Tulapi v Alu [2011] PGSC 56; SC1177 (28 October 2011)

SC1177

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. 57 OF 2008

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B)
APPLICATION BY JOSEPH TULAPI trading as KAGUA ERAVE CONTRACTORS
TO REVIEW AN ORDER OF THE NATIONAL COURT

BETWEEN:

JOSEPH TULAPI trading as KAGUA ERAVE CONTRACTORS

AND

LESLIE ALU- THE CITY MANAGER
NATIONAL CAPITAL DISTRICT COMMISSION
First Respondent

AND:

MR ROBIN YANOPA-
THE DEPUTY CITY MANAGER
NATIONAL CAPITAL DISTRICT COMMISSION
Second Respondent

AND:

MR. AUGUSTINE RAVI
FINANCIAL CONTROLLER
NATIONAL CAPITAL DISTRICT COMMISSION
Third Respondent

AND:

THE NATIONAL CAPITAL DISTRICT COMMISSION
Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Batari J, Gabi and Kawi, JJ.
2011: 30 August & 28 October

PRACTICE AND PROCEDURE – Dismissal for want of prosecution - Order 7 Rule 53 Supreme Court Rules – Judicial review application - Failure to prosecute judicial review application with "due diligence" - Whether O 7 r 53 applies only to delays in prosecution of appeals – Application r 53 – Inherent powers of Supreme Court.

PRACTICE AND PROCEDURE – Dismissal for want of prosecution - Delay of nearly 3 years to seek leave for judicial review – Relevance of finality of proceedings – Failure to make explanation - whether undue delay – onus on respondent to show undue delay – Discretionary considerations – application dismissed for showing no satisfactory reason for delay.

Held:

(1) The discretionary power of the Supreme Court to dismiss an appeal under O.7 r. 53 of the Supreme Court Rules extends to the power to dismiss a judicial review application under Constitution s.155(1) for want of prosecution.

(2) The "rules" referred to in the phrase, "has not done any act required to be done by or under these rules", in r 53 include provisions of Order 5 on judicial review under Constitution s.155 (2) and rules made by the Judges of the Supreme Court for regulating and prescribing the practice and procedure of the Supreme Court in relation, inter alia, to appeals and hence, the application of r 53 to judicial reviews.

(3 ) The power to dismiss an appeal or a judicial review application for want of prosecution is to be exercised where the appellant or applicant has not prosecuted the appeal or review application with due diligence.

(4) Failure to provide an explanation for dilatory conduct where an explanation could be properly expected puts the proceedings at the risk of being dismissed for want of prosecution, having regard to the public interest in finalising litigation.

Cases cited:

Burns Philip (NG) Ltd v Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 331
Dan Kakaraya v Sir Michael Somare & Ors (2004) SC762
PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811

Counsel:

Mrs B. Malken, for the applicant/First, Second Third, and Fourth Respondents
Mr P. Ame, for the respondent/appellant
No Appearance by the Fifth Respondent

28 October, 2011

1. BY THE COURT: This is an application by the first, second, third and fourth respondents seeking a dismissal of the Judicial Review Application for want of prosecution pursuant to O 7 r 53(a) of the Supreme Court Rules.
   

Background

2. The Applicant in this Review Application filed proceedings WS No. 1140 of 2006 (WS 1140/06) on 18 March 2008 in the National Court claiming damages for alleged breach of a cleaning contract against the respondents. The proceeding was dismissed on 16 July 2008 for failure to comply with the statutory requirement for service of statutory notice under s.5 of the Claims By and Against the State Act, 1997. The Applicant has a right of appeal but he allowed the statutory appeal period to lapse without filing a notice of appeal.
   
3. On 27 October, 2008 the Applicant filed this proceedings under Constitution s.155 (2)(b). The matter was then left in abeyance until 4 November, 2009 when the respondents filed an application to dismiss the proceedings for want of prosecution. That application was not proceeded with. On 17 May, 2011 the respondents filed the amended Application, the subject of this ruling.
   
4. The Court's power to dismiss an appeal for want of prosecution is found in O 7 r 53 of the Supreme Court Rules which reads:
   

"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".

5. The exercise of that power is discretionary and subject to application of proper principles of law. Order 7, r. 53(a) empowers the Court to dismiss an appeal 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".
   
6. The Rule requires the appellant to prosecute the appeal with due diligence and without delay. Where a delay in the prosecution of an appeal is alleged, the applicant for dismissal for want of prosecutions must establish by evidence, a case for the Court to exercise judicial discretion in its favour before the burden shifts to the appellant to satisfactorily explain the delay and demonstrate a readiness to take the next step in the proceeding and proceed without further delay. Failure by the appellant to discharge that onus may leave the Court with little or no choice but to grant the application to dismiss the appeal.
   

7. This principle is well settled in this jurisdiction. See, Burns Philip (NG) Ltd v Maxine George [1983] PNGLR 55; General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331; Dan Kakaraya –v- Sir Michael Somare & Ors (2004) SC762; PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811 and a host of cases that has since followed. The Supreme Court in Burns Philip (NG) Ltd v Maxine George held that:

1. the power to dismiss for want of prosecution remains discretionary;
   
2. the discretion is to be exercised having regard to all to the circumstances including, inter alia;

1. the length of and reason for delay on the appellant's part;
2. extent the evidence likely to be adduced may lose cogency;

100. the availability of transcript; and

4. any negotiations between the parties.
   

8. In the present case, the application by the respondents is to dismiss a Notice of Motion for leave to apply for judicial review and to dismiss an Application for Judicial Review for want of prosecution under O 7 r. 53 of the Supreme Court Rules.

9. For the respondent, it was submitted by Mr Ame that, O. 7 r. 53 applies exclusively to appeals. On that basis, the Supreme Court has no option but to refuse the application to dismiss his client's case as it is misconceived and incompetent.

10. We agree there is no separate or similar provision to O 7 r. 53 of the Supreme Court Rules for dealing with delays in prosecution of judicial review applications. However, in our judgment, the procedure set out in O 7 r. 53 for dismissal of appeals for want of prosecution applies equally to Judicial Review Applications. The "rules" referred to in the phrase, "has not done any act required to be done by or under these rules", in Rule 53 include provisions of Order 5 which relate to applications to the Supreme Court for judicial review under s.155(2) of the Constitution.

11. It can also bee seen from the preamble to the rules that, they are rules made by the Judges of the Supreme Court for regulating and prescribing the practice and procedure of the Supreme Court in relation, inter alia, to appeals. Furthermore, the court always has a general power to regulate and control any proceeding before it and it has an inherent power under s. 155 (2) (a) of the Constitution to review all judicial Acts of the National Court. More specifically Rule 35 gives discretionary power to the court to dismiss an appeal or judicial review application for want of prosecution.

12. We reject counsel's argument on that basis.

13. The respondent in this application also raised the issue of not being served with the applicant's Amended Application for dismissal of his case for want of prosecution.

14. That contention was made from the bar table and not based on any evidence. There is in fact, nothing before us supporting the assertion of lack of service. The materials before the Court show that the Applicant was served and been aware for sometime of the pending application to dismiss his case for want of prosecution. We are satisfied and therefore find that the appellants were given sufficient notice of application and the amendment to that application to dismiss his case.

15. For the applicants, counsel Ms Malken relied on two affidavits which asserted failure on the part of the respondent to prosecute his application for judicial review by taking steps to -

1. file and serve a draft index to the Review Book,
2. secure appointment with the Registrar to settle the Index,
3. obtain the National Court Transcripts,
4. file and serve the Review Book,
5. have the Review set down for hearing.
   

16. On the strength of materials filed and relied on by counsel for the respondents, we are satisfied that the applicants have shown sufficient cause that the Applicant has not done what is necessarily required of him to progress and expedite the hearing of his application for judicial review. Nearly three years have lapsed and the Application for judicial review is not ready in way or form. There is strong evidence the Applicant has not prosecuted his review application with due diligence. The onus is on him to satisfactorily explain the long delay.

17. The Applicant has not provided evidence in affidavit form or oral testimony stating and explaining his position and the circumstances of the long delay of 2 years and 11 months. So, the assertions by the respondents are in essence, uncontested.

18. Rule 35 cannot be lightly regarded. It places on the appellant and for that matter an applicant in a judicial review application the onus to prosecute his appeal or review with due diligence. This is a rule of the court and any appeal or review application which does not meet the requirements invites the risk of being dismissed.

19. On the facts of this application, the conclusion is inescapable that the Applicant failed without reasonable explanation, to take the required steps to prepare and prosecute his review application with due diligence. This also demonstrates his lack of interests in prosecuting this Review Application. The lack of interests over a period of nearly three years in bringing this litigation to finality bespeaks of indefensible and inordinate delay. Such a delay without any or reasonable explanation amounts to a contumelious disregard of the court process.

20. There is also a legitimate public interest in having court proceedings finalised as soon as practicable. The lack of attention given to the prosecution of the application for judicial review and the uncertainty of anything ever being done to bring this case to finality justifies court intervention to dismiss the case for want of prosecution. Such exercise of judicial discretion will also serve the interest of justice which includes the public interest.

21. Accordingly, we uphold the respondents' application and dismiss this Application for Judicial Review for want of prosecution.

22. Cost is awarded to the respondents to be taxed if not agreed.

________________________________

Phillip Ame Lawyers: Lawyers for the Applicant/respondent
NCDC In House Lawyers: Lawyers for the First, Second, Third &
Fourth Respondents/applicants