SC1648
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 56 OF 2016

	JAMES GABE 	
 Applicant 

V

TOLUKUMA GOLD MINE LIMITED 
Respondent

Waigani: Cannings, Kariko & Shepherd JJ
2017, 30 October, 
2018, 31 January 

PRACTICE AND PROCEDURE – dismissal of National Court proceedings for want of prosecution – whether inordinate delay in prosecution of proceedings – whether reasonable explanation for delay. 

The National Court dismissed civil proceedings for want of prosecution, by upholding a motion to that effect by the defendant. The plaintiffs sought review by the Supreme Court of the National Court’s decision, on the ground that the decision was made on an erroneous factual basis.

Held:

(1)	An application for dismissal of proceedings for want of prosecution requires a determination of two primary issues: (a) whether there has been an apparently inordinate delay in prosecution of the proceedings; (b) whether there is a satisfactory explanation for the delay.

(2)	Though there was an apparently inordinate delay of seven years in prosecuting the proceedings, there was a satisfactory explanation for it, which the primary Judge failed to appreciate due to being led into factual error by the party moving the motion for dismissal; as a consequence the decision to dismiss the proceedings was wrong in law.

(3)	The application for review of the decision of the National Court was granted, the order for dismissal was quashed, the National Court proceedings were reinstated and costs of the Supreme Court application were awarded to the applicant. 

Cases cited:

The following cases are cited in the judgment:

Boni & Others v Tolukuma Gold Mine Ltd (2009) SC1005
Donigi v PNGBC (2001) SC691
Kakaraya v Somare (2004) SC762

APPLICATION 

This was an application under Section 155(2)(b) of the Constitution for review of a decision of the National Court to dismiss proceedings for want of prosecution.

Counsel:

J Gabe, the Applicant, in Person
N Gimaia, for the Respondent

31st January, 2018

1.	BY THE COURT: James Gabe applies for review of the decision of the National Court to dismiss civil proceedings he and hundreds of other persons commenced against the respondent, Tolukuma Gold Mine Ltd, regarding an alleged spillage of sodium cyanide into rivers in the Goilala District of Central Province in 2000.

2.	The Chief Justice Sir Salamo Injia on 8 March 2017 granted leave to Mr Gabe to make the application for review under Section 155(2)(b) of the Constitution, having regard to the expiry of the appeal period and the circumstances of the case. That is why this matter is proceeding as an application for review, as distinct from an appeal.

DECISION UNDER REVIEW

3.	The decision was made by the National Court, constituted by Justice Sakora, on 9 April 2014. His Honour granted an application, by notice of motion by the respondent, to dismiss the proceedings, WS No 288 of 2006, under which the applicant and others were claiming more than 1 million Kina in damages against the respondent, the primary cause of action being negligence. 

4.	His Honour dismissed the proceedings for want of prosecution, having been satisfied that Mr Gabe and the other plaintiffs were guilty of an inordinate delay in prosecuting the case and that there was no proper explanation for it. His Honour took into account that the proceedings had commenced in 2006, and related to a sodium cyanide spillage in 2000, and that after an unsuccessful attempt at mediation in April 2013, Mr Gabe and the other plaintiffs failed to attend scheduled directions hearings on 21 and 22 August 2013. His Honour was of the view that Mr Gabe and the other plaintiffs were, without having a trial date set seven years after commencement of the proceedings, guilty of a “lack of communication with the defendant’s legal advisers and generally a lackadaisical attitude to what were purportedly serious allegations and claims”. His Honour highlighted that the question of dismissal of proceedings was a discretionary matter and proceeded to exercise the discretion to dismiss the proceedings with costs ordered against Mr Gabe and the other plaintiffs. 

GROUNDS OF REVIEW 

5.	The application for review sets out five grounds of review, however they are repetitious and can be reduced to one: that the decision to dismiss the proceedings was made on an erroneous factual basis.

DETERMINATION

6.	Having closely considered the submissions of Mr Gimaia for the respondent and the transcript of the proceedings before the primary Judge and the affidavits that were before his Honour (including an affidavit of Mr Gabe, which his Honour permitted him to rely on when he appeared before his Honour to oppose the motion for dismissal), we have formed the view, with respect, that his Honour made the decision to uphold the respondent’s motion and dismiss the proceedings on an erroneous factual basis.  
7.	We find no error in his Honour’s process of reasoning, along the lines that an application for dismissal of proceedings requires a determination of two primary issues: (a) whether there has been an apparently inordinate delay in prosecution of the proceedings; and (b) whether there is a satisfactory explanation for the delay (Donigi v PNGBC (2001) SC691, Kakaraya v Somare (2004) SC762). His Honour correctly indicated that if those issues were resolved in favour of the party applying for dismissal the ultimate decision whether to dismiss the proceedings was a matter of discretion.

8.	His Honour correctly observed that there was an apparently inordinate delay of seven years in prosecuting the proceedings, as the proceedings (which related to an incident in 2000) were commenced in 2006, and by the time that the motion for dismissal was filed in October 2013, no trial date had been set.

9.	However, we consider that there was a satisfactory explanation for the delay, which his Honour failed to appreciate due to being led into factual error by the respondent and to his Honour’s failure to have regard to the contents of an affidavit of Mr Gabe. Mr Gabe’s affidavit was a rebuttal of a number of facts deposed to in the affidavit of Karo Lelai, in-house counsel for the respondent, which was relied on by the respondent to support the motion for dismissal. Mr Gabe’s affidavit was filed on the day of the hearing of the motion for dismissal and short-served, but the respondent’s counsel, Mr Gavara-Nanu, took no objection and consented to Mr Gabe relying on it. His Honour acceded to that arrangement and at the hearing allowed Mr Gabe to rely on the affidavit. However, in his ruling on the motion for dismissal, his Honour declined to consider the contents of the affidavit due to doubt as to its admissibility and was led into factual error by the affidavit of Karo Lelai, which, in our view gave an incomplete and skewed history of the proceedings. 

10.	There was a satisfactory explanation for the apparently inordinate delay arising from the following facts:

(a)	the proceedings, which commenced in 2006, had previously been dismissed for failure to comply with directions by the National Court (in 2006) but reinstated in 2009 by the Supreme Court following a successful appeal by Mr Gabe and other plaintiffs (Boni & Others v Tolukuma Gold Mine Ltd (2009) SC1005);

(b)	an unsuccessful mediation took place at Doa, Central Province, in April 2013, after which it was agreed and sanctioned by the National Court that the parties would have a further three months to negotiate an out-of-court settlement;

(c)	though Mr Gabe and the other plaintiffs failed to attend the scheduled directions hearing on 22 August 2013, there was a reasonable excuse for their non-attendance due to Mr Gabe being misinformed as to the requirement to attend and confusion concerning the possible consolidation of Mr Gabe’s proceedings, WS No 288 of 2006, with the closely related WS No 287 of 2006 proceedings (which involves the same cause of action, with different plaintiffs);

(d)	Mr Gabe had largely complied with the directions of 22 August 2013 by filing and serving a draft statement of agreed and disputed facts and legal issues, before the proceedings were due to return to Court on 9 October 2013 for the Court to endorse that statement, and allocate a trial date;

(e)	Mr Gabe had in the period since the failed mediation (in April 2013) and the filing of the motion for dismissal (in October 2013) written letters to the Registrar of the National Court and to the respondent’s managing director, with a view to further negotiating the dispute or getting the proceedings expedited.

11.	We conclude that in finding that there was no satisfactory explanation for the apparently inordinate delay in prosecuting the proceedings the learned primary Judge erred. We consider, with respect, that if his Honour had closely analysed the events that took place in the six-month period between the failed mediation (in April 2013) and the filing of the respondent’s motion for dismissal (in October 13), his Honour would have formed a different view as to the satisfactoriness of the applicant’s explanation for delay. It is therefore appropriate to grant the application for review, to quash the order for dismissal and to order reinstatement of the National Court proceedings. Costs will follow the event. 

ORDER

12.	  The formal orders of the Court are:

(1)	The application is granted. 

(2)	The order for dismissal of proceedings WS No 288 of 2006 made by the National Court on 9 April 2014 is quashed.

(3)	WS No 288 of 2006 is reinstated.  

(4)	The Registrar shall forthwith bring this order and judgment to the attention of the Judge Administrator of Civil Proceedings in the National Court.

(5)	The respondent shall pay the applicant’s costs of this Supreme Court review on a party-party basis, which shall, if not agreed, be taxed in accordance with Order 12 of the Supreme Court Rules 2012.

_________________________________________________________________
Liria Lawyers: Lawyers for the Respondent