidavit of Guguna Garo sworn and filed on 13 August 2009. These documents are:

1	order of 20 December 2006, granting leave for judicial review;
2	notice of motion filed on 22 December 2006; and
3	court order filed on 6 February 2007.

9. The primary issue raised in the application therefore is whether the appellants have failed to comply with the court order of 21 July 2009 because they have not annexed "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion within 14 days. The second issue is, if so, whether such failure or breach is so serious that it renders the appeal incompetent and should be dismissed.

10. In relation to the primary issue, we have no difficulty in finding that the appellants have breached or failed to comply with the court order of 21 July 2009 directing them to annex "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion within 14 days, which had expired on 4 August 2009. We so find because the Court order of 21 July 2009 is explicit: it placed an obligation on the appellants to comply with the requirement of annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion under Order 10, Rule 3(b)(i) of the Supreme Court Rules.

11. As the appellants have not complied with the Court's order of 21 July 2009, this Court, in the exercise of its inherent jurisdiction under Section 155(4) of the Constitution to prevent abuses of its processes including failure to comply with its orders and directions by litigants, may dismiss the appeal for this reason alone. But the appellants, in conceding that they have failed to comply with the Court order of 21 July 2009, argue that they were unable to do so because the missing documents were not in their possession. They argue that even a search of the Court file at the National Court registry revealed none. Those that were located in the Court file were included in the amended notice of motion filed on 25 September 2009.

12. These arguments raise the second issue of whether or not the failure or breach is so serious that it renders the appeal incompetent and should be dismissed. To answer this question, it is important to understand the reasoning behind the requirement of annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion under Order 10, Rule 3(b)(i) of the Supreme Court Rules. We note counsel have not fully addressed us on this point, although the Court did call for submissions.

13. Counsel for the appellants submits that the reason for the requirement of annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion is to ensure that "nothing (document) is missing in case it might be relevant" for the purposes of the appeal and that the copies of the documents annexed to the notice of motion are intended to be converted to an appeal book under Order 7, Rule 43 of Part 3 of the Supreme Court Rules for use in the appeal.

14. Counsel for the Secretary for Treasury suggests that, given the two different requirements, one being the requirement of annexing copies of documents filed in the National Court to the notice of motion and the other being the requirement of compiling an appeal book, they are a duplication of activities that have remained "unresolved puzzles" to date. Counsel for the respondent did not make any submissions.

15. We disagree with both counsel's submissions. The two different requirements are not "unresolved puzzles". They are two distinct requirements which we will elaborate on shortly. But first, it is instructive to note and we take the liberty to set out Order 10, Rules 1-3 of the Supreme Court Rules below as we consider these provisions relevant to answer the questions we posed above. They state:

1	An appeal under this Part shall be instituted by a notice of motion.

2	The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.

3	The notice of motion shall -

(a)	show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; and

(b)	have annexed -

(i)	copies of all documents which were before the Judge of the National Court appealed from; and

(ii)	a copy of the order made, certified by the Judge's Associate or the Registrar; and

(c)	be in accordance with form 15; and

(d)	be signed by the appellant or his lawyer; and

(e)	be filed in the registry.

16. These rules appear under Part 3 (Jurisdiction under Supreme Court Act) of the Supreme Court Rules. Order 10 of Part 3 of the Supreme Court Rules governs "Appeals from orders made under Orders 16 and 17 of the National Court Rules." As parties are aware, Order 16 of the National Court Rules provides for applications for judicial review. According to Order 10, Rule 1, an appeal under Part 3 shall be instituted by notice of motion. See also Order 16, Rule 11 of the National Court Rules. No issue has been taken by the respondent in relation to the form of the appellants' notice of motion filed on 4 August 2009 following the dismissal of the respondent's objection and application to dismiss on 21 July 2009. We note the notice of motion is in accordance with Form 15 and signed by the appellants' lawyers, even though the decision of 2 March 2007 does not relate to grant or refusal of leave for judicial review or the substantive judicial review.

17. The respondent only takes issue with the requirement of annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion under Order 10, Rule 3(b)(i) of the Supreme Court Rules. We consider that this requirement is distinct and separate from the requirement to compile an appeal book under Order 7, Rule 43 of Part 3 of the Supreme Court Rules. The Supreme Court in The State v David Nelson (2004) SC766 observed that "Order 10 of Supreme Court Rules is clearly intended to be a complete and exclusive procedure for reviewing applications for judicial review".

18. We consider the observation made by the Supreme Court in Nelson provides support for what we have just stated. Appeals from applications for judicial review under Order 10 of the Supreme Court Rules are distinct from appeals under Order 7 of the Supreme Court Rules as they are commenced by Form 15 (notice of motion) and regulated by the provisions of Order 10. It is therefore incumbent upon appellants to strictly comply with the provisions of Order 10. This includes the requirement of annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion because it is the documents before the National Court that would form the "appeal book" in the Supreme Court. That is why under Order 10, there is neither a provision for compiling an appeal book nor a reference to an appeal book under Order 7, Rule 43 of Part 3 of the Supreme Court Rules.

19. For this reason, it is our opinion that it is of vital importance that appellants appealing from applications for judicial review must annex "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion. Without the documents, the appeal is incomplete. To put it the other way, there is no requirement to prepare an appeal book in appeals from applications for judicial review under Order 10. To do so would result in duplication of activities including photocopying of the same documents.

20. Having made these observations, we note that in the present application, we are not deciding whether the appeal is incompetent because the appellants should have followed the procedure under Order 10, Rule 3(b)(i) of Part 3 and not Order 7, Rule 43 of Part 3 of the Supreme Court Rules but rather a failure to comply with the Court's order of 21 July 2009 to comply with Order 10, Rule 3(b)(i) only. In this respect, we agree with the respondent's submission that the Court's orders and directions must be strictly observed by parties and any non-compliance may result in adverse consequences against the party in default including contempt of Court: see Central Provincial Government v National Capital District Interim Commission [1987] PNGLR 249.

21. In the present case, the Court ordered the appellants to file a notice of motion annexing "copies of all documents which were before the Judge of the National Court appealed from", within 14 days. It was therefore, incumbent on the appellants' lawyers to ascertain which documents were in their possession immediately after the decision of the Court on 21 July 2009. If they did not have any of them, they should have either requested the lawyers for the respondent to provide copies or obtained copies from the Court file at the National Court registry and annexed them to the notice of motion before the 14 days expired. They did not do that immediately because they say either the respondent's lawyers were ignorant of their request for copies or that the missing documents were not available in the Court file.

22. Be that as it may, we are not going to be "dragged" into investigating the cause of the missing or unavailability of the missing documents. Suffice to say that unless these missing documents show up, this appeal will not get "off the ground". In our view, these missing documents are crucial and relevant for the appeal as they relate to the question of leave, on the basis of which the "interim mandatory injunction" of 2 March 2007 was subsequently granted. Both sides ought to take some responsibility for the delay in having this appeal prosecuted because it is clear to us that both sides are not cooperating.

23. Both sides' conduct, especially that of the respondent, in not taking issue with the propriety of the appeal under Order 10, Rule 3(b)(i) of the Supreme Court Rules, gives us more reason to find that the present application does not warrant such drastic measures like dismissal or even contempt of Court proceedings to be commenced against the appellants. Further, it is apparent from parties' submissions that they will eventually be settling and compiling an appeal book for use in the appeal. That being the position of the parties, we consider that the missing documents will eventually "show up" or become available through further exchanges or searches between the parties prior to or at the time they settle and compile the appeal book for the appeal under Order 7, Rule 43 of the Supreme Court Rules. In the end, it is our view that, although there is non-compliance with the Court Order of 21 July 2009, it is not sufficiently serious to justify an exercise of the Court's inherent jurisdiction to dismiss the appeal on this ground. We dismiss the application for these reasons.

WANT OF PROSECUTION

24. We now turn to the application to dismiss the appeal for want of prosecution pursuant to Order 7, Rule 53(a) of the Supreme Court Rules. The law on dismissal for want of prosecution is settled and we need not restate in detail the law here, suffice to state that under Order 7, Rule 53 of the Supreme Court Rules, the Supreme Court is given discretion whether to dismiss an appeal for want of prosecution. Order 7, Rule 53 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 -

(a)	order that the appeal be dismissed for want of prosecution; or

(b)	……………….; or

(c)	……………….

25. Such an exercise of discretion must be exercised judicially, that is on proper principles of law. Under Order 7, Rule 53(a) it is clear that, the Court may dismiss an appeal if it is established that 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".

26. In a case where a respondent seeks to dismiss an appeal for want of prosecution, the onus is on the respondent to make out a case for the Court to exercise that discretion in his or her favour. Once a case is made out, the onus shifts to the appellant to provide a reasonable explanation for his or her failure to prosecute the appeal: see Donigi v Papua New Guinea Banking Corporation Ltd (2001) SC691, General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331 and Dan Kakaraya v Sir Michael Somare (2004) SC762.

27. In Donigi the Supreme Court expressed this principle in this way:

The case cited and many others say that, once a case of delay or want of prosecution is established, the onus then shifts to a respondent to an application to dismiss (the appellant) to satisfactorily explain the delay. If there is a failure in that obligation or there is no reasonable explanation provided, an application to dismiss may be granted.

28. In the present application, we deduce from the submission of counsel for the respondent, and also from the affidavits of Richard Yombon sworn and filed on 20 November 2009, Samson Javati sworn and filed on 19 November 2009 and Paul Mawa sworn on 13 November 2008, that the application is made under the first leg of Order 7, Rule 53. That is, the appellants have not taken steps as required by the Supreme Court Rules to prosecute their appeal. This is evident from submissions of counsel that first, the appellant should have proceeded to immediately settle the draft index to the appeal book, compile, certify and file an appeal book and eventually obtain a hearing date during either the August, October or November Supreme Court sittings. Secondly, the appellants failed to attend the appointment to settle the draft index to the appeal book, at least on one occasion, that is on 17 November 2009 at 3:00 pm: see paragraphs 3 and 4 of the affidavit of Richard Yombon sworn and filed on 20 November 2009.

29. On the other hand, the appellants submit that they have done everything required of them including preparing, filing, securing a date for the appointment to settle the draft index to the appeal book and attendance on two occasions, one on 5 November and the other on 17 November 2009. On the first occasion, counsel for the respondent was sick and did not attend while on the second occasion, it is alleged, no one from the respondent's law firm attended. Then there was the issue of compiling and annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion by 4 August 2009. Most of the documents were "Affidavits of Service". Finally, there was the issue of unresolved missing documents that delayed the settling of the draft index which eventually led to filing of this present application on 12 November 2009: see paragraphs 32-37 and 38-41 of the affidavit of Paul Mawa sworn and filed on 13 November 2009 and letters exchanged between the parties and paragraphs 2-5 of the affidavit of Samson Javati sworn and filed on 19 November 2009.

30. When we consider the submissions and factual circumstances giving rise to the application, it is clear to us that the respondent has not made out a "prime facie case" of want of prosecution against the appellants. In other words, the respondent has not discharged the onus placed upon him. As we have found above in relation to the ground of failure to comply with the Court order of 21 July 2009, both sides are guilty of failing to ensure that the appeal is diligently prosecuted. In saying this, we must make it abundantly clear that we are not taking away the onus placed upon the appellants to prosecute the appeal, as in a case where it is established that they have failed to take all and necessary steps required of them by the Supreme Court Rules to prosecute the appeal, then it may result in the dismissal of the appeal for want of prosecution.

31. The present case is quite different in that the respondent has not established to our satisfaction that the appellants have failed to comply with the requirements of setting down the appeal for hearing. From the evidence which we have highlighted above, the appellants have first, drafted, filed and served the draft index to the appeal book on the respondent's lawyers. Secondly, they have secured an appointment to settle the draft index with the Deputy Registrar of the Supreme Court on 5 November 2009. That day, counsel for the respondent was sick and the appointment was deferred to 17 November 2009 at 3 pm. The appellants' lawyers informed the respondent's lawyers of the new date for settlement of the draft index. On 17 November 2009, both sides claim that none attended.

32. Be that as it may, the matter of relevance to us is that the appellants have taken steps to comply with the requirements of the Supreme Court Rules in so far as getting the appeal ready for trial. This is not a "clear cut" case where they did not do anything or if they did do some things, did not attend to them expeditiously. We are not satisfied that the delay is inordinate and inexcusable. Apart from the difficulty in getting the respondent's lawyers to attend the appointment to settle the draft index, there was the unresolved issue of the missing documents, which the appellants' lawyers had requested the respondent's lawyers to provide, apart from pointing out to them that most of the documents for inclusion in the notice of motion as ordered by the Court on 21 July 2009 were "Affidavits of Service". In our view, this is one of the reasons for the delay which cannot be solely attributed to the appellants.

33. Given the above scenario, we are not persuaded that the respondent has established a case of want of prosecution. This Court in the exercise of its discretionary power under Order 7, Rule 53 of the Supreme Court Rules must give the appellants the opportunity to have their day in Court. The application should be dismissed for these reasons. It follows it is not necessary to consider the other aspects of submissions of counsel in relation to the consequences of dismissal of an appeal in a clear case of want of prosecution as in the case of The State v Raymond Turu & Ors (2008) SC904.

ORDER

34. We dismiss the respondent's application with costs to follow the event.

Ruling accordingly.
___________________________________________________________
Paul Mawa Lawyers: Lawyers for the appellants
Paul Paraka Lawyers: Lawyers for the respondent
O'Briens Lawyers: Lawyers for the Secretary for Treasury
Gadens Lawyers: Lawyers for the Bank of Papua New Guinea