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Putupen v Sevua [2020] PGSC 34; SC1947 (22 April 2020)

SC1947

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 86 OF 2017

BETWEEN
LYONS PUTUPEN
Appellant

AND
CONSTABLE JUNIOR MARK SEVUA
First Respondent

AND
THE POLICE COMMISSIONER
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Thompson J & Berrigan J
2020: 17^th, 20^th March, 22^nd April

SUPREME COURT – APPEAL -Dismissal of Appeal for want of prosecution - dismissal of Appeal for non-compliance with self-executing Order - O 7 R48-51 of Supreme Court Rules- necessity to show special circumstances - nothing unusual or extraordinary shown.

Counsel:

Mr. Lyons Putupen in person

22^nd April, 2020

1. BY THE COURT: On 15 June 2017 the Appellant filed a Notice of Appeal against the decision of the primary Judge on 8 May 2017 in WS 425/2004 Lyons Putupen v Constable Junior Mark Sevua, to dismiss the proceedings for want of prosecution.
   

2. Somewhat ironically, the Appeal was not prosecuted diligently. The Appellant appears to have waited almost a month before serving the Appeal on the State.

3. The Appellant failed to prepare or settle a draft Index, or Appeal Book within the required time and took no steps at all to prosecute the Appeal in over 2 years.

4. The matter was therefore referred by the Registrar for summary determination. It came before the Supreme Court on 18 February 2020. On that date, the Court ordered that if the Appellant did not file the Appeal Book by 17 March 2020, the proceedings would stand dismissed.

5. The Appellant appears to have then written a letter on 26 or 27 February 2020 to the State enclosing a draft Index, and which may have advised that the draft was about to be settled.

6. On 10 March 2020 the Appellant wrote a letter to the State enclosing an unsealed unsigned Index dated 9 March 2020, and an unsigned draft Certificate of Correctness, without an attached Appeal Book. In this letter, the Appellant said that if the State did not respond within 24 hours, he would file an application to dispense with their consent.

7. The Appellant did not receive a response from the State in 24 hours, but did not then file an application to dispense with their consent.

8. The matter returned to Court at 9.30am on 17 March 2020. There was no appearance by the Respondents. The Appeal Book had not been filed. However, as the Appellant had until the close of business on 17 March to file the Appeal Book, the matter was adjourned to 20 March 2020 for the Court to either confirm the dismissal of the Appeal if the Book had not been filed, or allocate a hearing date if it had been filed, within time.

9. It also transpired that on 13 March the Appellant had filed an Application, subsequently supported by an affidavit filed on 16 March, to dispense with the requirement for certification of the Appeal Book by the State. The Application had only been served the previous afternoon, on 16 March, and so was also adjourned to 20 March.

10. The matter returned to Court on 20 March 2020. On that date, the Court was constituted by two of the three Judges who had constituted the Court on 17 March. There was no appearance by the Respondents. Pursuant to S 3 of the Supreme Court Act, the Appellant was asked if he consented to the two Judges hearing the matter, and he gave his consent.

11. The Appellant then made an Application to dispense with the requirement for certification of the Appeal Book. There was no affidavit evidence before the Court of the reason for the delay in preparing an Appeal Book, which had led to the matter being referred for summary determination. The Appellant took the view that he did not have to provide any explanation because he had already appeared before another Supreme Court on 18 February, who had already made the appropriate orders.

12. The Appellant gave no explanation for not preparing the Appeal Book, and no explanation for waiting almost a month after his appearance on 18 February, to make an application to dispense with the requirement for certification of the Appeal Book. He gave no explanation for not sending the draft Certificate to the State and requesting their certification until a week before the date of the self-executing Order.

13. In his affidavit, the Appellant said that the Office of the Solicitor-General had been very slow in dealing with the matter, which was a bold assertion from an Appellant who had not dealt with the proceedings for over 15 years. He said that he had 'no option but to file the current application'. In fact, the current application was not the appropriate one, and was not made promptly.

14. The history of the matter showed that the Appellant had failed to prosecute his proceedings in the National Court, for 13 years. After filing his Appeal, he took no steps to prosecute the Appeal for over 2 years, until after the matter was already listed for summary determination, and after he had already appeared on the hearing of the summary determination. He was given one final chance by the Supreme Court, who made a self-executing Order for summary dismissal if he did not file the Appeal Book by 17 March 2020.

15. On 18 February, the Appellant was on notice that he had to act swiftly if he was to get the Appeal Book ready for filing within the four week time limit. He did not act swiftly. He took about 10 days to prepare and send a draft Index. He took nearly 3 weeks to prepare and send a draft Certificate of Correctness. Despite the fact that he had taken no action for 2 years and 9 months, he criticized the State for not responding within 24 hours. When the State did not comply with his 24 hour deadline, the Appellant should have immediately made an application to either dispense with the requirement or vary the Order, so that he could proceed to prepare and file the Appeal Book within the Court-ordered time limit. He did not do so until the afternoon before the deadline date when the Order became self-executing.

16. It is plain that the Appellant did not treat the matter with the urgency which it required, or with any urgency at all. An explanation for the failure to obtain the Respondent's certification a short time before the time-limit, was not an explanation for failure to comply with the terms of the self-executing Order.

17. Order 7 Rule 48 provides that the Court may make a self-executing Order for dismissal upon non-compliance with the time fixed for the doing of an act. O7 R51 provides that the self-executing Order may be varied at any time before it comes into effect, and in special circumstances, may be varied or revoked after that time.

18. The time for compliance with the Order expired on 17 March 2020, without either a dispensation of the requirement for certification, or the Order being varied. The Appellant has not applied under O7 R 51 to vary or revoke the self-executing Order. He has only applied under the Supreme Court Act and Constitution to dispense with the requirement for certification of the Appeal Book.

19. Even if the Appellant’s application is treated as having been correctly made, he had the onus of establishing that there were special circumstances which caused his non-compliance with the Order. As the Supreme Court held in Allan Kulunga v Western Highlands Provincial Government and Ors (2006) PGSC 26, this means that the Appellant must demonstrate to the satisfaction of the Court that something unusual or extraordinary prevented him from doing what was required under the self-executing Order. This excludes factors such as a lawyer's own negligence which may ordinarily contribute to an Appellant failing to meet the deadline. The Appellant must show that he took all the steps which he could possibly have taken, to comply with the deadline. He must show that despite this, something beyond his control caused his failure to comply. He also has to show that he made his application promptly.

20. The Appellant's affidavit discloses no special circumstances. Indeed, it discloses very few circumstances at all. He merely says that almost 3 weeks after the Order, and only a week before it was to become self-executing, he asked the State to certify the correctness but they did not do it. He gives no explanation for failing to ask earlier, or for failing to apply earlier.

21. The Appellant has failed to show that there was anything unusual or extraordinary which prevented him from complying with the Court Order. As he has failed to show that there were any special circumstances, his application to dispense with the requirement for certification, is refused.

22. It follows that as the Appellant has failed to comply with the terms of the self-executing Order made on 18 February 2020, and as he has also failed to satisfy us that he has diligently prosecuted the Appeal either before or after the self-executing Order, then pursuant to O7 R48 (a) and (b), the Appeal is dismissed for want of prosecution.

23. The Orders of the Court are:

(1) The application to dispense with the requirement for certification of the Appeal Book is refused.

(2) The Appeal is dismissed for want of prosecution.
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Lyons Putupen & Associate Lawyers: Lawyers for the Appellant