Tulapi v Niggins [2011] PGSC 19; SC1111 (5 July 2011)

SC1111

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCREV NO. 13 OF 2011

BETWEEN:

DANIEL BALI TULAPI, ERIC TULAPI, PETER TULAPI, ETA TULAPI, RAGA TULAPI & KOME LAND GROUP (INC)
Appellants

AND:

ALPHONSE NIGGINS
First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Salika, DCJ, Lenalia and Kariko, JJ.
2011: 30 June & 5 July

SUPREME COURT - PRACTICE AND PROCEDURE – Application to set aside ex parte order made under Order 7 Rule 53(a) Supreme Court Rules dismissing appeal for want of prosecution – Relevant principles.

Following the ex parte dismissal of the appeal by the Supreme Court, the appellants filed an application to have the ex parte order set aside and the appeal re-instated.

Held:

1. On an application to set aside an ex parte order, the applicant must satisfy the court:
   
   • (a) why the order was allowed to be entered in the absence of the applicant,
     
   • (b) if there is a delay in making the application to set aside, a reasonable explanation for the delay, and
     
   • (c) that there is a reasonable explanation for the proceeding not being prosecuted with due diligence.
     

Smith v Ruma Constructions Ltd (2002) SC695; Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613; and Rangip and Fountain Finance Limited v Peter Loko (2009) N3714, applied.

2. The appellants did not progress their appeal for over 5 years after they filed a draft index to the appeal book, and as there was no reasonable explanation by the appellants why they did not prosecute their appeal with due diligence, the application was dismissed.
   

Cases cited:

Smith v Ruma Constructions Ltd (2002) SC695
Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613
Thomas Rangip and Fountain Finance Limited v Peter Loko (2009) N3714

Counsels:

Mr D Tulapi, appeared in person
Mr R Raka, for the second respondent
No appearance, for the first respondent

5 July, 2011

1. BY THE COURT: In early November 2010, notices were placed in the main daily newspapers that listed a number of Supreme Court matters that would be subject to consideration by the Supreme Court for dismissal either under section 11 Supreme Court Act or Order 7 Rule 53 Supreme Court Rules during the week 29 November to 3 December 2010. The appellants' appeal SCA No. 61of 2005 ("SCA61/05") was one of the cases placed on that list. On 30 November 2010 the appellants did not appear when the matter was called and this court ordered the dismissal of the appeal SCA61/05 ("Dismissal Order") for want of prosecution of the appeal pursuant to Order 7 Rule 53(a) Supreme Court Rules.
   
2. The appellants then filed the present application which seeks to have that Dismissal Order set aside and SCA61/05 re-instated.
   
3. There are no express provisions under the Supreme Court Act and the Supreme Court Rules allowing for applications to set aside ex parte orders of the Supreme Court. The application was permitted to be filed only after His Honour Injia CJ sitting as the Supreme Court and acting under section 185 Constitution granted leave for the application to be filed.
   

The Law

4. In our opinion the principles applicable in an application such as is before us now are the same as those pronounced by the courts in dealing with the relevant provisions of the National Court Rules concerning similar applications, and that is the applicant must satisfy the court:
   

(a) why the order was allowed to be entered in the absence of the applicant,

(b) if there is a delay in making the application to set aside, a reasonable explanation for the delay, and

(c) that there is a reasonable explanation for the proceeding not being prosecuted with due diligence.

See Smith v Ruma Constructions Ltd (2002) SC695; Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613; and Rangip and Fountain Finance Limited v Peter Loko (2009) N3714.

Appellants' submissions

5. The appellant Daniel Tulapi who appeared for the appellants firstly explained that they were not aware of the notice in the newspapers, and that he was himself advised of the notice by a relative on the night of 2 December 2010. The next morning he attended the Supreme Court registry and tried to have the matter mentioned in court but this was declined by the Registrar which we might add was proper as any request to set aside the Dismissal Order would have to come by way of a formal application (which of course has since been done).
   
6. It appears the appellants have not had legal representation since 2006.
   
7. Mr Tulapi submitted that the appellants have otherwise been ready to have their appeal set down and heard as the index and the appeal book were filed and have been with the Registrar since October 2005. Since then, the appellants have been waiting for the Registrar to certify the appeal book as correct and list the appeal for hearing.
   
8. Mr Tulapi further explained that after the index and appeal book were filed he was later advised that the court file went missing. He suggested that the Registrar was then in cohorts with one Vincent Mirupasi in causing the file to go missing, thus making it difficult for the appellants to progress their appeal. During this time Vincent Mirupasi applied to substitute himself as the appellant in SCA61/05 but the application was dismissed by His Honour David, J on 2 October 2008. Mr Tulapi said that he only became aware of Vincent Mirupasi's application after His Honour's decision, and added that from that time to 3 December 2010 he understood the court file was still missing so nothing was done to progress the appeal.
   

Findings

9. We are prepared to accept Mr Tulapi's explanation why there was no appearance for the appellants before this court on 30 November 2010.
   
10. We are also satisfied that there has not been any delay in making this application to set aside the Dismissal Order.
    
11. Contrary to what Mr Tulapi submitted however, we consider that the appellants have not taken all the necessary steps to have the appeal progressed for hearing. The last activity by the appellants was the filing of the draft index on 12 October 2005 by their then lawyers, Amnol & Company. The index has never been settled. Having perused the court file, it is very clear to us that the appeal book has never been filed and we strongly suspect that it has never been compiled because the appeal book can only be put together after settlement of the index.
    
12. Mr Tulapi also claimed the progress of the appeal was thwarted by the Registrar not certifying the appeal book as correct, but the certification is a matter for the parties and not for the Registrar. In any case, we have already found that the appeal book was never filed.
    
13. Mr Tulapi produced a letter dated 22 March 2010 he wrote to the Deputy Registrar National Court enquiring about the files/status of various cases in which he is a party including SCA61/05. The Deputy Registrar National Court advised him to take up his query on the appeal with the Supreme Court registry. Except for this letter, there is no other evidence that the appellants attended to or made other follow-ups with the registry in relation to SCA61/05 from 12 October 2005 (when the draft index was filed) to 30 November 2010 (when the Dismissal Order was made), and even to date. The appellants also made no attempt to raise with the Supreme Court by way of application their concerns about the alleged missing file or their claim of improper conduct, slowness and inaction on the part of the Registrar and the registry.
    
14. We mention also that Mr Tulapi advanced an argument that there was an error in the court making the Dismissal Order when Order 7 Rule 54 Supreme Court Rules requires the respondent to make application for dismissal for want of prosecution. We find this submission misconceived as clearly the court has the power under Order 7 Rule 53(a) Supreme Court Rules to order the dismissal of an appeal for want of prosecution on its own motion.
    

Conclusion

15. Having considered the foregoing, we are not satisfied that the appellants have produced a reasonable explanation for not having prosecuted their appeal SCA61/05 with due diligence. They sat on their appeal for over 5 years before it was dismissed for want of prosecution.
    
16. Accordingly, we dismiss the application.
    
17. While Mr Raka appeared for the respondents in this application, he did not advance any arguments. In the circumstances, we order that the parties bear their own costs.

___________________________________________________
Henaos Lawyers: Lawyers for the applicants/first and second respondents
Jerewai Lawyers: Lawyers for the respondent/ appellant
Blake Dawson Lawyers: Lawyers for the fifth respondent
Allens Arthur Robinson: Lawyers for the sixth respondent