SC1122

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 12 OF 2010

BETWEEN:

DEPARTMENT OF WORKS AND 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Appellants

AND:

INTERNATIONAL CONSTRUCTION (PNG) LIMITED
(in Liquidation)
First Respondent

AND:

JAMES KRUSE, LIQUIDATOR OF DELOITTE TOUCHE TOMATSHU
(in his capacity as Liquidator of International Construction (PNG) Ltd in Liquidation)
Second Respondent

Waigani: Sakora, Yagi & Sawong, JJ.
2011: 26 April, 1st July

SUPREME COURT – Practice & Procedure – Application to dismiss Notice of Objection to competency for want of prosecution – Order 13. R 16(a) Supreme Court Rules – Notice Objection to Competency dismissed for want of prosecution

Cases cited: 

Aluago Kaiabe v. Balias Jibe & The Electoral Commission (Unpublished)
Singali Mondo v. The State (2004) N2653
Application by Berghuser & Titimur (1995) SC481
Melchior Pep v. Puri Ruing & The Electoral Commission (1999) SC614
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811

Counsel: 

Mrs. P. O. Nii, for the appellants 
Mr. I. R Shepherd, for the respondent 

RULING

1st July, 2011

1.	SAKORA, J: I have had an opportunity to peruse the decision and reason for decision in draft form of my brothers Justices Yagi and Sawong. I concur with the decision reached and the reasons for this, and have nothing further to add. 

2.	 YAGI & SAWONG, JJ: This is a ruling on the Applicant's application to dismiss the respondents' objection to the competency of an appeal filed by the Applicant. 

BACKGROUND 

3.	The appeal concerns eight (8) shipping containers of bridge parts which were in the possession of the respondent when it was placed in liquidation. The Appellant removed the containers to its own premises without the consent of the liquidator or pursuant to any order to a Court. The liquidator then instituted proceeding in the National Court and obtained ex-parte orders and had the containers and their contents removed to the company's premises. The Appellant then sought to have the ex-parte orders set aside but those were refused. They then appealed to the Supreme Court and the Court dismissed the appeal as being incompetent. See (SC1051).

4.	After that, the Applicants by an originating summons, commenced proceedings in which they applied for: 

(a)	Leave of the Court (National Court) to commence proceedings against International Construction (PNG) Ltd (In Liquidation) in which they claim ownership of interest in the bridge parts, or alternatively. 

(b)	An Order dispensing with the Liquidator's consent to commence such proceedings.

(c)	Injunction to stop the liquidator from selling the bridge parts. 

5.	They then filed a Notice of Motion seeking injunctive orders and other relief. On 4th November, 2009 the Motion was heard and the learned trial judge, dismissed the application for injunction. He reserved his decision relating to the other relief. 

6.	On 4th February 2010, His Honour delivered his ruling refusing to grant the remaining reliefs sought in the Notice of Motion. The present Appeal is against those rulings. 

7.	After the Notice of Appeal was filed and served, the Respondents have filed a Notice of Objection to the Competency of the Appeal. The Applicants have now filed an application to dismiss the objection to competency for want of prosecution. In support of their application, the Applicants rely on the Affidavit of Mr. Gregory P. Manda. 

8.	The Respondents oppose the application and rely on the Affidavit of Mr. Shepherd and the liquidator Mr. James Kruse. 

9.	Clearly there is only one issue before the Court for determination. The issue is whether the Notice of Objection to Competency ought to be dismissed for want of prosecution. 

10.	The application is brought pursuant to Order 13 Rule 16(a) of the Supreme Court Rules and Order 7 Rule 53 of the Supreme Court Rules in conjunction with Section 155(4) of the Constitution. 

11.	Order 13 rule 16(a) of the Supreme Court Listing Rule reads: 

" 16. Summary Disposal 

(1)	The Court may summarily determine a mater: 

(a)	An application by a party; or 
(b)	On referral by a Judge; or 
(c)	On the Court's own initiative; or 
(d)	Upon referral by the Registrar in accordance with the procedure set out in subrule (2) or pursuant to s. 11 of the Supreme Court Act………."

12.	Order 13 Rule 16 is not exactly on point. It relates to summarily determination of a matter. However, it provides a general jurisdiction to the Court to summarily determine a matter that is before the Court. 

13.	There are no provisions in the Supreme Court Rules which is directly on the issue before us. In other words there are no express provisions or rules which give the Court jurisdiction to dismiss a notice of objection to competency of an appeal. 

14.	But it is our view that Order 13 Rule 16(a) of the Listing Rule of the Supreme Court Rules is of assistance in dealing with the issue before us. That Rule provides that "the Court may summarily determine a matter on an application by a party" The expression "matter" is defined in rule 1, interpretation clause to mean "any appeal, application review or other proceedings on the General List and includes any interlocutory application in respect of such matter" 

15.	In our opinion the expression "matter" is defined with wide meaning such that the present application would come within the definition. 

16.	The Supreme Court in Aluago Kaiabe v. Balias Jibe & The Electoral Commission (Unpublished), in dealing with an application to strike an application for review for want of prosecution where there was no provision for such application said:

"we agree that this court has power to provide a remedy where there is lack of provision in respect of a matter of practice or procedure. We need to clarify on matter only in this passage. The power to make rules with respect to the practice and procedure of the Curt is expressly given by s. 185 of the Constitution. 

This issue of striking out a review for want of prosecution is a matter which comes within the meaning of "practice and procedure". As there is a lack of provision in respect of this matter, we would direct that a judicial review under s. 155 (2) (b) of the Constitution may be dismissed for want of prosecution if the party seeking the review has not done any act or otherwise has not prosecuted the review with due diligence."

17.	 Further, we are of the view that, in principle, the principles that apply to an application to dismiss an appeal for want of prosecution ought to be adopted and applied with necessary modification. The principal rationale for this is that, in our view, those principles relate to the same issue of dismissing a matter for want of prosecution. 

18.	There is an abundance of authority in regards to the principle. It would suffice to refer to a few of those authorities. Those principles have been summarized in PNG Nambwan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811. There the Supreme Court said at pp.4-6

"A number of Supreme Court decisions have considered the rule and we state the general proposition from those case as follows: 

1.	An appeal might be struck out if it is not set down as required by the rules. Where an appeal has not been set down as prescribed the power to dismiss for want of prosecution remains discretionary.

2.	The discretion is to be exercised having regard to all the circumstances of the case including, inter alia, 

a)	the length of and reasons for delay on the appellant's part;
b)	the extent of which, having regard to any delay, evidence likely to be adduced may lose its cogency;
c)	the availability of a transcript, and 
d)	any negotiations between the parties.

3.	Matters relevant to the want of due diligence include; failure to promptly serve the Notice of Appeal, failure to attend on settlement of the appeal book, failure to explain non attendance, failure to respond to correspondence and failure to provide explanation for dilatory conduct where an explanation could properly be expected. The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected. 

4.	The discretionary powers under O7 r53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made. That a lawyer cannot be present because he is appearing before another judge may be an adequate explanation. Seven months delay is applying for the transcript of evidence to be prepared requires a proper explanation and the absence of one may result in the appeal being dismissed. 

5.	The Court must consider the whole of the circumstances in which an application for dismissal on the ground on want of prosecution is brought, in particular events that have taken place since the application was filed. The application to dismiss itself should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful.

6.	An application pursuant to O7 r53 should be made from 11 and not in an Objection to Competency. 

7.	The general rules that the power of the Court to dismiss an action for want of prosecution should be exercised only where (a) the plaintiff's default had been intentional and contumelious or (b) where there had been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant, apply principally before a trial. Once a judgment has been obtained public interest requires finality to the litigation. The risk to a fair trial is only relevant where evidence is to be called.

19.	In addition, a court has inherent jurisdiction to dismiss a matter for want of prosecution. See the cases Singali v. The State (2004) N2653, Application by Berghuser & Titimur (1995) SC481, and Melchior Pep v. Puri Ruing & Electoral Commission (1999) SC614. The same consideration under Order 7 rule 53(a) would apply.

Applicants Submission 

20.	The Applicants' argument is that since the Notice of Objection to Competency was filed, apart from irregular and intermittent correspondences to the Deputy Registrar of the Supreme Court to list that Notice for hearing, there has been no real or active steps taken by the Respondents to prosecute their objection. It is submitted that more than 13 months had lapsed since the objection was filed and the Respondents have not diligently prosecuted it. They say that as a result of this delay, the Appellants have been prejudiced in that this has caused a delay in the hearing of their appeal. The applicants submit that by delaying the prosecution of the objection to competency, the Respondents have gained advantage, in that the bridge parts have now been sold. It is submitted that this amounts to injustice. 

21.	Mrs. Nii submitted that the evidence from the Respondents do not give any reasonable explanation for the delay. 

22.	In support of the submission, Mrs. Nii relied on O13 r53 of the Supreme Court Rules. 

Respondents Submissions

23.	Mr. Sheppard in his submission on this application was brief. He submitted that the Respondents have taken actions or steps to prosecute the objection but the matter has not been listed for hearing. He submitted that the delay was not the Respondents making, and that even if there is delay, the delay is only nine (9) months taking into account the Court vacation period and that the Supreme Court Listing is conducted by-monthly. He submitted that the Applicants application should be dismissed. 

24.	In the present case, it is clear that since the filing of the Notice of Objection to Competency, the Respondents have not prosecuted that objection with due diligence. Apart from writing about three letters to the Deputy Registrar to list the matter, the respondents have not taken any active steps to prosecute the matter. There is for instance, no evidence from the respondents of attending any Supreme Court callovers or telephoning or personal attendance on the Deputy Registrar Supreme Court to have the matter listed for hearing. 

25.	The explanations offered by Mr. I Shepherd are not reasonable. All he says is that he wrote three (3) letters to the Deputy Registrar of the Supreme Court to list the matters. He has offered no reasonable explanation for the undue delay. 

26.	As for the evidence of Mr. Kruse, it simply doe not offer any reasonable explanation at all. 

27.	Finally, we note that a substantial amount of money is involved between the State and its agents. We note that while the appeal was pending, and note that whilst there was no stay order, the bridge parts have been sold and the funds are held in the liquidator's trust funds. We are concerned that those funds should be preserved until the appeal is disposed of. Accordingly, we propose to issue an order pursuant to s.155(4) of the Constitution to have the funds from the sale of the bridge parts not to be disbursed in any matter whatsoever until the appeal is dealt with or disposed of. 

28.	We make the following Orders: 

1.	The Application to dismiss the Objection to Competency is upheld. 

2.	The Notice of Objection to Competency is dismissed.

3.	Pursuant to s.155(a) of the Constitution, Mr. James Kruse, his agents or servants as liquidators for International Construction (PNG) Ltd, (In Liquidation) shall not dispose of in any manner whatsoever the funds from the proceeds of the sale of bridge parts until the appeal in this proceeding is completed and/or dispose of.

4.	The Respondents shall pay the Applicants' costs. 

Greg Manda Lawyers: Lawyer for the Appellants 
Blake Dawson Lawyers: Lawyer for the Respondents