SC1838
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 148 OF 2018

BETWEEN:
MURIGEN NO.18 LTD
First Appellant

AND:
MARIACHRISTINA LTD
Second Appellant

AND
DEUGRO (PNG) LTD
Respondent

Waigani: 	Kirriwom, J, Batari, J & Pitpit, J
2019: 2 May&30 August

SUPREME COURT – Dismissal for want of prosecution – Appeal against dismissal–National Court Rules, Order 12 rule 40 and Order 8 rule 27
Practice and Procedure – Dismissal of proceeding for want of prosecution –Relevant Principles – Power of court to dismiss – Discretionary – Proper exercise of power

APPEAL – Discretionary power of the Supreme Court - Against exercise of discretionary power – General Principles 

Facts

Two years after the respondents vacated an apartment owned by the appellants, allegedly in breach of a lease with the appellants, the appellants commenced proceedings for damages being unpaid rental. Four months later pleadings closed. On 23 March 2018 the respondent gave a forewarning letter to the appellants’ lawyers of their intention to apply for summary dismissal. The appellants did not respond to that letter until 20th June when they filed a motion for directions relating to discovery. In the meantime, on 27th March the respondent had filed its motion for dismissal, which it did not serve on the appellants until 18 July after the first mention of the motion. On 20 July 2018 the appellants filed a verified list of documents in response to the respondent’s discovery filed 13 October 2017. The judge at first instance heard the motion filed first in time and after hearing the parties upheld the respondent’s motion dismissing the appellants’ proceedings for want of prosecution.

Held: (dismissing the appeal)

1.	Any challenge to the exercise of the discretion of the primary judge places the onus on the appellants to satisfy this court that the primary judge’s exercise of his discretion against the appellant was incorrect either in law or in his evaluation of the facts, at [28];

2.	The principles governing dismissal of a case for want of prosecution are established in Roland Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, adopted and applied in Viviso Seravo v Jack Bahofa (2001) N2078, at [29];

3.	On appeal against the exercise of discretion it must be shown to this Court that the judge exercised his discretion upon a wrong principle, has allowed an extraneous or irrelevant matter to guide or affect him, mistaken the facts or not taken into account some matter for consideration, at [30];

4.	The onus was on the appellants to demonstrate how the trial judge:

(1) erred in the exercise of his discretion in finding that the appellants default or failure to prosecute amounted to an intentional, inordinate and inexcusable delay, 
(2) erred in finding lack of reasonable explanation for the delay
(3) erred in finding that the delay caused injustice or prejudice to the defendant, 
(4) erred in finding fault in the conduct of the plaintiffs and their lawyers and 
(5) erred in finding that the interest of justice demanded for the proceedings to be dismissed for want of prosecution, at [32];

5.	There were no errors on the part of the trial judge in arriving at his decision to dismiss the proceedings for want of prosecution, at [47].

Cases Cited:
Papua New Guinea Cases

Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845 
Chief Collector of Taxes v BCL [2007] SC853
Dan Kakaraya v Michael Somare & Ors (2004) SC 762 
John Niale v Sepik Coffee Producers Limited (2004) N2637 
Richard Harold Davies v Stanley Barker [1977] PNGLR 386
Roland Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 
Viviso Seravo v Jack Bahofa [2001] N2087
Yama v PNGBC [2008] SC922

Overseas Cases

Australian Coal and Shale Employees’ Federation v. The Commonwealth and Others(1953) 94 CLR 621
Evans v. Bartlam[1937] AC 473 at p.480
House v. The Queen (1936) 55 CLR 499 
Lovell v. Lovell(1950) 8 CLR 192 at p.199,

Counsel:

J Sirigoi, for Appellants
E Asigau, for Respondent

DECISION

30 August, 2019

1.	KIRRIWOM, J: The appellants appeal against the decision of the National Court delivered on 6 August 2018 that dismissed their claim against the respondent for unpaid rent on leased premises. The respondent sought dismissal of the appellants’ proceedings under Order 12 Rule 40 and Order 8 Rule 27 National Court Rules for want of prosecution.  

Background

2.	The First and Second Appellants as joint sub-lessees entered into a tenancy agreement with the Respondent of a property in allotment 1 section 8 Granville (City of Port Moresby) National Capital District over Unit 8.1 Fairfax Apartments on 28 February 2014. The tenancy was for a period of two (2) years commencing 17 March 2014.

3.	In May 2015 the Respondent’s employee occupying the Unit vacated the property claiming that the Appellants overcharged the Respondent thereby prematurely terminating the lease. 

4.	On 17 March 2017 the Appellants filed proceedings against the Respondent claiming a sum of K259, 463.31 with interest at 8% under the Judicial Proceedings (Interest on Debts and Damages) Act Ch.52 for unpaid rentals due to them under a lease agreement. 

5.	The Respondent gave notice of intention to defend the claim on 13 April 2017 and on 5 May 2017 filed a Verified Defence and Cross-Claim against the appellants claiming a sum K67, 622.71. 

6.	The Appellants filed a Reply to the defence and defence to the cross-claim on 19 June 2017. 

7.	On 3 July 2017 the Respondent filed an Amended Defence and Cross-Claim and sought K92,731.78 in the Cross-Claim.

8.	On 18 July 2017 the Appellants filed an Amended Reply to the Amended Defence and Amended Defence to the Amended Cross-Claim.

9.	On 6th October 2017 the respondent issued notice for discovery.

10.	On 27th March 2018 the respondent filed notice of motion pursuant to Order 10 rule 5 and or Order 10 Rule 9A(15) National Court Rules seeking dismissal of the entire proceedings for want of prosecution. The Motion was returnable on 18 July 2018.

11.	On 20th June 2018 the appellants filed a notice of motion under Order 10 Rules 20 and 21 National Court Rules seeking answers to specific questions posed for the Court in relation to, inter alia, the interpretation of the terms of the lease agreement purportedly executed by the parties.

12.	On 20th July 2018 the appellants filed a verified list of documents in response to the respondent’s discovery filed on 13 October 2017.

13.	On 6th August 2018 the two motions went before the trial judge for hearing and the motion filed first in time which is the Respondent’s motion was heard. After hearing the parties, the trial judge gave an extempore judgment upholding the Respondent’s motion and dismissed the Appellants’ proceedings for want to prosecution.

Grounds of Appeal

14.	The appeal is against the trial judge’s exercise of his judicial discretion and premised under section 155(4) of the Constitution, namely:

a)	By refusing to accept the appellants’ reasons as their response to the respondent’s motion to dismiss the appellants’ proceedings and failing to give sufficient weight to the reasons that there was ‘no intentional, inordinate and inexcusable delay’ by the appellants in prosecuting the claim.
b)	By finding that the appellants failed to file verified list of documents after negotiations between the parties failed;
c)	By finding that the appellants’ sealed notice of motion filed 20th June 2018 was a “knee-jerk” reaction to the respondent’s application for summary dismissal of proceedings filed 27 March 2018; and
d)	In dismissing the appellants’ entire proceedings on the basis of there being an “intentional, inordinate and inexcusable delay” on the part of the appellants.

Issues

15.	The only issue in this appeal is whether the trial judge properly exercised his discretion in analyzing the facts before him when he reached the conclusion he did, namely:

(i)	In finding that the appellants’ default was intentional and amounted to inordinate and unreasonable delay?
(ii)	In finding that there was no reasonable explanation for the delay?
(iii)	In finding that that the delay caused injustice and prejudice to the defendant?
(iv)	In finding that the conduct of the appellants and their lawyer contributed to the delay?
(v)	In finding that summary dismissal of the proceedings was proper dispensation of justice?

Appellants’ submissions

16.	The appellants first contention is that in holding that the their failure to communicate with the respondent’s lawyers since the receipt of the forewarning letter on 23 March 2018 until their filing of their motion of 20 June 2018 allowed for an inordinate and inexcusable delay, the trial judge failed to have or give sufficient regard to the respondent’s lawyers delay in serving its motion filed 27 march 2018 on the appellants until 18th July 2018. This was some 3 and half months after it had given forewarning letter on 23 March 2018.

17.	The appellants further submitted that the trial judge failed to have due regard to the fact that the parties agreed to put on hold the discovery process while they engaged in settlement negotiations. Given this scenario, as I perceive the appellants’ argument, it was incumbent upon the respondent to give formal notice to the appellants to withdraw the Notice of discovery or raise the issue of discovery with the appellants prior to filing an application for dismissal of the proceedings.

18.	It was also submitted that in finding that the appellants’ lawyer’s failure to obtain instruction from their clients was not a good excuse and did not amount to a reasonable explanation for the delay, the trial judge failed to give due or sufficient regard to the continuation of discussions between the appellants and their lawyer with regard to options going forward. Th evidence of these discussions is the filing of the motion on 20th June 2018.

19.	The appellants further submitted that in finding that the appellants’ delay in the prosecution of the proceedings prejudiced the respondent’s and caused them injustice because two critical witnesses had left the country, the court did not consider the fact that there was no evidence that those witnesses had left the country and would not be available if the matter went to trial; and further, the appellants had the duty to mitigate their loss before filing proceedings, hence, the two years delay before filing of the writ.

20.	It was further submitted that the conduct of the respondent’s lawyers in failing to present the entire or full picture of the case with on-going discussions in their supporting affidavits for dismissal application was not fair to the appellants which the court failed to take into account.

21.	And finally, it was submitted that given all those matters alluded to above, it would have been in the best interest of justice for the appellants to have been allowed to prosecute their claim instead of being summarily dismissed.

Respondent’s submissions

22.	The respondent submits that before the Supreme Court can overturn a decision of the National Court arrived at by the trial judge’s exercise of his discretion, the law places a heavy burden on the appellant to clearly demonstrate that the trial judge had exercised his discretion upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts and had not taken into account some matters for consideration. Counsel for the respondent cited The Government of Papua New Guinea and Richard Harold Davis v Stanley Barker [1977] PNGLR 386 for this proposition. 

23.	It was further submitted on behalf of the respondent that an appeal against an exercise of discretion is governed by established principles and the appellate court must scrupulously adhere to those principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.

24.	The respondent argues that the appellants have failed to demonstrate that the primary judge erred in the exercise of his discretion and that they have failed to show a valid excuse for the delay in prosecuting the matter when called on by the primary judge. It is submitted that the primary judge did not turn his mind to unnecessary matters nor did he take into account irrelevant matters. The primary judge highlighted the considerations that the appellants were required to meet which they failed to do so and after identifying the relevant considerations, the primary judge properly exercised his discretion to dismiss the proceeding for want of prosecution.

The Law

25.	A number of case authorities were referred to by counsel in their submissions. The appellants relied on the principle in Dan Kakaraya v Michael Somare & Ors (2004) SC 762 which was a case pertaining to an application to dismiss an appeal for want of prosecution under the Supreme Court Rules which was also adopted and relied on in Yama v PNGBC (2008) SC922 where the court said:

“The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of want of prosecution is brought, in particular, events that have taken place since the application was filed. The application to dismiss should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful: Dan Kakaraya v. Michael Somare, Koiari Tarata and Francis Kaupa(2004) SC762 Los, Sawong and Cannings JJ.”

26.	It was submitted that the conduct of the parties and, whether there is a reasonable explanation for the delay and it must give paramount consideration to dispensation of justice: Viviso Seravo v Jack Bahofa [2001] N2087 and Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845.

27.	From the respondent’s perspective it is submitted that this appeal is a challenge to the primary judge’s exercise of his judicial discretion and the applicable principles of law are clearly set out in Richard Harold Davies v Stanley Barker [1977] PNGLR 386which was adopted and followed in Chief Collector of Taxes v BCL(2007) SC853. And the principle states:

“15.	As the appeal arises out of and concerns the exercise of the learned trial Judge’s discretion, it is necessary for this Court to remind itself of the relevant guiding principles.  Section 155 (4) of the Constitution, inter alia, vests the National Court with such a discretion.  Accordingly, we are of the view that the learned trial Judge was generally correct when he held that the National Court has an inherent jurisdiction to deal with applications of the type that were before him.  However, whether that jurisdiction should be exercised in a particular case is dependent on any other applicable law and the particular facts of the case.  In the case before the learned trial Judge, his Honour decided against an exercise of his discretion in favour of BCL.

16.	We accept the learned counsel for the CC of T’ submissions that, BCL as the appellant has the burden to demonstrate to the satisfaction of this Court that the learned trial Judge erred, say because, he acted on some wrong principles. We also accept the learned counsel for the CC of T’s submission that the High Court of Australia in House v. The Queen clearly stated the principles to be applied in determining such appeals in the joint judgment of Dixon, Evatt and McTiernan JJ in these terms:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  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.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

28.	The trial judge referred to Viviso Seravo v Jack Bahofa [2001] N2087, Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845 and John Niale v Sepik Coffee Producers Limited (2004) N2637 and from these authorities identified five principles as relevant considerations applicable in this case. They were:

1)	Whether the plaintiff’s default was intentional or amounted to inordinate and inexcusable delay in the prosecution of their claim?
2)	Whether reasonable explanation was given for the delay?
3)	Whether the delay caused injustice or prejudice to the defendant?
4)	Whether the conduct of the parties and their lawyers contributed to the delay?
5)	Whether the trial judge was duty bound to and did give paramount consideration to dispensation of justice?

27.	The trial judge after analyzing all the evidence answered all five questions in favour of the respondent. 

Analysis of submissions

28.	This is a case where the primary judge applied the relevant law on summary dismissal for want of prosecution provided for under the Rules of Court which involved an exercise of discretion of the primary judge, any challenge to that exercise of discretion places the onus on the appellants to satisfy this court that the primary judge’s exercise of his discretion in favouring a view against the appellants was incorrect either in law and or in his evaluation of the facts.

29.	The principles governing dismissal of a case for want of prosecution are well established in Roland Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133and adopted and applied in subsequent cases including Viviso Seravo v Jack Bahofa[2001] N2078referred to by the trial judge. In the headnote to the earlier case the following passages describe the principles:

“(1) The power of the court to dismiss proceedings for want of prosecution , should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer’s part, giving rise to a substantial risk that a fair trial will not be possible, or to serious prejudice to the defendant.

(2) Where there has been a long delay in bringing the proceedings to trial, a balance must be struck as between the plaintiff and the defendant, and in the end the court must decide whether or not, in the balance, justice demands that the proceedings should be dismissed.”

30.	 But the issue here is, whether the trial judge correctly exercised his discretion? And I agree with the Respondent at this appellate level that knowing what the law is on dismissal for want of prosecution is just one side of the coin, but how that law was applied in the exercise of discretion of or by the trial judge involved different consideration. And this where the principle expounded in Davies v Barker [1977] PNLGR 386 and followed in CCT v BCL (supra) is pertinent and clearly applicable here. And it is appropriate to be reminded of what the Supreme Court said in Davies v Barker (supra) per Frost CJ, Prentice DCJ and Kearney J at p.397:

“This being an appeal against the exercise of discretion, it must I think, be shown to this Court that the Judge in Chambers exercised his discretion upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or not taken into account some matter for consideration. Then and only then (Lovell v. Lovell (1950) 8 CLR 192 at p.199), House v. The King (1936) 55 CLR 499 at p.504), the lower court having been shown to be clearly wrong in its decision (Australian Coal and Shale Employees’ Federation v. The Commonwealth and Others(1953) 94 CLR 621), or it appearing that otherwise injustice will be done (Evans v. Bartlam[1937] AC 473 at p.480), the appellate court may exercise its own discretion in substitution for that of the lower court, if it has the material for doing so.”

31.	Accepting in my view, the principles that govern the determination of this appeal have been quite correctly relied upon by the Respondent as articulated in the case authorities cited in the submission on this appeal, namely, Davis v Barker (supra) and CCT v BCL (supra),the onus was on the appellants to demonstrate how the trial judge:

(1) erred in the exercise of his discretion in finding that the appellants default or failure to prosecute amounted to an intentional, inordinate and inexcusable delay, 
(2) erred in finding lack of reasonable explanation for the delay
(3) erred in finding that the delay caused injustice or prejudice to the defendant, 
(4) erred in finding fault in the conduct of the plaintiffs and their lawyers and 
(5) erred in finding that the interest of justice demanded for the proceedings to be dismissed for want of prosecution. 

32.	His Honour addressed all these considerations in his judgment at pages 236-237 of the Appeal Book. 

Has the trial judge erred in the exercise of his discretion in finding that the appellants’ default or failure to prosecute amounted to an intentional, inordinate and inexcusable delay?

33.	 With respect to this consideration, this is what his Honour said:

“These proceedings were filed on 17th March 2017, pleadings closed on or about July 2017, parties have engaged in unsuccessful settlement negotiations, the defendant gave notice of discovery to the plaintiff in or about October 2017, parties agreed not to enter into discovery pending settlement discussions. 

On 22nd March 2018, the defendants’ lawyers gave a letter to the plaintiffs’ lawyers giving notice that they intended to apply to dismiss the plaintiffs’ action for want of prosecution without further notice. So, following the letter, the application moved this afternoon was filed. 

The plaintiffs, through their counsel, have conceded that no communication was made with the defendants’ lawyers since the receipt of the forewarning letter on 23rd March 2018 until the filing of that application on 20th June 2018. 

So, in applying the principles, the first principle, I would answer that issue that the plaintiffs’ default is allowing for an inordinate and inexcusable delay in the prosecution of this claim.”

34.	The Appellants argue that the trial judge ought not have reached that conclusion when they received notice of the intention by letter to seek dismissal of proceeding for want of proceeding but no formal application had been filed, and when it was filed, they were not served until after the first mention date and when the motion was set down for hearing and directed by the court to effect service. But the Appellants conceded that they made no contact with the Respondent after receiving the notice by letter and this is the fact that the trial judge relied upon because the failure to acknowledge that letter resulted in the motion of to have the proceeding dismissed for want of prosecution was filed. His Honour clearly noted in his judgment that the Appellants maintained their silence or state of incommunicado since receiving the letter of 23 March 2018 issuing threat to seek dismissal of proceeding until their motion of 20th June 2018 was filed which came much later when the Respondent’s motion was already on foot.

35.	This is just not good enough for the Appellants to have it their way without showing exactly how and where the trial judge had gone wrong in the exercise of his discretion. On the facts before him as presented by the parties, His Honour had to choose between the witnesses from the appellants or the respondent, and on his evaluation of the evidence and appreciation of the facts, he chose to go the way he did. What is wrong with that? It is not the role of the appellate court to look at the same facts differently as it suits the appellant.

Has the trial judge erred in the exercise of his discretion in finding that the appellants had no reasonable explanation for the delay?

36.	On the issue of reasonable or unreasonable explanation for the delay, this is what the trial judge said in his judgment:

““The second issue is whether there is a reasonable explanation given by the plaintiffs for the delay. I find and accept the defendant’s submission that no reasonable explanation has been given. The plaintiffs’ excuses, basically, are that the lawyers have not been able to get instructions from their client or clients. That is not a good excuse. Despite the forewarning letter received, no attempt was given the seriousness of the letter, no attempt was there was no correspondence with the defendant’s lawyers until the filing of their application on 20th June 2018.

37.	His Honour found that the explanation given by the Appellants for the delay was unreasonable. The Appellants contend that the reasons they gave were not unreasonable. His Honour gave several reasons for finding that the Appellants explanations for the delay was unreasonable. The first reason was that the lawyers awaited instructions from the Appellants before they could respond to the respondent’s warning letter. Secondly, no attempt was given to the seriousness of the warning letter with at least an acknowledgement while awaiting instructions from the clients until the filing of the appellants’ motion on 20 June 2018. How can these reasons be unreasonable for the trial judge in the given situation to find that the Appellants’ explanations were unreasonable?

38.	This argument fails to meet the test in CCT v BCL and is therefore unmeritorious.

Has the trial judge erred in the exercise of his discretion in finding that the appellants’delay had caused injustice or prejudice to the defendant?

39.	On the question of injustice or prejudice to the defendant, the trial judge noted:

““…as to whether the delay has caused injustice or prejudice to the defendant, I accept the defendant’s submission that the delay has caused injustice or prejudice to the defendant because there two important witnesses, more particularly – Anthony Karam - who was the person involved in the purported lease agreement entered into between the plaintiffs and the defendant.. has already resigned from the firm and the person who replaced him has also resigned – sorry, from that company, and the other employee, Bea Tabucha, has also resigned. So, I will accept the defendant’s submission on prejudice.”

40.	There is a clear finding of fact here that two critical witnesses of the defendant had resigned and left the employ of the defendant thereby reducing chances of a fair trial on the part of the defendant while the plaintiffs took their time bringing the proceeding to finality. The appellants’ submission of lack of evidence of witnesses not being available if the matter went to trial is contradicted by the trial judge’s findings. This court is not better placed to challenge his Honour’s findings of fact and is not here to replace the findings of the trial judge because the appellant does not agree with it. This argument is therefore unmeritorious.

Has the trial judge erred in the exercise of his discretion in finding that the conduct of the appellants and their lawyers contributed to the delay?

41.	On the issue of conduct of the parties and their lawyers, the judge found:

“.[do] the conduct of the parties and their lawyers warrant a grant of the application? Well, it has been conceded by the defendant’s – rather, the plaintiffs’ counsel that the delay in prosecuting this claim have been basically caused by the plaintiffs not giving instructions and the plaintiffs’ lawyers have not communicated their positions to the defendant’s lawyers despite receiving the forewarning notice. And so, I would find in favour of the defendant.”

42.	I do not see any merits in this argument when the appellants’ lawyers clearly conceded that the delay was the result of the appellants not giving instructions to their lawyers. But not only that, the lawyers even failed to communicate with the Respondent’s lawyers and advise of the reasons for delay, more particularly, after receiving the warning letter for summary dismissal of the proceeding without further notice was received by the lawyers. There was a real threat in that letter which was ignored by the lawyers and their clients.

43.	So, I therefore do not see any merits in the appellants now arguing that the primary judge should have also looked at the conduct of the Respondent and its lawyers before passing this judgment on the appellants and their lawyers. The sad reality is that it is not the conduct of the Respondent and its lawyers that is under the scrutiny of the court, it is that of the appellants and their lawyers that is being scrutinized in this proceeding because they are the defaulters or defaulting parties.

Has the trial judge erred in the exercise of his discretion in finding that justice can only be achieved by dismissing the proceedings?

44.	And in the final consideration on dispensation of justice his Honour concluded:

“I have considered the notice for discovery filed by the defendant or given by the defendant to the plaintiffs and the parties had agreed to not to progress discovery subject to the outcome of settlement and negotiations. To my mind, given the unsuccessful settlement discussion, the plaintiffs were still required to comply with the notice for discovery although the parties had agreed, but that was subjected to the outcome of settlement discussions. Given that those discussions were unsuccessful, the plaintiffs were bound to comply with the notice for discovery. 

The filing of documents after the filing of the defendant’s application is, to my mind, a knee-jerk reaction and, therefore, I think the action is the application well, the application may be viewed as being made mala fide and, therefore, I would find that it would be in the interest of justice to grant the application to dismiss these proceedings for want of prosecution with costs.”

45. The trial judge made it quite plain as to why he reached the conclusion, that, justice could only be achieved by dismissal of the proceeding in the above passage. But it would be naive to ignore the full history of the case according to the facts presented. Firstly, it took two years for the appellants to commence proceedings from the date when the cause of action arose. It is very well for the appellants to argue that they needed to mitigate their loss before considering legal action. However, two years is a long time to not only secure another tenant, but also to be fully prepared to litigate the matter. Secondly, there was also a cross-claim against the appellants for over-charging which accorded the Respondent strong challenge to the appellants’ claim, the circumstances giving rise to the cross claim being the basis for the termination of the contract. Thirdly, once the proceeding commenced and defence and cross-claim was filed, the appellants did not need any more time than they already had to move the case speedily towards trial for finality. Fourthly, once the settlement discussion failed, the onus was on the appellants to file a List of Discovery and move the case forward but they did nothing. Fifthly, the appellant failed to take serious cognizance of the warning letter sent by the respondent’s lawyers and did not even communicate their position until they filed their motion on 20 June 2018. The culmination of all these factors, inter alia, was enough to lead the trial judge to the conclusion that this proceeding deserved to be dismissed if justice is to prevail. I see reason for this court to quarrel with the trial judge’s ultimate conclusion.

46.  What the appellants are asking the Supreme Court is to examine the same facts that were before the trial judge and reach a different conclusion to that reached by him. Of course, this Court cannot accede to that request. And it is instructive to reiterate the law on the exercise of judicial discretion in House v The Queen (supra) as adopted and applied in Davies v Barker (supra) and CCT v BCL (supra) which is that:

(1)	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.

(2)	It must appear that some error has been made in exercising the discretion.  
a.	If the judge acts upon a wrong principle, 
b.	if he allows extraneous or irrelevant matters to guide or affect him, 
c.	if he mistakes the facts, 
d.	if he does not take into account some material consideration, 

then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 
(3)	 It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

Summary

47.   By way of summary I reiterate that I find no errors on the part of the trial judge in arriving at his decision to dismiss the proceedings for want of prosecution. It is a discretion his Honour exercised after carefully weighing up the evidence before him. That was an exercise of discretion that only his Honour could have made having the benefit of the evidence presented before him; that sitting as an appellate court judge, in the light of the principles expounded in Davies v Barker (supra) and CCT v BCL (supra), I should be slow to disturb unless there is a glaring error that gross injustice will result if the appellate court did not correct. 

48.    It is therefore not without just cause or reason that the trial judge described the appellants’ motion of 20 June 2018 as a “knee-jerk” reaction. His honour’s observation had evidentiary basis and he was entitled to that view. 

Conclusion

49.    In my view the appellants have failed to satisfy the Supreme Court that the trial judge erred in the exercise of his discretion in the circumstances pleaded in their grounds of appeal according to the well-established principles of law. I will therefore dismiss the appeal.

50.   BATARI, J. I have read the draft by Kirriwom J and I agree with the conclusion he reached and for the reasons given. I have nothing further to add.

Order (by majority)

51.  The appeal is dismissed. Appellants pay the respondent’s costs, to be taxed, if not agreed.
_______________________________________________________________
Albatross Law: Lawyer for the Appellants
Pacific Legal Group: Lawyer for the Respondent