Yakopa v Torato [2010] PGSC 30; SC1077 (9 September 2010)

SC1077

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 179 of 2009

Between:

JEFFREY YAKOPA
- Appellant-

And:

ESTHER TORATO
-First Respondent-

And:

BOB GUBAK AUWI
- Second Respondent-

Waigani: Injia, CJ
2010: 9 September

SUPREME COURT – Practice and procedure – Application to dismiss Notice of Application for Leave to Appeal – Jurisdiction of a single Judge to deal with application to dismiss – Supreme Court Act, s 10 (1) (a); Supreme Court Rules 0 7 r 53.

Case cited:
Felix Bakani v Rodney Daipo (2002) SC699
The Independent State of Papua New Guinea v John Tuap (2004) SC765.
Tom Amaiu v Sir Albert Kipalan & ors (2009) SC991

Counsel:
N Kiuk, for the Appellant
M Kokiva, for the respondents

9th September, 2010

1. INJIA, CJ: This is an application by the respondents seeking an order dismissing the notice of application for leave to appeal (leave application) filed on 31 December 2009. The application is made under O 7 r 53 (a) of the Supreme Court Rules 1984 (SCR). It is supported by two affidavits deposed by the first respondent filed on 3rd June 2010 and 18th July 2010 respectively.

2. The appellant contests the application. He relies on his own affidavit filed on 20th August 2010 and two affidavits deposed by Mr Kiuk filed on 12th July 2010 and 9th August 2010 respectively.

3. I have considered the material and submissions made by counsel. I deal with those matters in the course of my ruling.

4. Two questions arise for determination. The first relates to the jurisdiction of a single Judge of the Supreme Court to entertain an application to dismiss a leave application. Both counsel agree that the power under O 7 r 53 may be exercised by a single Judge of the Supreme Court in respect of a leave application. Both counsel referred me to my ruling in Tom Amaiu v Sir Albert Kipalan & ors (2009) SC991 and submitted that by analogy, the same reasoning in that case applies to an application under O 7 r 53 in respect of a leave application.

5. Order 7 Rule 53 of the SCR provides as follows:

53. 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; or

(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.

6. I accept the submissions of counsel on this point. A single Judge of the Supreme Court having power to determine a leave application under s 10 (1) (a) of the Supreme Court Act (the Act) has the same power to determine the fate of a leave application based on any grounds provided by or under the SCR. An application to dismiss a leave application under O 7 r 53 (1)(a) which if granted can determine the leave application, comes within the ambit of s 10 (1)(a). The word "appeal" in O 7 r 53 includes a leave application by which "an appeal" is instituted: s 17 of the Act. The term " the Court" in O 7 r 53 is to be read subject to the power given to a single Judge of the Supreme Court by s 10 (1)(a) of the Act.

7. In a case where a leave application is dismissed by a single Judge under O 7 r 53, the aggrieved applicant would have recourse to the full Court under s 10 (2) of the Act. The proceedings on the application before the full Court is by way of a hearing de novo: Felix Bakani v Rodney Daipo (2002) SC 699; The Independent State of Papua New Guinea v John Tuap (2004) SC 765.

8. On the second question with regard to the exercise of discretion in the circumstances of this case, the issue is whether the appellant "has not done any act required to be done by or under" the SCR or "has not prosecuted his appeal with due diligence".

9. Upon consideration of the material and submissions of counsel, there appears to have been a delay in obtaining a hearing date for the leave application to be heard by this Court. The leave application was filed in the Court vacation period by the appellant's former lawyers. As such, when it was filed, the Registrar did not fix a return date on the leave application for the matter to return before the Court. The onus was on the applicant to seek a hearing date when the Court officially opened for business in February 2010. As early as 26th January 2010, the appellant's former lawyers wrote to the Registrar seeking a hearing date but that request was not acted upon by the Registry. The appellant did not pursue the matter with the Registrar until 21st June 2010 when the matter was fixed for its first mention in Court. On 3rd June 2010 the present application was filed by the respondents' new lawyers. Since the first mention of the matter in Court, it has been mentioned on several occasions.

10. The SCR does not provide for any other steps to be taken by the appellant to prosecute the leave application, other than to attend in Court on the return date fixed by the Registrar on the leave application and/or on such other occasions as the Court may require the attendance of the parties to argue the leave application. I am satisfied that there were no other steps to be taken by the appellant in this case under the SCR in prosecuting the leave application, other than to attend in Court to argue the leave application.

11. Since filing the appeal, both parties have engaged new lawyers and it is obvious to me that both parties are prepared and ready to argue the leave application.

12. In those circumstances, it is fair to say that the appellant has taken some steps to prosecute the appeal but his efforts have been frustrated by dilatory conduct on the part the Court registry officials in getting the matter listed before the Court. That being said, I agree with Ms Kokiva that the appellant and his lawyer did not take any meaningful steps to obtain a fixture for making the leave application before this Court until the application to dismiss was filed. The delay period is about four months which is computed from 1st February 2010 when the Court opened for business, to the date of filing of this application. In my view a delay by this period in the circumstances alluded to is not of such gravity that it would warrant the exercise of discretion in favor of dismissing the appeal. The dilatory conduct on the part of the appellant and his lawyer which contributed to the delay in obtaining a hearing date and prosecuting the leave application should be more appropriately addressed by an order for costs against the appellant.

13. For those brief reasons, I dismiss the respondents' application but with costs in their favor. I should further order that the appellant prosecute his leave application in September 2010, failing which the appeal shall stand dismissed: O 7 r 53 (b). In order to expedite the matter, I will fix the leave application for hearing on 20th September 2010 at 9:30 am.

14. The formal orders of the Court are as follows:

(1) The respondents' application is dismissed.

(2) The appellant shall pay the respondents' costs of the application.

(3) The appellant shall prosecute the leave application in September 2010 failing which the appeal shall stand dismissed.

(4) The leave application is fixed for hearing on Monday the 20th of September 2010 at 9:30 am.

__________________________________________
Stevens Lawyers: Lawyer for the appellants
Gubon Lawyers: Lawyer for the respondent