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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM 7 OF 2005
BETWEEN
CANISIUS KARINGU
Appellant
AND
PAPUA NEW GUINEA LAW SOCIETY
Respondent/Applicant
Waigani: Sakora, Davani & Mogish. JJ
2006: 28 June
28 August
COURT ORDERS - self executing - that if appeal not ready, it shall stand dismissed - o.7 r. 53 of Supreme Court Rules.
COURT ORDERS - self executing - respondents refusal to certify appeal book - appellant claims he is ready to proceed - court will not dismiss appeal.
The Supreme Court Rules, O.7 r.53, provides that if an appellant has not done any act or not presented his appeal with due diligence, the court may either dismiss the appeal for want of prosecution or fix a time for the doing of the act and upon non-compliance, shall stand dismissed.
An earlier Supreme Court ordered that the appeal shall stand dismissed by June 2006 if the appeal books are not filed before the civil call-over, extracts of arguments filed and all other required steps taken and that if the appeal is not ready for argument in June (2006) sittings, that it ‘shall’ stand dismissed.
The appellant was not ready to proceed by the June 2006 sittings because the respondent refused to certify the appeal book. The respondent applied to dismiss the appeal for non-compliance with the earlier Supreme Courts order.
Held
(1) Because the respondent refused to certify the appeal and because the appellant has been diligent in preparing the appeal since the application to dismiss was filed, that the appellant should not be penalized for that and that the self-executing order should not take effect.
(2) The rules are there not to thwart or frustrate the determination and fair hearing of any action, either at first instance or an appeal. It is not intended that these rules should be employed as tools for legal manoeuvring.
Wenum Elkum v PNG [1988-89] PNGLR 662; Aisip Duwa v Ronald Senge [1995] PNGLR 140.
(3) (Davani. J dissenting): Earlier Supreme Court order was unequivocal in its terms, that the appeal will be dismissed if it is not ready by the June 2006 sittings. If the appeal is not ready to proceed and before the ordered deadline, the applicant must apply to vary the order. O. 7 R. 56 of Supreme Court Rules; Pt. 2 R. 3 of Supreme Court Rules 1970 (NSW); Pt. 40 R. 9 of Supreme Court Rules 1970 (NSW)
(4) (Davani. J dissenting): A self-executing order is either conditional or unequivocal. If unequivocal, as were the terms of this order, the order automatically stands dismissed, unless an application to vary is made before the ordered deadline. FAI General Insurance Co. Ltd v Southern Cross Exploration [1988] HCA 13; (1988) 165 CLR 268; Hon. Andrew Baing & The Independent State of Papua New Guinea v PNG National Stevedores Pty Ltd & Bank South Pacific (2000) SC 627: Henry To Robert v Mary To Robert (2004) N2744; Nukumal Plantation v Tukake Ltd (2005) N2781; Cairns on Australian Civil Procedure (1992) Third Edition.
(5) (Davani. J dissenting): If the applicant applies to vary after the ordered deadline, in this case, after June 2006, he must show that special circumstances exist that warrant a variation, revocation or effectively an extension of time. Such an application was not before the Court. O.7 R. 56 of Supreme Court Rules.
Cases Cited
Papua New Guinea Cases
Wenam Elkum v PNG [1988-89] PNGLR 662 at 665
Aisip Duwa v Ronald Senge [1995] PNGLR 140
Hon. Andrew Baing & the Independent State of Papua New Guinea v PNG National
Stevedores Pty Limited & Bank of South Pacific (2000) SC627;
Henry To Robert v Mary To Robert (2004) N2744;
Nukumal Plantation Ltd v Tukake Ltd (2005) N2781;
Dan Kakarya v Michael Somare, Koiari Tarata and Francis Kaupa SC62
Overseas Cases
Turner v Bulletin Newspaper Co. Pty Ltd [1974] HCA 25; (1974) 131 C.L.R. 69;
Birkett v James ([1978] AC 297
FA1 General Insurance Co. Ltd v Southern Cross Exploration [1988] HCA 13; (1988) 165 CLR 268;
Texts
B.C. Cairns, Australian Civil Procedure (1992) Third Edition;
Counsels
B. Boma, for the Respondent/Applicant
C. Karingu, Appellant in person
DECISION
28 August, 2006
1. SAKORA J: I have had the advantage of reading the separate judgments of their Honours Justices Mogish and Davani in draft form. The history of this appeal has been, with respect, adequately canvassed in both judgments. The pertinent legal principles in respect of self-executing orders vis-à-vis the powers of this Court under Order 7 Rule 53 of the Supreme Court Rules (SCR) have also been, with respect, adequately discussed with the necessary support of the case law in the judgment of her Honour Davani J. Therefore, I see no useful purpose will be served by my repeating these here.
2. The principles of law applicable are acknowledged. However, it is the factual circumstances giving rise to the application of the Papua New Guinea Law Society (PNGLS) that need closer consideration. In the end, therefore, the determination of the application, in my respectful opinion, turns on those facts. And those facts lead me to respectfully agree with the conclusion reached by my brother Mogish J and the reasons he states for this. What follows are few brief remarks and observations, if only to emphasize some of the points made in his Honour’s judgment.
3. The applicant/respondent relies on Order 7 Rule 53 of the SCR, more particularly sub-rule (b). The entire Rule is reproduced hereunder as follows:
4. The "doing of the act" which the applicant asserts was not complied with for the rule to apply is the self-executing order contained in the judgment of an earlier Supreme Court (28 April 2006) which entertained the first application to dismiss the appeal. The pertinent extract from that judgment is reproduced hereunder:
Although the Appellant’s explanation for the delay amounts to almost no explanation, we cannot ignore the fact that since this application was filed he has been diligent in taking the steps necessary to prepare for hearing. It appears from the evidence filed that it only requires the co-operation of the Respondent to complete the Appeal Book for certification. We also note that it was not until the eve of the Court vacation that the Respondent commenced to press for progress in the appeal. In those circumstances we propose to follow the statement of principle in SC62 Dan Kakarya v Michael Somare, Koiari Tarata and Francis Kaupa (supra), to the effect that an application to dismiss for want of prosecution might not be successful if the Appellant has remedied his omissions since filing of the application, and refuse the application.
We consider also that it would be appropriate to make some kind of self-executing orders. This appeal is to be ready to be heard in the June sitting of the court, that means the appeal book must be filed before the call-over, extracts of arguments filed in accordance with the rules and all other required steps taken. If the appeal is not ready for arguments in the June sittings it shall stand "dismissed" (page 6).
5. It would appear that following those orders the parties returned to court on 26 May, 2006 before the Chief Justice for directions for the future conduct of the appeal. These directions are set out in full hereunder:
6. When the matter went before the Supreme Court on 28 April, 2006, the Appeal Book was not ready. That is why it entertained the respondent’s application pursuant to Order 7 Rule 53 of the SRC, and refusing the application made the self-executing order (supra). With respect, the court was justified in refusing to dismiss, because it would appear (from the judgment, supra) that the appellant had offered some explanation for the delay in finalizing the Appeal Book, and that he had indeed taken some steps to prepare for the hearing since the filing of the respondent’s application. It would appear also that part of the appellant’s explanation which the court took cognizance of was the respondent’s contribution to the delay. At that point in time, therefore, it only required "the co-operation of the Respondent to complete the Appeal Book for certification" (judgment, supra).
7. It would appear from that judgment also that the "omission" that the appellant would have attended to and rectified was the completion and compilation of the Appeal Book for certification. All that remained to be done, therefore, was for the Appeal Book to be certified and filed so that the parties would prepare for the actual hearing in June, having undertaken those steps envisaged by the concluding parts of the judgment (supra).
8. The self-executing order is the last sentence of the concluding parts. And, once again, the court was justified in making that order in view of the history of the matter.
9. It is not without significance to note that, what remained to be done in compliance with the orders could not be done without the co-operation of the respondent. The respondent’s lawyers had to certify the Appeal Book for filing. And when the matter came before us in the June sittings, the respondent’s lawyers had refused to certify but came to court armed, yet again, with an application to dismiss pursuant to Order 7 Rule 53 SCR. And why did they refuse to certify? Because they wanted the "deposition" of the 26 May 2006 Directions of the Chief Justice.
10. Once again, it is not without significance to note that, those Directions pretty much reflected the orders made by the April 2006 Supreme Court that preceded the self-executing order found in the concluding parts of the judgment (supra). The Directions were not necessary for the determination of the merits or otherwise of the appeal itself. They were necessary for the preparation and future conduct of the appeal. Thus, except for paragraph (6) of the Directions, about adjournment, paragraphs (1) to (5) reflect the Supreme Court orders, and, in any case, these are the usual directions given before appeals go for listings and hearings.
11. There was, therefore, no justification for the refusal to certify the Appeal Book. This, in my view, is yet another instance of deliberate refusal to co-operate in the final disposition of this case.
12. Instead of attending to what needed to be done, in a spirit of co-operation, in order to expedite the necessary processes so that the serious issues raised in the appeal can be finally and judicially determined one way or another, the respondent’s lawyers seem to be concerned only with delaying and preventing the appeal being heard. This can be the only conclusion to be drawn from its persistent applications to dismiss in the face of its own lack of co-operation in matters that require its co-operation.
13. This court’s power under Order 7 Rule 53 SCR is similar to that vested in a court of first instance under Order 4 Rule 36 of the National Court Rules (NCR). And what constitutes or may constitute want of prosecution is, in my opinion, well defined by what Rule 36 says under sub-rule (1) which reads:
(1) Where a plaintiff makes default with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the court may stay or dismiss the proceedings.
14. Of course, judicial opinion abound as to what exactly is meant by due diligence or due dispatch, and it is not necessary to discuss those here. However, it needs to be stated that the powers of the two courts under their respective Rules have their origin in the inherent jurisdiction of these courts, vested with the purpose of enabling them to control their own proceedings and processes.
15. The rules are not there in order to thwart or frustrate the fair hearing and determination of any action, either at first instance
or on appeal. It is not intended that these rules should be employed as tools for legal manoeuvring that Brunton AJ (as he then was)
characterized as: "A tactic of litigation by attrition . . . " in the case of Wenam Elkum v PNG [1988-89] PNGLR 662 at 665, when striking out a purported defence filed by the State as a pleadings device that could be employed to "manipulate and
gain unfair advantage over their adversaries. . ."
16. I had respectfully cited with approval his Honour’s observations in my own judgment in the case of Aisip Duwa v Ronald Senge [1995] PNGLR 140, where, inter alia, I had to consider whether an order to strike out pleadings should be made in favour of a party (applying) who himself was in breach
of the NCR. The application was dismissed as I found the applicant’s lawyers’ action in seeking orders for the production of documents
which they know were not in the possession of the defendant amounted to "harassment and an abuse of process". I described further
the behaviour of the plaintiff’s lawyers in the following terms (at 148):
Knowing full well the list did not contain any relevant documents in the then possession, custody and power of the defendant, and that any copies that he may have had of them previously were no longer available or accessible, the plaintiff’s lawyers manipulated the procedures under the NCRs and bombarded him with unjustified and unmeritorious requests and threats to use the default procedures. If this did not, and does not, under the circumstances, constitute blatant abuse of the procedures and processes, then I do not know what else it could have been.
17. I would respectfully adopt these characterizations as applicable here to the applicant’s demonstrated lack of co-operation with the appellant to compile and finalise the Appeal Book, and its refusal to certify the Appeal Book. In my view, on the facts, there remained nothing that the appellant had to do on his own part in compliance with the orders of the April 2006 Supreme Court. It is instructive to restate what that Court said in its judgment (supra). The court acknowledged that "since this application was filed he has been diligent in taking the steps necessary to prepare for hearing." (emphasis mine).
18. The Appeal Book could not be filed for hearing of the appeal before us in June because the respondent’s lawyers refused
to certify it. That meant that the self-executing order could not be complied with, by doing the other "acts" that were necessary
for hearing that the Supreme Court ordered, and the Chief Justice gave directions on in May 2006: ". . . extracts of arguments filed
in accordance with the rules and all other required steps taken. . . " (ibid).
19. It should be stated that rules such as those found in Order 4 Rule 36 NCR and Order 7 Rule 53 SCR are not there to overburden a party initiating the proceedings, either a plaintiff or an appellant. They are there to be availed
of to ensure that no prejudice is caused and that the eventual trial of the issues will be fair.
20. Lord Diplock in the leading House of Lords decision on the principles governing dismissal of an action for want of prosecution, namely Birkett v James ([1978] AC 297) declared that the power of the Court to dismiss an action for want of prosecution should be exercised, inter alia, if the Court was satisfied that there had been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and that such a delay would give rise to a "substantial risk" that it was not possible to have a fair trial of the issue in the action or such delay was likely to cause or had caused serious prejudice to the defendants either between themselves and the plaintiff or between each other or between them and third party. This long summary of his Lordship’s declaration of principles is extracted, respectfully, from the Practice Note by JG Starke QC in the [1988] 62 ALJ 85.
21. In this case, to dismiss the appeal because, first, the Appeal Book had not been certified by the defendant’s lawyers, and secondly, that as a direct consequence, all those steps deemed (and directed) as necessary to get the appeal ready for hearing (orders of the April Supreme Court and Directions of the Chief Justice May 2006) were not capable of being undertaken on the part of the appellant, would be to, in my respectful opinion, do great injustice. The facts demonstrate that the refusal to co-operate by the respondent has been the main cause of the delay since the decision of the April 2006 Supreme Court.
22. Finally, the self-executing order was not exclusive to the appellant’s "doing of the act", but, rather envisaged the co-operative efforts of both parties to have the appeal ready for argument. In such circumstances, it would be patently unfair to rely on a self-executing order that the applying (for dismissal) party has been the cause of the non-compliance.
23. I would dismiss the application with costs and order that the Directions of the Chief Justice of 28 May, 2006 be complied with
by both parties and have the appeal ready for hearing at the next Supreme Court sittings.
________________________________________________
1. DAVANI. J (Dissenting): This is an application by the respondent/applicant (‘applicant’) to dismiss the appellants appeal for non-compliance with a self-executing order. Before discussing the merits of the application and to fully appreciate my reasoning, it is necessary that I set out the background because this matter has a long history, commencing in 1996.
Background
2. In 1996, the appellant applied to the Papua New Guinea Law Society (‘PNGLS’) to renew his Unrestricted Practicing Certificate (U.P.C) to Papua New Guinea Law Society (PNGLS). The PNGLS refused the application. The appellant then sought a review to the National Court in proceedings OS No. 162 of 1996. But on application by the PNGLS, the application was dismissed for want of procedure. The PNGLS argued that the procedure under Order 16 of the National Court Rules (‘NCR’) should have been followed.
3. The appellant then appealed to the Supreme Court in proceedings, SCA 69 of 1996. In 1997, the Court upheld the appeal, reinstated the National Court proceedings, and referred the matter to the National Court for re-hearing. The appellant was awarded costs.
4. At the hearing of the taxation of those costs, the PNGLS objected to the appellant claiming costs. It submitted that as the appellant was not a practicing lawyer, that he could not claim costs as the lawyer/client scale. After written and oral submissions by both parties, the Registrar ruled in favour of PNGLS, disallowed the costs and taxed only the out of pocket expenses.
5. The appellant then sought a review of the Registrar’s ruling. The application was made to the Supreme Court. Amet CJ, then sitting as a Single Supreme Court Judge, directed that the review be heard by the National Court in the first instance. At the National Court, Kandakasi, J heard the review.
6. In a published judgment, Kandakasi, J set aside the Certificate of Taxation issued by the Registrar, ordered that the costs awarded by the Supreme Court in 1997, be taxed at a lawyer’s rate and awarded the costs of the review to the appellant.
7. The Costs awarded by the Supreme Court in 1997 was taxed by the Registrar, then reviewed by the National Court on the ‘PNGLS’ application, then was finally dealt with by the Supreme Court in SCA No. 111 of 2002, on appeal by PNGLS.
8. The court order the subject of the appeal is from the Chief Justice’s decision of 1 April, 2005, sitting as a single judge of the Supreme Court, in proceedings SCA No. 69 of 1996. He ordered that parties appear before the Deputy Registrar for her clarification on whether costs had or had not been taxed by the Registrar. Mr Karingu submits that he is appealing against that decision because the Chief Justice should have asked the parties to address him on whether the Supreme or the National Court has jurisdiction to hear and determine the application to disqualify the Deputy Registrar from taxing the Bill of Costs awarded by Kandakasi, J. And that the Chief Justice erred when, instead of hearing parties and issuing directions in relation to the matter before him, that he proceeded to find that the application before him was to review the taxing officers decision to disallow or allow costs and so should not have directed parties to appear before the Deputy Registrar for clarification on the taxing of the appellants costs (decision of 1 April, 2005), but rather, should have heard parties and issued directions as to whether it was the Supreme Court or the National Court that had jurisdiction to hear the application to disqualify the Deputy Registrar from taxing costs.
This application
9. This application is filed following the alleged non-compliance by the appellant of the Supreme Court’s orders of 28th April, 2006. The said orders were made after the Supreme Court heard an application by the applicant to dismiss the appeal for want of prosecution, application made pursuant to O.7 R.53 of the Supreme Court Rules (‘SCR’). This is what the Supreme Court said at p.6 of that judgment;
"Although the Appellant’s explanation for the delay amounts to almost no explanation, we cannot ignore the fact that since this application was filed he has been diligent in taking the steps necessary to prepare the appeal for hearing. It appears from the evidence filed that it only requires the co-operation of the Respondent to complete the Appeal Book for certification. We also note that it was not until the eve of the court vacation that the Respondent commenced to press for progress in the appeal. In those circumstances we propose to follow the statement of principle in SC762 Dan Kakaraya v Michale Somare, Koiari Tarata and Franics Kaupa (supra), to the effect that an application to dismiss for want of prosecution might not be successful if the Appellant has remedied his omissions since filing of the application, and refuse the application.
We consider also that it would be appropriate to make some kind of self executing orders. This appeal is to be ready to be heard in the June sittings of the court, that means the appeal book must be filed before the call over, extracts of arguments filed in accordance with the rules and all other required steps taken. If the appeal is not ready for argument in the June sittings it shall stand dismissed". (my emphasis)
10. Then on 26 May, 2006, the Chief Justice issued the following directions;
"1. In accordance with Order 11 Rule 12 of the Supreme Court Rules that the parties in this matter shall file written submissions.
11. It is to be noted that as at 26 May, 2006, the appeal book had yet to be certified by both parties. And the directions by the Chief Justice of 26 May, 2006 do not refer to the Supreme Court orders of 28 April, 2006. And I do not know if counsel referred him to the existence of those orders.
12. The issue now before me is whether the appeal "stands dismissed" as ordered on 28 April, 2006.
13. Mr Karingu submitted that he delivered the appeal book to Posman Kua Aisi Lawyers on 14 June, 2006 but that Mr Boma of that firm refused to certify the appeal book because the transcripts of 26 May, 2006 were not part of the appeal book. So what should the appellant have done then? Should he have waited until this application to raise the respondents lawyers refusal to sign the transcript as a ground for not dismissing the appeal or should he have applied before a full Supreme Court bench for some form of orders, in this case, maybe an order to extend time for compliance, considering the orders of 28 April, 2006 are self-executing in nature?
14. Although submissions were made by both counsel on what occurred between 28 April, 2006 and this application, there are no affidavits before me deposing to these events. And I will not consider submissions from the bar table.
15. And both respondents counsel and the applicant have not submitted in law on the possible steps the appellant could have taken to avoid or ensure that the orders did not take effect.
16. But generally, it is incumbent upon the appellant to show the court that the orders should not take effect. On that note, the appellant submits that the court must exercise its inherent discretion under s.155(4) of the Constitution to vary the orders of 28 April, 2006, to extend time and to make further orders that the appeal be prosecuted at the next sittings of the Supreme Court. He submits this relying on the respondent’s refusal to certify the appeal book, as pointed out above. But I emphasize again that there is no affidavit material before me deposing to those events. So I am left with a court order that has not been complied with. What can the court do under these circumstances?
Cairns on "Australian Civil Procedure" states this;
A self-executing order can be made when the court orders a party to take a step required under the rules, for example, delivering particulars or giving discovery of documents. In default of compliance with the order, there is provision for the automatic striking out of the action or defence. What makes the order self-executing is the quality that the penalty applies automatically on the failure to comply with the order. An example of a self-executing order is the order made in Bellenger v Watson (1980) 3 N.T.R. 28. There the court ordered the plaintiff to deliver answers to interrogatories within 28 days, with the claim being struck out on failure to comply. When the answers were not delivered, the plaintiff’s claim was struck out automatically without any further adjudication by the court. For an order to be effective as a self-executing order, it must be expressed in unequivocal terms" (pg. 453). (See Broers v Forster [1981] FCA 111; (1981) 36 A.L.R. 605; Turner v Bulletin Newspaper Co. Pty Ltd [1974] HCA 25; (1974) 131 C.L.R. 69 at 74.)
In Turner v Bulletin Newspaper Co. Pty Ltd (supra), the Supreme Court of Victoria struck out a statement of claim as tending to embarrass the fair trial of the action. It was a defamation claim. The court ordered the filing of an amended statement of claim to plead certain matters and further ordered that failing service of this amended statement of claim showing the complied conditions and to be done within a certain period, that the action will stand dismissed. The action was dismissed. When the appeal eventually reached the High Court of Victoria, it dismissed the appeal because of the non-compliance by the plaintiff of orders, one of which was the filing of an amended statement of claim, to plead in the manner ordered by the court.
17. In the High Court, on consideration of the appeal, Jacobs, J, said;
"In my opinion there is no power to dismiss an action when a statement of claim which discloses a cause of action is struck out because of defects in the form of pleading. This cannot be done directly and it cannot be done indirectly by imposing conditions relating to the form of pleading, breach of which will result in dismissal of the action. Where the form of pleading is defective, the court can certainly strike it out entirely and is not bound to reframe it for the plaintiff’s benefit. But when it does so, leave to remake it must be given, if leave is necessary." (pg.97).
18. A self-executing order must be clear, with no other conditions attached, apart from striking out.
19. Australian Civil Procedure (supra) – goes on to state at pg.453;
"The effect of a self-executing order depends on the rule pursuant to which it is made. Where the rule allows the court to strikeout an action or defence, then that penalty may be made to follow a failure to comply with the order. If the rule merely permits a pleading to be struck out, then that penalty may be imposed as part of the self-executing order. Where the rule under which the order is made allows judgment to be given then judgment is given under the self-executing orders. If the order simply allows a pleading to be struck out, a default judgment is entered because of failure to plead."
20. Generally speaking, on the hearing of applications to dismiss or applications of a similar nature, following the non-compliance with conditions of a self-executing or conditional order, the courts must exercise some degree of laxity, considering the nature of the matter before them and circumstances leading up to and surrounding the application, and of course the rules that govern applications to dismiss. And the self executing or conditional orders that courts make ultimately determines whether the applicant should return to court to make further application or whether they should just file orders. The courts in Papua New Guinea considered the effect of self-executing or conditional orders in Hon. Andrew Baing & the Independent State of Papua New guinea v PNG National Stevedores Pty Limited & Bank of South Pacific (2000) SC 627, Henry To Robert v Mary To Robert (2004) N2744 and Nukumal Plantation Ltd v Tukake Ltd (2005) N2781. In all three judgments, the court held that self-executing or conditional orders could not operate automatically but required that parties return to court to make further application before these orders could take effect. But on review of these decisions, the self-executing orders required that further judicial function take place before these orders could take effect e.g. in Hon. Andrew Baing v the Independent State of Papua New Guinea (supra), the trial court made the following orders;
"1. That the first and third defendants make and file and deliver a List of Documents verified by affidavit within forty-eight hours (48) of the making of this order.
21. The defendants failed to file the list of documents within the ordered time period. The plaintiffs filed an affidavit with the Registrar and asked for entry of judgment which was done.
22. On appeal, after a refusal by the National Court to set aside these orders, the Supreme Court said that the nature of the orders required that further judicial function be exercised i.e. by an appropriate application to the Court, before the Court could determine if the condition had been satisfied. The Supreme Court in that decision also had regard to FA1 General Insurance Co. Ltd v Southern Cross Exploration [1988] HCA 13; (1988) 165 CLR 268, which court considered the meaning and effect of conditional orders and where Gaudron, J said at pg.289;
"A conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time".
23. But Gaudron, J, said this when interpreting rules of court which provided for the setting aside or variation of orders. These were pt.2 r.3 and pt.40 r.9 of the Supreme Court Rules 1970 (NSW) which read respectively as;
Pt 2 r. 3 –
"(1) The court may, on terms, by order, extend or abridge any time fixed by the rules on by any judgment or order.
(2) The Court may extend time under sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires."
Pt. 40 r. 9 states;
"(4) In addition to its powers under sub-rules (1), (2) and (3), the court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5) Nothing in this rule affects any other power of the court to set aside or vary a judgment around".
24. Which leads me to the conclusion that some orders, although self-executing, are conditional in nature, requiring further applications, subject of course to the rules under which such orders were made. And if such rules are non-existent, that the court could then exercise its inherent discretion and powers. But for the order to be effective as a self-executing order, it must be expressed in unequivocal terms.
25. The provisions in our National Court Rules on the setting aside or variation of judgments and orders are based on the NSW Supreme court Rules. But we do not have the equivalent in our Supreme Court Rules. Should the Court fall back on its inherent powers under s.155(4) of the Constitution? In this case, because of the appellant's inability to have the appeal ready for hearing, the court issued these self-executing orders.
26. And the Supreme Court was very explicit in its ruling on this when it said;
"This appeal is to be ready to be heard In the June sittings of the court, that means the appeal book must be filed before the call-over, extracts of arguments filed In accordance with the rules and all other required steps taken. If the appeal is not ready for argument in the]une sittings, it shall stand dismissed".
27. And then the issue arises as to whether the Chief Justice's orders that non-compliance with his directions (to file written submissions) may result in the matter being adjourned to the next sittings, overrides the full benches orders of 28 April, 2006. With respect, in my view, it does not, because the Chief Justice was sitting as a single judge. Even if the Chief Justice had extended time, it would not have any effect as against the full benches orders of 28 April, 2006. Mr Karingu would have had to apply to a full bench for an extension of time. And he had the opportunity to do so at the June 2006 sittings of the Supreme Court. There is no affidavit before us explaining why the matter was not before the Supreme Court in June 2006 or before that. All we have are verbal submissions from the appellant that the respondent refused to certify the appeal book because certain transcripts were missing. And it is within the respondents rights to do that. What should the appellant have done under these circumstances? It is incumbent upon every appellant's lawyer or an appellant in person, in this case an appellant with legal training and experience, or every lawyer for that matter whether it is an appeal or otherwise, to be diligent in their duties and to follow up on matters. It is not sufficient or acceptable for a lawyer, after having served documents, to expect the other lawyer or party to contact him or her. He or she has a duty to ensure that deadlines are met and follow ups constantly made. The appellant did not do that. He should have retrieved the appeal book immediately, and made an application for an extension of time, considering the obvious time constraints that he faced with regard to the time frame embodied in the 26 April, 2006 order. I discuss the avenues available to him under the SCR, later below.
28. I emphasize again that the application for an extension of time is not properly before this court. The only application properly before the court is that of the applicant, application made under 0.7 R.53 of the SCR. And, a similar application was before the Supreme Court in April, 2006. And instead of ordering that the appeal be dismissed for want of prosecution, the Supreme Court then, made the orders of 26 April, 2006, orders made in accordance with 0.7 R. 53 (b) of the SCR. It is necessary that I set out Division 19 of the SCR or 0.7 R.53, 54,55 and 56 of the SCR. These provisions read;
"Division 19. – Time, and want of prosecution
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; or
(c) make any other order that may seem just.
56. 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."
29. And similar to the NSW Supreme Court Rules, the above provisions are discretionary and subject to the proving of certain conditions. In this case, O.7 R.56 is the provision the appellant could have relied on. It gives the appellant an opportunity to apply to vary the order "at any time before the appeal stands dismissed for want of prosecution"... And it also gives the appellant a further opportunity, that the order "...in special circumstances, may be varied or revoked after that time." (my emphasis). This provision is relevant to Mr Karingu. He should show the court by paper application, that there are ‘special circumstances’ that warrant him applying for an extension of time after the appeal stands dismissed for want of prosecution. And what are these ‘special circumstances’? More particularly, what is a ‘special circumstance’ for the purpose of such an application. None have been shown to us by Mr. Karingu by proper affidavit material or submission at law.
30. The SCR are specific, that application may be made "at any time" after the appeal stands dismissed for want of prosecution, for a variation or revocation. And these ‘special circumstances’ have not been proven to my satisfaction.
Conclusion
31. The order of 26 April, 2006 is not conditional in nature. It speaks for itself, that the appeal stands dismissed if it is not heard by the June 2006 sittings. And the orders took effect when the appeal was not presented in the June 2006 sittings. But the respondent decided to apply to dismiss the appeal, which is proper under the circumstances.
32. I find that the respondent has not properly applied for an extension of time and has not even shown these to be ‘special circumstances’ that would warrant an extension of time, in this case a variation of the order of 26 April, 2006.
Orders
33. I would order that the appeal be dismissed and for the appellant to pay the respondents costs of the appeal.
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1. MOGISH J: On 26 April, 2006 the Supreme Court (per Hinchliffe, Salika and Lay JJ) entertained an application by the Respondent to dismiss the appeal for want of prosecution pursuant to O7 r 53 of the Supreme Court Rules. The Supreme Court heard submission from Mr Bomai for the Respondent and Mr Karingu and adjourned to the 28 April 2006 to deliver its’ decision. On that day the Court refused to grant the application. In arriving at its decision the Court said at p.6 of its judgment:
"Although the Appellant’s explanation for the delay amounts to almost no explanation, we cannot ignore the fact that since this application was filed he has been diligent in taking the steps necessary to prepare the appeal for hearing. It appears from the evidence filed that it only requires the cooperation of the Respondent to complete the Appeal Book for certification. We also note that it was not until the eve of the court vacation that the Respondent commenced to press for progress in the appeal. In those circumstances we propose to follow the statement of principle in SC 762 Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa (supra), to the effect that an application to dismiss for want of prosecution might not be successful if the Appellant has remedied his omissions since filing of the application, and refuse the application.
We consider also that it would be appropriate to make some kind of self executing orders. This appeal is to be ready to be heard in the June sittings of the court, that means the appeal book must be filed before the call over, extracts of arguments filed in accordance with the rules and all other required steps taken. If the appeal is not ready for argument in the June sittings it shall stand dismissed."
2. On the 26 May, 2006 the case came before the Chief Justice wherein His Honour issued the following orders of the Supreme Court:
3. The issue before us is whether the appellant has complied with the self executing orders issued by the Supreme Court on 28 April, 2006. We heard Mr Bomai (for the PNG Law Society) and Mr Karingu in person and reserved our decision.
4. The Appellant submitted that he has complied with the orders of the Supreme Court. As far as he is concerned, the Appeal Book has been prepared and is ready for hearing. The Respondent on the other hand submitted that the appeal book is not ready because the appeal book does not include the transcripts of the 26 April, 2006 and for those reasons they have not certified the appeal book. The Appellants submitted that the transcripts of the 26th April, 2006 are irrelevant.
5. The relevance of transcripts of proceedings of a court proceeding being incorporated in an appeal book really depends on the issue on hand. Here the issue is whether the orders of the 28 April, 2006 have been complied with. There is no issue that the Supreme Court heard arguments on the 26 April, 2006 and made the self executing orders on the 28 April, 2006. That being the case I agree with Mr Karingu that the transcripts of the 26 April, 2006 are irrelevant. The resolution of this issue does not depend on the transcripts of proceedings of the 26 April, 2006 but what has transpired since the directions were issued. It is clear to me that the appeal is ready and can be argued without the transcripts. Inclusion is a matter of formality but does not address the issue of readiness. Once again the respondents have contributed to the delay. I consider that the appellant has provided satisfactory explanation as to why self executing orders cannot be effected. The conduct by the Respondent add credence to his explanations. For those reasons it would be most unfair to the Appellant to have his appeal dismissed.
Proposed Orders
6. That the parties comply with the directions of the Chief Justice of 28 May, 2006.
7. The appeal should be ready for hearing at the next Supreme Court sittings.
Orders of the Court:
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Appellant’s Lawyer: Appellant In Person.
Posman Kua Aisi Lawyers: Lawyer for the Respondents
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