SC1652
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 135 OF 2016

BETWEEN
ISSAC MINICUS
Appellant

AND
TELIKOM (PNG) LTD
Respondent

Waigani: Gavara-Nanu J, Geita, Bona JJ
 2017: 30 October & 15 December

PRACTICE & PROCEDURE - Appeal – Appeal on questions of law and mixed fact and law – Supreme Court Act Chapter No. 37; s. 14 (1) (b). 

PRACTICE & PROCEDURE – Appeal – delay – Inordinate delay to prosecute proceeding – Delay of over 2 years 5 months - No reasonable explanation – Such delay a serious abuse of process – delay fatal - Appeal dismissed. 

PNG Cases Cited

Bean v Bean [1980] PNGLR 307 
Curtain Brothers (PNG) Ltd v UPNG (2005) SC 78
Irabmile Investments Limited v Mobil Oil New Guinea Limited (2015) SC 1440
Telikom PNG Limited v ICCC (2008) SC 906

Legislation Cited

Supreme Court Act 

Counsel

 N. Kubak, for the Appellant
J Talipan, for the Respondent

15th December, 2017

1.	BY THE COURT: The Appellant appeals against the whole of the decision of Sawong J, given on 9 September 2016 in Lae, whereby his Honour dismissed proceeding W.S No. 1287 of 2007, a matter between Issac Minicus v. Telecom (PNG) Ltd, in its entirety. 

2.	The appeal is brought pursuant to s. 14 (1) (b) of the Supreme Court Act, Chapter No. 37 and Order 7 of the Supreme Court Rules 2012. The appeal lies without leave as it raises questions of law and mixed fact and law.

Background

3.	In order to appreciate the reasons why the court below made the orders in the way it did, we state hereunder the relevant background facts in a chronology of events: 

1	12/11/2007	Writ of Summons WS 1287 of 2007 issued	
2.	29/05/2008	Consent Judgment entered by parties	
3	27/02/2014	Supreme Court reinstated the matter after it went on appeal after the National Court dismissed the claims following a hearing of assessment of damages pursuant to the consent judgment. 	
4	19/05/2014	Letter from the Appellant’s Lawyers to the Deputy Registrar requesting for the file to be transferred to Lae National Court for listing etc.	
5	19/05/2014	Same letter copied and sent to the Assistant Registrar, National Court Lae requesting for their cooperation to have the case file listed in National Court, Lae.	
6	16/08/2016
	Telekom PNG Ltd filed Notice of Motion seeking to dismiss the whole of the proceeding for want of prosecution and abuse of process	
7	13/07/2016	Telekom file search revealed no activity by the Appellant since the dismissal orders were made save for a lone Affidavit by Issac Minicus filed on 12 July 2016.	
8	08/09/2016	National Court per Sawong J dismissed the claim for assessment of damages in its entirety with costs. Plaintiff’s failure to prosecute his claim with due despatch and offered no reasonable explanation for his dilatory conduct.	
9	10/10/2016	Notice of Appeal filed against Sawong J’s decision dismissing the whole of the Appellant’s primary proceedings.	

4.	As can been seen from the chronology of events it took the Appellant/Plaintiff more than 2 years and 5 months to prosecute his claims before the primary trial Judge.

5.	The ten (10) grounds of appeal relied on are framed in this manner:

1.	 The learned primary judge erred in fact and in law in refusing to accept 	and consider the evidence in the two affidavits filed by the Appellant, namely that of Isaac Minicus filed 1st September, 2016 and Norbert Kubak filed on 1st September, 2016 and relied upon wholly by the Appellant in submissions opposing the Respondent's Notice of Motion, particularly in circumstances whereby there had been no objection or issue whatsoever raised by the Respondent or the Court as regards the admissibility or otherwise of the said affidavits.

2.	The learned primary judge erred in fact and in law in dismissing the Appellant's substantive cause particularly where a previous Supreme Court decision had specifically directed that the substantive matter proceed to assessment of damages, before another judge of the 	National Court other than Justice Manuhu.

3.	The learned primary judge erred in fact and in law in refusing to accept 	and consider admissible evidence that was properly before the court which demonstrated that the Appellant had invoked provisions of the National Court Rules relating to Alternative Dispute Resolutions, and was pursuing with the Respondent good faith endeavours to resolve the issue of quantum of damages, being the only issue requiring the allocation of judicial time and resources.

4.	 Justice miscarried when His Honour in having been fully addressed in submissions by both the Appellant and the Respondent on the 	evidence before the court as was relevant to the application for dismissal, and without raising any issues as to admissibility of such evidence, decided to resort to considering only the evidence of the Respondent which failed to disclose matters that were materially relevant to the application before the court and in particular respect to 	the conduct and roles of both parties as regards the conduct of the primary proceedings.

5.	 The learned judge erred in fact and in law in giving very little weight, if at all, to the fact that in preparation for and in anticipation of the pending assessment of damages, the Appellant had filed and served a further affidavit the existence of which was duly drawn to the primary 	court's notice.

6.	 The learned trial judge erred in law and in fact in that when it refused to accept the evidence filed by the Appellant, the court was left only 	with evidence adduced by the Respondent which was lacking and substantially and materially misleading and therefore unreliable for ensuring a fair and just deliberation of the issue of want of prosecution then before the court.

7.	The learned trial judge erred in law and in fact in not giving weight to the Respondent's admission in court through its counsel which clearly showed that the Respondent had substantially done nothing on its part 	to help progress the matter to assessment of damages, which showed a lack of good faith to cooperate with the Appellant in his efforts to attempt a good faith resolution of the assessment of damages.

8.	The learned trial judge erred in fact and in law in refusing to consider at all the evidence that was properly before the court and which had been accepted by it during submissions from the Appellant and also addressed by the Respondent in -their respective submissions.

9.	 The learned trial judge erred in fact and in law in refusing to give weight or consider at all the evidence that was properly before the court and which it had allowed to be referred to and relied upon in submission by the Appellant when opposing the application for dismissal by the Respondent, thereby totally denying the appellant any opportunity to address any issue of admissibility of evidence in open court.

10.	 The learned trial judge erred in fact and in law in rejecting the affidavits filed by the Appellant in response to the dismissal application filed on the 16th August 2016 in the circumstances whereby the Respondent had served its relevant Notice of Motion but unduly and knowingly differed service of the same on the Appellant's lawyers till 30th August 2016, thereby denying the Appellant a reasonable and fair opportunity to respond to the affidavit supporting the application.

6.	The ten grounds of appeal can be conveniently summarized in the 	following three questions: 
	
1.	Whether or not the trial Judge erred in finding that the 
Appellant failed to prosecute his claim with due dispatch?

2.	Whether or not the trial Judge erred in finding that the
Appellant had not offered any reasonable explanation for the inordinate delay to prosecute the proceeding? 

3.	Whether justice was miscarried in the overall 			circumstances of the primary proceeding?

Whether or not the trial Judge erred in finding that the Appellant had failed to prosecute his claim with due dispatch?

7.	Grounds 2 and 7 are dismissed as the onus was on the Appellant to prosecute the proceeding with due dispatch, not the Respondent. Having to shift blame to the Respondent for not progressing the matter to assessment for damages in our view is a lame excuse by the Appellant because he had the onus to prosecute his claims with due dispatch. 

8.	The Appellant contended that he took all the necessary steps to prosecute his claims. However, the Court transcripts and court file notations do not support that contention. 

9.	From the date of the Supreme Court Judgment ordering the matter to go before another court for assessment of damages, viz; 27 February, 2014 to the last recorded file entry, viz; 13 July, 2016, a period of 2 years 5 months had lapsed. The lapse of more than two years became evident before the trial Judge which prompted him to comment in his ruling that the Plaintiff had not taken any steps required of him by the Rules to prosecute his claims with due dispatch. 

10.	His Honour further commented that the case management regime currently in place required every necessary step must be taken by the parties, more so the Plaintiff to prosecute and progress the proceeding expeditiously to trial.
 
11.	The Plaintiff has indeed failed dismally to prosecute his claims with due diligence and he has failed to show to this Court that he took necessary steps to progress his case to trial. It follows that the trial Judge did not err in his findings on this point. We are therefore unanimous in our decision to dismiss this ground as well.

Whether or not the trial Judge erred in finding that the Appellant had not offered a reasonable explanation for his dilatory conduct?

12.	We are of the view that we have adequately covered this ground of appeal and see no utility in discussing it further. For the same reasons given above we would also dismiss grounds 1, 4, 5 and 9. 

Whether justice miscarried in the overall circumstances of the primary proceeding?

13.	The Appellant’s grounds 3, 6, 8 and 10 are dismissed as they all relate to the primary Judge’s exercise of discretion. The Appellant has not demonstrated that the trial judge had erred in any one or all of the following ways:

a)	acting upon a wrong principle, or
b)	giving weight to extraneous or irrelevant matters, or
c)	failing to take into account relevant considerations, or
d)	making mistakes as to facts,

14.	The Appellant also contended that the primary Judge erred in refusing to accept and consider the evidence contained in the affidavits of Issac Minicus and Norbert Kubak. He also argued that he was denied the opportunity to be heard on the dismissal application. The Appellant also contended that since no objections were raised against the two affidavits the primary Judge erred in not giving weight to them. 

15.	The Respondent argued that even if the two affidavits and other relevant documentation were considered by the primary Judge they would not have assisted the Court as no evidence was disclosed in them explaining the Appellant’s dilatory conduct of not prosecuting the case with due dispatch. 

16.	Having heard both counsel on the issues raised we are of the view that the Respondent’s submissions have merit. We find no error in the decision of the trial Judge, in that regard we note that the affidavits relied upon by the Appellant clearly do not provide any reasonable explanation for his apparent failure to prosecute his claims diligently and to progress them to trial with due dispatch: Irabmile Investments Limited v Mobil Oil New Guinea Limited (2015) SC 1440.

17.	It is settled law that an appellate court should be slow to interfere with the exercise of discretion by the lower court unless the appellate court is satisfied that the court below clearly erred in its decision. 

18.	It is also trite law that an appeal may be allowed under two broad principles, first; where there is a clear or identifiable error by the trial judge, second; although there is no clear or identifiable error, the judgment is so unreasonable or plainly unjust on the facts that the appellate court may infer that a substantive error had occurred in the exercise of discretion by the trial judge. 

19.	In this case, we are not persuaded that the decision or the judgment of the trial judge was unreasonable or plainly unjust on the facts.

20.	Case law authorities affirming these principles include Bean v Bean [1980] PNGLR 307; Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788; and Telikom PNG Limited v ICCC (2008) SC 906.

21.	For the foregoing reasons, the appeal is dismissed in its entirety with costs to the Respondent.

22.	The Orders of the Court are as follows:

i.	The appeal is dismissed,
ii.	The Appellant will pay the Respondent’s costs of and 			incidental to the appeal.

_______________________________________________________________
Kubak Lawyers: Lawyers for the Appellant    
Telikom PNG Limited In-House Lawyers: Lawyers for the Respondent