SC1189

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 29 OF 2009

REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION

BETWEEN

KATAM LEGA & MIRRIAM LEGA and their agents and/or servants
Applicants

AND

BANK SOUTH PACIFIC LIMITED
Respondent

Waigani: Hartshorn, Makail & Sawong, JJ
2012: 26th & 29th June

PRACTICE & PROCEDURE - Dismissal of proceedings - Application for leave to review - Want of prosecution - Delay of over 2 years - Inordinate and inexcusable - Exercise of discretion in favour of dismissal - Supreme Court Rules - Order 7, r 53 - Supreme Court Listings Rules, 2010 - O 13, r 16(1).

SUPREME COURT REVIEW - Application for leave to review - Competency of - Application form signed by lawyer for applicants - Application form must be signed by applicants - Mandatory - Failure of - Application for leave incompetent - Constitution - s. 155(2)(b) - Supreme Court Rules - O 5, r 1(f).

Facts

This is an application to dismiss an application for leave to review a decision of the National Court for want of prosecution. The application is brought under O 5, r 30 of the Election Petition Listings Rules as amended, O 7, r 53 of the Supreme Court Rules and O 13, r 16(1) of the Supreme Court Listings Rules, 2010. During the hearing of the application, the Court raised an issue in relation to the competency of the application for review as the application form was not signed by the applicants as required by O 5, r 1(f) of the Supreme Court Rules. It was signed by their lawyer.

Held:

1.	The power of the Court to dismiss proceedings for want of prosecution under O 5, r 30 of the Election Petition Listings Rules as amended, applies specifically to election petition review cases. Order 5, rule 30 does not apply to other applications for leave to review under s 155(2)(b) of the Constitution.

2.	Order 7, rule 53 of the Supreme Court Rules is a general provision and gives the Supreme Court the power to dismiss an appeal for want of prosecution. It is supplemented by O 13, r 16(1) of the Supreme Court Listings Rules, 2010 pursuant to which the Court may summarily determine a matter on application by a party, on referral by a Judge, on the Court's own initiative, or upon referral by the Registrar in accordance with the procedure set out in sub rule (2) or pursuant to s 11 of the Supreme Court Act.

3.	While there is no specific provision in the Supreme Court Rules that provides for the dismissal of a review for want of prosecution, the Court's power to dismiss a review can be invoked under O 7, r 53 of the Supreme Court Rules, O 13, r 16(1) of the Supreme Court Listings Rules, 2010 and pursuant to the Court's inherent jurisdiction. The Court must consider the whole circumstances of the case including:

(a)	The length and reasons for delay by the appellant;
(b)	The extent to which the evidence likely to be adduced may lose cogency;
(c)	The availability of the transcript; and
(d)	Any negotiations between the parties. 

4.	There is a delay of over 2 years and it is inordinate and inexcusable and the application for leave should be dismissed for want of prosecution.

5.	The question of competency can be raised by the Court on its own motion and at any time in the proceedings until judgment: Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112, Tamali Angoya -v- Tugupu Association Incorporated (2009) SC978 and Stephan Mendepo -v- National Housing Corporation & Suas Properties and Investment Limited (2011) SC1169 referred to.

6.	Order 5, rule 1(f) of the Supreme Court Rules is explicit. The application form must be signed by the person seeking the review. As the applicants' lawyers signed the application form, the application is incompetent and should be dismissed.

7.	The costs of the respondent of and incidental to the proceedings shall be paid by the applicants.

Cases cited:

PNG Nambawan Trophy -v- Dynasty Holdings Limited (2005) SC811
General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691
Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762
Alphonse Tay -v- Newcombe Gerau (2011) SC1097
Application by John Maddison and Bank South Pacific Limited (2009) SC984
Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112
Tamali Angoya -v- Tugupu Association Incorporated (2009) SC978
Stephan Mendepo -v- National Housing Corporation & Suas Properties and Investment Limited (2011) SC1169

Counsel:

Mr G Kaore, for Applicants
Mr N Kopunye, for Respondent

29th June, 2012

RULING

1	BY THE COURT: This is an application to dismiss an application for leave to review a decision of the National Court for want of prosecution. The application is brought under O 5, r 30 of the Election Petition Listings Rules as amended, O 7, r 53 of the Supreme Court Rules and O 13, r 16(1) of the Supreme Court Listings Rules, 2010.

Application for want of prosecution

2.	In our view, the power of the Court to dismiss proceedings for want of prosecution under O 5, r 30 of the Election Petition Listings Rules as amended, applies specifically to election petition review cases. Order 5, rule 30 does not apply to other applications for leave to review under s 155(2)(b) of the Constitution. The correct provision for invoking the Court's power to dismiss an appeal for want of prosecution is O 7, r 53 of the Supreme Court Rules. It is a general provision and gives the Supreme Court the power to dismiss an appeal for want of prosecution. This provision is supplemented by O 13, r 16(1) of the Supreme Court Listings Rules, 2010 under which the Court may summarily determine a matter on application by a party, on referral by a Judge, on the Court's own initiative, or upon referral by the Registrar in accordance with the procedure set out in sub rule (2) or pursuant to s 11 of the Supreme Court Act.

3.	The power to dismiss an appeal is discretionary and is exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation. While there is no specific provision in the Supreme Court Rules that provides for the dismissal of a review for want of prosecution, we consider the Court's power to dismiss such a review can be invoked under O 7, r 53 of the Supreme Court Rules, O 13, r 16(1) of the Supreme Court Listings Rules, 2010 and pursuant to the Court's inherent jurisdiction. In determining whether to dismiss a review for want of prosecution, the Court must consider the whole circumstances of the case including:

(a)	The length and reasons for delay by the appellant;
(b)	The extent to which the evidence likely to be adduced may lose cogency;
(c)	The availability of the transcript; and
(d)	Any negotiations between the parties. 

4.	The cases of General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331 and PNG Nambawan Trophy -v- Dynasty Holdings Limited (2005) SC811 stand for these principles. 

5.	In the present case, the decision the subject of complaint was made on 23rd August 2008. After 11 months, on 24th July 2009, the application for leave to review was filed. From 24th July 2009 to the date of filing of this application on 08th August 2011, a further 2 years and 1 month elapsed. The applicants through their lawyers were forewarned of an impending application for dismissal should they not take steps to prosecute the application quickly. That was on 02nd June 2011. This was preceded by a Court file search at the Supreme Court registry by the respondent's lawyers which revealed that only three documents had been filed following the filing of the application for leave to review on 23rd August 2008. These documents were an affidavit in support filed on 24th July 2009, an affidavit of service filed on 09th November 2009 and a notice of appearance filed on 02nd June 2011. We are satisfied that on these facts there is an inordinate delay in the prosecution of the application for leave to review. 

6.	Is there any explanation for the delay? Why should the application for leave to review not be dismissed? The applicants are obliged to explain why their application should not be dismissed: Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691 and Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762.

7.	Counsel for the applicants, relying on the affidavit of the applicant Mr Katam Lega filed on 22nd March 2012 submitted that, a reason for the delay was the lack of funds to engage lawyers to pursue the matter. He added that the applicants had incurred substantial legal costs for engaging a particular law firm to pursue the matter but it had not. Another reason was the displacement of the applicants following the order for possession and eviction from the residential property, the subject of dispute between the parties.

8.	Counsel further submitted that since the filing of the respondent's application, he has served a draft index to the review book on the respondent's lawyers and suggested to them to withdraw the application so that the parties could settle the draft index and proceed to compile the review book. Counsel for the respondent submitted that the reasons offered by the applicants are unsatisfactory. 

9.	We accept Mr Kopunye's submissions. The two reasons offered by Mr Kaore on behalf of the applicants are unsatisfactory. 2 years and 1 month has elapsed since the application for leave was filed. During that period of time, the applicants have not done anything. According to Mr Katam's affidavit, he and his family were displaced in May 2009. After that, his evidence is vague in relation to when they retained Kaore Lawyers and when they terminated the retainer and retained a new law firm. On 24th July 2009, Kaore Lawyers filed the application for leave to review. This was about 2 months after they were displaced. 

10.	Then, no further action was taken by Kaore Lawyers to prepare the application for leave for hearing. It was incumbent on them to prosecute it expeditiously. Their tasks would include drafting and filing a draft index to the review book, attending and settling it with the Registrar and compiling the review book. If National Court transcripts are required, they should also be obtained. Mr Kaore said the applicants could not afford further legal costs as those already incurred were substantial. This submission is not supported by evidence. Further, there is no independent evidence such as a bill of costs showing the amount incurred by them. 

11.	In addition, there is no evidence supporting Mr Kaore's submission that a draft index to the review book has been filed and served on the respondent's lawyers. This is a case where the parties are in dispute over a residential property. The National Court had ordered the applicants to give possession to the respondent following their failure to repay a loan advanced by the respondent to them. The applicants failed to appeal the decision within the statutory period allowed for appealing.

12.	As they have lost that right, they now seek leave to review the decision pursuant to s 155(2)(b) of the Constitution. One of the criteria for leave is that, leave will be granted to review the decision of the National Court if it is in the interests of justice. It proceeds from the principle that public interest demands that there must be finality to litigation. Thus, parties who are aggrieved by a decision of the National Court have a duty to agitate their grievance promptly and with due dispatch: see Alphonse Tay -v- Newcombe Gerau (2011) SC1097.
 
13.	Where the delay is long, the Supreme Court has refused leave. In the case of Application by John Maddison and Bank South Pacific Limited (2009) SC984, the delay was 9 months and in the case of Alphonse Tay (supra), the delay was 3 years and 5 months. In both cases, the Supreme Court refused leave. In the present case, there is a delay of 11 months from the decision the subject of complaint and the filing of the application for leave. In our view, the delay is long, inordinate and inexcusable. We uphold the application and dismiss the application for leave for want of prosecution.

Competency of application for leave

14.	Notwithstanding our finding on the application to dismiss for want of prosecution, we also make mention of an issue of competency that was raised by the Court during submissions. The Court referred to the application form not being signed by the applicants as required by O 5, r 1(f) of the Supreme Court Rules. It was signed by their lawyer.

15.	It was conceded by both counsel that the question of competency can be raised by the Court on its own motion and at any time in the proceedings until judgment. This is because it is a question of the jurisdiction of the Supreme Court to deal with the matter: see Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112, Tamali Angoya -v- Tugupu Association Incorporated (2009) SC978 and Stephan Mendepo -v- National Housing Corporation & Suas Properties and Investment Limited (2011) SC1169.

16.	Order 5, rule 1 relevantly provides that:

"1.  An application to the court under Constitution Section 155(2)(b) shall be instituted by an application to review and shall -

(a)	be entitled under the Section of the Constitution by which it is made together with the year and number of the application; 
(b)	be entitled with the name of the person making the application; 
(c)  state briefly particulars of the judicial act to be reviewed; 
(d) the order sought in lieu thereof;
(e)  be in accordance with form 5;
(f)  be signed by the person seeking the review; and
(g)  be filed in the registry." (Emphasis added).

17.	Mr Kaore conceded that he signed the application form on behalf of the applicants. He did that because he was their lawyer and had ostensible authority to sign it. We are not persuaded by this submission. Order 5, rule 1(f) is explicit. The application form must be signed by the person seeking the review. It is in mandatory terms. There cannot be any other interpretation. Failure to comply with this requirement renders the application incompetent. Stephan Mendepo (supra). As the applicants' lawyer signed the application form, the application is incompetent and must be dismissed.

Order

18.	The orders are:

1.	The application for leave filed on 24th July 2009 is dismissed for want of prosecution or alternatively, for being incompetent.

2.	The costs of the respondent of and incidental to the proceedings shall be paid by the applicants.

_________________________________________

Kaore Lawyers: Lawyers for the Applicants
Bradshaw Lawyers: Lawyers for the Respondent