SC2008

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 22 of 2017 

BETWEEN:
WILLIE GUMAIM
First Appellant

AND:
WINNIE HENAO as Provinical Police Commander
of Eastern Highlands Province
Second Appellant

AND:
SAM INGUBA as Police Commissioner
of the Royal Papua New Guinea Constabulary
Third Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUNEA
Fourth Appellant

AND
WAMU ABARI & ORS
Respondents

Waigani:   Batari, Manuhu and Shepherd JJ                                  
                        			2018:  2nd May, 3rd May
					2020:  2nd October 

SUPREME COURT APPEAL – Application to dismiss appeal for want of prosecution – Supreme Court Rules – Form 11 - threshold issue as to correct form of application not raised by respondents to the application to dismiss until after the applicants' submissions on the application were completed – relevant considerations – application in Form 4 or reasonable advance notice or forewarning must be given if objection to wrong form of application is to be made – procedural inaction can result in waiver of right to object to respondent’s use of wrong form of application to dismiss.

SUPREME COURT APPEAL – Application to dismiss appeal for want of prosecution – Supreme Court Rules - O.7 Rule 48(a) – considerations – failure by applicants seeking dismissal to themselves progress appeal by non-attendance at Assistant Registrar’s first appointment to settle index to appeal book and failure to identify affidavit material to be included in appeal book until after appeal book settled and filed – insistence by applicants on inclusion of irrelevant material in appeal book – faults by both parties causing delays in progressing appeal to substantive hearing – application to dismiss appeal refused – each party to pay own costs.

Cases Cited: 

Philip Takori v Simon Yagari (2008) SC905
Bank of South Pacific Limited v Robert Tingke (2012) N4901
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811
Punagi v Catholic Diocese of Mt Hagen Board of Trustees (2013) SC 1297
Kakaraya v Somare (2004) SC762
Malama Enterprises Ltd v Shell PNG Ltd (2007) SC861

Counsel:

Mr. M. Pokia, for the Applicants/Respondents 
Mr. J. Siki, for the Respondents/Appellants

DECISION

2nd October, 2020   

1.	BY THE COURT: This is a decision on a contested application under Order 7 Rule 48(a) of the Supreme Court Rules. The applicant/respondents are seeking an order for dismissal of the appeal for want of prosecution.

Background to the Appeal

2.	The appellants in the substantive appeal comprise a senior police officer who at the material time was station commander of Kainantu Police Station, certain of his superiors and the State.  They are collectively appealing against a judgment of the National Court made in proceedings WS No. 16 of 2005 on 25 January 2017 whereby the Trial Judge found the appellants vicariously liable for a police raid on the respondents' village on 21 July 2001 and awarded damages totalling in excess of K3.6 million.  The appeal is against both liability and quantum.

Preliminary issue raised by Application to Dismiss

3.	The respondents’ application seeking dismissal of the appeal was filed on 6 November 2017.

4.	At the outset of the hearing of the application on 2 May 2018, the respondents by their counsel proceeded to make oral submissions based on written extracts of argument and written submissions.  No threshold issue at that point objecting to the actual form of the application to dismiss was taken by counsel for the appellants.  It was not until counsel for the respondents had completed his submissions and counsel for the appellants had stood to commence his submissions in answer that he then announced objection was taken by the appellants to the form of the application to dismiss and that the application to dismiss should itself be dismissed for want of compliance with Order 7 Rule 50(a) of the Supreme Court Rules.  That sub-rule provides:

	50.	An application for a an order under Rule 48 shall –

		(a)	be in accordance with Form 11; …

5.	Form 11 of the the Supreme Court Rules is specific to Order 7 Rule 48(a):

O.7 Rule 50(a)								Form 11
General Form Application for Order Under Order 7 Rule 48
(Headings as in Form 8)
APPLICATION

APPLICATION will be made to the Supreme Court, Waigani at … a.m. on the ….. day of ….. 20

1.	FOR AN ORDER:-
(herein state order sought)
(a)
(b) or such other order as the Court may make.

2.	Affidavit in support of this Application is sworn by (name) on the (date).

Dated:  

 Sgd __________________
       (Respondent or his Lawyer)

A.B. (Appellant)  TAKE NOTICE:
If you or your lawyer do not appear to show cause why such orders should not be made, the Court may make orders in your absence.

6.	Counsel for the appellants drew the Court's attention to the form of the application filed on 6 November 2017 which had initiated the respondents’ application to dismiss. It then became obvious that instead of using Form 11, the respondents’ lawyers had used a form which although headed "Application", was more in the nature of a notice of motion not prescribed by the current Supreme Court Rules.  The application stated that the respondents as applicants would move the Supreme Court on a date given for orders pursuant to Order 7 Rule 48(a) of the Supreme Court Rules for dismissal of the appeal for want of prosecution and for such other orders as the Court considers appropriate, including the costs of the application and the appeal generally. Counsel for the appellants then submitted that the failure of the respondents to use the correct form for the application, Form 11, meant that the Court had no jurisdiction to hear the application and that the application to dismiss should itself be dismissed on that ground alone.

7.	When counsel for the appellants was questioned by the Bench as to why he had not raised this important threshold issue before counsel for the respondents had made his primary address to the Court on the application to dismiss, it was apparent that this was the first occasion counsel for the appellants had brought this issue to the attention of counsel for the respondents.  The Bench, having heard counsel for the appellants at the commencement of his address in answer take objection as to the form of the application, then directed that counsel for the respondent should reply to that issue before counsel for the appellants would be allowed to continue with his other submissions in answer to the application to dismiss.

8.	Counsel for the respondents was clearly taken by surprise by the objection.  He replied that there is case authority to the effect that strict compliance with the Supreme Court Rules should not be allowed to defeat an application of substance. 

9.	The principles in relation to the Court's power to ensure that it is able to do justice on the substantive merits of the case rather than on compliance or non-compliance with the rules of Court alone were enunciated in the Supreme Court decision in Philip Takori v Simon Yagari (2008) SC905 (Kirriwom, Gavara-Nanu, Kandakasi, JJ):

	We are aware that many defendants and their lawyers have been filing their defence and have taken further steps in many proceedings in violation of the clear requirements of the law.  At the same time we note that there is a large body of case authority such as the decision of the Supreme Court in Public Officers Superannuation Fund Board v Sailas Imanakuan which say that the rules are only a means to an end and not an end in themselves.  In other words, the Courts should be looking at doing justice on the merits of the case and not necessarily on the compliance or non compliance of the rules.  However we are of the view that that issue can only arise when a party is properly applying for and does make out a case for a dispensation of the strict compliance of the rules pursuant to O1 r7 of the [National Court] Rules.  

	Approved and adopted by Kandakasi J in Bank of South Pacific Limited v Robert Tingke (2012) N4901.

10.	Order 13 Rule 15 of the Supreme Court Rules relevantly provides:

15.	All applications for interlocutory orders shall be made to the Duty Judge on a scheduled motions day.  All applications shall be made in Form 4.

11.	In the present case no application pursuant to Order 13 Rule 15 in Form 4 of the Supreme Court Rules or under any other provision of the Rules seeking a dismissal of the respondents’ application to dismiss had been filed for the appellants. There was similarly no evidence before the Court that the appellants’ lawyers had given notice or forewarning to the respondents’ lawyers prior to the hearing of the application that issue would be taken at the hearing with the form of the application to dismiss which had resulted in the respondents' non-compliance with Order 7 Rule 50(a) of the Supreme Court Rules.

12.	It is incumbent on an appellant as respondent to an application to dismiss an appeal who intends to raise an important threshold issue such as non-compliance with those provisions of the Supreme Court Rules which relate to form to at the very least give reasonable advance notice or forewarning to the respondent as applicant that such issue will be addressed by the appellant at the outset of the hearing and preferably at the same time file and pursue an application in Form 4 of the Rules, supported by affidavit material, seeking an interlocutory order for the dismissal of the offending application.  

13.	In the circumstances we are satisfied that the respondents were taken by surprise at the hearing by this important threshold issue, which should have been raised by the appellants much earlier than at the hearing of the application to dismiss, either by the filing by the appellants of an appropriate application in Form 4 to dismiss the application to dismiss or by written notice or forewarning given to the respondents well in advance that the issue of the respondents’ non-compliance with Form 11 prescribed by Order 7 Rule 50(a) of the Supreme Court Rules would be a preliminary issue which the Court would need to determine at the outset of the hearing of the respondents’ application to dismiss.

14.	In the result, the Court considers that the appellants’ lawyers by their own procedural inaction waived their right to raise the issue of the respondents’ lawyers non-compliance with Order 7 Rule 50(a) of the Supreme Court Rules.  We now proceed to a determination of the respondents’ application to dismiss this appeal for alleged want of prosecution.  

Background to the Respondents’ Application to Dismiss

15.	The chronology of events relevant to the respondents’ application to dismiss is as follows:

25 January 2017 – judgment of the National Court delivered in WS No. 16 of 2005.
28 February 2017 – notice of appeal filed for the appellants by Greg Manda Lawyers. 
	3 March 2017 – notice of appeal served on the office of the lawyers for the respondents, Mirupasi Lawyers.
	18 October 2017 – respondents’ lawyers wrote to appellants’ lawyers requesting that a draft index to the appeal book be filed and served on the respondents’ lawyers within 7 days.  Forewarning given that if that was not done, respondents would file an application to have the appeal dismissed.
	19 October 2017 – appellants’ lawyers responded and said after giving various reasons that they would have the draft index to the appeal book ready in a month's time by 20 November 2017.
	26 October 2017 – respondents’ lawyers replied and declined to accept appellants' reasons for further delay and said they would proceed to file the respondents’ dismissal application. 
	27 October 2017-  appellants’ lawyers responded and said that the 7-day period to produce the draft index was unreasonable as the lawyer having carriage of the matter was engaged in other court matters but that the draft Index would be ready by 20 November 2017. 
	30 October 2017- appellants’ lawyers nevertheless delivered a draft index to the appeal book to the respondents’ lawyers, who were requested to revert to the appellants’ lawyers regarding the respondents’ inclusions in the draft index by 6 November 2017 so that the draft index could be filed for settlement by the Registrar. 
	3 November 2017 – respondents' lawyers responded to appellants’ lawyer’s letter of 30 October 2017 and declined to have any input into the draft index to the appeal book until the time of the appointment for settlement by the Registrar. 
	6 November 2017 – respondents' lawyers filed the subject application to dismiss the appeal for want of prosecution.
	6 November 2017- appellants’ lawyers filed the appellants’ draft index to the appeal book without inclusion of any input from the respondents’ lawyers because of the latters’ refusal to do so prior to settlement by the Registrar.
	7 November 2017- appellants’ lawyers served a sealed copy of the filed draft index on the respondent's lawyers and gave notice that the draft index would be settled by the Assistant Registrar on 21 November 2017 at 2.00 pm at the Supreme Court Registry at Waigani.
	8 November 2017 – appellants’ lawyers wrote to respondents’ lawyers and requested that the application to dismiss be withdrawn because it was premature.  An additional reason for the delay in progressing the appeal was said to be because the principal of the appellants’ lawyers’ firm, Greg Manda, had been a candidate contesting the 2017 National Elections between April 2017 to August 2017.  It was also suggested in that letter that the subject appeal in SCA No. 22 of 2017 be consolidated with a related appeal SCA No. 25 of 2017 which had been filed by the respondents’ lawyers.
	16 November 2017 – appellants’ lawyers notified the respondents’ lawyers by hand-delivered letter, receipted by Marie-T Aga of the respondents’ law firm, that settlement of the draft index had been re-scheduled before the Assistant Registrar for 22 November 2017 at 2:00 pm.
	22 November 2017 – respondents’ counsel failed to attend before the Assistant Registrar for settlement of the draft Index.  Mr Jerry Siki of Greg Manda Lawyers appeared for the appellants.
	23 November 2017 – appellants' lawyers notified the respondents' lawyers by hand-delivered letter that settlement of the draft index to the appeal book by the Assistant Registrar had been adjourned to 15 December 2017 at 1:30 pm because of non-attendance by the respondent’s counsel on 22 November 2017.
	23 November 2017 – respondents’ lawyers filed draft index to application book in respect of the respondents’ application to dismiss filed on 6 November 2017.
	28 November 2017 – respondents’ lawyers notified the appellants’ lawyers by hand-delivered letter that they would ask that settlement of the draft index to the appeal book be deferred until the respondents' application to dismiss the proceedings had been heard and determined. That letter also enclosed the respondents’ draft index to the application book filed on 23 November 2017 which was set down for settlement by the Asistant Registrar on 14 December 2017 at 2:30 pm.
	28 November 2017 – appellants’ lawyers immediately wrote to respondents' lawyers by hand-delivered letter asserting yet again that the respondents' application to dismiss had been filed prematurely and again requested the withdrawal of the respondents’ application to dismiss.   
	15 December 2017 – index to the appeal book and the separate index to the application book to dismiss were settled before the Assistant Registrar of the Supreme Court.  Mr Muriso Pokia and Mr Peter Balos of Mirupasi Lawyers appeared for the respondents.  Mr Jerry Siki of Greg Manda Lawyers appeared for the appellants.
	13 February 2018 – settled index to the application book to dismiss filed by respondents’ lawyers.
	15 February 2018 – application book for respondents' application to dismiss, certified correct on 13 February 2018 by counsel for the appellants and by counsel for the respondents, filed by respondents' lawyers.
	28 February 2018 – settled index to the appeal book delivered by the appellants’ lawyers to the respondents’ lawyers.
	5 March 2018 – Listings Judge ordered that these appeal proceedings be set down for directions hearing on 12 March 2018 so that a hearing date could be allocated for the respondents’ application to dismiss and for the substantive appeal. Appellants were ordered to compile and file the appeal book before 12 March 2018.  Counsel Mr Siki appeared for the appellants.  There was again no appearance by counsel for the respondents.
	5 March 2018 – appellants’ lawyers notified respondents’ lawyers of orders made by Listings Judge earlier that day and requested respondents’ lawyers to endorse and return the index to the appeal book which had been served on the office of the respondents’ lawyers on 28 February 2018 by 4.06 pm that day so that the appellants’ lawyers could comply with the Listings Judge’s order of 5 March 2018 to file the appeal book before 12 March 2018.
	12 March 2018 – Listings Judge ordered that the substantive appeal and the respondents’ application to dismiss be fixed for hearing on 2 May 2018 at 9:30 am, parties to file extracts of arguments for both the application to dismiss and the substantive appeal “by the end of March 2018”.  The Listings Judge was informed that the appellants’ lawyers had been unable to file the certified appeal book by 12 March 2018 because the respondents’ lawyers had declined to sign the certificate of correctness for the appeal book due to objection taken by the respondents to omission from the appeal book of item 33 previously included in the draft index to the appeal book. Trial Judge ruled on 12 March 2018 that item 33 was not relevant to the appeal and directed that the appellants’ counsel file volumes 1 & 2 of the appeal book in Court, which was done.  The appellants were represented at this listings hearing by counsel Ms Veronica Yabone of Greg Manda Lawyers.  The respondents were represented by counsel Mr Emmanuel Ellison of Mirupasi Lawyers
	11 April 2018 – respondents' lawyers filed an application to: (1) amend the appeal book to include 24 affidavits which were adduced in evidence for the respondents at the trial, and (2) vacate the hearing date of 2 May 2018, on the basis that counsel for the respondents had realised that the subject 24 affidavits filed by the respondents’ lawyers in National Court proceedings WS No. 16 of 2005 were relevant to issues of liability and that those affidavits needed to be included in the appeal book.  
	25 April 2018 – Listings Judge adjourned the respondents’ application filed on 11 April 2018 to 27 April 2018. 
	27 April 2018 – Listings Judge vacated the hearing date of 2 May 2018 for the substantive appeal on condition that the parties appear at the next Supreme Court directions hearing on 7 May 2020, but directed that the respondents’ application to dismiss proceed for hearing on 2 May 2018.  The time for the parties’ filing of extracts of argument for the application to dismiss was extended to 30 April 2020.  As to the respondent’s application to include 24 affidavits, the Listings Judge indicated to the effect that if the appeal was not dismissed as a result of the hearing on 2 May 2018 then all affidavits relied on at trial, more than 400 affidavits, should be included in the appeal Book, not just the 24 affidavits referred to by the respondents in their application filed on 11 April 2018.  
	2 May 2018 – the respondents’ application to dismiss came on for hearing before this Court. 
RELEVANT CONSIDERATIONS
16.	Order 7 Rule 48(a) of the Supreme Court Rules provides:

  48.	Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the Court may:
	(a)	order that the appeal be dismissed for want of prosecution.

17.	The principles governing applications for dismissal of Supreme Court appeals for want of prosecution are well established. 

18.	We refer at the outset to the leading case of PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811 (Los, Salika & Lay JJ). The facts in that case were straightforward. The respondents had filed an application to dismiss 4 months after the notice of appeal and application for leave to appeal had been filed. On the hearing of the application to dismiss 8 months later, the only steps which the appellant had taken were to file 2 affidavits explaining that the lawyers’ workload was high and there had been difficulties recruiting a new lawyer.  At the date of hearing of the application to dismiss, the appellants had still not obtained a date for the hearing of the application for leave to appeal, no draft index to the appeal book had been prepared or settled, the transcript of the trial had not been requested and the appeal book had therefore not been prepared.

19.	It was held in the PNG Nambawan Trophy Ltd case that the appellant’s lawyers explanation that workload and shortage of lawyers 8 months after the respondents’ filing of the application to dismiss was no explanation at all.  Default or negligence of the lawyers was not an excuse for not complying with the Rules in civil cases.  Had the appellant used the 8 months delay by the respondents in moving their application to dismiss to remedy the appellant’s own default, the respondents’ delay in moving the application to dismiss would have been a strong point in favour of refusing the application to dismiss. However as the appellant had done almost nothing to progress the appeal during that period, the appeal was dismissed for want of prosecution.

20.	The Court stated the following general propositions in PNG Nambawan Trophy Ltd which are relevant to applications for dismissal for want of prosecution, these propositions having been distilled from earlier decisions of the Supreme Court:

1.	An appeal might be struck out if it is not set down as required by the Supreme Court Rules. Where an appeal has not been set down as prescribed, the power of the Court to dismiss for want of prosecution remains discretionary.  The discretion to dismiss is to be exercised having regard to all the circumstances of the case, including, among others:

	(a)	the length of and reasons for delay on the part of the appellant;

(b)	the extent to which, having regard to the delay, evidence likely to be adduced may lose its cogency;

(c)	the availability of a transcript; and

(d)	any negotiations between the parties.

	2.	Matters relevant to the want of due diligence include failure to promptly serve the notice of appeal, failure to attend on settlement of the appeal book, failure to explain non-attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected.  The absence of explanation is fatal to an appellant where an explanation could quite properly be expected.  Where for example a delay of 7 months has occurred in an appellant applying for the transcript of proceedings at trial for inclusion in the appeal book, the absence of a proper explanation for that delay can result in the appeal being dismissed.  However an explanation that a lawyer cannot be present at the hearing of application to dismiss because that lawyer is appearing before another judge may be acceptable.

	3.	 Events which have taken place subsequent to when an application to dismiss is filed are relevant. The application to dismiss should itself be prosecuted with due diligence.  Where an appellant has not done what the Supreme Court Rules require in the prescribed time but has made good its omissions before the application to dismiss is heard, the application to dismiss may not be successful: Kakaraya v Somare (2004) SC762 (Los, Sawong, Cannings, JJ) where it was held that: 

	Once a case of delay is established, the onus then shifts to the respondent to the application (ie the appellant) to satisfactorily explain the delay . If there is a failure in that obligation or there is no reasonable explanation provided, an application to dismiss may be granted.
  
21.	We observe that the above principles have been relied on in all the cases cited by the respondents in their counsel’s submissions, including Punagi v Catholic Diocese of Mt Hagen Board of Trustees (2013) SC 1297 (Hartshorn, Yagi & Makail JJ) where much emphasis was placed on whether a reasonable explanation was provided for the delay and as no such explanation had been provided, the application to dismiss the appeal for want of prosecution was granted. 

22.	The respondents’ counsel also referred in his submissions to Malama Enterprises Ltd v Shell PNG Ltd (2007) SC861, which was said to be case authority in support of the respondents’ position that the appellants in this appeal had failed to provide any proper explanation for their overall delay.  

23.	In Malama Enterprises Ltd the appellant filed a notice of appeal and an application for leave to appeal on 11 November 2005.  A year later the application for leave had still not been set down for hearing, the index to the appeal book had not been settled and the appeal book had not been prepared.  On 3 November 2006 the respondent filed an application to dismiss the appeal for want of prosecution.  The application was heard almost 4 months later on 27 February 2007.  The Court made a finding that nearly every step taken by the appellant had been accompanied by delay.  Although the appellant had taken active steps in the 5-week period before the hearing of the application to dismiss and had certified correct an appeal book, the Court held that the appellant should not be rewarded by non-dismissal when the remainder of the appellant’s conduct had been dilatory and its overall delay in prosecuting the appeal had not been satisfactorily explained.

24.	The facts presented in the present case are very different.  While we agree that the  delay of just under 9 months which had elapsed between the filing of the notice of appeal on 25 January 2017 and the letter dated 18 October 2017 from the respondents’ lawyers to the appellants’ lawyers giving 7-days notice of intention to file an application to dismiss was substantial and that the explanations regarding Mr Manda’s campaigning for the National Elections between April 2017 and August 2017, mass walk-out of staff lawyers from Mr Manda’s law firm in May 2017 and the then burden of work on Mr Pokia were not proper explanations for that delay in view of the observations made the Supreme Court in the PNG Nambawan Trophy Ltd case that high workload and difficulties recruiting new lawyers are no explanation at all for delay, what then subsequently transpired has in our view been adequately explained by the appellants’ lawyers.  We set out hereunder a careful analysis of what actually occurred between mid-October 2017 and the hearing of the respondents’ application to dismiss on 2 May 2018. 

25.	As already noted in the chronology we have given for the background to this appeal, the respondents’ lawyers wrote to the appellants’ lawyers on 18 October 2017 giving forewarning that if they did not receive a draft index to the appeal book within 7 days, the respondents would file an application to dismiss the appeal.  The appellants’ lawyers replied the very next day, 19 October 2017, stating to the effect that the lawyer having carriage of the matter was required to attend to matters at Wabag National Court several days later on 23 October 2017, that the lawyer concerned was under pressure of work because of the mass resignation of other staff lawyers in May 2017, that there were many documents filed in the National Court proceedings to consider and that for these reasons the draft index to the appeal would be ready in a month’s time, on or before  20 November 2017.  

26.	The respondents’ lawyers responded by letter dated 26 October 2017, declining to wait further for the draft index to the appeal book and advising that the respondents would go ahead with the filing of an application to dismiss the appeal for want of prosecution. An interim reply from appellants’ lawyers was given on 27 October 2017, but that was promptly followed by delivery on 30 October 2017 of the draft index to the appeal book for comment by the respondents’ lawyers.  The appellants’ lawyers wrote: 

“We note that your clients had filed many Affidavits.  We therefore request you to include only the relevant ones in the draft Index to the Appeal Book. Please, revert by or before Monday, 06th November 2017 (7 days) so that we can finalise the draft Index and have same filed for settlement before the Registrar.”

27.	The respondents’ lawyers responded by letter dated 3 November 2017, stating:

“The appeal is your client’s appeal.  You must identify all the material that will be required in the appeal and list them in the index.  The time a Respondent comes in is on the date of settlement.  We are proceeding with our application to dismiss the appeal for want of prosecution.”

28.	We interpose at this juncture and observe that the stance taken by the respondents’ lawyers by their refusal to comment on the draft index or to stipulate what further affidavits they considered should be included in the draft index before settlement by the Registrar was at that stage unreasonable.  It is for the parties to cooperate and agree so far as they can on the content of the draft index before settlement of the draft index by the Registrar under Order 7 Rule 42 of the Supreme Court Rules takes place, leaving only contentious documents to be left to the decision of the Registrar at the appointment to settle.  

29.	Order 7 Rules 40 and 41 of the Supreme Court Rules provide:

40.	A draft index of the papers which are to constitute the appeal book shall be prepared and filed in the Registry before the date appointed for settlement.

41.	The appellant shall serve the draft index on the respondent a reasonable time before the appointment to settle the appeal book but no later than two clear days before settlement.

30.	The purpose of Rule 41 is to enable the respondent to an appeal to have input into the draft index a reasonable time before settlement of the index takes place before the Registrar or his delegate.  Otherwise much time can be wasted at the Registrar’s settlement conference by arguments as to relevancy of documents and semi-contentious matters which can more readily be resolved by negotiation prior to settlement of the index of the appeal book by the Registrar taking place.

31.	Two events then occurred on 6 November 2017.  The respondents’ lawyers proceeded on that date to file and serve the respondents’ application to dismiss, after declining to reply to the appellants’ lawyers request to comment on the draft index. The appellants’ lawyers coincidentally filed the appellants’ draft index to the appeal book on the same day, 6 November 2017, this having been done in view of the respondents’ lawyers non-cooperative attitude by declining to identify what further affidavit material they considered should be included for the respondents in the draft index to the appeal book.

32.	The next day, under cover of letter dated 7 November 2017, the appellants’ lawyers served a sealed copy of the draft index to the appeal book on the office of the respondents’ lawyers and gave notice that the draft index would be settled by the Assistant Registrar at the Supreme Court Registry at Waigani on 21 November 2017 at 11:00 am.

33.	On 8 November 2017 the appellants’ lawyers again wrote to the respondents’ lawyers, this time protesting that the respondents’ application to dismiss had been prematurely filed because the respondents had refused to have any input into the draft index to the appeal book within the preceding week when they had been given opportunity to do so.  The appellants’ lawyers requested the withdrawal of the application to dismiss, a further reason for which was because related appeal proceedings in SCA No. 25 of 2017: Wamu Agari & 541 Ors v The State State & Ors, involved exactly the same parties as in this appeal SCA No. 22 of 2017, the cause of action and trial for that related appeal arose out of the same village raid by police, and the two appeals should therefore be consolidated so that only one appeal book need be filed for both appeals, thereby saving the expense and waste of time if two appeal books had to be compiled when only one appeal book would clearly suffice for both appeals.  The letter from the appellants’ lawyers of 8 November 2017 pointed out that settlement of the draft index in SCA No. 25 of 2017 was also pending and that there would be no real prejudice to the respondents for consolidation of the two related appeals as they both arose from the same National Court judgment which had been delivered by the Trial Judge on 25 January 2017.  The only difference between the two related appeals is that in the present SCA No. 22 No. 2017, the appellants are appealing both liability and quantum, whereas the appellants in SCA No. 25 of 2017 (the respondents in SCA No. 22 of 2017) are appealing quantum only.  No response to this letter of 8 November 2017 from the appellants’ lawyers was ever given by the respondents’ lawyers.

34.	The draft index for related appeal SCA No. 25 of 2017 was fixed for settlement by the Assistant Registrar on 15 November 2017 at 11:00 am.  It is undisputed that notice of the date and time for that appointment for settlement had previously been given by the respondents’ lawyers to the appellants’ lawyers in SCA No. 22 of 2017.

35.	Mr Jerry Siki, counsel for the respondents in SCA No. 25 of 2017 (who is counsel for the appellants in SCA No. 22 of 2017) attended at the settlement conference for the draft index for the appeal book in related appeal SCA No. 25 of 2017 which was conducted by Assistant Registrar Ms Celinia Lualu on 15 November 2017.  There was no appearance by counsel for the appellants in SCA No. 25 of 2017 (counsel for the respondents in SCA No. 22 of 2017) at that settlement conference.  The settlement was therefore adjourned by the Assistant Registrar to 22 November 2017 at 2:00 pm.  The Assistant Registrar, at Mr Siki’s request, rescheduled the settlement for the draft index for the appeal book in SCA No. 22 of 2017 from 21 November 2017 at 11:00 am to 22 November 2017 at 2.00 pm to coincide with the fresh settlement date and time for the draft index in SCA No. 25 of 2017.  This was done for the convenience of the Assistant Registrar and of counsel for the respective parties.  

36.	By letter dated 16 November 2017 the appellants’ lawyers gave notice to the respondents’ lawyers that the date and time of settlement of the draft indices for the two appeal books for SCA No. 22 of 2017 and for SCA No. 25 of 2017 had been rescheduled by the Assistant Registrar to take place on 22 November 2017 at 2.00 pm.  Delivery of this letter was acknowledged by Marie-T Aga of the office of the respondents’ lawyers on 16 November 2017 at 1:08 pm.

37.	On 22 November 2017 counsel for the respondents failed yet again to attend the rescheduled appointment for settlement of the draft indices for the two appeal books for the appeals in SCA No. 22 of 2017 and SCA No. 25 of 2017.

38.	On 23 November 2017 the appellants’ lawyers notified the respondents’ lawyers by hand-delivered letter that, with reference to SCA No. 22 of 2017 and SCA No. 25 of 2017:

“We advise that the settlement of the Draft Index to the Appeal Book in these two matters were fixed on 22nd November 2017 at 2.00 pm before the Assistant Registrar but you failed attend on the above date and time.  We note that this is the second time you failed to attend for settlement without any good reasons and without informing us as well as the Assistant Registrar.

Therefore the Settlement of the Draft Index to the Appeal Book in these two matters was adjourned to Friday, 15th December 2017 at 1.30 pm.

We put you on Notice that if you fail to attend on the next return date and time, we will request the Assistant Registrar to proceed with the settlement of our client’s Draft Index to the Appeal Book filed on 6th November 2017 in the matter; SCA No. 22 of 2017.”

39.	By letter dated 28 November 2017 the respondents’ lawyers replied and indicated they would be requesting that the latest appointment for settlement of the two indices set down for 15 December 2017 be deferred until after the respondents’ application to dismiss the appeal in SCA No. 22 of 2017 filed on 6 November 2017 had been heard and determined by this Court.  The respondents’ lawyers enclosed with that letter a draft index for their clients’ application book in connection with the application to dismiss and gave notice that that the separate draft index, filed on 23 November 2017, would be settled [by the Assistant Registrar] on 14 December 2017 at 2:30 pm.

40.	The appellants’ lawyers responded the same day, on 28 November 2017, and repeated their earlier request for the respondents to withdraw their application to dismiss on the basis that the application had been prematurely filed. The appellants’ lawyers stated that they would proceed with settlement of the draft index to the appeal book in SCA No. 22 of 2017 when it came before the Assistant Registrar on the rescheduled date of 15 December 2017 at 1.30 pm. 

41.	It is unclear from the record what transpired before Supreme Court Assistant Registrar Ms Lualu on 14 December 2017.  However what is clear is that on 15 December 2017, the next day, Assistant Registrar Ms Lualu settled the index to the appellants’ appeal book in this appeal as well as the respondents’ application book.  There is a notation on the cover sheet of the draft index to the application book, signed by the Assistant Registrar, to the effect that it was settled by her at 2:30 pm on 15 December 2017 as per the draft index but with the inclusion of Court documents nos. 12, 14 and 16 on the Court’s file.  That notation also indicates that the respondents were represented at that settlement by Mr Muriso Pokia and Mr Emmanuel Balos from Mirupasi Lawyers and by Mr Jerry Siki from Greg Manda Lawyers.

42.	The respondents’ lawyers were  dilatory in filing the settled index to the respondents’ application book.  The index to the application book was not filed by the respondents’ lawyers until 13 February 2018, almost 2 months after it had been settled by the Assistant Registrar on 15 December 2017.  The Supreme Court Registry is still open during the Court’s annual vacation period from 21 December to 31 January, albeit for limited hours.  No explanation for that delay has been given by the respondents’ lawyers. 

43.	Counsel for the appellants, Mr Jerry Siki, certified the respondents’ application book correct the same day as the settled index was filed by the respondents’ lawyers and then served on the office of the appellants’ lawyers, on 13 February 2018.  The application book, certified correct by both Mr Siki and by Mr Pokia, was then filed by the respondents’ lawyers 2 days later, on 15 February 2018.
 
44.	The matter then came before the Listings Judge on 5 March 2018.  Mr Siki appeared for the appellants.  There was no appearance for the respondents.  The Listings Judge directed that SCA No. 22 of 2017 be adjourned to 12 March 2018 for directions to be given and for a date to be fixed for the substantive appeal to be heard together with the respondents’ application to dismiss.  The appellants were ordered to compile and file the outstanding appeal book prior to the return of the proceedings before the Listings Judge on 12 March 2018.

45.	By hand-delivered letter dated 5 March 2018 the appellants’ lawyers notified the respondents’ lawyers of the directions which had been made by the Listings Judge earlier that day and requested that the “settled Index to the Appeal Book which we have served on your office on 28th February 2018” be endorsed and returned by 4:06 pm that day so as to enable the appellants’ lawyers to comply with the Listings Judge’s direction that the appeal book be filed before the return of the matter for further directions on 12 March 2018.

46.	On 6 March 2018 the respondents’ lawyers replied, indicating that objection was taken to the exclusion of item 33 from the appeal book.  The respondents required that the presumed transcript of the interlocutory proceedings heard by the Trial Judge in chambers on 26 September 2016 be included in the appeal book.
  
47.	The appellants’ lawyers responded 2 days later by letter dated 8 March 2018 and stated that on the return of the matter on 12 March 2018 they would request the Court for directions as to whether item 33 should be excluded from the appeal book.  Their letter continued:

“However, to comply with the Court Orders/Directions of 05th March, 2018 we will file the Appeal Book before the matter returns on 12th March, 2018 without your endorsement since you have an issue with the exclusion of Item 33 which we believe is not a major concern for the parties.”

48.	There was an extensive directions hearing before the Listings Judge on 12 March 2018. The appellants were represented by counsel Veronica Yabone of Greg Manda Lawyers.  The respondents were represented by counsel Emmanuel Ellison of Mirupasi Lawyers. The Listings Judge ordered by consent that the substantive appeal and the respondents’ application to dismiss be fixed for hearing on 2 May 2018 at 9.30 am.  The Listings Judge also directed the parties to file extracts of arguments “in relation to the application to dismiss and the substantive application by the end of March 2018”.  The Listings Judge was informed by Ms Yabone on this occasion that Greg Manda Lawyers had been unable to comply with His Honour’s direction made on 5 March 2018 to file the certified appeal book by 12 March 2018 because Mirupasi Lawyers had declined to sign the certificate of correctness for the appeal book due to objection having been taken by the respondents to the omission of item 33 from the appeal book. The Listings Judge ruled that the transcript identified as item 33 in the draft index was not relevant to the appeal and was to be omitted from the appeal book. We note that it was in any event unlikely that a transcript could have been obtained of the interlocutory matter heard by the Trial Judge in chambers on 26 September 2016 as there would have been no audio recording taken of those proceedings by the Court Reporting Service. Furthermore, item 32 in the appeal book comprises the written reasons for decision and interlocutory order which was made by the Trial Judge on 26 September 2016. 

49.	The Listings Judge then directed Ms Yabone during the course of the directions hearing on 12 March 2018 to file volumes 1 & 2 of the appeal book in Court.  This was done.  We observe that the cover sheet of volume 1 of the appeal book bears a handwritten notation “Appeal Book filed in Court”.  The notation is signed by the Listings Judge and is dated 12 March 2018.   

50.	The next event of significance is that on 11 April 2018 the respondents' lawyers filed an application to firstly, amend the appeal book already filed in Court on 12 March 2018 to include 24 affidavits which were adduced in evidence for the respondents at the trial, and secondly, vacate the hearing date of 2 May 2018.  The grounds for this application were that counsel Mr Pokia for the respondents had only just realised that the subject 24 affidavits filed by the respondents in National Court proceedings WS No. 16 of 2005 were relevant to issues of liability and that they needed to be included in the appeal book.  

51.		On 25 April 2018 the Listings Judge adjourned the respondents’ application filed on 11 April 2018 for hearing on 27 April 2018. 

52.	On 27 April 2018 the Listings Judge vacated the hearing date of 2 May 2018 for the substantive appeal on condition that the parties appear at the next Supreme Court directions hearing on 7 May 2018, but directed that the respondents’ application to dismiss the appeal was to proceed for hearing as scheduled on 2 May 2018.  The time for the parties’ filing of extracts of argument for the application to dismiss was extended to 30 April 2018.  
53.	As to the respondent’s application to amend the appeal book to include 24 affidavits, the Listings Judge indicated at the directions hearing on 27 April 2018 to the effect that if the appeal was not dismissed as a result of the hearing on 2 May 2018 then all affidavits relied on at trial, more than 400 affidavits, should be included in the appeal Book, not just the 24 affidavits referred to by the respondents in their application filed on 11 April 2018.  
54.	When the respondents’ application to dismiss came on for hearing before us on 2 May 2018, Mr Pokia submitted that whatever the appellants’ lawyers did after Mirupasi Lawyers’ letter of 18 October 2017 was served on Greg Manda Lawyers was simply a reaction to the threat that a dismissal application would be pursued if a draft index to the appeal book was not forthcoming within 7 days and that inexcusable delay had already occurred warranting dismissal of the appeal.  But we observe that following the delivery of the respondents’ letter of 18 October 2017, the appellants’ lawyers did not thereafter sit back and do nothing to progress the appeal.  The reverse is true.  The appellants’ lawyers became particularly pro-active, responding almost immediately to every item of correspondence thereafter served on them by the respondents’ lawyers. 
55.	The draft index to the appeal was prepared and served by the appellants’ lawyers on the respondents’ lawyers on 30 October 2017. This was 12 days after delivery of the letter of 18 October 2017.  When the draft index was served with the draft index on 30 October 2017, the respondents’ lawyers were expressly requested to have input into the draft index but they declined to do so, erroneously maintaining the position that the time for them to have that input was at the time of settlement of the draft index by the Registrar.  The respondents’ lawyers did not rectify that mistake until they belatedly filed the respondents’ application on 11 April 2018 seeking, among others, an amendment to the already settled index to the appeal book to include 24 affidavits which the respondents’ counsel had only just realized were relevant to the respondents’ defence of the appeal in SCA No. 22 of 2017.  This was compounded by the fact that counsel for the respondents had failed on 22 November 2017 to attend at the Supreme Court Registry for settlement of the index to the appeal book after notice of that appointment had already been given in advance to the respondents’ lawyers.
56.	Furthermore, the respondents’ lawyers caused unnecessary delay in progressing the appeal when they refused in early March 2018 to certify correct volumes 1 and 2 of the appeal book because of their insistence that a transcript of interlocutory proceedings heard in chambers by the Trial Judge on 26 September 2016 should not be omitted from the appeal book.  The respondents’ lawyers objection to that omission was swiftly dealt with by the Listings Judge when he ruled on 12 March 2018 that the transcript (if indeed one could be obtained) was irrelevant to the appeal and was to be excluded from the appeal book, volumes 1 and 2 of which were then filed in Court by the appellants’ lawyers at the direction of the Listings Judge without certification by the respondents’ counsel.
57.	When counsel for the respondents was challenged by members of this Bench at the hearing on 2 May 2018 as to the respondents’ lawyers’ own contribution to delay in progressing this appeal, counsel acknowledged that there had been faults on both sides.  Pages 27 to 30 of the transcript of the hearing before us on 2 May 2018 contains the following exchanges between the Bench and counsel for the respondents:
	SHEPHERD J:  But as I understand what you are telling the Court, on 27 April [2018] the Chief Justice directed that the appeal book be amended to include … additional material.
	MR POKIA:	That is correct.
	SHEPHERD J:   So the appeal is back on track and it is ready to go.  Why have you not withdrawn your application to dismiss?
	MR POKIA:  Because there are several things before the appeal actually gets heard.  Initially, there was delay in getting the appeal ready for hearing.  After our prompting and threats for the appeal to be heard, things necessary to be done [by the appellants for the appeal to be] made ready and it was – appeal book was filed.  Now at the settlement of the index, both counsel have duties to ensure that all documents that are relevant, both the appellant and … the respondent are included in the appeal book.  And the ---
	SHEPHERD J:   Yes.  And that is what the Chief Justice directed last Wednesday.
	MR POKIA:  That is correct.  … On the date of settlement, we inadvertently omitted to mention those affidavits that we required to be in the appeal book. So both of us are at fault in not properly getting the appeal book done at the time of the settlement …
…
BATARI J:   Yes.  If you are both at fault, why are you asking for default or [dismissal] against the other party for the delay?
	SHEPHERD J:  … Your client gets the situation where a fresh appeal book will be filed, including the affidavit material that you say is relevant.  Is that not correct?
	MR POKIA:   That is correct.
	SHEPHERD J:   Yes.  The appellants in the meantime are ready to proceed to appeal and once the direction of last Wednesday is complied with and that is, a fresh appeal book is filed, the matter can be reset down for … substantive hearing.
	MR POKIA:  yes, that is the – that would be the ordinary course of events. And my submission is this: there has already been delay [by the appellants] …
…
MANUHU J:  It took you six months to prosecute your application.  Is that a delay in itself?  From the time you filed to now, that is about six months.

	MR POKIA:   Yes.  In respect of that delay the application was filed on 6 November and then we have part of December and the whole of January as court vacation period and then what had to be done was parties then compiled an application book for the hearing of the application. 
	…
	SHEPHERD J:  At the very top of page 4 of your submission, item 15, you say you did not attend the settlement of the index on 22 November 2017.  Had you attended that appointment with the Assistant Registrar, that would have given you the perfect opportunity to have indicated what your client was insisting should go in the index and therefore the appeal book.  You did not attend [that settlement].

	MR POKIA:  Yes … but it was adjourned to 15 December and I have already admitted that we inadvertently omitted to mention the documents that we required to be ---
	SHEPHERD J:  There are faults on both sides here.
	MR POKIA:  Correct.  Your Honour, that is what I have been submitting that I was partly responsible and the appellant was partly responsible because they have a duty to list all the documents that are necessary, that touches on the issues of appeal that they have appealed.

58.	However it is apparent from the chronology of events which preceded settlement of the index by the Assistant Registrar on 15 December 2017 that the respondents’ lawyers had been given ample opportunity by the appellants’ lawyers to identify in advance all affidavits that the respondents required for insertion in the appeal book and therefore to have had those affidavits listed in the draft index to the appeal book prior to settlement of the index by the Assistant Registrar on 15 December 2017. Indeed, the respondents’ lawyers had been expressly encouraged by the letter from the appellants’ lawyers dated 30 October 2017 to  include reference in the draft index served on them the affidavits which the respondents’ lawyers considered were relevant.  It took a further 4 months for the respondents’ lawyers to file their clients’ application on 11 April 2018 seeking orders that the appeal book filed in Court on 12 March 2018 be amended to include 24 affidavits which the respondents’ counsel had belatedly identified were necessary for the respondents’ defence to the appeal.  It was therefore disingenuous of the respondents’ counsel to imply that the reason why those affidavits were not included in the index for the appeal book which was settled by the Assistant Registrar on 15 December 2017 was because of “inadvertent omission” on his part.  The fact is that counsel for the respondents had simply ignored the appellants’ lawyers request to have input into the content of the draft index to the appeal book and had not turned his mind to what was needed for inclusion in the appeal book as regards the respondents’ defence of the appeal until early April 2018, prompting the tardy but necessary filing from the respondents’ perspective of the application on 11 April 2018 seeking orders to amend the appeal book.
59.	For these reasons we find that the present fact situation differs markedly from that which pertains in the Malama Enterprises Ltd case.  In the latter case the appellants’ lawyers, when confronted with an application to dismiss, allowed 2 months to elapse before commencing effort to have the appeal book prepared.  In the present case, the appellants’ lawyers’ explanation for what transpired between 30 October 2017, after receiving notice from the respondents lawyers on 18 October 2017 of an intended application to dismiss, through to the date of the hearing of the respondents’ application to dismiss on 2 May 2018 has been adequately explained to our satisfaction.  The appellants’ lawyers acted with promptitude when faced with the prospect of an application for dismissal. The delays in progressing this appeal which occurred between early November 2017 and the end of April 2018 were almost solely attributable to procedural failures and unreasonable positions taken by the respondents’ lawyers.  Counsel for the respondents did at least have the courtesy to concede before us that there were faults on both sides.
60.	We accordingly refuse the respondents’ application to dismiss this appeal for want of prosecution.  
61.	As it is clear that the respective lawyers for the parties were each at fault in their own way for the delays which occurred in progressing this appeal to substantive hearing, each party is to bear its own costs in connection with the application to dismiss. 

Order

62.      The Court makes the following order:

1.	The respondents’ application made under Order 7 Rule 48(a) of the Supreme Court Rules to dismiss this appeal is refused.

2.	Each party shall pay their own costs of and incidental to the respondents’ application to dismiss.

3.	This appeal shall be listed at the directions hearing of the Supreme Court to be held on 12 October 2020, or on such date to which that directions hearing may be adjourned, for such further directions to be made as may be necessary to expeditiously progress this appeal to substantive hearing.
__________________________________________________________________  
Greg Manda Lawyers: Lawyers for the Appellants/Respondents 
Mirupasi Lawyers: Lawyer for the Respondents/Applicants