Kulunga v Western Highlands Provincial Government [2006] PGSC 26; SC859 (1 December 2006)

SC859

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 18 OF 2002

BETWEEN

DR. ALLAN KULUNGA
Appellant

AND

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
First Respondent

AND

MOUNT HAGEN URBAN LOCAL LEVEL GOVERNMENT
Second Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Mt. Hagen: Kandakasi, Lay and Gabi JJ.

2006: 30 November
1 December

JUDGMENTS & ORDERS – Self executing, conditional or pre-emptory orders – Nature and effect of – No automatic effect – Perfecting of order required - Proof of condition stipulated being satisfied required before perfecting orders – Formal application to and Court order required to perfect conditional order – Order 7 Rules 53 and 56 of the Supreme Court Rules.

PRACTICE & PROCEDURE - Application for variation or extension of time limits for compliance with self-executing, conditional or pre-emptory orders outside of time specified in such orders – Applicant required to demonstrate "special circumstances" before grant of – The phrase "special circumstances" can be used interchangeably with "exceptional circumstances" – These phrases mean circumstances that are unusual, out of the ordinary or extraordinary – Order 7 Rules 53 and 56 of the Supreme Court Rules.

Cases Cited

Papua New Guinea Cases

Rolf Schubert v. The State [1979] PNGLR 66.
Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110.
Dinge Damane v. The State [1991] PNGLR 244.
The Independent State of Papua New Guinea and Minister for Village Services and Provincial Governments v. Gulf Provincial Government [1994] PNGLR 34.
Charles Ombusu v. The State [1996] PNGLR 335
Hon. Andrew Baing & The Independent State of PNG v. PNG National Stevedores Pty Limited & Bank of South Pacific Limited (23/02/00) SC 627.
Henry ToRobert v. Mary ToRobert and Janet Roberts (01/12/04) N2744.
Emily Paneyu Dirua and Emily Paneyu Dirua Trading as Dirua Lawyer v. Lawyers Statutory Committee and PNG Law Society (31/08/05) N2905.

Overseas Cases

House v. The Queen (1936) 55 CLR 499.

Counsels:

Ms. M. Konge, for the Appellant/Applicant.
Mr. P. Kunai, for the Second Respondent/Respondent.

1 December, 2006

1. BY THE COURT: Yesterday, we heard an informal application by the Appellant under Order 7 Rule 56 of the Supreme Court Rules (the Rules). We reserved a decision on that to today. Here now is the decision of the Court.

Background

2. This matter was listed for hearing before this Court in these sittings of the Supreme Court. At the mention of the matter on Wednesday this week, the Appellant’s counsel informed the Court that the Appellant was not ready to proceed with the hearing of his appeal because the relevant National Court transcript was incomplete. Consequently, she submitted that the appeal book that has been filed is also incomplete. Therefore, she asked for an adjournment of the hearing of the appeal to enable the Appellant to obtain the missing transcripts and get the matter ready for hearing in the next sittings of the Court.

2. On review of the Court file in the light of the Appellant’s application, the Court discovered that the Court had on 30 June 2006, ordered the Appellant to file and serve his appeal book within one month from the date of the order and in default, the appeal to stand dismissed. That order was made by the Court following an application by the Second Respondent for a dismissal of the proceedings for want of prosecution. This brought into play the provisions of Order 7 r. 56 of the Rules. Counsel for the Appellant appeared not to be aware of that provision and asked for an adjournment to yesterday for the Appellant to file affidavit material and make a proper application under O.7 r. 56.

3. Yesterday, the matter returned before us for hearing of the Appellant’s proposed application. When the hearing got underway, the Appellant had not filed and served a formal application under O.7 r. 56. Hence, the Appellant proceeded to make an informal application under that provision.

4. In support of the Appellant’s application, the Appellant filed and served an affidavit by Peter C. Kopunye, principal of the Appellant’s lawyer’s law firm and counsel who had the carriage and conduct of this matter on behalf of the Appellant. That affidavit deposes to the Appellant initially on 8 August 2002, requesting the Transcription Service to provide the transcript of the proceedings the subject of this appeal and the subsequent follow ups up to 13 May 2005. It also deposes to this Court making the orders on 30 June 2006 and the Appellant filing the appeal book on 27 July 2006. It further deposes to discovery in September 2006 that the appeal book was incomplete because the relevant transcript was incomplete and requests being made by letter on 11 September 2006 for the Transcription Service to provide the missing parts of the transcript, which letter was followed up on 27 September 2006.

Arguments of the Parties

5. On the basis of the above affidavit, the Appellant concedes that he is already outside the one month period stipulated in the orders of 30 June 2006. He however, argues that the unavailability of the missing transcripts despite his numerous requests is ‘special circumstance’ within the meaning of O.7 r.56, by reason of which he should be given another opportunity to obtain the missing transcripts and fix the matter for hearing in the next circuit.

6. The Second Respondent is opposing that application effectively arguing that the absence of the missing transcript is not a special circumstance that warrants an avoidance of this Court’s order of 30 June 2006 taking effect. In so submitting counsel for the Second Respondent points out that the transcript problem pre-existed the orders in question because the transcripts in the appeal book were available at the time of the Court making the orders of 30 June 2006. Further, he submits that, the Appellant did not take the relevant and appropriate steps to obtain the missing transcripts and there is no reasonable explanation for that failure. Hence, he submits that this Court should not exercise its discretion in favour of the Appellant the second time. Instead he submits that the Court should find that the condition for dismissal of the appeal stipulated in the orders of 30 June 2006 has been fulfilled even though an appeal book has been filed, because the appeal book is incomplete by reason of the incompleteness in the transcript. Accordingly, he submits that this Court should confirm a dismissal of the appeal.

Relevant Issue

7. The foregoing arguments present the following issues for us to consider and determine:

(a) Is the unavailability of the missing transcript a ‘special circumstance’ within the meaning of O.7 r. 56 warranting avoidance of the effects of the orders of 30 June 2006?

(b) Subject to an answer to the first issue, have the conditions stipulated in the orders of 30 June 2006, occurred to enable those orders to take their natural effect?

First Issue – Special Circumstance

8. We will deal with the first issue first. If we decided that issue in favour of the Appellant there will be no need to deal with the second issue. If however, we determine the first issue against the Appellant, it will be necessary for us to deal with the second issue. Hence the starting point is O.7 r.56 which stipulates:

"An order under Rule 53 sub-rule (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time."

9. Rule 53 sub-rule (b) provides in relevant parts as follows:

"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—

...

(b) fix a time peremptorily for the doing of the act and at the same time order that upon non compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed".

10. In our view this provisions is very clear so that no art of interpretation is required. Where an Appellant fails to diligently prosecute his appeal the Court may instead of dismissing the appeal, require the Appellant to take certain steps within a specified period toward a diligent prosecution of his appeal and failing that order a dismissal of the appeal. Once such an order is made, the appellant is under an obligation to comply with the time period stipulated. If, for whatever reason, the Appellant is unable to comply then, r. 56 provides for the appellant to apply for a variation at any time before the expiry of the period given. If however, that time has expired without the appellant meeting the condition, he may apply for a variation but only if he is able to demonstrate a special circumstance warranting variation and consequently avoid the effect of the order. The operative phrase here is "special circumstances".

11. There is a large body of decisions of both the Supreme and the National Courts which have either made reference to the phrase or have determined in the particular circumstance of each case whether or not the case before the Court discloses "special circumstances."[1] Other decisions of the Court have expressed the view that the phrase means "exceptional circumstances" or have used the phrase "special circumstances" interchangeably with the phrase "exceptional circumstances".[2] On the other hand some decisions have expressed views that seem to say that "special circumstances" is different from "exceptional circumstances".[3] None of these cases seemed to have really got down to determining the meaning of the phrase "special circumstances" or "exceptional circumstances". That is why in our view the decisions of the Courts are at variance with each other as to what constitutes "special" or "exceptional circumstances."

12. We consider it appropriate that we should now attempt to define what is meant by the phrase "special circumstances" or "exceptional circumstances." According to the Concise Oxford English Dictionary[4] the word "special" means "better, greater, or otherwise different from what is usual." It also means "designed for a particular person, place, or event". It then gives the example, "something designed or organised for a particular occasion or purpose – a dish not on a regular menu but served on a particular day." As for the word "exceptional" the same dictionary defines it to mean "unusual; not typical." The dictionary then gives an example as "unusually good".

13. A close and careful consideration of these definitions clearly lead to the conclusion that the words "special" and "exceptional" have the same meaning and effect. The meaning and effect of these two words is that, that which is "special" or "exceptional" is something out of the ordinary or usual. In other words something that is "special" or "exceptional" is something that stands out clearly and differently away from the rest or something that is unusual or extraordinary. Applying these meanings to the phrase "special circumstances" or "exceptional circumstances" we are of the view that, these phrases mean circumstances that are unusual, out of the ordinary or extraordinary. As such the phrase "special circumstances" and "exceptional circumstances" can be used interchangeably.

14. What is the effect of the definition we have just given to the phrase "special circumstances" for the purposes of O.7 r.56? In our view, where an appellant fails to come within the first part of that provision, he or she must demonstrate to the satisfaction of the Court that something unusual, extraordinary or something out of the ordinary prevented him or her from doing what was required under a self-executing or conditional order for dismissal under O. 7 r.53 (b). We are of the view that, by the use of the word "special" the draftsman intended to exclude the kind of factors such as a lawyer’s or the party’s own negligence, that usually or ordinarily contribute to an appellant not prosecuting his or her appeal with due diligence or failing to meet any deadlines set either by law or by an order of the Court. This is for a good reason, a diligent appellant will be aware of the usual eventualities or factors that often contribute to delays in diligent prosecution of appeals and meeting of deadlines. Such an appellant would have to take all the steps necessary to ensure that such eventualities or factors do not arise and plan for and take the appropriate steps without delay if all or any of those things occur.

15. It is difficult to state with precision what could amount to an unusual, extraordinary or something out of the ordinary circumstance. This is because no two cases are the same. Instead, each case is different and the circumstances that might contribute to an appellant not taking the steps required of him or her would differ and may very much be at variance with each other. Nevertheless, it is possible to state some general principles that could assist in the determination of the question whether a circumstance is unusual, extraordinary or something out of the ordinary to warrant a variation of a self-executing or conditional order. This could be best met in terms of requirements an appellant coming under the second part of O.7 r. 56 must meet.

16. First, we consider it necessary that an appellant should provide a reasonable explanation for allowing the time period stipulated to expire. This the appellant must do by demonstrating by appropriate evidence that he or she took all of the steps required or he or she could possibly take. Not only that, he or she must demonstrate that despite the steps taken to meet the deadline, he or she could not meet the deadline. That must be attributable to something beyond the appellant’s control such as, the sudden death of his lawyer or a destruction of his file or something he or she relied on to assist with a meeting of the conditions or duties and obligations imposed upon him or her by the Court order.

17. Secondly, the appellant must also establish by appropriate evidence that, the circumstance relied on is something that arose prior to the expiry of the time period stipulated in the order and that fact substantially prevented the appellant from doing what was required of him or her within the set deadline. This is necessary because, a fact or circumstances arising after the expiry of the deadline stipulated for the required act could not have prevented the appellant from meeting the deadline prior to its expiry.

18. Finally, the appellant must demonstrate also by appropriate evidence that, he or she is making the application without any unnecessary and undue delay. If there is delay in the making of the application, the appellant must provide a reasonable explanation for the delay. Further, the appellant must demonstrate by appropriate evidence that, he or she is now prepared to take the remaining steps and that; his or her appeal will definitely be prosecuted without further unnecessary delay.

19. We consider each of these requirements important and necessary. As such, an appellant coming under the second part of O.7 r.56 must meet all of these requirements before there can be variation of the orders made under r .53 (b).

20. Applying these principles to the case before us, we note that, the appellant has not met any of these requirements. His only plea is that, despite numerous requests made to the Transcription Service of the Court he only received part of the transcript and not the complete transcript of the proceedings before the National Court. He submits through his counsel that he was only able to compile the appeal book with the incomplete transcript. There is a suggestion by the Appellant that, the relevant tapes and or parts of the transcript have been lost by the transcription service.

21. The transcript albeit incomplete was available as at 25 March 2005. The appellant first requested the transcript by letter dated 18 August 2002 after lodging the appeal on 4 April 2002. The Appellant might say there was a delay in his actual receipt of the transcript. We do not consider that significant. If the Appellant was indeed serious about his appeal, he could have appointed an agent in Port Moresby to attend on the transcription unit, obtain and forward to his lawyers, the transcript possibly by express mail. There is no evidence of the Appellant taking any such step and more importantly, the evidence shows that, the Appellant and his lawyer did nothing about the missing portion of the transcript until 11 September 2006. That was well after the filing and serving of the appeal book in purported compliance of the orders of 30 June 2006, and before that, the making of the orders of 30 June 2006. The Appellant did not take any meaningful steps such as, raising the issue of the missing parts of the transcript with the trial judge and finding out if he was in any position to assist from his hand written notes. Nothing untoward or something out of the ordinary or the usual or something extraordinary occurred that prevented the Appellant from taking the steps he should have taken. Clearly therefore, the Appellant did not take all of the steps he should have reasonably taken. Hence, even though the missing transcript was a problem that pre-existed the orders of 30 June 2006 it was not extraordinary, or something out of the ordinary or something unusual to prevent the Appellant from meeting the one month deadline, particularly when he took no meaningful step as earlier noted to obtain the missing transcript within the one month period allowed by the Court, or soon thereafter.

22. Obviously, on the facts before us, the Appellant has not formally filed and served any application for variation under O.7 r. 56. It was only an afterthought, well after the matter was listed for hearing, and more so, on the eve of the hearing of the substantive appeal. The incompleteness of the transcript was apparent from 24 March 2005. The Appellant did not pay any particular attention to it. He also failed to take any steps to diligently prosecute his appeal. Application was therefore made by the Second Respondent for a dismissal of the appeal for want of prosecution. The Court instead of dismissing the appeal straight away, made the orders it made in favour of the Appellant on 30 June 2006. The Appellant woke up to the need to apply for a variation of the orders and tried to do that belatedly without any reasonable explanation for the delay.

23. To date, the Appellant has not meaningfully prosecuted his appeal which is, evidenced by the inordinate delay and the lack of any reasonable explanation for that delay. Meanwhile, we note that the Appellant has been in occupation of the property the subject of the appeal. The Appellant has not provided us with any evidence showing that the Second Respondent has not and will not suffer any prejudice due to the delay in prosecution of this appeal. Nevertheless, we note that, the Second Respondent has come to this court initially on 30 June and again before us in these sittings. That of course means costs forced upon it by the Appellant’s conduct quite apart from any prejudice the delay may force up the Second Respondent.

24. Given the forgoing, we are not satisfied that the Appellant has demonstrated to our satisfaction any extraordinary, something out of the ordinary or unusual circumstances that warrants a grant of his application. Accordingly, we decline to grant the Appellant’s application.

Second Issue – Conditional Order

25. Having decided against the Appellant’s application does it mean that, this proceedings should automatically stand dismissed as per the orders of 30 June 2006? This is the subject of the second issue, so we turn to a consideration of that issue now.

26. The Supreme Court in Hon. Andrew Baing & The Independent State of PNG v. PNG National Stevedores Pty Limited & Bank of South Pacific Limited[5] settled the relevant principles governing conditional or self-executing orders in our jurisdiction. In that case, the first respondent sued the appellants and the PNG Harbour’s Board for damages. After the close of pleadings and during pretrial proceedings, the respondent obtained orders for discovery of documents. The appellants did not comply with the orders of the Court for discovery of documents. The Court therefore granted a conditional order. The orders required the appellants to file and serve their list of documents with verifying affidavit within forty-eight hours (48) of the making of this Order. It also ordered that, in default of compliance with the first order and on the filing of an Affidavit of non compliance, the appellants defence be struck out and interlocutory judgment be entered for the Plaintiff.

27. There was no compliance with the orders by the appellants. Consequently, the respondents filed an affidavit with the registrar in accordance with the orders of the Court. The registrar accepted the affidavit, struck out the appellants’ defence, and entered judgment against them. The appellants did nothing about the judgment against them until about 16 months later, when they made an application to set aside the orders. The National Court refused that application because, it was of the view that, because the orders were by consent of the parties, it lacked jurisdiction. That led to an appeal to the Supreme Court.

28. In determining the appeal in favour of the appellants, the Supreme Court observed at page 6 of the judgment:

"But what is equally clear is that the said orders were conditional orders. We say they were conditional orders because the terms of it were conditional upon the happening of some event in the future. The event was that the Appellants were to ‘make file and deliver a list of documents verified by affidavit within forty eight hours (48) of the making of this Order.’ This meant that if the appellants did not comply with the terms of the order, the respondent had to come back to the Court and [make] an appropriate application to the Court. Thus, this required further judicial function to be exercised in determining that the condition had not been satisfied at the specified time."

29. The Court then had regard to the provisions of definition of the term "Court" in the National Court Rules and held that, only a judge to the exclusion of the Registrar or anyone else has the jurisdiction to strike out a defence and order that, judgment be entered. The Registrar therefore had no jurisdiction to make the orders he made. The Court went on to hold that, since the first orders of National Court were conditional, it was incumbent on the Respondent to apply to the Court to first determine whether the conditional order had been satisfied or not at the specified time. Then, when the conditional order had not been satisfied, the Respondent ought to have applied to the Court by a appropriate notice of motion pursuant to Order 9 r 25 (1) (b). The Respondent did not take these steps and instead, obtained for the orders through the Registrar, which was irregular, and the Court set aside those orders.

30. We endorse Kandakasi J’s views in Henry ToRobert v. Mary ToRobert and Janet Roberts,[6] that:

"The clear impression ... from these authorities is that, self-executing or conditional orders are not final orders in themselves. Instead, they are a forewarning of what would happen if a party required to take certain actions or steps specified in such orders fail to take them within the time limits stipulated by such orders. Such orders are therefore, not an end in themselves but rather set conditions precedent for the entry of the order or judgment forewarned in these kinds of orders on the fulfillment of the condition specified in the order. Then where there is a satisfaction of the stipulated conditions, it entitles the party seeking its benefit to go back to the Court and demonstrate the satisfaction of the condition and there being no impediment to the grant of the orders or judgment already forewarned."

31. The principles enunciated and the procedure laid down by the Supreme Court in the Hon. Andrew Baing case as elaborated by Henry ToRobert case has been applied in a number of subsequent cases such as the decision of Injia DCJ in Emily Paneyu Dirua and Emily Paneyu Dirua Trading as Dirua Lawyer v. Lawyers Statutory Committee and PNG Law Society[7] and Nukumai Plantation Ltd v Tukake (2005) N2781, Gabi AJ (as he then was).

32. To these principles we add that, because O.7 r. 56 specifically deals with self-executing or conditional orders made under O7. r 53(b) the Court must be satisfied that, it can not vary the orders, before allowing the orders to take effect. A party desirous of avoiding the effect of a self-executing or conditional order, must make a proper application to the Court with supporting affidavit material, where facts are relied on, well before the expiry of the deadline stipulated, to prove special circumstances, as we have discussed above, without delay and upon knowledge of the special circumstances.

32. Applying these principles to the case before us, we are of the view that the orders of 30 June 2006 do not automatically take effect. Instead, it requires further judicial consideration of whether the steps required to be taken by the Appellant have been taken within the time period stipulated. If we are satisfied that the Appellant did not take the steps required of him, only then can the Court give effect to the orders of 30 June 2006. But that can come about only if, we are satisfied that the earlier orders can not be varied.

33. We have already ruled that, the Appellant as not made out a case under O.7 r.56 for a variation of the orders of 30 June 2006. That being the case, there is clearly no evidence of the Appellant taking the steps he was required to take under those orders. He was required to file and serve his appeal book within one month from that date of the order, which expired on 30 July 2006. The Appellant filed an appeal book on 27 July 2006. However, as we have earlier noted, that appeal book was incomplete due to the incompleteness in the transcript. An incomplete appeal book is no appeal book. Complete and proper appeal books are required to enable a hearing of an appeal. A compete and proper appeal book was required to be filed in this case so that the hearing of the appeal could proceed without further delay at this sittings. That was particularly necessary given that the Second Respondent applied to dismiss the proceedings for want of prosecution but the Court in the exercise of its discretion made the order it made on 30 June 2006. In the circumstances, we are satisfied that the Appellant failed to take the steps he was required to take. We are also satisfied that, there is no impediment to this Court confirming and giving effect to the orders forewarned in its earlier orders of 30 June 2006. Accordingly, we confirm dismissal of the appeal both for want of prosecution and for non compliance of this Court’s orders of 30 June 2006. We are also of the view that, the Appellant should pay the Respondents cost to be agreed if not taxed.

34. The formal orders of the Court then are these:

1. The Appeal is dismissed for want of prosecution and non compliance of the orders of 30 June 2006.

2. The Appellant shall pay the Respondents’ costs to be agreed if not taxed.

______________________

Kopunye Lawyers: Lawyers for the Appellant/Applicant
Kunai & Co Lawyers: Lawyers for the Respondent/Appellant

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^[1] See for example the decision in Rolf Schubert v. The State [1979] PNGLR 66; and the decision in Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110
^[2] See for example the decision of the Supreme Court in Dinge Damane v. The State [1991] PNGLR 244; and in the case of The Independent State of Papua New Guinea and Minister for Village Services and Provincial Governments v. Gulf Provincial Government [1994] PNGLR 34.
^[3] See for example the decision in Charles Ombusu v. The State [1996] PNGLR 335; and the decision in Rolf Schubert v. The State (supra).
^[4] C. Soanes & A. Stevenson, Concise Oxford English Dictionary (2004) 11^th Edn, Oxford Press, Oxford.
^[5] (23/02/00) SC 627.
^[6] (01/12/04) N2744.
^[7] (31/08/05) N2905.