SC1611                                             

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No 172 of 2010

BETWEEN:
GEORGE KAKAS and 63 Others
Appellants

AND:
NATIONAL HOUSING CORPORATION
First Respondent

AND:
MATHEW MINAPE
Second Respondent

AND:
MONEY TALKS LIMITED
Third Respondent
Waigani:  Injia CJ; Collier J, Bona J.
2015:  3rd July

PRACTICE AND PROCEDURE - Appellants appealing from decision of National Court which upheld ex parte orders dismissing proceedings for want of prosecution- Matter dismissed as appellants' lawyers were not present in Court when matter called- Appellant filed Notice of Motion to have orders set aside- Trial Judge found plaintiff had not satisfactorily discharged onus pursuant to principles in Smith v Ruma Constructions Ltd (2002) SC695- Whether the trial judge erred in misinterpreting relevant law- Whether trial Judge erred in exercising discretion pursuant to Order 12 Rule 8, National Court Rules- Whether trial Judge erred in law in exercise of discretion not to consider all matter of account- Whether dismissal of proceedings was in breach of principles of natural justice owed under s 59 of the Constitution- Whether trial judge erred in exercise of discretion of Court in refusing to make order that may have been just.

Held: 
Appeal allowed, Orders of trial Judge quashed and matter re-instated in National Court for hearing.

Cases cited:
Akap v Korakali [2012] SC1179 
Bank of South Pacific Ltd v Raun Wok Ltd [2001] N2118
Bank of South Pacific Ltd v Tingke [2014] SC1355 
Buka v Jude Baisi (2004) N2602
Birch v The State [1979] PNGLR 75
Curlewis v Yuapa [2013] SC1274 
Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] SC788
Elema v Pacific MMI Insurance Ltd [2007] SC1321 
George Page Pty Ltd v Balakau [1982] PNGLR 140
Green & Co v Green [1976] PNGLR 73
House  v The  King [1936] 55 CLR 499 
John Niale v Sepik Coffee Producers Ltd (2004) N2637 
Kore v State [2011] PGSC 46 
Kwimberi v Independent State of Papua New Guinea [1998] SC545
Mango v Passismanua Inland Resource Ltd [2009] SC1163  
Martha Loke-Tilto v Qantas Airways Ltd [1998] SC541 
Markscal Ltd v Mineral Resource Development Company Pty Ltd [1999] N1807
Mathias v Protect Security & Communications Ltd [2013] SC1300 
Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613
Napitalai v PNG Ports Corporation Ltd [2010] SC1016 
National Housing Corporation v Yama Security Services Pty Ltd [2000] N1985
Niale v Sepik Coffee Producers Ltd (2004) N2637
PNG v Baker [1977] PNGLR 386
PNGBC Ltd v Tasion [2013] SC1296 
Rangip v Loko [2009] N3714
Smith v Ruma Constructions Ltd (2002) SC 695
Tulapi v Niggins [2011] SC1111

Counsel: 

P Harry, for the Appellants
P Mawa, for the Respondents

3rd July, 2015
1.	BY THE COURT:  Before the Court is a Notice of Appeal, filed on 3 December 2010, against a decision of the National Court dated 25 October 2010. By the decision of 25 October 2010 the learned primary Judge refused an application of the appellants to set aside his Honour’s order of 19 July 2010 by which his Honour had dismissed the appellants’ substantive claim for want of prosecution. It is his Honour’s decision of 25 October 2010 rather than the order of dismissal of 19 July 2010 which is the primary focus of consideration by this Court.
Background facts
2.	The appellants are tenants of the Gordons Flats in Hohola, in the National Capital District. In January 2007 the appellants learned of an attempt by the Board of the first respondent to sell the Gordons Flats, in circumstances where allegedly the sale was not advertised and the appellants were not notified of the proposed sale. The alleged proposal was to sell the Gordons Flats to the second respondent. 

3.	In or about February 2008 the appellants learned that the Gordons Flats had been transferred to the second respondent, as a result of the sale of the Gordons Flats by the first respondent to the second respondent (or alternatively to the third respondent).

4.	In an amended statement of claim filed on 30 June 2008 the appellants claimed, inter alia:

•	conspiracy and fraud against the respondents in relation to the sale of Gordons Flats, 
•	failure of the respondents to give the appellants an option to purchase the property pursuant to section 38 of the National Housing Corporation Act 1990, 
•	failure of the respondents to follow the proper procedures in the sale of the Gordons Flats as provided for in National Housing Corporation Act 1990 and Public Finances (Management) Act 1995, and
•	reckless disregard for the rights of the appellants as tenants.

5.	On 16 June 2010 the substantive proceedings were set down for trial on 19 July 2010 in the National Court in Waigani. Evidence of appellants Mr George Kakas and Mr Morris Weston in their affidavits (both filed 19 July 2010 in the proceedings below) are relevant to this Court’s understanding of events in the National Court on 19 July 2010. The Court is also informed by the transcript of proceedings in the National Court of that date.
 
6.	Materially Mr Kakas deposed in his affidavit as follows:

2.	I am the principal plaintiff representing the 63 other tenants of Gordons Flats who are the other plaintiffs in this case.
3.	The proceedings were set for substantive hearing today after it was adjourned on 17 June 2010 when the Second and third Defendants’ lawyer Mr Alfred Manase informed the court that he would cease acting for the Second and Third Defendants in the matter.
4.	I am advised that since 17 June 2010 Alfred Manase did not serve my lawyer with a Notice of Ceasing to Act for the Second and Third Defendants.
5.	On Saturday, 17 July 2010 at about 10.00am I telephoned Mr Alfred Manase on his mobile phone no…. to find out if he was still acting for the Second and Third Defendants….
6.	…
7.	I am advised that our lawyer Mr Dotaona was not advised by Mr Manase whether or not he would move the motion filed on 11 June 2010 (document no. 121) seeking among other orders that the proceedings be dismissed.
8.	I drove our lawyer Mr Dotaona to court this morning before 9.30am and we noticed that this matter was not listed on the court diary for the Commercial Listings track so our lawyer and I enquired and were advised that the file had been taken into court.
Annexed “GK1” is a copy of the court diary for the Commercial Listings track referred to above.
9.	Many of the other Plaintiffs were already sitting outside Court Room No. 10 but they did not go inside because they were waiting for me and Mr Dotaona and also they did not see Mr Alfred Manase go into court.
10.	I had informed the other Plaintiffs that Mr Alfred Manase would be attending court on 19 July 2010 and would formally advise the court that he ceased to act for the Second and Third Defendants.
11.	Our lawyer Mr Dotaona went into Court between 9.35 am and 9.40 am and waited for His Honour Judge Hartshorn to proceed through the matters listed on the diary list for the Commercial Listings Track because our matter was not listed.
12.	I was present when Mr Dotaona announced his appearance before his Honour Judge Hartshorn and Mr Dotaona said the file was not listed. His Honour then told him that he had already dealt with the matter.
13.	After we left the courthouse I was totally shocked and dismayed to hear from another fellow Plaintiff Mr Morris Gill Weston who told me that the proceedings were dismissed for want of prosecution.
Annexed “GK2” is a copy of the endorsement on the file showing dismissal of the proceedings referred to above.
14.	I found out later that Mr Paul Mawa had appeared for the Second and Third Defendants earlier when the matter was dismissed by the judge.
15.	I am advised that there was no Notice of Change of Lawyers filed and served by Paul Mawa Lawyers on our lawyer.
16.	…

7.	Mr Weston deposed, in summary, that:

•	At around 9.20 am on 19 July 2010 he went to the main notice board at the National Court to check if the substantive proceedings were listed for the morning, but saw that there was no Daily Diary for Court Room 10 so went to the Civil Registry to double check.
•	When he obtained a copy of the Daily Diary from the counter at the civil registry he saw that the matter was not on the list.
•	He tried to ring Mr Dotaona and Mr Kakas but could not get through
•	At around 9.35am he was returning to Court Room 10 and saw Mr Dotaona and Mr Kakas. He informed them that the matter was not listed but that apparently the Court file was in the Court room.
•	He proceeded to Court Room 10 with Mr Dotaona and Mr Kakas but he remained outside because the Court Room was packed to capacity.
8.  The transcript of proceedings of 19 July 2010 is instructive in its detail of relevant events and timing of those events: 
9.36am

	MR MAWA : Your Honour, the other matter I have is a matter scheduled for trial this morning – not scheduled, sorry, I was advised by the lawyers who act in this matter OS 98 of 2008. The matter is not on the list today but I believe the file is before your Honour. I am advised by the instructing lawyers Manase and Company Lawyers to act as counsel in this matter for today’s hearing.
HIS HONOUR: Very well, this is the matter of George Kakas and The National Housing Corporation, Mathew Minape and Money Talks Limited.
MR MAWA: That is correct, yes.
HIS HONOUR: So, you are for?
MR MAWA: I am for the second and third defendants.
HIS HONOUR: Is there any other appearances in this matter, George Kakas and National Housing Corporation?
MR MAWA: Your Honour, the lawyer for the first defendant, National Housing Corporation is Moses Philip. I do not know whether he is here or not.
HIS HONOUR: Well, is there anyone here for the plaintiff, George Kakas? Wee, there is no one here for the plaintiff, Mr Mawa, what do you want to do?
MR MAWA: Your Honour, I was informed by the lawyers who act for the second and third defendants, Manase and Company Lawyers that the matter was set for hearing today.
HIS HONOUR: Yes, the trial was set for today 9.30. There is no appearance today.
MR MAWA: Your Honour, we have a notice of motion before the court which I believe your Honour in the last appearance directed that you will hear both the notice of motion and the substantive issues together.
HIS HONOUR: The orders were the trial of the 17th vacated and hearing is adjourned to today. Any motions to be brought before trial to be heard at least seven days before trial date. Each party to pay their own costs. But there is no appearance, is there? No appearance for the plaintiff. Mr Dotaona, I believe, acts for the plaintiff.
MR MAWA: Yes, your Honour.
HIS HONOUR: I am open to an application, Mr Mawa.
MR MAWA: Sorry, your Honour?
HIS HONOUR: I am open to an application if you want to make an application.
MR MAWA: Yes, your Honour. Our application basically this morning is that because the matter has come through a protracted process in terms of having the matter set for trial and the various directions given by this court, if parties are not ready before the court to prosecute their application then they must face the consequence. Our application this morning is basically that these proceedings be dismissed for want of prosecution. Thank you.
HIS HONOUR: Very well, this matter has come before the court today for hearing. It was adjourned from 16 June 2010. At that time Mr Dotaona appeared for the plaintiff. There was no appearance for the first defendant; Mr Manase appeared for the second and third defendants.
The order of the court was the trial of 17 June 2010 is vacated and the hearing is adjourned to today at 9.30am. There is no appearance. It is now 20 to 10. There is appearance by Mr Mawa acting on instructions for the second and third defendants. His application is for the proceedings to be dismissed for want of prosecution as there is no appearance and I, in the circumstances, grant that application. This is a protracted matter, counsel was aware when the hearing was on. It is just simply not good enough for counsel not to appear. So, this proceeding is dismissed for want of prosecution.
MR MAWA: Thank you, your Honour, we ask for costs.
HIS HONOUR: And the costs of the second and third defendants of and incidental to the proceedings are to be paid by the plaintiff.
MR MAWA: Thank you, your Honour, I have no further matters. May I be excused?
HIS HONOUR: Thank you.
SHORT ADJOURNMENT
HIS HONOUR: Next matter.
MR DOTAONA: Good morning, your Honour, David Dotaona, appearing before you this morning on a matter that is not listed; OS 98 of 2008.
HIS HONOUR: It has been dealt with, Mr Dotaona. You were not here at 9.30am. An application was made by Mr Mawa on behalf of the second and third defendants, and the matter has been dealt with.
MR DOTAONA: Thank you, your Honour.
10:00am
At 10.01 AM, THE COURT ADJOURNED INDEFINITELY
	
Judgment and Orders of 25 October 2010

9.	Following the orders of his Honour on 19 July 2010 the appellants on the same day filed a notice of motion seeking to have those orders set aside. Materially, the appellants sought the following relief: 

1.	Pursuant to Order 1 rule 15 of the National Court Rules the requirements for service of the Notice of Motion and supporting Affidavit be dispensed with.
2.	Pursuant to section 155 (4) of the Constitution and Order r12 rule 8 of the National Court Rules the ex parte order made on 19 July 2010 be set aside and the substantive proceedings be reinstated.
3.	Pursuant to section 155 (4) of the Constitution, an Order until trial or further order of the Court that the Defendants by themselves, their servants, workmen, agents, or howsoever otherwise described, are restrained from dealing with, evicting the Plaintiffs, or interfering in anyway whatsoever with the Plaintiff’s peaceful enjoyment of the property known as Allotment 30 Section 97, Hohola (Gordons) and also known as the Gordons Flats.
4.	Costs in the cause.
5.	…
6.	…

10.	His Honour delivered judgment in respect of this notice of motion on 25 October 2010. In summary, his Honour made the following findings:

•	The Court had jurisdiction to set aside the dismissal order of 19 July 2010 under Order 12 rule 8 (3)(a) National Court Rules : Rangip v Loko [2009] N3714. In such circumstances it was unnecessary to consider the application of section 155 (4) of the Constitution.
•	The principles governing the exercise of discretion as to whether an ex parte order should be set aside are well settled and were detailed by Kapi DCJ in Smith v Ruma Constructions Ltd (2002) SC 695. The onus is on the applicant to satisfy the Court:

1.	Why the order was allowed to be entered in the absence of the applicant,
2.	If there is a delay in making the application to set aside, a reasonable explanation as to the delay, and
3.	That there is a defence on the merits.
•	Because the order sought to be set aside is a dismissal for want of prosecution, the third principle is whether there is a reasonable explanation for the proceeding not being prosecuted with due diligence.
•	The appellants conceded that their lawyer was not in court when the case was called on 19 July 2010 and they submitted that there was no excuse for the lawyer being late.
•	Evidence was tendered on behalf of the appellants that the case was not listed on the court daily diary, that the appellants’ lawyer was seen checking a court notice board at about 9.35am, and that he entered the court between 9.35am and 9.40am.
•	The court transcript showed that the case was called at 9.36am and subsequently dismissed. The appellants’ lawyer announced his appearance at 10.00am.
•	No evidence was given by the appellants’ lawyer, Mr Dotaona, as to why he was not present when the case was called, although evidence was given by two of the appellants.
•	As Mr Dotaona was present when the court ordered the new time and date of trial, the fact that the case was not listed on the daily diary was not a satisfactory reason for the lawyer to be absent. In fact the appellants conceded that there was no excuse for their lawyer being late.
•	His Honour concluded :
11. In the circumstances and particularly as there is no evidence and satisfactory explanation from the plaintiffs’ lawyer as to why he was late and why the order was allowed to be entered in the absence of representation of the plaintiffs, I am of the view that the plaintiffs have not discharged the onus upon them to satisfy the court of one of the mandatory requirements that must be satisfied before the court will exercise its discretion to set aside an ex parte order.
12. Consequently it is not necessary for me to consider whether the other mandatory requirements that must be satisfied have been.
13. (a) the relief sought in the notice of motion of the plaintiffs filed 19th July 2010 is refused.
      (b) the costs of and incidental to the notice of motion are to be paid by the plaintiffs to the second and third defendants.

Appeal

11.	The appellants filed a notice of appeal on 3 December 2010 against his Honour’s decision of 25 October 2010. The grounds of appeal pressed by the appellants at the hearing before this Court were as follows:

a.	In refusing the orders sought by the appellant to set aside the orders the National Court ordered on 19 July 2010, the learned judge erred in law in misinterpreting the relevant case law that was put before him.
b.	…
c.	In refusing the orders sought to set aside orders made ex-parte in the Appellants’ Application, the Learned Judge of the National Court erred in law and in facts in the exercise of his discretion.
d.	The Court erred in law in the exercise of its discretion by not taking into account matters that were relevant to the exercise of its discretion in circumstances where it was apparent in the evidence or ought to have been clear from the evidence that :
(a)	There was a dispute as to the validity of the sale of the said property between the First Respondent and the Second and Third Respondent without express consultation with the Appellants.
(b)	The reasons the proceedings being dismissed [sic] were an exercise of discretion that breached the principles of natural justice owed to the Appellants under Section 59 of the Constitution.
e.	In all the circumstances of the case, the learned National Court judge erred in the exercised [sic] of the discretion of the Court in refusing to make such orders that may have been just.

12.	Significantly, at the hearing the first respondent did not oppose the appeal against his Honour’s orders of 25 October 2010. The second and third respondents continued to oppose the appeal.

13.	In relation to the grounds of appeal the respective positions of the parties may be summarised as follows.

14.	In respect of ground (a), the appellants argued:

•	In finding that there was no evidence and no satisfactory explanation from the appellants’ lawyer as to why he was late, his Honour failed to consider the evidence of Mr Kakas and the other appellant Mr Morris Weston when both witnesses provided explanations for Mr Dotaona being late to Court on 19 July 2010.
•	His Honour failed to address cases upon which the appellants relied in support of their notice of motion for reinstatement, including Martha Loke-Tilto v Qantas Airways Ltd [1998] SC541, Buka v Jude Baisi (2004) N2602, Niale v Sepik Coffee Producers Ltd (2004) N2637, Markscal Ltd v Mineral Resource Development Company Pty Ltd [1999] N1807, Bank of South Pacific Ltd v Raun Wok Ltd [2001] N2118 and National Housing Corporation v Yama Security Services Pty Ltd [2000] N1985.

15.	The second and third respondents submitted that this ground was very vague and ambiguous in that it did not clearly identify the manner in which the trial Judge fell into error in interpreting and applying the case law.

16.	In respect of ground (c) the appellants argued:

•	The exercise of his Honour’s discretion miscarried because the Court did not give due consideration to the evidence of the appellant-witnesses, Mr Kakas and Mr Weston.
•	His Honour did not take into consideration the clear evidence that Mr Dotaona was in Court by 9.45am on the date of the hearing.
•	His Honour did not take into consideration that there was confusion as to who was the new lawyer for the second and third respondents
•	His Honour did not take into consideration that the appellants had diligently prosecuted their case since commencement

17.	The second and third respondents argued that the appellants had not identified the manner in which his Honour erred in law and in fact in the exercise of his discretion.

18.	In relation to ground (d) the appellants argued:

•	His Honour failed to take into account matters relevant to the exercise of his discretion including the nature of the substantive dispute between the parties and the fact that the first respondent had changed its position and effectively supported the appellant’s application for reinstatement.
•	The focus of his Honour on the failure of the appellants’ lawyer to be present at the time the matter was called on 19 July 2010, to the exclusion of other relevant factors, breached principles of natural justice.

19.	The second and third respondents argued that this grounds was misconceived and had no basis in law because the appeal was against the decision of 25 October 2010 rather than the decision of 19 July 2010.

20.	In relation to ground (e) the appellants argued that the interests of justice would be served by reinstating the case. The second and third respondents submitted that the appellants did not clearly state how his Honour erred in the exercise of his discretion to refuse to set aside the earlier decision of 19 July 2010.
Consideration
21.	It is not in dispute in this appeal that his Honour had power to dismiss the substantive proceedings for want of prosecution on 19 July 2010. Such power is specifically conferred upon Judges of the National Court by Order 4 rule 38(1) of the National Court Rules, which provides that:

Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings. 

22.  So far as concerns the notice of motion to set aside his Honour’s orders of 19 July 2010, his Honour approached that notice of motion on the basis that he also had power pursuant to Order 12 rule 8 of the National Court Rules to set aside the earlier orders. This approach was correct. Relevantly for the purposes of the current proceedings, Order 12 rule 8 provides:
 8.      Setting aside or varying judgement or order. (40/9)
(1)     …
(2)     …
(3)     The Court may, on terms, set aside or vary an order—
(a)  where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.
(4)     ...
(5)     …
Exercise of discretion by primary Judge

23.	The exercise by the Court of powers granted by Order 12 rule 8 to set aside ex parte orders clearly entails the exercise of judicial discretion: Mango v Passismanua Inland Resource Ltd [2009] SC1163 at [5]-[6], Elema v Pacific MMI Insurance Ltd [2007] SC1321 at [13].

24.	In matters before an appellate court where a party seeks to impugn an exercise of judicial discretion by the primary Judge, it is well-settled that it is not enough that the Judges composing the appellate court consider that, if they had been in the position of the primary Judge, they would have taken a different course than that taken by the primary Judge. It must appear that some error has been made by the primary Judge in the exercise of the judicial discretion before it is appropriate for the appellate Court to review the determination at first instance and exercise its own discretion in substitution for that of the Judge below: House  v The  King [1936] 55 CLR 499 at 504, Kore v State [2011] PGSC 46 at [5]-[6], Bank of South Pacific Ltd v Tingke [2014] SC1355 at [10], Curlewis v Yuapa [2013] SC1274 at [28]-[29], Napitalai v PNG Ports Corporation Ltd [2010] SC1016 at [5], Akap v Korakali [2012] SC1179 at [6]-[8], Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] SC788.

25.	It follows that, before this Court is in a position to allow an appeal against his Honour’s decision of 25 August 2010 and exercise our own discretion in substitution for that of his Honour, we must be satisfied that his Honour erred in refusing to set aside his earlier ex parte orders dismissing the substantive proceedings for want of prosecution.

Relevant authorities

26.	There are numerous authorities in both the National Court and this Court in which relevant factors for the Court to take into account in determining whether ex parte orders should be set aside are considered. His Honour identified Smith v Ruma Constructions Ltd (2002) SC 695 as a relevant case. In that case the Supreme Court (Kapi DCJ, Los J and Kandakasi J) closely examined Order 12 rule 8 of the National Court Rules in circumstances where summary judgment had been entered ex parte. Kapi DCJ observed that the discretion of the Court to set aside a judgment under Order 12 rule 8 was the same whether a party was seeking to set aside a judgment which was, for example, a default judgment or where judgment had been entered pursuant to a direction given in the absence of a party. Kapi DCJ  continued :
These principles are now well settled in Green & Co v Green [1976] PNGLR 73; PNG v Baker [1977] PNGLR 386; George Page Pty Ltd v Balakau [1982] PNGLR 140. The onus is on the applicant to satisfy the Court: 

(1)Why the judgment was allowed to be entered in absence of the applicant; (2)If there is a delay in making the application to set aside, a reasonable explanation as to the delay
(3)That there is a defence on the merits.
  Kandakasi J agreed with this articulation of relevant principles.

27.	In Smith v Ruma Constructions Ltd the Court found, inter alia, that primary judgment should be set aside because the Judge at first instance in that case:

•	Failed to apply applicable principles on setting a judgment aside
•	Failed to make any reference to the long delay in bringing the application to set aside the summary judgment (a period of 2 years 6 months), in respect of which delay no explanation was given
•	Failed to deal with any explanation why summary judgment was entered in the absence of the client or its lawyers, including whether the lawyers may have been negligent in not taking appropriate steps to protect the interests of their client.

28.	The principles stated in Smith v Ruma Constructions are equally applicable to an order dismissing an action for want of prosecution: National Capital District Commission v PNG Water Ltd [1999] SC625. Importantly, however, the Supreme Court has recognised that the third principle articulated by Kapi DCJ in Smith v Ruma Constructions, namely that there be a defence on the merits, is different to that explained by Kapi DCJ in circumstances where the ex parte orders sought to be set aside were referable to want of prosecution. In Tulapi v Niggins [2011] SC1111 where an application was made to set aside ex parte orders made under the then-existing Supreme Court Rules for want of prosecution, the Court observed:

4.	In our opinion the principles applicable in an application such as is before us now are the same as those pronounced by the courts in dealing with the relevant provisions of the National Court Rules concerning similar applications, and that is the applicant must satisfy the court :
a.	Why the order was allowed to be entered in the absence of the applicant,
b.	If there is a delay in making application to set aside, a reasonable explanation for the delay, and
c.	That there is a reasonable explanation for the proceeding not being prosecuted with due diligence.
See Smith v Ruma Constructions Ltd (2002) SC695; Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613; and Rangip and Fountain Finance Limited v Peter Loko (2009) N3714.
29.	While Tulapi v Niggins post-dated the decision of his Honour below, we note that the test applied by the learned primary Judge in these proceedings in respect of the matters of which he required satisfaction was consistent with the views of the Supreme Court subsequently articulated in Tulapi v Niggins.
 
30.	It does not appear to be in dispute that the appellants in this case took his Honour to a number of cases other than  Smith v Ruma Constructions Ltd, namely Martha Loke-Tilto v Qantas Airways Ltd [1998] SC541, Buka v Baisi (2004) N2602, John Niale v Sepik Coffee Producers Ltd (2004) N2637, Markscal Ltd v Mineral Resource Development Company Pty Ltd [1999] N1807, Bank of South Pacific Ltd v Raun Wok Ltd [2001] N2118 and National Housing Corporation v Yama Security Services Pty Ltd [2000] N1985. In each of those cases the Courts considered and applied principles relating to dismissal for want of prosecution. 

31.	Perhaps the most relevant authority for present purposes is Martha Loke-Tilto v Qantas Airways Ltd [1998] SC541, an earlier decision of the Supreme Court. In that case the Court considered an application pursuant to Order 12 Rule 8 (2)(b) of the National Court Rules to set aside a judgment delivered in the absence of a party pursuant to Order 10 Rule 12. The Court described relevant facts as follows:

On the 11th April 1995 at a civil call-over the matter was listed for hearing on the 28th July 1995.
On the 11th July 1995, the Registrar and the Deputy Registrar conducted a call-over. At this call-over the respondent’s lawyer or representatives were not present and the Registrar was unable to confirm the trial date as agreed to earlier by the parties. The matter was removed from the civil list by the Registrar. On the 14th July 1995 the respondent’s lawyers were advised of the change by the appellant’s lawyer.
Again on the 20th July 1995, the respondent’s lawyers were advised that the matter had been taken off the civil list and the trial date vacated. After, the respondent’s lawyers queried the change and the matter was placed back on the list. The appellant was notified but she did not receive the message as she had left for West New Britain.
On the 28th July 1995 the matter was called in Court by Justice Brown. The appellant’s lawyers or representatives were not in Court because of their belief that the matter had been vacated. His Honour Justice Brown proceeded to trial in the absence of the appellant dismissed the claim and awarded costs to the respondent. On the 31st July 1995, the appellant’s husband first heard of what had transpired on the 28th of July 1995, through a facsimile to him sent by the respondent’s lawyers.
On the 8th August 1995 the appellant filed a motion to set aside the judgment of Justice Brown made on the 28th July 1995.
On the 23rd August 1995, Mr Justice Sheehan heard the motion and dismissed the application to set aside Justice Brown’s judgment.

32.	The Supreme Court noted that, in dismissing the application to set aside Justice Brown’s judgment, Justice Sheehan said:
Submissions on O 10 r 12 are relevant on the failure of a party to attend Court on a date set for hearing of a trial. It is said parties have a right to be heard – that is true – but the fact that a party is not heard is not an automatic denial of that right. The rules of Court and practice directions are laid down to ensure just a right, in a manner best able to dispose of a dispute. Failure to follow rules can result in a right of hearing being lost. Here Plaintiff took improper course to vacate, ie did not take the proper course. As regards the application to vacate. While there may be some element of confusion surfacing here, the National Court has already considered the issues I am now asked to rule on. Since this has not been decided the only course open is for Plaintiff to appeal.
Costs to Defendant.

33.	The appellant appealed the decision of Justice Sheehan of 23rd August 1995.

34.	The Supreme Court found that the application to set aside Justice Brown’s judgment was procedurally appropriate. Their Honours continued :
In our respectful view all the relevant material was before the motion judge. The affidavit of Norbert Kubak, the then Deputy Registrar, shows that as a result of his error the matter was called and the Judge at first instance had proceeded to trial. Despite the explanation given, His Honour refused the application to set aside the verdict and the findings of the judge at first instance. Having had the opportunity to go through the same material that was before the motion Judge and considering the circumstances and the manner in which this matter came on for hearing in the first instance as explained, we are respectfully of the view that the motion judge erred in not exercising his discretion to set aside the verdict and findings of the judge at first instance.

35.	While it is not necessary for the purposes of this judgment to comment in further detail on either relevant principles referable to want of prosecution or the facts of the National Court cases relied on by the appellants before his Honour below, we do note that of those cases a helpful discussion of principles relating to the discretionary aspect of the power to dismiss for want of prosecution may be found in Buka v Baisi (2004) N2602. In that case Lay J observed that the power of the Court to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default had been intentional and contumelious, or 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 cause serious prejudice to the defendant.

Findings

36.	As this Court has repeatedly observed, trial Judges are in total control of the proceedings before them (Mathias v Protect Security & Communications Ltd [2013] SC1300 at [49], PNGBC Ltd v Tasion [2013] SC1296 at [32], Birch v The State [1979] PNGLR 75). It is perfectly proper for a trial Judge to be critical of lawyers who are tardy in attending Court to represent litigants, and to take steps to ensure that litigation proceeds in an efficient manner, including by making appropriate orders. Valuable judicial and court time can be wasted, and other parties inconvenienced, by lawyers who adopt an indifferent or lax approach to orders of the Courts, including in relation to appearance at times ordered by the Courts. Poor standards of conduct of lawyers, if accepted or tolerated by the Courts, can potentially undermine the system of justice in this country. In no respect, and at no time, should comments of this Court be interpreted as condoning poor behaviour of lawyers, including lateness to Court.  Indeed as was observed by the Supreme Court in Kwimberi v Independent State of Papua New Guinea [1998] SC545, in exceptional situations lateness in attendance in Court by lawyers can be regarded as contempt of Court and penalised accordingly.

37.	However, in light of the previous discussion and examination of the material before the Court, on the facts of this case we are satisfied that error attends the decision of his Honour of 25 October 2010 to refuse to set aside his ex parte orders of 19 July 2010. We have formed this view for the following reasons.

38.	First, we are not satisfied that his Honour gave proper consideration to the evidence tendered on behalf of the appellants, including the reasons why Mr Dotaona was late for Court on 19 July 2010. The evidence of the appellants, which was uncontested, was that: 

•	They had previously prosecuted the proceedings with due diligence;
•	The substantive proceedings concerned matters of great importance to them, namely their place of abode.
•	The matter was listed for trial on 19 July 2010
•	The matter was not listed on the Court diary for the day, causing them and their lawyer some confusion;
•	There had been a change of lawyer for the second and third respondents, thus causing confusion to the appellants when Mr Manase, who had previously acted for those respondents, did not appear
•	The notice of change of lawyer for the second and third respondents had not been served on Mr Dotaona
•	Mr Dotaona had arrived shortly after 9.30am in the company of Mr Kakas
•	The court room was very full of people. Some of the plaintiffs were seated outside the Courtroom.

39.	A perusal of the material presented to the trial judge by the appellants in support of their application for orders pursuant to Order 12 rule 8 exhibits a curious deficiency, in that it did not include a sworn affidavit of the lawyer Mr Dotaona. This is in circumstances where it was Mr Dotaona’s late arrival to Court on 19 July 2010, and his non-appearance as lawyer for the appellants before his Honour at the time the substantive matter was called, which precipitated the orders culminating in this appeal. The only evidence relating to those circumstances tendered by the appellants consisted of affidavits of two of the appellants. While this evidence was of probative value, we observe that better evidence explaining Mr Dotaona’s lateness would have come from Mr Dotaona himself, and could have been of assistance to the primary Judge.

40.	Nonetheless, sworn evidence of Mr Kakas and Mr Weston explaining the lateness of Mr Dotaona was presented to his Honour below. While perhaps not as persuasive as could have been evidence of Mr Dotaona, nonetheless in our view this evidence was relevant for his Honour to take into account in the exercise of his judicial discretion. In the judgment below, his Honour’s principal concern was that Mr Dotaona had not given evidence. If his Honour concluded that it was proper to disregard the evidence of Mr Kakas and Mr Weston, or give it little weight, it would have been proper to give reasons for those conclusions. As it was, his Honour simply found that the evidence of these witnesses was “unsatisfactory”, and appeared to equate the failure of Mr Dotaona to give evidence with a complete absence of evidence on the part of the appellants to explain Mr Dotaona’s lateness on 19 July 2010 and to support their application to set aside the orders of 19 July 2010. It was not.

41.	Second, we consider that his Honour did not have regard to case law raised by the appellants in their submissions other than Smith v Ruma Constructions Ltd. While it is clear that each case involving an application to set aside orders dismissing proceedings for want of prosecution must be considered on its own facts, nonetheless it is reasonable for the Court to have regard to other authorities where appropriate. In particular, we note that his Honour did not have regard to authorities including Martha Loke-Tilto v Qantas Airways Ltd and Buka v Baisi which were on point and specifically raised before him by the appellants, in which cases the Courts discussed the very serious nature of orders dismissing proceedings for want of prosecution for lawyers’ failure to attend Court, and conditions where such orders may properly be made. 

42.	Third, in considering the application to set aside the orders of 19 July 2010, his Honour did not take into account what appear to be unusual aspects of the proceedings on the 19 July 2010, which are evident from the transcript of that day. Those aspects were relevant to the explanation for the lateness of Mr Dotaona in arriving at Court. So, for example:

•	For no apparent reason, there was no appearance by Mr Philip, the lawyer for the first respondent, when the matter was called on 19 July 2010. Indeed, the only lawyer in attendance was Mr Mawa for the second and third respondents. This in particular was a factor which suggested some possible problem in respect of the attendance by lawyers at the hearing.
•	It does not appear that the matter was called outside the Court room notwithstanding the non-appearance of Mr Dotaona.
•	As Mr Mawa informed his Honour, the matter was not on the Court’s List on 19 July 2010.
•	In fact, Mr Dotaona did appear at the hearing, although approximately 24 minutes after the substantive matter had been called.

43.	In relation to the fact that the matter was apparently not called outside the Court room, we note that the appellants constitute a group of 64 people. Mr Weston’s evidence was that he was outside, as were other appellants. We consider it at least possible that if the matter was called outside the Court room, one or some of the appellants may have responded in the absence of Mr Dotaona.

44.	Further, the fact that Mr Dotaona appeared at the hearing before Court was adjourned, and only 24 minutes later, was supportive of the fact that the lawyer was not negligently treating his client’s interests, but rather had become confused in some respects as claimed by the appellants.

45.	Finally we note that his Honour appeared to give no consideration to the fact that there had been no delay by the appellants in seeking to have the orders of 19 July 2010 set aside. Indeed, the notice of motion to have those orders set aside was prepared and filed, with supporting evidence, on that same day.

Conclusion

46.	In our view the exercise of his Honour’s discretion under Order 12 rule 8 of the National Court Rules on 25 October 2010 miscarried. The appeal is allowed.

47.	In the circumstances and in accordance with established principles, it is appropriate for this Court to substitute its own decision for that of his Honour of 25 October 2010. Accordingly, the orders of 19 July 2010 and 25 October 2010 are quashed, and the case is remitted to the National Court for hearing of the appellants’ claims.

48.	Finally, there is no reason why costs should not follow the event. We note that the first respondent did not oppose the appeal, and the appellants seek no costs against the first respondent. The position is, however, different in relation to the second and third respondents, who are ordered to pay the costs of the appellants of and incidental to this appeal.

49.	The Court orders that :

1.	The appeal be allowed.
2.	The orders of the National Court of 19 July 2010 and 25 October 2010 in OS 98 of 2008 are quashed.
3.	The proceedings in OS98 of 2008 be remitted to the National Court for hearing.
4.	The costs of the appellants of and incidental to the appeal be paid by the second and third respondents on a party-party basis, to be taxed if not otherwise agreed.
______________________________________________________________
Stevens Lawyers: Lawyers for the Appellants
Mawa Lawyers: Lawyers for the Respondents