Thompson v Karingu [2008] PGSC 20; SC932 (29 August 2008)

SC932

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 28 0F 2007

ROYALE THOMPSON, FRAZER PITPIT, SIR KINA BONA,
PIUS KINGAL, NIGEL AGONIA, NET KOLEALA
& JOHNNY BOGOMBARI,
CONSTITUTING THE LAWYERS STATUTORY COMMITTEE
OF THE PAPUA NEW GUINEA LAW SOCIETY
Appellants

V

CANISIUS KARINGU
Respondent

Waigani: Gavara-Nanu J, Davani J, Cannings J
2008: 3 July, 29 August

APPEALS – motion to dismiss appeal for want of prosecution – Supreme Court Rules, Order 7, Rule 53 – whether there has been apparent delay in prosecuting appeal – whether appellant has provided satisfactory explanation for delay.

The Lawyers Statutory Committee appealed against a decision of the National Court that a lawyer be issued with a practising certificate. Eleven months passed without an appointment being made to settle the appeal book. The respondent to the appeal filed an application to dismiss the appeal for want of prosecution.

Held:

(1) There has been a substantial delay in prosecuting the appeal.

(2) The onus therefore was on the appellants to give a satisfactory explanation for the delay.

(3) The appellants gave a satisfactory explanation, in that they have made genuine attempts to have the index of the appeal book settled and the matter has a complex background.

(4) The motion to dismiss the appeal was refused but the appellants were ordered to, within seven days, seek an appointment with the Registrar to settle the appeal book, failing which the appeal will stand dismissed for want of prosecution.

(5) All other legal proceedings concerning the respondent, including his appeals against the 2002 decision of the Lawyers Statutory Committee to remove his name from the Roll of Lawyers, should also be resolved expeditiously.

Cases cited
The following cases are cited in the judgment:
Dan Kakaraya v Sir Michael Somare (2004) SC762
Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691
General Accident Fire & Life Assurances Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
The State v Turu and Maku (2008) SC905

APPLICATION
This was an application for dismissal of an appeal on the ground of want of prosecution.

Counsel
G Poole, for the appellant
C Karingu, the respondent, in person

29 August, 2008

1. BY THE COURT: This is a ruling on a motion to dismiss an appeal for want of prosecution. The appellants are the members of the Lawyers Statutory Committee. They are appealing against a judgment of Los J in the National Court which, amongst other things, ordered that the respondent, Canisius Karingu, be issued with a practising certificate and allowed to practise as a lawyer.

BACKGROUND

2. We take judicial notice of the fact that prior to Los J’s judgment, the Lawyers Statutory Committee had, on 24 May 2002, made a decision to remove Mr Karingu’s name from the Roll of Lawyers after a finding of professional misconduct. Mr Karingu appealed to the National Court against that decision, by CIA Nos 291 and 292 of 2002. Those appeals have not been heard. It was while the appeals were pending that the issue of the proper procedure for having Mr Karingu’s name removed from the Roll of Lawyers went before Los J and his Honour, on 24 April 2007, passed the judgment that the appellants are aggrieved by.

THE FACTS

3. When hearing a motion to dismiss an appeal for want of prosecution, the Court must at the outset focus on two sorts of facts.

Dates

4. The first is dates and passage of time. Six dates stand out here:

• 24 May 2002: date of the Lawyers Statutory Committee’s decision to remove Mr Karingu’s name from the Roll of Lawyers.
  
• 4 June 2002: date Mr Karingu appealed against the Lawyers Statutory Committee’s decision.
  
• 24 April 2007: date of the National Court decision under appeal.
  
• 4 May 2007: date of filing the notice of appeal.
  
• 3 April 2008: date of filing of application for dismissal.
  
• 3 July 2008: date of hearing the application.
  

5. That means:

• Six years have passed since the decision of the Lawyers Statutory Committee was made and the appeals against it were filed.
  
• 15 months have passed since Los J’s decision.
  
• About 11 months passed between when the appeal was filed and Mr Karingu filed the application to dismiss.
  
• Three months have passed since Mr Karingu filed the application to dismiss.
  
• It is now 15 months since the appeal was filed.
  

Status

6. The second fact we must focus on is: what is the status of the case?

7. Here, the draft index of the appeal book was filed on 18 June 2007. That represents the first formal step in getting an appeal set down for hearing, under Order 7, Rule 40 of the Supreme Court Rules. The next step, getting an appointment with the Registrar to settle the appeal book (Supreme Court Rules, Order 7, Rules 33 and 42), has not been taken.

8. As a result, the index has not been settled. The other matters covered by Rule 42 (documents and matters to be included in the appeal book, number of copies required and other matters determined by the Registrar) have also not been resolved.

THE LAW

9. Mr Karingu’s application is made under Order 7, Rule 53 of the Supreme Court Rules, which states:

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;

(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; or

(c) make any other order that may seem just.

10. The Supreme Court’s interpretation of this rule in a number of cases means that there are two issues to be addressed:

First, has there been an apparent delay in prosecuting the matter?

Secondly, if yes, does the person apparently guilty of the delay have a satisfactory explanation?

(See General Accident Fire & Life Assurances Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331; Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691; Dan Kakaraya v Sir Michael Somare (2004) SC762; The State v Turu and Maku (2008) SC905.)

HAS THERE BEEN AN APPARENT DELAY?

11. Yes. After 15 months (May 2007 to July 2008) all that has happened is that a draft index has been filed and served. No appointment to settle the appeal book has been made.

IS THERE A SATISFACTORY EXPLANATION FOR THE DELAY?

12. Mr Karingu submits that there is no satisfactory explanation as nothing has been done to prosecute the appeal. We agree that the only formal step taken in this appeal was the filing of the draft index in June 2007. However, in determining whether there is a satisfactory explanation, the Court should look at all the circumstances surrounding the appeal, not just the formal steps taken by the parties in the appeal.

13. On the same day that the appeal was filed, 4 May 2007, the appellants filed an application to stay the National Court order that is now under appeal. That application was apparently heard by a single Judge of the Supreme Court, Sakora J, in May 2007, but a ruling on it has yet to be given.

14. On 6 June 2007 the appellants filed a supplementary notice of appeal. In response, the respondent filed a notice of objection to competency.

15. On 1 August 2007 the appellants filed an application in the Supreme Court for interim orders restraining the respondent from, amongst other things, calling on the Law Society to issue him a practising certificate pending the judgment of Sakora J on the stay application. The application for a restraining order was heard on 6 August 2007 by Salika J but his Honour apparently declined to give a ruling and adjourned the matter to the registry after the proceedings before Sakora J were drawn to his attention. The appellants have not pursued this application.

16. On 31 October 2007, the respondent’s objection to the supplementary notice of appeal was dismissed.

17. On 20 December 2007 the appellants’ lawyers filed an amended draft index of the appeal book.

18. On 9 January 2008 the appellants’ lawyers served the respondent the amended draft index of the appeal book. The respondent failed to respond and on 1 February 2008 the appellants’ lawyers wrote a follow-up letter.

19. On 12 February 2008 the respondent responded and requested that two matters be added to the index. He repeated that request in a fax of 13 March 2008 and added that if the appellants did not amend the draft index within 14 days he would apply to have their appeal dismissed for want of prosecution.

20. The appellants’ lawyers responded on 27 March 2008 by writing two letters to the respondent, one saying that they did not understand his letter of 13 March and the other responding to the appellant’s request to amend the draft index and asking that he endorse the draft index and return it within 14 days.

21. The letters of 27 March 2008 were evidently not served on the respondent until he went to the appellants’ lawyers’ offices on 7 April 2008 to serve the application to dismiss the appeal.

22. In light of the above, we consider that the proper reference point for determining the extent of the delay in prosecuting the appeal is the date on which the respondent’s objection to competency was dismissed: 31 October 2007. The appellants have, since that date, made genuine, if ineffective, attempts to resolve the issue of the contents of the index to the appeal book. It seems that all of the delay is not attributable to the appellants. For example, the respondent took more than a month (9 January to 12 February) to respond to the amended draft index. Then there was an exchange of correspondence between the parties in March 2008.

23. We consider that, given the background to this appeal (including the decision of the Lawyers Statutory Committee and the appeals against that decision, in 2002), the protracted disagreement between the parties over the contents of the index book, and the complications caused by the delay in obtaining a ruling on the stay application, provide a satisfactory explanation, at this stage, for the delay in prosecuting the appeal. The application for dismissal will be refused.

OTHER MATTERS

24. We emphasise that we have reached this conclusion on the merits of this particular case, having regard to its complex background.

25. The appellants’ lawyers appear to be of the view that it is necessary for the parties to agree on the contents of a draft index before appearing before the Registrar to settle the index. Prior agreement is not necessary. If there is disagreement, the parties should appear before the Registrar, put their positions and allow the Registrar to determine what documents and matters should be included in the appeal book and settle the index, as per Order 7, Rule 42 of the Supreme Court Rules.

26. To that end, we are going to order, pursuant to Order 7, Rule 53(b) of the Supreme Court Rules, that the appellants, within seven days, seek an appointment with the Registrar, to settle the appeal book index, failing which the appeal will stand dismissed for want of prosecution.

27. We consider an order of that nature is necessary to ensure that the hearing and determination of the appeal is brought to finality as soon as possible. All other legal proceedings concerning the respondent, including his appeals against the 2002 decision of the Lawyers Statutory Committee, should also be resolved expeditiously.

COSTS

28. Though the respondent’s application is being dismissed, we consider that it was not unreasonably brought before the Court and in the circumstances we will order that the parties bear their own costs.

ORDER

1. The application for dismissal of the appeal on the ground of want of prosecution is refused.
   
2. The appellants shall, within seven days, seek an appointment with the Registrar to settle the appeal book index, failing which the appeal will stand dismissed for want of prosecution.
   
3. The parties will bear their own costs.
   

Judgment accordingly.

O’Briens Lawyers: Lawyers for the appellant
The respondent in person