SC2350
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 37 OF 2021 [IECMS]

BETWEEN:

LUKOM TRADING LIMITED
Appellant

V
MARGARET RASAKA YUKU
First Respondent

AND
HON. BENNY ALLAN MP-Minister for Lands & Physical Planning
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND
THE NATIONAL HOUSING CORPORATION
Fourth Respondent

Waigani: Manuhu J, David J & Anis J
2022: 28th October
2023: 8th February

APPLICATION – Application seeking summary dismissal based on alleged want of prosecution and failure to comply with Order 7 Rules 40 and 41 – Supreme Court Rules 2012 as amended – sources - Order 13 Rule 16(1)(a) and Order 7 Rules 48(a) of the Supreme Court Rules – considerations – exercise of discretion

PRACTICE AND PROCEDURE – whether the requirements for preparing Appeal Book under Order 7 Rules 40, 41, 42 and 43 apply to Judicial Review appeals that are commenced under Order 10 – Supreme Court Rules 2012 as amended

Cases Cited:
John Midan & Anor v. Oscar Lisio (2010) SC1086
Graham v Klatt (2022) SC2287
Katam Lega v Bank South Pacific Ltd (2012) SC1189
State v David S Nelson (2004) SC766
Kimisopa v Paraka (2009) SC1325

Counsel:

B Lakakit, for the Appellant
L Tangua, for the First Respondent
P Yom, for the Second and Third Respondents
A Luke, for the Fourth Respondent

8th February, 2023
1.	BY THE COURT:  What we have before us is the first respondent’s application filed on 17 June 2022 (Application).  The 2nd, 3rd and 4th respondents supported the Application whilst the appellant opposed it.  We heard the Application on 28 October 2022 before reserving our decision to a date to be advised.
2.	We rule on it now.
BRIEF BACKGROUND
3.	Briefly, the first respondent commenced a judicial review proceeding in the National Court (i.e., OS (JR) 27 of 2020) regarding a property which she had alleged was transferred through fraud, to the appellant.  The property is described as Section 4, Allotment 29, Bomana (9 mile), National Capital District (the Property).
4.	On 13 July 2021, the appellant (who was the first defendant) applied before the National Court seeking to dismiss OS (JR) 27 of 2020.  On 6 August 2021, the National Court, in a written decision, dismissed the appellant’s application.  In the same written decision, the National Court went further and granted the substantive judicial review relief that were sought by the plaintiff or the first respondent herein whereby, amongst others, the appellant was ordered to surrender his title to the Property, and for the Property to be registered to the name of the first respondent.
5.	The appeal by the appellant stems from the said decision of the National Court.
APPLICATION
6.	The Application seeks this main relief:
1.1	Pursuant to Order 13 Rule 16(1)(a) of the Supreme Court Rules and the inherent powers of the Court, the Appeal filed on 13 August 2021 be determined summarily and dismissed for want of prosecution and for non-compliance of Order 7 Rule 40 & 41 of the Supreme Court Rules.
PRELIMINARY ISSUE – COMPETENCY OF THE APPLICATION 
7.	We will deal first with this preliminary issue raised by the appellant.  It submits the Application is incompetent because it was filed using an incorrect form in the Supreme Court Rules 2012 as amended (SCR), namely, Form 4 instead of Form 11 where the latter, it submits, is the correct form that is permitted for applications of this nature, that is, to dismiss an appeal for want of prosecution.
8.	The first respondent, we note, does not seriously dispute the fact that it may have used the wrong form.  However, counsel argues that there is not much of a difference in the two forms.  Counsel also submits that the Application expressly seeks the jurisdiction of the full Court and not of a single Judge.  Further, counsel submits that there was substantial compliance with the requirements prescribed in Form 11 in the Application.
9.	It clearly appears, in our view, that by making the argument of substantial compliance, the first respondent appears to concede that it had perhaps not fully complied with the requirements that are prescribed in Form 11.
10.	At the outset, and we also note from the exchanges between the bench and counsel, that the parties knew of the distinctions or purposes of forms 4 and 11.  Form 4 is clearly intended for applications for interlocutory orders that goes before a single Judge of the Supreme Court.  The relevant rule as correctly drawn to our attention by counsel is Order 13 Rule 15, which reads:
“15.  All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought.  With the exception of urgent applications, all other 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.	On the other hand, Form 11 was conceded to by the parties as applicable to applications that are intended for the full Court such as applications that seek to dismiss appeals.  The relevant rules are Order 7 Rule 48(a) and Order 13 Rule 16 of the SCR.
12.	We refer to and note the arguments and submissions of the parties, re- jurisdiction of the Court.  We, however, differ with the appellant’s understanding in this regard.  We note that except for Order 13 Rule 15, recent amendments have been made to Order 7 Rule 48(a) and Order 13 Rule 16, of the SCR.  They are contained in Supreme Court (Miscellaneous Amendments) Rules 2022 dated 28th February 2022 (2022 SC Amendment Rules).  The 2022 SC Amendment Rules was gazetted in National Gazette No. G162 of 9 March 2022, and it came into force on 1 May 2022.
13.	The revised version of Order 7 Rule 48(a) reads:
“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; or
……”  [Underlining ours]
(amended by Rule 4 of the 2022 SC Amendment Rules)

14.	And the revised version of Order 13 Rule 16(1) reads:

“16.  (1)  The Court or a Judge may summarily determine a matter:
(a)	  on application by a party; or
……”   [Underlining ours]
(amended by Rule 7(a) of the 2022 SC Amendment Rules)

15.	Order 7 Rules 15, 48 & 49, and Order 13 Rule 16(1) and (2), of the SCR as of 1 May 2022, permits a single Supreme Court Judge to also hear and determine applications for (i), summary dismissals, (ii), want of prosecutions and (iii) objections to competency.  (See Rules 3, 4 and 7 of the 2022 SC Amendment Rules)
16.	That said and regardless, this Court, meaning the full Court, has jurisdiction to hear all applications (whether they be interlocutory or otherwise) as well as substantive appeals or reviews that are filed that are before it.  To submit otherwise, as alleged by counsel for the appellant, is simply baseless.  This is the final Court of Appeal.  See Constitution ss 155(1)(a) and 155(2)(a), (b) and (c).  
17.	Coming back to the query, that is, whether the appellant has used the correct form, we find that there was substantial compliance.  This Court has on various occasions in the past accepted forms that substantially comply with the designated requirements.  This Court in John Midan & Anor v Oscar Lisio (2010) SC1086 and Graham v Klatt (2022) SC2287 have regarded substantial compliance and want of prejudice, as relevant considerations.  
18.	Given our reasonings which is supported by case law, we find the Application competent and in so doing, dismiss the competency arguments of the appellant.  The parties do not dispute what is before us, which is an application to dismiss the appeal for want of prosecution and for non-compliance with Order 7 Rule 40 and 41 of the SCR.  Secondly, it is immaterial, in light the 2022 SC Amendment Rules, to expressly indicate in the Application that it shall be made to the full Court, that is, given that a single Supreme Court Judge can also now hear such an application.  And apart from our findings that there was substantial compliance with Form 11, we see no prejudice being caused to the appellant; the parties knew what the Application was and were ready to argue it which they have.
WANT OF PROSECTION
19.	We now turn our attention to the substantive issue, that is, whether we should dismiss the appeal based on want of prosecution and failure to comply with Order 7 Rule 40 and 41 of the SCR.
20.	Our powers to decide the Application is discretionary, but of course, we note that it must at the very least be exercised based on proper considerations according to law.  We adopt what this Court had said in Katam Lega v Bank South Pacific Ltd (2012) SC1189:
“3.  The power to dismiss an appeal is discretionary and is exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation.  While there is no specific provision in the Supreme Court Rules that provides for the dismissal of a review for want of prosecution, we consider the Court’s power to dismiss such a review can be invoked under O 7, r 53 of the Supreme Court Rules, O 13, r 16(1) of the Supreme Court Listings Rules, 2010 and pursuant to the Court’s inherent jurisdiction.  In determining whether to dismiss a review for want of prosecution, the Court must consider the whole circumstances of the case including:
(a)	The length and reasons for delay by the appellant;
(b)	The extent to which the evidence likely to be adduced may lose cogency;
(c)	The availability of the transcript; and
(d)	Any negotiations between the parties. 
4.  The cases of General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331 and PNG Nambawan Trophy -v- Dynasty Holdings Limited (2005) SC811 stand for these principles.”
MAIN ARGUMENT
21.	The first respondent’s main argument is this.  It claims the appellant, having filed the appeal, failed to, (i), file and serve the draft Index to Appeal Book as required under Order 7 Rules 40 and 41 of the SCR, (ii), secure an appointment date with the Registrar to settle the Index to Appeal Book as required under Order 7 Rule 42 of the SCR, and (iii), prepare and file an Appeal Book and comply other requirements under Order 7 Rule 43 of the SCR.  It claims that as a result, the appeal had also been delayed for about 1 year 3 months and 14 days before it filed its Application.
22.	The appellant’s response is this.  It claims that it had attempted to comply with the requirements to settle the Index to Appeal Book and of the requirements to settle and finalise the Appeal Book, but that it was the first respondent, it submits, who had stalled the process or who had been uncooperative thus had caused the delay.  As such, it argues that it should not be punished for this and that the Court should not exercise its power to dismiss the appeal but rather dismiss the Application.
23.	Order 7 Rules 40, 41 and 42 of the SCR read:
“Division 13.—Draft index of appeal book
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.
Division 14.—Settlement
42.  At the appointment to settle the appeal book, the Registrar shall—
(a)	determine what documents and matters shall be included in the appeal book and the order of inclusion and such other matters as he thinks fit concerning the preparation of copies of the appeal papers; and
(b)	settle the index in accordance with Rule 43 Sub-rule 13; and
(c)	determine the number of copies of the appeal book required; and
(d)	may, if he thinks necessary, obtain the direction of the primary Judge; and”
MISCONCEPTION
24.	Having carefully considered the arguments, we find the Application to be fundamentally misconceived.  
25.	The reason is simply this.  This is a judicial review appeal.  It was commenced under Order 10 of the SCR, that is, by way of notice of motion (NoM).  Order 10 reads:
“ORDER 10—APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES
Division 1.—Institution of appeal
1.1	An appeal under this Order shall be instituted by a notice of motion.
1.2	Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply.
2.  The notice of motion and all subsequent proceedings shall be entitled “In the Supreme Court of Justice” and shall be entitled between the party as appellant and the party as respondent.
3.  The notice of motion shall—
(a)	show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 9; and
(b)	have annexed—
(i)	copies of all documents which were before the Judge of the National Court appealed from; and
(ii)	a copy of the order made, certified by the Judge's Associate or the Registrar; and
(c)	be in accordance with Form 15; and
(d)	be signed by the appellant or his lawyer; and
(e)	be filed in the Registry.
Division 2.—Certain rules to apply
4.  The following rules shall apply to matters under this part with regard to—
(a)	filing and service: Order 7 Division 4; and
(b)	affidavits: Order 7 Rules 56, 57, 58, 59.
(c)	where an application for leave to appeal has been filed: Order 7 Rule 6 (time to file a Notice of Appeal) and Order 7 Rule 11 (notice of appeal deemed given on filing of an Application for Leave to Appeal) with the necessary modifications.
5.  Where leave to appeal is required pursuant to Section 14 of the Act application shall be made in Form 7.”
26.	The appeal process under Order 10 is separate and distinct from the appeal process set out under Order 7 of the SCR.  The requirements to prepare an appeal book under Order 7 Rules 40, 41, 42 and 43 do not apply to appeals that are commenced under Order 10.
27.	In State v David S Nelson (2004) SC766, this Court made this observation:
“Order 10 of Supreme Court Rules is clearly intended to be a complete and exclusive procedure for reviewing applications for judicial review as was found in Sir Julius Chan v Ombudsman Commission and approved in Garamut Enterprises v Steamships Trading Co Limited.”
28.	Five years later, this Court in Kimisopa v Paraka (2009) SC1325 approved its earlier observations in State and David S Nelson where it stated at para 16, 17, 18 and 19:
“16.  These rules appear under Part 3 (Jurisdiction under Supreme Court Act) of the Supreme Court Rules. Order 10 of Part 3 of the Supreme Court Rules governs "Appeals from orders made under Orders 16 and 17 of the National Court Rules." As parties are aware, Order 16 of the National Court Rules provides for applications for judicial review. According to Order 10, Rule 1, an appeal under Part 3 shall be instituted by notice of motion. See also Order 16, Rule 11 of the National Court Rules. No issue has been taken by the respondent in relation to the form of the appellants' notice of motion filed on 4 August 2009 following the dismissal of the respondent's objection and application to dismiss on 21 July 2009. We note the notice of motion is in accordance with Form 15 and signed by the appellants' lawyers, even though the decision of 2 March 2007 does not relate to grant or refusal of leave for judicial review or the substantive judicial review.
17.  The respondent only takes issue with the requirement of annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion under Order 10, Rule 3(b)(i) of the Supreme Court Rules. We consider that this requirement is distinct and separate from the requirement to compile an appeal book under Order 7, Rule 43 of Part 3 of the Supreme Court Rules. The Supreme Court in The State v David Nelson (2004) SC766 observed that "Order 10 of Supreme Court Rules is clearly intended to be a complete and exclusive procedure for reviewing applications for judicial review".
18.  We consider the observation made by the Supreme Court in Nelson provides support for what we have just stated. Appeals from applications for judicial review under Order 10 of the Supreme Court Rules are distinct from appeals under Order 7 of the Supreme Court Rules as they are commenced by Form 15 (notice of motion) and regulated by the provisions of Order 10. It is therefore incumbent upon appellants to strictly comply with the provisions of Order 10. This includes the requirement of annexing "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion because it is the documents before the National Court that would form the "appeal book" in the Supreme Court. That is why under Order 10, there is neither a provision for compiling an appeal book nor a reference to an appeal book under Order 7, Rule 43 of Part 3 of the Supreme Court Rules.
19.  For this reason, it is our opinion that it is of vital importance that appellants appealing from applications for judicial review must annex "copies of all documents which were before the Judge of the National Court appealed from", to the notice of motion. Without the documents, the appeal is incomplete. To put it the other way, there is no requirement to prepare an appeal book in appeals from applications for judicial review under Order 10. To do so would result in duplication of activities including photocopying of the same documents.”
[Underlining ours]
29.	We do not see any reason to depart from these observations.  In fact, we adopt it as proper and accurate, that is, as distinct and separate appeal process prescribed by Order 10 of the SCR.  This clarity is relevant for this purpose.  In practical terms, we note that it is through directions hearings that confirmation is sought on whether a notice of motion (i.e., the substantive appeal document) has attached all the relevant appeal documents including transcript of proceedings.  If additional documents such as transcript of proceedings, an affidavit or a court order is left out, then these may be ordered to be filed separately as additional documents (whether it be through affidavits or otherwise) and would be treated as part of the appeal documents that would be before the Supreme Court for hearing. 
30.	We note that as for the present appeal, the Notice of Motion with its attachments were filed in 2 Volumes on 13 August 2021.  The appeal appeared to have been ready by that time, that is, as prepared and filed by the appellant.  Had there been any issues regarding documents that had been filed together with the Notice of Motion, the respondents should have brought that to the attention of the appellant.  Yet, and as it turned out, the parties were focussing their attention on irrelevant considerations, namely, matters concerning the processes under Order 7 of the SCR.  That had also caused the delay.  And as far as delay is concerned, we find both parties to be at fault here, that is or in particular, the appellant and the first respondent.
31.	Finally, we note that we were unassisted by counsel in this regard.  As officers of the Court, had these (i.e., the requirements of Order 10) been brought to our attention by all the counsel from the beginning, time could have been saved because we would have dismissed the Application at the time of the hearing, or the parties could have agreed to have the Application withdrawn earlier.  We note that we had briefly raised this issue with counsel in Court but had received no assistance in response.  As a result, it has now come to this.
SUMMARY
32.	The Application is misconceived and is dismissed.
COST
33.	We are inclined to order each party to bear their own costs.  
34.	Although we note that the Application is refused and cost would normally follow the event, we firstly take into account the lack of assistance we received from all counsel in regard to the central issue herein.  Secondly, we note that it was because of the action of the appellant in treating the appeal as one that is filed under Order 7 and thus having forwarded a draft Index to Appeal Book to the respondents that had led to inactions and accusations raised by the parties which has led to this Application.  The appellant should therefore be partly blamed for this.
35.	As such, it is fair, in our view, that the parties should bear their own costs.

ORDERS OF THE COURT

36.	The orders of the Court are:

1.	The First Respondent’s application to dismiss the appeal for want of prosecution is dismissed.

2.	The matter is ordered to return before the Listings Court at its next sittings for listings or directions.

3.	Parties shall bear their own costs.

Lakakit & Associates: Lawyers for the Appellant
Tangua Lawyers: Lawyers for the First Respondent
Solicitor General: Lawyers for the Second and Third Respondents:
National Housing Corporation In-House Counsel: Lawyers for the Fourth Respondent