Applications by Karingu under s 57 of the Constitution [2005] PGSC 40; SC778 (18 March 2005)

SC778

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

S C Application 7 of 1993
S C Application 13 of 1997
S C Application 1 of 1999
S C Application 10 of 2000

APPLICATIONS BY CANASIUS KARINGU UNDER S 57 OF THE CONSTITUTION

Waigani: Kapi CJ., Los J., Salika J.
3rd June 2003, 18th March 2005

CONSTITUTION – Application of s 57 enforcement of right.

SUPREME COURT – Application to dismiss under O 7 r 53 of Supreme Court Rule – Not applicable to an application under s 57 of the Constitution.

SUPREME COURT PRACTICE AND PROCEDURE –Whether Supreme Court can dismiss an application for enforcement of s 57 right in the absence of any provision regulating such application - Supreme Court – Has jurisdiction to dismiss s 57 application for want of prosecution.

Cases cited:
Arthur Ageva v Bobby Gaigo & Madaha Resena [1986] PNGLR 160
Ageva v Gaigo (supra)
Copland v Bourke [1963] PNGLR 45
Burns Philip (New Guinea) Ltd v Maxine George [1983] PNGLR 55

Papua New Guinea Legislations cited:
Constitution
Supreme Court Rules
Lawyers Act
National Court Rules
Supreme Court Act
Workers Compensation Ordinance
Land Titles Commission Act

Counsel:
Applicant in person
J. Naipet for the respondent

18 March 2005

KAPI CJ: Papua New Guinea Law Society (Society) applied to dismiss four (4) applications filed by Canisius Karingu (Applicant) to enforce rights under s 57 of the Constitution for want of prosecution. The applications to dismiss are made under O 7 r 53 of the Supreme Court Rules.

The background to these applications may be summarized as follows. The Applicant filed four applications pursuant to s 57 of the Constitution to enforce his rights. The applications are numbered S.C. Application. 7 of 1993, S.C. Application 1 of 1997, S.C. Application 13 of 1997 and S.C. Application 10 of 2000. The applications relate to the decision by the Statutory Committee of the Society to suspend the Applicant from practice and refusal to renew his annual practicing certificate under the Lawyers Act.

The Society filed four (4) separate applications to dismiss the s 57 applications for want of prosecution. In view of the fact that the applications all relate to Applicant’s right to practice law, they were heard together.

Before I consider the applications to dismiss on their merits, I should deal with a preliminary argument raised by the Applicant. The issue which has arisen is: whether the Supreme Court can dismiss an application for enforcement of right under s 57 of the Constitution for want of prosecution, in absence of any provisions regulating such applications? The Applicant submits that the applications by the Society are brought pursuant to O 7 r 53 of the Supreme Court Rules which relate to dismissal of appeals from the National Court and have no relevance to an application under s 57 of the Constitution.

Counsel for the Society concedes that there is no provision in the Supreme Court Rules which provide for dismissal of an application under s 57 of the Constitution. However, she submits that this Court can exercise the powers of the National Court under O 4 r 36 of the National Court Rules which provide for the National Court to dismiss proceedings for want of prosecution. She submits that this Court is able to exercise the powers of the National under s 8 (1) (e) of the National Court Act.

I agree that o 7 r 53 of the Supreme Court Rules relate to dismissal of appeals for want of prosecution and therefore not directly applicable to the question raised before us.

On the other hand, I do not accept the submission by counsel for the Society that this Court can exercise the powers of the National Court under s 8 (1) (e) of the Supreme Court Act which provides:

"For the purposes of this Act the Supreme Court may if it thinks it necessary or expedient in the interests of justice to do so-

.....

(e) exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the National Court on appeals or applications.

...."

The powers that may be exercised by this Court under this provision is qualified by the words "...any other powers that may for the time being be exercised by the National Court on appeals or applications." In the first place, the applications under s 57 of the Constitution are not appeals from the National Court.

The word "applications" under this provision has to be understood within the context of an application brought under the Supreme Court Act. The s 57 applications before the Court were not brought pursuant to the provisions of the Supreme Court Act. The applications have been filed in the Supreme Court by way of originating process in accordance with s 18 and 57 of the Constitution. The provisions of the Act which relate to appeals can have no application. This is consistent with the view that rules (O 7 r 53) made under the Supreme Court Act are not applicable to s 57 applications. Section 57 Application is an originating process and the Supreme Court will exercise powers inherent in itself and does not have to only relate to the powers of the National Court.

Counsel for the Society further relies on two National Court decisions, Arthur Ageva v Bobby Gaigo & Madaha Resena [1986] PNGLR 160 which followed Copland v Bourke [1963] PNGLR 45. These cases deal with appeals from tribunals.

In Ageva v Gaigo (supra), there was an appeal to the then Supreme Court (equivalent of National Court) under the provisions of the Workers Compensation Ordinance. However, there were no rules for regulating such appeals. The objection was taken to the hearing of the appeal on the basis that the appeal was entered for hearing with 15 months delay and was therefore out of time. Ollerenshaw J in considering the issue concluded that no rules were made to regulate such appeals. However, he concluded in following a New South Wales authority at page 46:

"No rules relating to such appeals have been made....In such a case it has been established by the authorities, which were collected by the Chief Justice of New South Wales, in Browne v Commissioner for Railways (36 St. R (NSW) 21 at 28), that the right of appeal exists notwithstanding the absence of the contemplated procedural machinery and that the Court of Appeal should entertain appeals ‘...as justice and commonsense demand.’

In my view an Appellant should take such steps as are reasonably practicable in the circumstances and, on questions of reasonable time, the times prescribed in existing provisions relating to other appeals to the Supreme Court may be taken into consideration."

The jurisdiction to consider whether the appeal should be heard after a 15 months delay was based on the premise that the right to appeal to the Supreme Court was granted under s 22 of the Ordinance. The power to consider an appeal after a delay comes from the power to review under s 22 of the Ordinance.

In Ageva v Gaigo (supra), the appeal was from a decision of the Land Titles Commission. There the respondent sought to dismiss the appeal for want of prosecution. The argument by the appellant was that there was no statutory provision for dismissing appeals for not prosecuting appeals diligently. Amet J followed Ollenranshaw J in Copland v Bourke (supra) at page 163:

"The fact that there are no rules or regulations specifically stipulated to regulate such appeals are not novel, as was one such case in Copland v Bourke [1963] PNGLR 45, where no rules of the Supreme Court were made regulating appeals under s 22 of the Workers Compensation Ordinance 1951, to the then Supreme Court (National Court). Ollenranshaw J held (at 46) that ‘the right of appeal exists notwithstanding the absence of the contemplated procedural machinery and that the Court of Appeal should entertain appeals ‘...as justice and commonsense demand’"

Again the basis for the jurisdiction of the Court is based on the jurisdiction of the then Supreme Court to review a decision of the Land Titles Commission under s 38 of the Land Titles Commission Act 1962.

Counsel for the Society also relies on Burns Philip (New Guinea) Ltd v Maxine George [1983] PNGLR 55. I do not consider this is helpful because that was a case involving r 25 of the Supreme Court Rules 1977 which provided for dismissal of an appeal for want of prosecution.

While the case before us is an application under s 57 of the Constitution, the principles in Ageva v Gaigo (supra) and Copland v Bourke (supra) may be applied by way of analogy. There is no dispute that the Supreme Court has concurrent original jurisdiction to deal with such applications (s 57 (1) of the Constitution). Order 6 of the Supreme Court Rules make provision for the form in which such an application may be made but it falls short of making provision for dismissal for such applications for want of prosecution. I consider that by way of analogy, the Supreme Court by virtue of s 57 of the Constitution has jurisdiction to deal with an application to dismiss an application for want of prosecution.

Moreover, this Court has inherent jurisdiction to control the proceedings before it. An application to dismiss for want of prosecution would come within this jurisdiction.

I would dismiss the submissions by the Applicant.

I now consider the merits of the applications to dismiss applications for want of prosecution. In considering the exercise of discretion, I consider it appropriate that the principles applicable in an application to dismiss a proceeding before the National Court may be applied.

In addition, the principles applicable to dismissal of appeals for want of due diligence may also be applied where appropriate.

The parties in the present case did not dispute the principles upon which the present applications should be determined. The parties made submissions on the premise that where there is an undue delay by the Applicant, he must provide a satisfactory reason for the delay.

S.C. Application 7 of 1993

The relevant facts may be summarized as follows. The Statutory Committee of the Society suspended the Applicant from practice for a period of 6 months beginning on 1st July 1992.

The Applicant appealed the decision of the Committee to the National Court and the National Court dismissed the appeal on 17th December 1992 and the National Court directed the period of 6 months suspension should take effect as from 1st February 1993.

The Applicant then appealed to the Supreme Court against the decision of the National Court. I will come back to the determination of this appeal by the Supreme Court and its effect on the present application.

While the appeal before the Supreme Court was pending, the Applicant filed the present application on 24th June 1993.

The Applicant filed an index to Application Book for certification by the parties on 12th May 1998. The Society has not certified the Application Book.

The Society filed an application to stay the proceedings. However this application was not pursued.

The Applicant then filed an Amended Application on 15th February 2000.

In essence, the Applicant has not taken any steps to set the substantive matter down for hearing.

The Society filed application to dismiss Applicant’s application on 13th November 2002.

It is clear from this that at the time of hearing of this application, it had not been prosecuted for a period of 10 years. This clearly is undue delay. The onus is on the Applicant to explain the long delay. By way of explanation, he submits that this matter was delayed due to lack of action on the part of the Society to certify the Application Book and that the Society failed to prosecute its application to stay the proceedings.

In my view, this does not satisfactorily explain the delay. There is no statutory requirement for an Application Book nor has there been a direction by the Court to provide such a book. In any case, the Applicant ought to have taken the appropriate steps to progress such a book if required. The Applicant has not taken any such action.

In respect of the motion not pursued by the Society, he could have taken steps to dismiss it. This is no reason to delay the setting down of the matter for hearing. It was incumbent on the Applicant to progress the matter for trial.

In the result, I would dismiss the application for want of prosecution.

Moreover, the cause of action which prompted the s 57 application is no longer in existence. I refer back to the appeal lodged by the Applicant in the Supreme Court. The Supreme Court dismissed Applicant’s appeal on 29th June 1994 and directed that the decision to suspend the Applicant from practice should take effect as from 1st August 1994 and ending on 3rd week of January 1995. It follows from this that the suspension was no longer in place as from January 1995 and the question becomes academic. I would also dismiss the application for this reason.

S.C. Application 13 of 1997
This application arises out of a refusal by the Council of the Society to grant a renewal of a practicing certificate under the Lawyers Act. The Applicant was in partnership with Mr Sitapai. Mr Sitapai was charged with misappropriation of client’s money and was suspended from practice. However, the Applicant was not charged.

However, when the Applicant applied for renewal of practicing certificate, the Council refused to grant the certificate. He applied to have this decision reviewed and the National Court refused review.

The application was filed on 18th April 1997. The Applicant filed index to Application Book on 12th May 1998. The Applicant has not taken any step to list the matter for hearing.

The explanation given by the Applicant is that the Society has failed to attend to the settlement of the index and has failed to certify the Application Book.

I adopt my remarks in the earlier application, namely, that there is no requirement for Application Book and there has been no direction to provide such book. When the Society failed to attend to settle the index and certify the Application Book, it was the responsibility of the Applicant to make the appropriate application. He has not taken any such step. I do not consider that the explanation is a satisfactory one.

I would dismiss the application for want of prosecution.

S.C. Application 1 of 1999

This application was filed on 18th January 1999. This application relates to the refusal by the Society to renew practicing certificate the same decision the subject of S.C. Application 13 of 1997. I will return to this later. This application was stayed pending an appeal to the Supreme Court (SCA 48 of 1999). This appeal related to the decision by the Society not to renew practicing certificate. The Supreme Court dismissed the appeal by the Applicant on 22nd November 1999. Since the decision of the Supreme Court, the Applicant has not taken any steps to prosecute the s 57 application. His explanation was that he was very busy. The Applicant has not given any satisfactory explanation for the delay.

Moreover, the orders sought in the present application relate to the same orders sought in S.C. Application 13 of 1997. In my view that would be an abuse of the process of the Court.

In the result I would dismiss this application for want of prosecution as well as an abuse of the process of the Court.

S.C. Application 10 of 2000

This application was filed on 20th July 2000. The application arises out of a refusal by Council of the Society to renew the practicing certificate for the Applicant. The refusal by the Society is based on the failure to provide the firm’s (Karingu & Sitapai) trust account.

The Society filed application to dismiss the s 57 application for want of prosecution on 26th April 2002. No steps have been taken to progress this matter to trial since the filing of the application to dismiss the proceeding.

The explanation given by the Applicant is that he provided an index to Application Book and the Society has failed to respond or attend to certification of the Application Book. The settlement of the index has been adjourned sine die and no further steps have been taken to pursue the matter.

Clearly the Society has not responded to the index as in the other applications. As I have pointed out earlier, there is no requirement for an Application Book nor has there been a direction to provide such a book for trial. It is the responsibility of the Applicant to take appropriate action to progress this matter to trial. I do not consider this to be a satisfactory explanation for the delay and I would dismiss the application for want of prosecution.

It appears to me that the Applicant relies heavily on the failure on the part of the Society to settle and certify the Application Book. I have rejected this argument. I have examined the documents which are proposed to be compiled in the Application Book and I do not consider that there was a need for an Application Book. Issues raised in the applications are mainly constitutional law issues and the matter ought to have been listed for hearing or appropriate directions sought from the Court. I would have thought that when the applications to dismiss were filed, the Applicant would have taken steps to progress the applications to trial. No steps have been taken.

In the final result, I dismiss all four (4) s 57 applications with costs to the Society.

LOS, J: Law Society has applied to dismiss 4 applications filed by Kanisius Karingu to enforce rights under s 57 of the Constitution on the grounds that he, Kanisius Karingu, has not prosecuted the 4 applications. The applications to dismiss were made under Order 7 Rule 53 of the Supreme Court Rules. The applications were numbered –

(a) SC Application 7 of 1993
(b) SC Application 1 of 1997
(c) SC Application 13 of 1997
(d) SC Application 10 of 2000

The applications were to review the decisions by the Statutory Committee of the Law Society to (1) suspend the Applicant from practice and (2) refusal to review his annual practicing certificate under the Lawyers Act.

The question of jurisdiction has been raised, but I have read the view of the Chief Justice in this respect I respectfully agree with that view. I have however a view on the issues raised by the Applicant/Respondent. Those I will now address here.

The merits of the applications are to dismiss the applications for want of prosecution. The principles upon which these application should be made were not disputed. That is where there is an undue delay by an applicant, he must provide a satisfactory reason for the delay. His Honour the Chief Justice has properly addressed these. Certainly the Respondents non progressing of the applications having lasted for 10 years is a long time. So while I consider the Law Society too had contributed to the delay in some respect, the Respondent had not capitalized on those mistakes. For example the Society had failed to certify the Application Book. And the Society had filed an application to stay the proceeding. Then though suspension of the practicing certificate ended, the Law Society still refused to grant a certificate on the ground of failure to provide the trust account. While I accept that the Society emphasizes that it was the "firm (Karingu & Sitapai) trust account" there was no second thought that if the firm no longer existed and one party had ‘lost’ all the records a ‘non guilty’ party should not suffer a life penalty which may raise a constitutional question. That is an individual right to choose any calling and pursue it to the end should not depend on another human beings indiscretions, faults, or mistake. I consider this point should be of a general interest and not exclusively for Mr Karingu. It is my view that any dismissal on the grounds of failure to prosecute the case should not imply that this issue is incompetent; it must be raised properly as it may have a bearing on an individual’s right to a calling, especially if one party is to receive an almost life time deprivation of his profession that he had worked hard to enter.

Other than this point, I do not take issue with failing to prosecute the proceedings.

SALIKA J: I have read the draft reasons for decision by the Chief Justice and agree with the conclusions and the reasons for decision. I have nothing further to add.

Order of the Court: The Applications:

(1) Supreme Court Application 7 of 1993
(2) Supreme Court Application 1 of 1997
(3) Supreme Court Application 13 of 1997
(4) Supreme Court Application 10 of 2000

are dismissed with costs to the Respondent.
_______________________________________________________________
Applicant in Person
Lawyers for the Respondent : POSMAN KUA AISI