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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 159 OF 2017
BETWEEN:
MICHAEL PUNDIA
Appellant / Applicant
AND:
SAMUEL KORUA & PHILIP KORUA MEKRE
Respondents
Waigani: Liosi J
2024: 23rd April & 1st November
PRACTICE AND PROCEDURE – Dismissal for want of prosecution – Order 7 Rule 48 (a) and Order 11 Rule 28 (b) Supreme Court
Rule – Principles in relation to – burden of proof on respondent who seeks dismissal once discharge burden of proof shifts
to appellant – appellant to explain delay – whether there was inordinate delay , whether delay was intentional, whether
a reasonable explanation is provided for the delay – if so is it acceptable whether interest of justice favours granting of
the application.
The respondents filed an application to dismiss for want of prosecution, the applicants’ application for leave to file a Slip Rule Application.
Held:
(1) The Court has jurisdiction under Order 7 Rule 48 (a) and Order 11 Rule 28 (2) of the Supreme Court Rules to hear an application to dismiss for want of prosecution and application for leave to file a Slip Rule application.
(2) The principal considerations in deciding whether to dismiss a proceeding are;
(3) Ten months delay in not progressing the application for leave to file a Slip Rule application without any explanation, is an inordinate and intentional delay, and it is in the interest of justice to dismiss it for want of prosecution.
Cases Cited:
Air Niugini Ltd v. Piokole (2021) SC2106
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811
Pacific Equities and Investment Ltd v. Pomaleu (2011) N5396
Tai v. ANZ Banking Group (PNG) Ltd (2018) SC1681
Nicholas v. Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133
Tulapi v. Alu (2011) PGSC 56; SC1177
Kalinoe v. Paraka [2007] PGSC 13; SC874
Pundia v. Korua (2020) SC1920
Legislation
Constitution s. 155(4)
Supreme Court Rules 2012 Order 7 Rule 48 (a); Order 11 Rule 28(b)
Counsel:
Ms. Veronica Yobone, for the Appellants
Mr. Nicholas Tame, for the Respondent
JUDGMENT
1st November 2024
1. LIOSI J: There were two applications listed before the Court for hearing. The first application is filed by the appellant Michael Pundia on the 14th of December 2022, seeking leave to proceed with a slip rule application pursuant to Order 11 Rule 32 and Order 13 Rule 15 of the Supreme Court Rules. The application is supported by the affidavits of Veronica Yobone and Michael Pundia both filed on 14th December 2022.
2. The second application was filed on 8th September 2023 by the respondents Samuel Korua and Philip Mekre Korua to dismiss the applicant’s leave application for slip rule application for want of prosecution. The application is supported by the affidavit of Luwi Dos filed on the 8th of September 2023.
3. Although the application for leave for slip rule application was filed first in time on 14th December 2022, I dealt with the respondent’s application to dismiss the application for leave for slip rule first for want of prosecution. Whether I deal with the application to deal with the application for leave to file slip rule will depend on my ruling in respect of the respondent’s application to dismiss the leave application for slip rule for want of prosecution.
Background Facts
4. In setting out the background facts, it is important to set out the brief history of the primary proceedings. The National Court proceedings giving rise to the appeal, titled as WS 603 of 2013: Samuel Korua Mekre & Anor v. Luke Kwago, Michael Pundia & Ors, the National Court handed down its ruling, entering judgment for the plaintiffs/respondents by way of declaratory order over land known as Balinga, now portion 1356, Volume 29 Folio 205, Mount Hagen, Western Highlands Province. It also awarded costs of the proceedings on a solicitor/client basis in favour of the plaintiffs against all the defendants.
5. The appellant being aggrieved filed this appeal on 15th November 2017 and had it served on the respondents on even date.
6. Two separate unsuccessful applications for dismissal of the appeal for want of prosecutions were made. The matter was finally fixed for hearing of the substantive appeal on 24th November 2022 at 9:30 am before the Supreme Court.
7. On 24th November 2022 the full court before hearing the arguments on the substantive appeal the court enquired whether prior directions of the court were complied with by the parties. The court establishing that there was non-compliance by the appellant of previous court directions to file extract of submissions summarily dismissed the appeal for non-compliance of court directions.
8. The appellant been aggrieved by the decision of the full court filed the application for leave for slip rule application on 14th December 2022 and was served on the respondent’s lawyers on even date. It is this application that has given rise to the current application by the respondents to have it dismissed for want of prosecution.
Respondents Submissions
9. The respondent submits that after filing the appeal on 15th November 2017, the applicant then failed to prosecute that appeal with due diligence for a period of over 1 year 9 months. The respondents, therefore, filed an application to dismiss the appeal for want of prosecution on 7 August 2019.
10. The Supreme Court heard and made its ruling on 28th February 2020 refusing to dismiss the appeal. It than adjourned the appeal to Monday 2nd March 2020 at 9.30 am for listing before a listing Judge.
11. Following the ruling the appellant again failed to prosecute the appeal with due diligence for another 2 years 9 months. On 24th November 2022, when appeal was finally listed for hearing, the Supreme Court summarily dismissed the appeal for failure to comply with Court directions and for want of prosecution.
12. From that final ruling of the Supreme Court, dismissing the appeal, the applicant then filed an application for leave for a “slip-rule” application on 14 December 2022.
13. After filing the said slip rule application, the respondent contends that the appellant has not taken any steps at all, to have his leave application listed and heard; It contends that the appellant filed the said application and then sat on it for 15 months, in a similar fashion as it did after filing its appeal, hence the application to dismiss.
14. From date of filing of the leave application for the “slip-rule” application on 14 December 2022, the applicant has now failed to prosecute the leave application, with due diligence for over 15 months. It submits this is an unreasonable and inordinate delay by the applicant.
15. The respondents submit this is the second time an application for dismissal for want of prosecution has been filed due to a lack of interest to prosecute.
16. The applicant filed the appeal as well as the application for “slip-rule” application, and as demonstrated above, has failed to prosecute the appeal as well the application for leave for “slip-rule” application, to deny the respondents the enjoyment of the fruits of the National Court’s Judgment.
17. The delay is unreasonable and inordinate, intentional and contumelious. Thus, the application for leave to file a “slip-rule” application must be dismissed for want of prosecution.
Respondent/Appellants submission
18. The appellant’s explanation through their lawyer Miss Yobone is that the delay was caused by the Supreme Court Registry. That she had sent letters to the registry as well as follow ups with the registry to have the leave application listed for hearing, but the registry failed to list the application.
19. In her affidavit in support of the application filed 24th February 2024 she annexes two letters she had sent to the registry requesting the application to be listed. The first one is dated 1st March 2023 and the second letter is dated 12th June 2023.
20. One of the main reason she advances is that since it was a leave for slip rule application one of the Judges who sat on the bench will have to hear the leave for slip rule application. Once one of those Judges was available, they would then list the matter for hearing.
Law on Want of Prosecution
21. The law is set out under Order 7 Rule 48 and Order 11 Rule 28 (b) of the Supreme Court Rules. The principles for dismissal of proceedings for want of proceedings for want of prosecution under the above rules are well settled.
22. Order 7 Rule 48 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 may –
(a.) Order that the appeal be dismissed for want of prosecution; or
(b.) Fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance, the appeal should stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be dismissed; or
(c.) Make any other order that may be seem just.”
23. Order 11 Rule 28 (b) reads:
“28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:
(b) Order 7 Division 19 (time and want of prosecution).”
24. The Supreme Court’s power to dismiss proceedings under Order 11 Rule 28 (b) extends to power to dismiss any proceedings for want of prosecution, not just appeal proceedings. It includes power to dismiss an application for leave for a “slip rule” application for want of prosecution, or for non-compliance with any rules of the Court, or for failure to comply with any orders and directions of the Court.
25. In Air Niugini Ltd v. Piokole (2021) SC2106 the Supreme Court (Manuhu J, Shepherd J & Tamate J) in dismissing an application for leave for slip rule application, established this legal proposition at paragraphs 25 and 26 as follows:
“25. Order 11 rule 28 (b) Supreme Court Rules extends the power of the Supreme Court to dismiss a matter for want of prosecution to any proceedings before the Court, not just appeal proceedings:
‘28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings
for the word ‘appeal’ where necessary:
(b) Order 7 Division 19 (time and want of prosecution).
26. References in case law to dismissal of appeals for want of prosecution have equal relevance to dismissal of all other applications that come before this Court. The Slip Rule Applications in this instance are amenable to dismissal for want of prosecution under O.7 r.48 SCR by operation of O.11 r.28(b) SCR if sufficient cause can be shown by Air Niugini in the circumstances of this case.”
26. In PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811 (Los J, Salika J, Lay J) set out the principles applicable to dismissal of proceedings of want of prosecution as follows:
(1) An appeal might be struck out if it is not set down as required by the
rules and the power to dismiss in this instance remains discretionary.
(2) The discretion is to be exercised having regard to all the circumstances
of the case including, inter alia, the length of and reasons for delay on the
appellant’s part.
(3) Where the applicant has established failure on the part of the appellant to
do an act, the onus then shifts to the appellant to explain the failure to do
the act or the delay.
(4) 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, and failure to provide any explanation for dilatory conduct where an explanation could properly be expected. The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected. The absence of explanation is fatal to be respondent to an application for dismissal where an explanation could quite properly be expected.
(5) The discretionary powers should not be exercised in favour of the respondent to the application to dismiss where no explanation for want of due diligence is made. That a lawyer cannot be present because of attendance before another judge may be an adequate explanation.
(6) The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of want of prosecution is brought, in particular events that have taken place since the application was filed. The application to dismiss itself should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required but has made good its omissions before the application to dismiss is heard, the application may not be successful.
27. At para 28, the Court stated the following legal propositions:
“28, Additional principles which the court must bear in mind when determining whether to exercise its unfettered discretion to dismiss proceedings for want of prosecution are these:
(7) Prejudice or injustice to any of the parties, the conduct of the parties, the balance of convenience and the overall interests
of justice: see Pacific
Equities and Investment Ltd v. Pomalue (2011) N5396 (supra); Tai v. ANZ banking Group (PNG) Ltd (2018) SC1681.
(8) Order 11 r.32 SCR requires applications made to the Supreme Court after disposal of a proceeding, including applications for leave to proceed with a slip rule application, to filed and served “within 21 days of the order disposing of the proceedings.” A slip rule application, including the leave application, must therefore be made promptly because public interest demands that there be finality in litigation; Tai v. ANZ Banking Group (PNG) Ltd (supra).”
28. The power to dismiss for want of prosecution should only be exercised where the default had been intentional and contumelious; Nicholas v. Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133.
If an appellant has delayed in prosecuting his appeal, the appeal should be dismissed unless there are reasonable explanation for the delay:
Kalinoe v. Paraka (2007) SC874.
The absence of an explanation is fatal to a respondent for dismissal where an explanation can quite properly be expected: PNG Nambawan Trophy v. Dynasty Holdings Ltd (2005) SC811.
Where delay of prosecution is alleged, the applicant must establish by evidence a case for the Court to exercise its power in his favour before the burden shifts to the appellant to provide an explanation for the delay and demonstrate its readiness to prosecute the appeal: Tulapi v. Alu (2011) SC1177.
29. The conduct of the applicant and his lawyer, after the filling of the dismissal application, is important to explain the delay: Pundia v. Korua (2020) SC1920.
30. And the reason for his failure to prosecute the application, according to the appellants lawyer, Ms Yobone, as stated in her affidavit filed on 6th February 2024, is that the delay was caused by the Supreme Court Registry; that she had sent correspondence to the registry as well as made follow-ups with registry to have the leave application listed for hearing but the registry failed to list the application.
31. There is however no evidence from Ms Yobone as to how those letters were sent, i.e, whether they were posted, hand delivered, received by whom, nor is there any evidence from the Registry as to the receipt by whom and when. In respect of follow ups, there is no evidence of the kind of follow ups whether through physical attendance, telephone calls etc.
32. I also note whilst two (2) of the bench members are resident Judges out if Waigani, the other bench member Justice Dingake is based in Waigani. I also note the listings Judge sits every month in Waigani, hence the matter should have been listed very easily.
33. In my view, the appellants have not shown on the balance of probability that they took all necessary steps to have the application prosecuted with due diligence. I need not stress the importance of the leave application and the slip-rule application being made promptly. This is because public interest demands that there be finality in litigation. In the circumstances, the leave application for slip rule filed on 14th December is dismissed.
34. The formal orders of the Court are:
Judgment and orders accordingly.
__________________________________________________________________
Yobone & Co Lawyers: Lawyers for the Appellant
Nicholas Tame Lawyers: Lawyers for the Respondent
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