SC1631

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

		SCM NO. 16 of 2016 

BETWEEN:
		DR LAWRENCE KALINOE
Appellant

AND:
DR PHILIP KEREME
	First Respondent	

AND:
FRANCIS NEMBOLE
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINE  
Third Respondent

Waigani:  Injia CJ, Bona & Foulds JJ
2017: 3rd November 
					
PRACTICE AND PROCEDURE - Summary disposal -  Judicial review proceedings - Dismissal of proceedings for failure of plaintiff's lawyer to appear in Court on date fixed for trial to prosecute claim- Ground of dismissal - Exercise of discretion - Strict compliance with rules of Court requiring parties to appear at trial- Whether trial judge under duty to take into account other considerations including likely prejudice to the parties merits of the case:  National Court Rules, Order 16 Rule 13 (11) (4), and Rule 13 (13)(2)(b) 

Cases Cited:
Papua New Guinea Cases

The Independent State of Papua New Guinea v MVIL & Anor (2017) N6664
Green and Co Pty LTD (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73
 Totamu v. Small Business Development Corporation (2009) N3702
Curtain Brothers (PNG) LTD v University of Papua New Guinea (2005) SC788
Woolbright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N 5774

Overseas Cases

Bowen, LJ in Gardner v. Jay (1885) 29 Ch 50
Evans v. Bartlam [1937] AC 473, [1937] ALL ER 646

Counsel:

Mr. Phannaphen & Mr. William, for the Appellant
Mr. Keteng, for the Second Respondent	

REASONS FOR JUDGEMENT

3rd November, 2017 

1.	BY THE COURT: This appeal by Notice of Motion filed on 18 July 2016 appeals against the judgement of the Honourable Justice Leka Nablu on 15 June 2016 in the National Court in Waigani wherein she dismissed the entire proceedings in the matter OS(JR) no. 615 of 2015 between Dr Lawrence Kalinoe, the Appellant and Dr Philip Kereme, Francis Nembole and the Independent State of Papua New Guinea, the first, second and third Respondents respectively.

2.	Her Honour made the following orders:

a)	Pursuant to Order 16, Rule 13 (11) (1) and Order 16, Rule 13 (13) (2) b (a) and (b) of the National Court Rules, this judicial review application is summarily determined and is dismissed for want of prosecution, failure of the Plaintiff’s counsel to appear and prosecute the Judicial Review Application.
b)	The plaintiff is to pay the first and second respondents' costs of the proceedings to be agreed if not taxed. 

3.	The grounds of appeal are set out in sub paragraphs (a) to (f) inclusive of paragraph 4 of the Notice of Motion: 

a)	That Her Honour erred in fact and in law, in failing to find that there was a meritorious Judicial Review Application by the plaintiff properly before the court and the proceedings cannot be dismissed in the manner asked by the second respondent’s lawyer to be dismissed.
b)	That Her Honour erred in law, in applying Order 16, Rule 13 (13) (2) (b) ((a)) when there was no proper application by any of the respondents under Order 16, Rule 13 (13) (1) of the National Court Rules.
c)	Her Honour erred in law in applying both Order 16, Rule 13 (13) (2) (b) ((a)) and Order 16, Rule 13 (13) (2) (b) ((b))at the same time when the word “all” in Order 16, Rule 13 (13) (2) (b) ((a)) and ((b)) envisages that only one of the three options under Order 16, Rule 13 (13) (2) (b) may be invoked by the court, in an appropriate case.
d)	Her Honour erred in fact and in law in failing to find that the mandatory notice of trial pursuant to order 10, rule 9 of the National court rules was not filed and served on the plaintiff.
e)	Her Honour erred in fact and in law in failing to consider that the Substantive Judicial Review Application raises serious issues of law that were not contested and these issues were all to be decided on their merits only after a fair hearing on the Judicial Review Application and that an order to vacate the trial date with costs to the first respondent would not have prejudiced any of the respondents, in any way.
f)	Her Honour erred in fact and in law in failing to properly exercise her discretion fairly and reasonably pursuant to Order 16, Rules 13 (11) (4) and section 155 (4) of the Constitution in the interest of justice and fairness, where the plaintiff had fully complied with the procedures prescribed under Order 16 of the National Court Rules and in circumstances where;
i.	The plaintiff filed all the affidavit materials;
ii.	The plaintiff filed the judicial review book; and
iii.	The plaintiff had fully complied with all directions that were issued by the court as well as filing of written submissions.

4.	At the beginning of his submissions, Mr Phannaphen of counsel for the Plaintiff/ Appellant indicated to the court that he would basically be going through the Appellant’s Extract of Argument that was filed on 14 July 2017. That extract distils the grounds of appeal in the notice of appeal to only two and they are: 1. That the primary judge erred in wrongly exercising her discretion when she placed so much weight on the strict compliance with the Court’s fixture of the trial date (based on misrepresentations made by the lawyers for the second respondent) and gave no consideration to the question of prejudice and interests of justice.

5.	  Did the trial judge err when she applied both Rules 13 (11) (4) and 13 (13) (2)b (a) and (b)  of the National Court Rules in summarily dismissing the appellant’s proceedings in the court below? This issue concerns the Court's summary power to dismiss a proceeding for want of prosecution due to the failure of the plaintiff to appear at the date fixed for trial and the considerations that pertain to the exercise of discretion.  We set out the relevant parts of Order 16 rules 12,  13 (11) and  13 (2)b (a) and (b) hereunder: are in the following terms:

11.	The Hearing.
(1)	The Hearing shall proceed on the date fixed by the Judge at the Pre-hearing Conference, unless otherwise ordered.
(2)	An application shall not be adjourned generally; it must be adjourned to a specific date and time.
(3)...
( (4)	At the hearing, the judge may summarily determine any application which fails to comply with the procedures prescribed under Order 16 of the National Court Rules or directions issued under Rules 5, 6 and 8 hereof....

 12.	Adjournments.
Proceedings in a Directions Hearing, Pre-hearing Conference or Hearing will not be adjourned or stood over generally, even by consent. ...

13.	Other matters.
(1) .....
 (2)	Summary disposal.
a. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.

b. The Court may summarily determine a matter:
(a)	on application by a party; or
(b)	on the Court’s own initiative; or
(c)	upon referral by the Registrar in accordance with the procedure set out in (3) below. 
(3)...

6.	It should be noted at the outset that in the course of argument, counsel for the appellant abandoned ground 2 in the Extract because upon close examination the formal order taken out differed from the orders made as they were reproduced in the final paragraph of the transcript.

7.	 Paragraph 1. of the formal order, entered on 28 June 2016 refers to “Order 16 Rule 13 (11) (1) and Order 16 Rule 13 (13) (2) (b) (a) and (b)”  of the National Court Rules whereas in the transcript the learned Judge says  “pursuant to Order 16 Rule 13 (11) (4)  and Order 16 Rule 13 (13) (2) b (a) and (b)”. Counsel for the appellant did not disagree that the Rules quoted by the Judge in the transcript were to be preferred and agreed that they were the appropriate Rules upon which the learned Judge should have relied which in turn led counsel to abandon ground 2.
 
8.	  As to ground 1, we refer to  paragraphs 16 and 17 of the judgement of Hartshorn J. in The Independent State of Papua New Guinea v MVIL & Anor (2017) N6664(6 January 2017) in which he says:

“16. As to the exercise of this court’s discretion, as I did in Woolbright Ltd V Mekeo Hinterland Holdings Ltd (2013) N 5774, I make reference to the House of Lord’s decision of Evans v Bartlam [1937] AC 473; 2 ALL ER 646 referred to in Green and Co Pty LTD (Receiver Appointed) v Roger Britain Green [1976] PNGLR 73 and recently referred to in the decision of David J. Totamu v Small Business Development Corporation (2009) N3702.

17. In Evans V Bartlam (supra), Lord Wright, at 488 quoted with approval the following statement of Bowen, LJ in Gardner v Jay (1885) 29 Ch 50, at p 59:
“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?”

9.	As far as we are aware, that statement of the law has not been challenged in this Court. Nor has it been approved let alone adopted by it. In our view the logic is impeccable; it is jurisprudentially and practically sound and greatly simplifies the procedure for summary determination under these circumstances. For those reasons we approve and adopt it.

10.	 There is nothing in our reading of the rules of court found in O 16 r 11 or O 16 r 13 (a) and b (b) of the National Court Rules which operates to fetter the learned Judge’s discretion.  Indeed those provisions give the Court the jurisdiction and a wide discretion to summarily determine and dismiss a proceeding simply on the grounds stated therein. For instance, a failure by the plaintiff or his counsel to appear at the hearing per se, without more, is sufficient to warrant dismissal of the proceedings. This is particularly the case with those types of proceedings where time is of essence and the rules of court provide strict timelines by which proceedings are to be conducted and finality reached in an expedited manner. Judicial review proceedings come under those types of cases and O 16 r 11 and O 16 r 13 are designed to achieve that objective. In simple terms, it is of no consequence that the learned Judge may not have taken the questions of prejudice and interests of justice into account or sufficient account in exercising her discretion. The same can be said of other questions such as the merits of the case or the substantive interests of the parties at stake in the proceedings.  Those supposed omissions are not sufficient to render erroneous the exercise of her discretion in the way she did. 

11.	Although counsel for the second respondent only tacitly agreed, or at least did not disagree, that the learned judge did not take into consideration the questions of prejudice and interest of justice, taking the statement in Gardner v Jay (supra) into account we agree with the approach taken by Nablu J. in the National Court in exercising her discretion on the basis that she did.

12.	 On the evidence before us, she found that: 

(a)	The second respondent only served the letter informing the plaintiff’s then counsel, Mr Belden Williams of the trial date for which he signed as receiving it on 3 May 2016 at 9:46 a.m. In support the evidence that he knew of the trial date, he filed an Extract of Submission, as well as a list of authorities on 6 June 2016, some 9 days before the hearing.
(b)	That the trial was properly fixed and there was sufficient time for the Appellant to vary the trial date if he wished to do so.
(c)	She had jurisdiction to summarily dispose of the matter under Order 16 rule 13 (13) (2b) (a) and (b) of the National Court Rules of her own volition or by the application of a party.

13.	 In addition, the appeal hearing revealed that the reason that Mr Belden Williams did not attend the listing hearing on 18 April 2016 was that he was ill and did not attend the hearing before Nablu J on 15 June 2016 because he misread the hearing date contained in the letter mentioned in sub- paragraph a. above. We conclude that, on any view, those excuses do not afford a reasonable explanation for Counsel’s failure to attend the hearing on 15 June 2016, a fortiori given the legal importance of the case according to the picture painted by Mr Phannaphen of counsel for the appellant.
14.	 In Curtain Brothers (PNG) LTD  v University of Papua New Guinea  (2005) SC788 the Supreme Court said at page 9:

“A discretionary judgement may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgement or order is “unreasonable or plainly unjust” and such that an error can be inferred”.

15.	For the reasons we have given we find that no identifiable error occurred in the exercise of Nablu J’s discretion nor was there any requirement in exercising the discretion for her to take into account any other criteria including prejudice or interest of justice.

16.	As to whether the resulting judgement was unreasonable or plainly unjust because, the appellant argued, that the defendants did not really suffer nor did they stand to suffer any prejudice but the appellant did. Counsel argued that the second  respondent was just a nominal defendant, was just the beneficiary to that proceeding, the outcome of the proceeding (sic) and the first respondent’s lawyer was not prepared  for or not interested in applying for a dismissal of the proceedings. We reject both arguments. It is clear that the second respondent was not just a nominal defendant. All these proceedings arose from allegations against him and he therefore had a vital interest in terms of his professional and economic future in the outcome of them, not the least being the allegation that he had resigned from the Public Service by letter of 1 September 2014 when he swore emphatically in paragraphs 30 and 31 of his affidavit filed on 21 January 2015 that he had not.

17.	 As to the first respondent’s alleged lack of interest in applying for a dismissal of the proceedings, perusal of the transcript reveals that there is only one line directed by the learned judge to counsel for the first defendant along those lines. Viz:  “Yes, so do you have any applications to make given the absence of the plaintiff?” Given his rather unresponsive answer, the Learned Judge turned her attention to Counsel for the second respondent and after a page – long exchange, effectively directed counsel for the second defendant to, inter-alia, apply to have the plaintiff’s action dismissed for want of prosecution. In our view, counsel for both parties, rather than demonstrating a lack of interest, were taken by surprise by Her Honour’s forthright approach.

18.	Counsel for the appellant argued that the appellant was prejudiced by being deprived of a clear legal determination as to whether the Public Services Commission had jurisdiction to entertain the matter when the second respondent had resigned upon tendering the above-mentioned letter of 1 September 2014 to the Secretary of the Department of Justice and Attorney General (the Secretary). We also reject that argument. Clearly the letter was written against the background of the imminent determination of the three-year contract between the second respondent and the Secretary on 31 August 2014 and his return to what we will refer to as the Unattached List in the State Service. In our view the letter consists of no more than a fairly standard enquiry about his future within the service in the event that he is reinstated, by a permanent public servant who has been moved to a contracted position for a certain period which has the day before, come to an end. Understandably, the words resign, termination or resignation are nowhere to be found in the letter. Also understandably, he enquires as to what his entitlements will be at the end of 16 years of employment within the State Service. At the same time, he advises as to his prudent future deployment within the same department but in a different area. Those are not the words of a person who has resigned. It is clear that the letter is written in a tone which reflects an optimistic view  that he will remain working in the department for the foreseeable future should he be reinstated.

19.	 Moreover there is no evidence in the letter or otherwise that the second respondent had requested, based on his resignation, a payout of all his entitlements that had accrued or would accrue upon 16 years of service. In that regard we note that in the third last paragraph of the letter he says “On that note, please calculate the following entitlements as my contract is coming to an end by 30th August 2014.” We infer from that, that the second respondent had written the letter prior to or on 30 August 2014, in expectation of the determination of the contract on that date, but it was not sent until 1 September 2014, being the date which it bore.

20.	Finally in paragraph 35 of the second respondent’s affidavit filed on 21 January 2015, he vigorously refutes the allegation in paragraph 7 and Annexure “I” of the affidavit the Plaintiff filed on 14 December 2015, that  his  letter of 1 September 2014 was a letter of  resignation and gives cogent reasons thereof. And in paragraph 36 he provides equally cogent reasons for seeking payments of his entitlement, more of which was that he had resigned. Indeed, Annexure “I” of the plaintiff’s affidavit (Separation Advice) in the box entitled  REASONS FOR SEPARATION, the smaller box  adjacent to RESIGNATION is not ticked, and the box adjacent to OTHER (specify ) is ticked and the word TERMINATED  inserted after it.

21.	In our view it is clear that the letter was not one of resignation nor could it be considered so on any reasonable view. It follows that the second respondent did not resign and there was, therefore, no important legal question to be resolved.

22.	We also conclude that questions of prejudice and overall interest of justice are practically inseparable. Therefore our reasons against finding any prejudice to the appellant apply to both prejudice and the overall interests of justice equally.

23.	It follows, for the reasons we have given, we do not infer that Nablu J’s judgement is either unreasonable or plainly unjust.

24.	The appeal is dismissed with costs to the second respondent.

M.S Wagambie Lawyers: Lawyer for the Appellant		
Mr. Keteng: Lawyer for the First and Second Respondents 
Office of Solicitor General: Lawyer for the Third Respondent