Singut v Pani [2022] PGNC 50; N9429 (4 February 2022)

N9429

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 32 OF 2010

SIMON SINGUT AS PRINCIPAL AND DIRECTOR OF BOIBOI HOLDINGS LIMITED
First Appellant

AND:
BOIBOI HOLDINGS LIMITED Trading as BOIBOI REAL ESTATE
Second Appellant

V
LIMI PANI
Respondent/Applicant

Waigani: Miviri J
2022: 04^th February

PRACTICE & PROCEDURE – Judicial Review & Appeals – Appeal from Taxation – Notion of Motion – Order 10 Rule 9A (15)(2)(a) NCR – Application to Dismiss Want of Prosecution – Whether applicable & Appropriate Rule – Order 4 Rule 36 NCR – Material relied – Fault Not Entirely of Respondent – Resignation of Judge Ceased of Matter – Exercise of Discretion Not warranted – Application Refused – cost follow event.

Cases Cited

Charlie v Paki [2020] PGSC 158; SC2123

Lama v NDB Investments Ltd [2015] PGSC 15; SC1423

Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133

Mataio v August [2014] PGSC 60; SC1361
Counsel

A. Jerowai, for Appellant

L. Tilto, for Respondent

RULING

04^th February, 2022

1. MIVIRI, J: This is the ruling on a notice of motion of the 26^th October 2021 of the Respondent applying pursuant to Order 10 Rule 9A (15) (2)(a) of the National Court Rules that:

1. The appellants Review Application filed of the 26^th November 2019 be dismissed for want of Prosecution.
2. The Costs of the motion and incidentals be awarded to the Respondent Applicant on a Solicitor Client basis.
3. Any other orders in the discretion of the Court.
4. Time be abridged for the Settlement of these orders which shall take place forthwith.
   
2. Order 10 deals with Trials and Order 10 Rule 9 is headed Notice of Trial. Order 9A is headed Listing Rules 2005. And the purpose is set out in no uncertain terms succinctly stating that it relates to all civil cases, except for Appeal, Judicial Review, Commercial and Election Petition cases. That is clear language to exclude the present proceedings that emanate from an appeal, not a trial and the language of what follows under Order 10 Rule 9A (1) to (14) is clear. It does not apply to the case here which is an appeal and a review on taxed costs, not a trial. The jurisdiction is not there to invoke discretion upon the court to sway in favour of the respondent in the application he makes.
   
3. The summary disposal stemming is not of an appeal nor a review, but of a trial matter following the language of the earlier rules which I set out above. That is explicit and therefore reliance of Order 10 Rule 9A (15) (2) (a) of the NCR by the applicant respondent will not be in his favour. He has sought reliance on an Order and Rule inapplicable to his cause the Notice of motion he has filed. The Jurisdictional basis is not there for him to move the motion as he does here. There is noncompliance with relevant rules of Court giving the jurisdictional basis to move. And so, the application is without the legs to move and must fail: Charlie v Paki [2020] PGSC 158; SC2123 (27 November 2020). If the Rules relied is not to order with the facts, then there is no basis to maintain because there is no jurisdiction to bring the matter into the ambit of the court: Lama v NDB Investments Ltd [2015] PGSC 15; SC1423 (1 May 2015).
   
4. It means in simplicity the argument of the appellant sustains because the Jurisdictional basis is not there for the respondent to move as he does. The purpose of Order 10 Rule 9A extinguishes any reliance by the respondent on it. The National Court Rules throughout are specific in their application to specific areas in the process of the life of a proceeding from commencement to the end and to all interlocutory matters related and arising.
   
5. Even if it were allowed the material relied does not par with the jurisdictional basis relied. The affidavit material of the applicant lacks without the jurisdictional basis to make headway for the cause he seeks. Conversely it is clear from the affidavit of the appellant’s legal Counsel of the 19^th November 2021 that after the grant of leave by this Court on the 19^th November 2019 to review the Respondent’s taxable bill of Costs filed the 11^th June 2013 and taxed certified on the 26^th June 2017, leave was granted to file and serve application with seven days.
   
6. And the notice of motion relating was filed on the 26^th November 2019 which resulted in further orders by this Court on the 05^th December 2019 to file and serve objections item by item to the Respondent’s certified costs within twenty-one days of the subject order. That was complied with and accorded on the 17^th December 2019 and no returnable date was set to proceed. Physical attendance at the registry did not allow headway and so annexures “A” and “B” were made out to the Registry to secure time and dates on the next appearance of the matter. In each case were copied to the respondent applicant’s lawyers. It did not entail favourably with the resignation of the presiding Judge, Justice Thompson. Further so the fault is not entirely the making of the appellant in that the matter has not proceeded as it did. It bears no justice that he be entangled and taken out of the seat of judgement, clearly no fault of his alone. The observation of the evidence he has filed shows he was adamant and insistent that his review be filed and heard.
   
7. It does not show that there is default entirely in the making by the appellant. And it is intentional without any reasonable explanation pertaining for the delay. Which delay has prejudiced and caused injustice to the defendant/respondent. He is denied the fruits of his judgment: Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133.
   
8. The totality of the matter if viewed does not tilt that the applicant has discharged the balance in his favour. He has not come by the Rules of court giving him jurisdiction to move as he does. Secondly the facts do not warrant the application he makes against the appellant set out above. What is apparent given is that this application is without merit and must be refused with costs following the event in favour of the appellant against the respondent. Because there is not even a fore warning letter of the actions that the respondent will take if the appellant fails to prosecute the matter: Mataio v August [2014] PGSC 60; SC1361 (4 July 2014).
   
9. Accordingly, the formal orders of the court are that:
   
   • (a) The application is dismissed in its entirety as being without merit.
     
   • (b) Parties will attend at the directions hearing of this Court Monday 07^th February 2022 at 9.30am to secure a time date for the review application on foot current.
     
   • (c) The cost will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Jerowai Lawyers : Lawyer for the Appellants

Kari Bune Lawyers : Lawyer for the Respondents