Kalinoe v Paraka [2007] PGSC 13; SC874 (27 September 2007)

SC874

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NOS. 15 & 17 OF 2006

BETWEEN:

JOSHUA KALINOE – Chief Secretary to Government
First Appellant

AND:

GABRIEL YER – Acting Secretary for Finance
Second Appellant

AND:

SIMON TOSALI – Secretary Department of Treasury
Third Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

AND:

PAUL PARAKA trading as PAUL PARAKA LAWYERS
Respondents

Waigani: Jalina, Gavara-Nanu and Batari, JJ.
2007: 3 May & 27 September

PRACTICE AND PROCEDURE – Supreme Court – Supreme Court Rules – O 7 r. 14 and r.53 – Objection to competency - Application to dismiss for want of prosecution.

Case cited

Tenge Kaiulo v. Acting Public Prosecutor [1981] PNGLR 148
Dan Kakaraya v. Michael Somare & Others SC 762
Felix Bakani & Oil Palm Industry Corporation v. Rodney Daipo SC 699
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33
Jeffery Balakau v. Ombudsman Commission [1996] PNGLR 346 SC 699
PNG Nambawan Trophy Ltd v. Wynasty Holding Ltd SC 811
Public Prosecutor v. Allen Ebu Marai [1996] PNGLR 81
Yema Gaiapa Developers Pty Ltd v. Hardy Lee SC 484
Paga No. 36 Ltd v. Jerry Luru & Others (3rd November, 2006)

Counsel

H. Nii, for respondent/applicant
P. Mawa, for fourth appellant/respondent
D. Stevens, for first appellants/respondents
G. Poole, for second and third appellants/respondents.

1. By the Court: The applicant/respondent has two notices of objections to competency, one is in respect of SCM No. 15 of 2006 and the other is in respect of SCM No. 17 of 2006. The applicant also has two applications to dismiss for want of prosecution. One application is in respect of SCM No. 15 of 2006 and the other is in respect of SCM No. 17 of 2006.

2. The objection to competency in respect of SCM No. 15 of 2006 is against the notice of appeal which is by way of a notice of motion filed pursuant to O 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules.

3. The objection to competency in respect of SCM No. 17 of 2006 is against the application for leave to appeal, filed pursuant to Order 7, Division 1 of the Supreme Court Rules.

4. At this juncture, it is convenient to note that the notice of objection to competency in respect of SCM No. 17 of 2006 was abandoned by the applicant at the hearing. We are therefore left with only the notice of objection to competency and application to dismiss for want of prosecution in respect of SCM No. 15 of 2006 and application to dismiss for want of prosecution in respect of SCM No. 17 of 2006 to determine.

(a) Notice of Objection to competency in respect of SCM No. 15 of 2006.

5. In regard to the objection to competency in respect of SCM No.15 of 2006, a preliminary issue was raised by the Court as to the competency of the notice of objection itself, after noting that the notice of objection appeared to have been filed outside of the time stipulated by Order 7 r 14 of the Supreme Court Rules. There is no dispute that the notice of motion constituting the appeal in SCM No. 15 of 2006 was filed on 17 November, 2006 and the notice of objection to competency was filed on 25 April, 2007.

6. Order 7 r 14 of the Supreme Court Rules provides that an applicant must file and serve his notice of objection on the appellant within 14 days after the service of the notice of appeal on him.

7. Whilst not disputing that the notice of objection was filed outside the 14 days period required under Order 7 r 14 of the Supreme Court Rules; Mr. Nii argued that the time limitation imposed by this rule does not apply in this case because the appeal being by way of a notice of motion under Order 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules is a special appeal, and therefore the 14 days time limit imposed by this Rule does not affect respondent/applicants’ notice of objection to appeal. Mr. Nii was not able to point out any other process which might apply to cure this apparent defect to his client’s notice of objection to competency, nor was he able to refer us to any other process pursuant to which his client filed his notice of objection to competency.

8. It is plain to us that Mr. Nii’s argument is either misconceived or is an attempt to avoid conceding that his client has made a fatal error. On this point, it is sufficient to simply emphasize what this Court said in Jeffery Balakau vs. Ombudsman Commission of PNG (1996) PNGLR 346, that appeals lodged pursuant to Order 16 r 11 of the National Court Rules and Order 10 of the Supreme Court Rules are civil appeals and requirements of Order 7 r 14 of the Supreme Court Rules apply to them. See Jeffery Balakau vs. Ombudsman Commission of PNG (supra) at pp. 352, 353 and 354.

9. It follows that Order 7 r 14 of the Supreme Court Rules apply in this instance, thus the applicant’s notice of objection to competency of appeal in SCM NO. 15 of 2006 must comply with the mandatory requirements of the rule.

10. A notice of motion constituting an appeal filed pursuant to Order 10 of the Supreme Court Rules is subject to other provisions of the Supreme Court Rules including Order 7 r 14, where a notice of objection to competency is filed, as in this case. Order 10 of the Supreme Court Rules allows for appeals against orders made pursuant to Orders 16 and 17 of the National Court Rules to be instituted by way of a notice of motion instead of an ordinary notice of appeal. In that sense appeals lodged pursuant to Order 10 of the Supreme Court Rules are of special nature. See, Felix Bakani & Oil Palm Industrial Corporation v. Rodney Daipo SC 699. But that does not exempt such appeals from the mandatory requirements of Order 7 r14 of the Supreme Court Rules. Requirements of Order 7 r 14 apply equally to appeals lodged under Orders 10 and Order 7, the latter being either by way of an application for leave to appeal or by a notice of appeal. This is clear from the terms of Order 7 r 14 which provides:

"A respondent who objects to the competency of an appeal or for application for leave to appeal shall..."

11. The word "appeal" therefore also refers to an appeal by way of a notice of motion under Order 10 of the Supreme Court Rules.

12. It follows that the applicant’s notice of objection to competency of appeal in respect of SCM No. 15 of 2006 having been filed outside of the time stipulated by Order 7 r 14 is incompetent. See Jeffery Balakau -v- Ombudsman Commission of PNG (supra).

13. The respondent’s notice of objection to competency of appeal is therefore dismissed.

14. Mr Nii also argued that there are other grounds of objection raised in the notice of objection and they should be heard and determined by the Court despite the objection being filed out of time. We cannot accept this argument. It is clearly misconceived. Once the notice of objection has been found to be incompetent, every ground raised in the notice of objection is incompetent. In other words, once the notice of objection has been found to be incompetent; every thing else that can arise under or pursuant to the notice, such as lack of instructions and authority from the Attorney General for the appellants to lodge their appeal; lack of compliance with Order 10 Division 1 of the Supreme Court Rules by the appellant and so on, are incompetent.

(b) Application to dismiss the appeal in respect of SCM No. 15 of 2006 for want of prosecution.

15. Initially, this application raised nine grounds, but at the hearing, grounds 2, 5, 6, 7 and 8 were abandoned; the applicant therefore only argued grounds 1, 3, 4 and 9. These grounds are in following terms:

I. Consistent with principles in the Supreme Court decision in Smith Alvi & 127 Ors –v- Andeke Tepoka & Ors; SCA No. 16 of 2006, the appeal be dismissed in its entirety for lack of instruction and authority from the Attorney General for the commencement of the appeal proceedings in breach of the requirements of the Attorney General Act and the Supreme Court decision in State –v- Manoburn Earthmoving Ltd; SC 716.

In the alternative, the appeal be dismissed for lack of compliance of the (sic.) Order 10, Division 1 of the Supreme Court Rules, in that:

(a). All the appellants, either by themselves individually and or by or through their respective lawyers did not sign the notice of motion instituting the appeal as required in mandatory terms by Order 10 r 3(d) and Form 15 of the Supreme Court Rules; and

(b). The appeal has not been filed in accordance with Form 15 of the Supreme Court Rules in breach of Order 10 r 3 (c) of the Supreme Court Rules in that:-

(i). Each of the appellants did not file separate affidavits by themselves in support of the motion.

(ii) The appeal did not comply with the General Form of Address for Service set out in Form 17 of the Supreme Court Rules.

4. Further or in the alternative, the appeal be dismiss for want of prosecution pursuant to Order 7 r 15 (a); Order 7 r 48 and Order 11 r 29 (a) of the Supreme Court Rules.

9. In further alternatives, directions be given in the conduct of the appeal including the setting down of a date for an expeditious hearing by way of a special fixture.

16. An application to dismiss for want of prosecution can only be made under Order 7 r 53 of the Supreme Court Rules. This rule comes under Division 19 which is headed: "Time, and want of prosecution". The rule provides:

Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may –

(a) order that the appeal be dismissed for want of prosecution.

17. It is plain from the terms of this rule that the grounds for an application for want of prosecution must show that an appellant has not done any act required to be done by or under the rules or otherwise has not prosecuted his appeal with due diligence. This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya -v- Somare & Others (2004) SC 762. See also PNG Nambawan Trophy Ltd -v- Wynasty Holding Ltd (2005) SC 811. Thus if an appellant has delayed in prosecuting his appeal the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances.

18. Any other grounds not envisaged by rule 53 cannot constitute a valid ground for an application to dismiss an appeal for want of prosecution. In our opinion, grounds 1, 3 and 9 upon which the respondent has placed reliance fall outside of Order 7 r 53 (a), in that, ground 1 which relates to lack of instruction and authority from the Attorney General for the appellant to commence the appeal proceedings is only relevant to competency of appeal. In fact, this ground is the same ground relied upon by the applicant as ground 1 for his notice of objection to competency in respect of SCM No. 15 of 2006. Ground 3 is also relevant only to the issue of competency of appeal because it relates to the issues firstly, of the alleged failure by the appellants either by themselves or through their lawyers to sign the notice of motion to institute their appeal and secondly, the notice of motion not being filed in accordance with Form 15 of the Supreme Court Rule and further, the appellants not filing separate affidavits in support of the notice of motion. Again, we note that this same ground is relied upon by the appellant as ground 3 for his notice of objection to competency in respect of SCM No. 15 of 2006.

19. As regards ground 9, it is an alternative relief sought by the applicant for the appeal to be set down for hearing expeditiously in the event that he fails in his attempt to have the appeal dismissed for warrant of prosecution. Again, this ground has no relevance to the application to dismiss the appeal for want of prosecution; and it falls outside of Order 7 r 53 (a).

20. Turning to the requirements of Order 7 r 53 (a), the question is: Did the appellants fail to do any act required to be done under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence which would warrant, this Court to dismiss the appeal for want of prosecution?

21. We note that the notice of motion was filed on the 17 November, 2006 and the supporting affidavit sworn by Paul Paraka on 27 April, 2007 in particular paragraph 3, deposes that, since filing of the appeal, the appellant took no active steps for five months to prosecute the appeal.

22. The applicant also relies upon the affidavit sworn by Mr Paraka on 26 February, 2007, particularly paragraphs 33 to 35. Those three paragraphs refer to the three letters which were sent to the appellants’ lawyers asking them to set the appeal down for hearing.

23. First of the three letters is dated 20 December, 2006 and was addressed to the then Acting Solicitor General, Mr John Kumura. In that letter, the applicant emphasised the need for the appellants to set the appeal down for hearing in the first sittings of the Supreme Court after the expiration of 21 days from the date of filing of the appeal, which is a requirement under Order 11 r 29 (a) of the Supreme Court Rules. The applicant informed the Acting Solicitor General that it was incumbent on him as the lawyer for the appellants to liaise with the Registrar and have the appeal listed for hearing in the first sittings of the Supreme Court schedule for February, 2007. In the last paragraph of that letter, the applicant warned that if the appeal was not listed for hearing in February, the applicant would proceed to apply for the appeal to be dismissed for want of prosecution.

24. The second letter is dated 29 December, 2006, which was also addressed to the then Acting Solicitor General. In that letter, the applicant referred to his letter dated 20 December, 2006 and reiterated that the appellant should, pursuant to Order 11 r 29 (a) of the Supreme Court Rules, have the appeal fixed for hearing in February, 2007, after the court vacation. The applicant again reminded the Acting Solicitor General, that he (applicant) reserved the right to have the appeal dismissed if there was failure by the appellants to comply with the requirements of Order 11 r 29 (a) of the Supreme Court Rules.

25. The third letter, is dated 30 January, 2007, which was again addressed to the then Acting Solicitor General. In that letter the applicant referred to the two abovementioned letters, and urged the Acting Solicitor General to obtain a hearing date in the February sittings of the Supreme Court from the Registrar. He again warned that if the appeal was not heard in February, 2007, he would apply for the appeal to be dismissed for want of prosecution.

26. The applicant has argued that despite those reminders and warnings, the appellants have failed to set the appeal down for hearing, and so argued that the appeal should be dismissed for want of prosecution.

27. The appellants have argued that if there had been any delay on their part, it is no more than two months, namely, February and March, 2007, because from December 20th to the end of January the court was on vacation and the Registry was not opened for normal business. They argued that Registry Staff were on Christmas vacation too, so it was not possible for the appellants to take any action to prepare the draft index to the appeal book and to ask for the settlement of the draft index and to do other things, such as obtaining transcripts to prepare the appeal books and have the appeal ready for the February sittings of the Supreme Court. The appellants also argued that when the applicant filed his notices of objection to competency, and applications for want of prosecution; it effectively stopped the appellants from taking any further actions, except to defend the notices of objection to competency and applications to dismiss the appeals for want of prosecution.

28. The applicant in reply has argued that time still ran for appeal to be prosecuted despite the court vacation, therefore the appellants have no excuse in not having the appeal ready for hearing in February.

29. After carefully considering the submissions by both parties, we are of the opinion that the appellants could not possibly have the appeal ready for the February sittings of the Supreme Court, because although it is true that the time still ran during the court vacation, (see, Jeffery Balakau -v- Ombudsman Commission of PNG (supra), all the Registry Staff who would have attended to this matter, in particular the staff to produce the transcripts were on Christmas break. In those circumstances, it is unfair for this Court to find the appellants culpable for any delay in not having the appeal ready for the February sitting of the Supreme Court. We agree that the effective period of any delay that may be weighed against the appellants is for the February and April sittings of the Supreme Court as there was no Supreme Court sitting in March. But, because of the reasons stated, we do not find such delay inordinate or undue. We also agree with the appellants that when the applicant filed his notices of objection to competency and applications to dismiss appeals for want of prosecution, in April 2007, it effectively stopped all the preparations by the appellants to have the appeal books ready for the February sittings, as they then had to defend the notices of objection to competency and application to dismiss for want of prosecution. In the particular circumstances of this case, we cannot find otherwise.

30. Therefore, we find that the applicant has failed to make out a case which would warrant this Court to dismiss the appeal in respect of SCM No. 15 of 2006, for want of prosecution.

31. We therefore dismiss the application.

(c) Application to dismiss the appeal in respect of SCM No. 17 of 2006 for want of prosecution.

32. That leaves us to consider the application to dismiss the application for leave to appeal in respect of SCM No. 17 of 2006 for want of prosecution. The applicant relies on the affidavit sworn by Mr. Paraka on 27 April, 2006 in particular paragraph 4 in which it is deposed that since the commencement of the appeal, the appellants have taken no active steps to prosecute their application for leave to appeal. The applicant argued that for five months, the appellants did nothing to prosecute their application for leave to appeal. We find this argument presumptuous in that it gives no reason or evidence to show how the appellants have not taken any active steps to prosecute the application for leave to appeal. We are being asked to speculate when there is no evidence put before us of the appellants’ failure to take appropriate steps to prosecute their application for leave to appeal before us.

33. In any case, we find that the affidavits sworn by Mr. Stevens on 1 May, 2007, gives account of the actions taken by the appellants to prosecute their application for leave to appeal which in our view show that the appellants did all they could to prosecute the appeal diligently. These appear at paragraphs 5 to 16 of the affidavit. Mr. Nii has not taken issue on the matters deposed in these paragraphs. According to paragraph 6 of the affidavit; on 4 December 2006, the appellants were ready to argue their application but the matter was adjourned to 7 December 2006. Then on, 7 December 2006, the issue of representation and retainer-ship of Stevens Lawyers by the State arose, so the Chief Justice who presided over the matter further adjourned the matter and directed the parties to resolve the issue. The matter was adjourned to the Registry and on 4 January, 2007 the appellants received a copy of the NEC decision confirming its retainer of Stevens Lawyers. As a result, the appellants had the application returned to the Supreme Court motion list and was listed for hearing on 15 February 2007. However, according to paragraph 10, the matter did not proceed on that day because Paraka Lawyers complained that they were not given sufficient notice by the Registrar. In a letter dated 21 February, 2007 Stevens Lawyers wrote to the Deputy Registrar of the Supreme Court and asked that their application be listed for hearing the next day. We note that, that letter was copied to Paraka Lawyers, Mawa Lawyers and O’Brien Lawyers. However the matter was not listed for hearing on 22 February.

34. Mr. Stevens says in his affidavit that the appeal book is being prepared and it should be ready for the June sittings of the Supreme Court. Mr. Stevens further says that, that is also the understanding as it is shown in Paul Paraka’s letter to Mawa Lawyers, which is dated 14 March, 2007. A copy of that letter is annexed as Annexure ‘J’ to Steven’s affidavit. In that letter, Paraka Lawyers referred to their two letters dated 12th and 13 March, 2007, respectively and in the second paragraph of the letter dated 13 March, Paraka Lawyers told Mawa Lawyers that they needed to set down their applications for dismissal and objections to competency they filed for hearing in the April 2007, sitting of the Supreme Court. Paraka Lawyers advised that, that was with the consent of Stevens Lawyers. In the last sentence of that same paragraph, Paraka Lawyers concluded; "The substantive appeals can be dealt with later in the following Supreme Court sittings in June, 2007"

35. In the next paragraph of the same letter, Paraka Lawyers said: "We have set down all the objections and applications in SCM No. 2 of 2007 and SCM No. 3 of 2007 for hearing on 1st May, 2007 at 9.30am; and all the applications and objections in SCM Nos. 15 and 17 of 2007 for hearing on 2nd May, 2007 at 9.30am". In the last paragraph of the letter Paraka Lawyers said, "As we have indicated in court on 12th March, 2007, before the above dates, we will make attempts to have his Honour, Injia, DCJ arrange a special fixture to deal with some of the applications and objections listed above". This letter clearly contradicts what the applicant has contended before us that appellants were asked to set the appeals down for hearing in the February sittings of the Supreme Court. The letter clearly shows that Paraka Lawyers wanted the substantive appeals to be heard in June, 2007, whilst the applications to dismiss the appeals for want of prosecution and objections to competency were to be heard in the May sittings of the Supreme Court.

36. The end result is that the applications to dismiss and objections to competency are not genuine. In other words, they are frivolous and vexatious and amount to an abuse of the processes of this Court. This Court has the inherent power to dismiss the applications and objection which were used to abuse its processes.

37. In the last paragraph of Steven’s affidavit, he says that they have requested for the transcripts for the appeals and have been provided with a copy but because the copy was incomplete, they have requested for full transcripts and have already paid for the transcripts. A copy of the receipt for that payment is annexed as Annexure ‘K" to Steven’s affidavit.

38. In these circumstances, we find that the appellants have taken all the necessary steps required of them diligently to prosecute their appeals and they have given reasonable explanations for any delay on their part. See Yema Gaiapa Developers Pty Ltd -v- Hardy Lee SC 484; Tenge Kai Ulo -v- Acting Public Prosecutor [1981] PNGLR 148; Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81; Paga No. 36 Limited -v- Jerry Luru & Ors (2006, 3rd November). General Accident Fire & Life Assurance Corporation Ltd –v- Ilimo Farm Products Ltd [1990] PNGLR 33.

39. In the result, we find no reason to dismiss the appeal.

40. The applicant’s application to dismiss the appeal in respect of SCM No. 17 of 2006 for want of prosecution is therefore also dismissed.

41. The Applicant/Respondent will pay all the Appellants’/Respondents’ costs of and incidentals to these applications which are to be taxed, if not agreed.

_______________________________________________________

Paraka Lawyers: Lawyer for the Respondent/Applicant
Stevens Lawyers: Lawyer for first Appellant/Respondent
Pacific Legal Group: Lawyer for second & third Appellants/Respondents
Mawa Lawyers: Lawyer for fourth Appellant/Respondent