SC2300

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 140 OF 2020

BETWEEN:
THEODOSIOS MONOGENIS
Appellant

AND:
STEVEN O’BRIEN
trading as
O’BRIENS LAWYERS
Respondent

Waigani: Hartshorn J.
2022: 4th August, 1st September

SUPREME COURT - PRACTICE AND PROCEDURE - Application to dismiss an application for leave to appeal for being an abuse of process and for want of prosecution

Cases Cited:

Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33 
Yema Gaiapa Developers Pty Ltd v. Hardy Lee (1995) SC484 
Joshua Kalinoe v. Paul Paraka (2007) SC874
Yakopa v. Torato (2010) SC1077
Steven Punangi v. Pacific Plantation Timber Ltd (2011) SC1153 
Rea Joseph v. Manu Sereva (2011) SC1152 
Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273 
Gumaim v. Henao (2019) SC1855
Independent State of Papua New Guinea v.  Hon. Belden Namah (2020) SC2037
Simon Kauba v. Alphonse Willie (2021) SC2162

Counsel:

Mr. E. Tolabi, for the Appellant
Mr. P.W. Smith, for the Respondent

1st September, 2022

1. HARTSHORN J:  This is a decision on a contested application to dismiss this application for leave to appeal (application for leave).

Background

2. The judgement for which leave to appeal is sought is in a proceeding that had been commenced by the applicant now respondent, Mr. O’Brien (respondent), for bills of costs rendered to the respondent now appellant, Mr. Monogenis (appellant), to be taxed pursuant to s. 63 Lawyers Act.

3. This application for leave seeks to appeal the National Court judgment of 14th October 2020 (judgment appealed). The judgment appealed amongst others, ordered that judgment for costs was entered for the respondent against the appellant in the sum of K83,392.55. 

4. The judgment appealed is referred to in the application for leave as an interlocutory judgment. This is disputed by the respondent who submits that the judgment appealed is a final judgment.

This application

5. The respondent seeks to dismiss this application for leave pursuant to Order 7 Rule 48 (a) Supreme Court Rules. He submits that the application for leave should be dismissed as it has not been prosecuted with any or any due diligence as the application for leave was not served on the respondent for 118 days after filing, the appellant failed to comply with and serve directions made by this court on 4th March 2021 and the appellant failed to take any steps to advance the application for leave for about 16 months.

6. Further, the respondent submits that the application for leave should be dismissed pursuant to the inherent jurisdiction of this court as it is vexatious and an abuse of process as the judgment appealed is a final judgment and not an interlocutory judgment and so leave is not required.

7. The appellant submits that the application for leave should not be dismissed as the reason for the delay in prosecuting the application for leave was because of settlement discussions which occurred. The appellant does not dispute owing an amount for costs but disputes the quantum. Further, the judgment appealed is an interlocutory judgment and so leave is required it is submitted.

Abuse of process

8. I consider first the issue of whether this proceeding is an abuse of process. It is submitted that as the judgment sought to be appealed is a final judgment and not interlocutory, leave is not required. As this proceeding seeks leave, it is an abuse of process the respondent submits.

Consideration

9. In the application, there is only reliance upon Order 7 Rule 48(a) Supreme Court Rules. The inherent jurisdiction of this court is not relied upon in the application.

10. As to whether a single judge of the Supreme Court should consider whether an application for leave to appeal is an abuse of process when an application seeking such redress is not before the court, notwithstanding that the appellant did not take issue with this court’s authority to do so, I refer to the Supreme Court judgment of Independent State of Papua New Guinea v.  Hon. Belden Namah (2020) SC2037, in which at [9] and [10] the Court said:

“9. In regard to there not being an application before the court seeking redress for abuse of process, we reproduce [27] of Amet v. Yama (2010) SC1064 from the decision of Salika DCJ (as he then was) and Batari J:

“27.	The issue of competence is to do with legal and jurisdictional aspects of the court process.  More often than not, this concerns the validity of the very proceedings before the court.  Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held: 

“It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.””

10. Further, in Wilson v. Kuburam (2016) SC1489, Gavara Nanu J with whom Bona J agreed, said at [31]:

“In any event, this Court has the inherent jurisdiction to consider and determine the issue of abuse of process on its own initiative as it is a relevant issue which has arisen before the Court: Anderson Agiru v. The Electoral Commission (supra)””

11. In this circumstance therefore I am satisfied that this court has the authority to proceed to hear whether the substantive application for leave to appeal is an abuse of process.

Law

12. As to what constitutes an abuse of process in the context of this case, I refer to the judgment in Steven Punangi v. Pacific Plantation Timber Ltd (2011) SC1153. In Steven Punangi (supra), it was held that any decision or judgment of the National Court that has the effect of finally determining a proceeding is a final decision. This includes a dismissal for want of prosecution. (See also Simon Kauba v. Alphonse Willie (2021) SC2162 at [20]).

13. When an application for leave is not necessary because the judgment sought to be appealed is a final and not an interlocutory judgment, it is incompetent and should be dismissed: Rea Joseph v. Manu Sereva (2011) SC1152; Steven Punagi (supra).

14. In this instance, the judgment appealed ordered that judgment for costs was entered for a certain amount. It decided all issues between the parties. Pursuant to the judgments of Joseph v. Sereva (supra) and Steven Punagi (supra), I am satisfied that the judgment appealed is a final judgment and not an interlocutory judgment. Consequently, leave to appeal is not necessary. This substantive application for leave is therefore unnecessary, incompetent, an abuse of process and should be dismissed.

Order 7 Rule 48(a) Supreme Court Rules

15. Notwithstanding the above finding, I consider the application to dismiss further under the Supreme Court Rule relied upon in the application to dismiss, Order 7 Rule 48(a). It is as follows:

“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 or a 	Judge may –
	(a)	order that the appeal be dismissed for want of prosecution; …”

16. The term, “appeal” in Order 7 Rule 48 includes an application for leave to appeal and is subject to the powers and discretions of a Judge pursuant to s.10(1)(a) Supreme Court Act. I refer to the judgments of Yakopa v. Torato (2010) SC1077 and Gumaim v. Henao (2019) SC1855 in this regard. I also rely upon these judgments as authority for the proposition that a single judge of the Supreme Court had the power to dismiss an application for leave to appeal before the recent amendment to Order 7 Rule 48(a) Supreme Court Rules which confirmed this.

17. The relevant principles governing this rule and its predecessor Order 7 Rule 53, are well established and are found in many case authorities including Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55; General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33 and Joshua Kalinoe v. Paul Paraka (2007) SC874.
18. In Joshua Kalinoe v. Paul Paraka (supra), the Supreme Court discussed the rule in this way [17] and [20]:
“This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence.  See Dan Kakaraya v Somare & Others (2004) SC 762.  See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811.  Thus if an appellant has delayed in prosecuting his appeal the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such delay.  Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances. ……
Turning to the requirements of Order 7 r 53 (a), the question is: Did the appellants fail to do any act required to be done under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence which would warrant, this Court to dismiss the appeal for want of prosecution?”  

19. The first matter I consider which is raised by the respondent under Order 7 Rule 48(a), is that the appellant served the application for leave 118 days after it was filed. This is not disputed by the appellant. Order 7 Rule 13 Supreme Court Rules requires service of a copy of a notice of appeal without delay. To my mind, this also applies to an application for leave to appeal: Yakopa v. Torato (supra). Compliance with this Rule is mandatory by virtue of the use of the word “shall”.
20. In considering the predecessor to Order 7 Rule 13, Order 7 Rule 12, the Supreme Court in Yema Gaiapa Developers Pty Ltd v. Hardy Lee (1995) SC484 (Amet CJ, Kapi DCJ, Los J) said:
“…. periods of 7 to 14 days in affecting service in the city or town where the registry is located and where the appeal has been instituted, is unacceptable delay and in default of O.7 r.12.”

21. I respectfully agree with this statement. In this instance, there is no dispute that the parties are represented by lawyers with offices in Port Moresby and that this appeal is filed in this Supreme Court registry, Waigani.
22. In Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273, the Court, (Injia CJ, Gabi J, Sawong J) found that a delay of 29 days in serving the notice of motion which instituted the appeal, was a breach of Order 7 Rule 13 Supreme Court Rules. This was one of the reasons why the appeal was dismissed.
23. There is no explanation why it took 118 days to serve the application for leave. The lawyers who represent both parties have offices in Port Moresby. A period of 118 days is considerably in excess of the periods of time in Yema Gaiapa (supra) and Idumava (supra). As it is clear that a copy of the application for leave has not been served without delay, an act required to be done under the Rules has not been done. This is an act required under the Rules which is required to be done to prosecute the application for leave. Given the length of time it took to effect service and in the absence of any explanation as to why service took so long, I am satisfied that the application for leave should be dismissed for want of prosecution because of this factor alone.
24. I also consider a further matter raised by the respondent. That is that the appellant has not taken any action to prosecute the application for leave since a directions hearing on 4th March 2021. That is one year one month of inaction to the time of filing of the application to dismiss and one year five months to the time of the hearing of the application to dismiss. There is no evidence from the appellant explaining this inaction. Counsel for the appellant refers to delay being caused by the appellant’s numerous attempts at settlement with the respondent.
25. The onus is upon the appellant to prosecute his appeal with due diligence. That the appellant has made attempts to settle the proceeding does not detract from his obligation to prosecute his appeal with due diligence. I am not satisfied that the reason given for delay is a satisfactory explanation for not progressing the application for leave for between 13 and 17 months. The application for leave should be dismissed for want of prosecution because of this delay.
26. As I have found that the application for leave should be dismissed for being incompetent and an abuse of process, for breach of the Supreme Court Rules requiring service without delay and for want of prosecution, it is not necessary to consider the other submissions of counsel apart from as to costs.
27. The respondent seeks his costs on an indemnity basis. In regard to an application for costs on a solicitor client basis or on an indemnity basis, in Timothy Patrick v. Pepi Kimas (2010) N3913, Gavara Nanu J said as to costs being awarded on a solicitor client basis:
“…the applicant must demonstrate that there are grounds upon which such award may be made; for instance, the applicant having to defend proceedings which are frivolous and vexatious and are an abuse of process. See, Gulf Provincial Government -v- Baimuril Trading Pty Ltd [1998] PNGLR 311; or that the applicant is being dragged into the Court and is made to suffer and incur unnecessary costs. See, Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47.”

28. In Rex Paki v. Motor Vehicles Insurance (PNG) Ltd (2010) SC1015, the Supreme Court stated that:
“The award of costs on an indemnity basis is discretionary.   An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order.  The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

29. In this instance there is evidence that notice was given to the lawyers for the appellant that such costs would be sought and the reasons why if the application for leave was not withdrawn. Notwithstanding this notice, the appellant did not discontinue or withdraw the application for leave. 
30. I am satisfied that the necessary requirements for an order for solicitor client costs have been made out: Rex Paki v. Motor Vehicles Insurance Ltd (supra). The application for leave is without merit and the conduct of this proceeding has caused the respondent to incur unnecessary costs. The appellant however, has persisted with this proceeding notwithstanding the notice from the lawyers for the respondent to do otherwise.
Orders
34.  The Court orders that:
a)	This application for leave is dismissed pursuant to the inherent jurisdiction of this court and Order 7 Rule 48(a) Supreme Court Rules.

b)	The appellant shall pay the costs of the respondent of and incidental to this application for leave on a solicitor client basis such costs to be taxed if not otherwise agreed.
__________________________________________________________________
Kopunye Lawyers: Lawyers for the Appellant                        
O’Briens:  Lawyers for the Respondent