JNS Ltd v Lae Builders and Contractors Ltd [2012] PGSC 7; SC1174 (2 March 2012)

SC1174

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 5 0F 2011

JNS LIMITED
Appellant

V

LAE BUILDERS & CONTRACTORS LIMITED
First Respondent

ANTHONY WAGAMBIE AS ACTING COMMISSIONER OF POLICE, ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Respondent

ANDREW EDWARDS
Third Respondent

Waigani: Cannings, Gabi & Kassman JJ
2012: 29 February, 2 March

PRACTICE AND PROCEDURE – application for dismissal of appeal for want of prosecution.

PRACTICE AND PROCEDURE – application to dispense with requirements for endorsement of draft index to appeal book and endorsement of Certificate of Correctness to Appeal Book.

The appellant filed a draft index to an appeal book which was endorsed by the 3rd respondent. The 1st and 2nd respondents showed no interest in the proceedings and failed to attend on various dates set for settlement of the draft index. The appellant's attempts to obtain a date for settlement of the draft index by the Deputy Registrar-Supreme Court were not successful over a period of seven months. The 3rd respondent applied to dismiss the proceedings for want of prosecution; and the appellant applied for orders of the court to dispense with requirements of the Rules.

Case cited

The following case is cited in the judgment:

PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811

APPLICATIONS

This was an application to dismiss proceedings for want of prosecution; and an application for orders of the court to dispense with the requirements of the Rules.

Counsel

D Mel, for the appellant
C Copeland and G Salika, for the 3rd respondent
No appearance for the 1st and 2nd respondents

2 March, 2012

1. BY THE COURT: We have heard two applications. One filed on 3 February 2012 by Thomas Andrew Edwards, the third respondent, seeking dismissal of the proceedings for want of prosecution. The other filed on 7 February 2012 by JNS Limited, the appellant, seeking dispensation with requirements for endorsement by the first and second respondents of the draft Index to the appeal book and also for dispensation with requirements for endorsement by the first and second respondents of the certificate of correctness of the appeal book. Other consequential directions were also sought.

BACKGROUND

2. The substantive appeal arises from a refusal by the National Court to grant declaratory orders sought by the appellant that it was the rightful proprietor of land at Allotment 1, Section 54, Granville (Konedobu) in Port Moresby. The National Court ordered the cancellation of the appellant's State Lease.

3. The third respondent was not a party to the proceedings in the National Court but was allowed to join the appeal. The third respondent argues that he has a pending application for a business commercial lease over the property.

4. The notice of appeal was filed on 10 February 2011 and the draft Index to the appeal book was filed on 26 April 2011. Since then, appointments for settlement of the draft Index to the appeal book have fallen through for a number of reasons attributed to the non-attendance at all by the first and second respondents to scheduled appointments. On one such occasion, the third respondent failed to attend. Further, the Deputy Registrar was not available on most occasions.

5. The appointment for settlement of the index to the appeal book was first set for 11 May 2011. Settlement did not take place as the file was before the court for the hearing of the third respondent's application to join the appeal. The next scheduled appointment of 9 June 2011 was also deferred due to the failure by all respondents to appear. Likewise, the next scheduled appointment of 22 June was deferred due to the failure by the first and second respondents to appear. On 29 June settlement was again deferred this time due to the absence of the Deputy Registrar and the first and second respondents and the deferral to the next day 30 June 2011 was also wasted for the same reason.

6. On 19 July 2011, the appellant and third respondent attended and with the agreement of the Deputy Registrar Supreme Court, conveyed through Registry staff, counsel for both parties discussed and agreed to the contents of the draft index.

7. The appellant then sent follow up letters to the Deputy Registrar Supreme Court each month from September 2011 all to no avail. The letters were dated 7 September 2011, 10 October 2011 and 1 November 2011.

8. The appellant also says they even took the step of collating the appeal book following the draft index agreed by the third respondent, an unsealed copy of which was filed on a date in October 2011.

9. On 2 December 2011, the appellant says an appointment to meet with the Deputy Registrar Supreme Court also fell through when the appellant's counsel turned up but the Deputy Registrar was not available. That was the last approach to the Deputy Registrar by the appellant.

10. The third respondent then filed application for dismissal of the appeal for want of prosecution on 3 February 2012. That application was served on the appellant on 7 February 2012, the same day the Appellant filed and served its Application for dispensation.

APPLICATION TO DISMISS FOR WANT OF PROSECUTION

11. The Supreme Court Rules Order 7, Rule 53 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; 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 order that may seem just.

12. The law is well settled. We adopt the general propositions stated in the case of PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811 particularly when considering matters relevant to the want of due diligence such as "the failure to file the notice of appeal, failure to attend on settlement of the appeal book, failure to explain non attendance, failure to respond to correspondence, and failure to provide an explanation for dilatory conduct where an explanation could properly be expected. The absence of an explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected".

13. The third respondent argues that the seven-month delay in settling the index to the appeal book amounts to a lack of due diligence and that the delay was inordinate. He calculates that period to the date of the application to dismiss (3 February 2012) as commencing on 19 July 2011 the day counsel for the appellant and third respondent initialled and left the draft index in the Registry for endorsement by the Deputy Registrar Supreme Court.

14. Was there delay in the prosecution of the appeal? What is the appellant's explanation for this delay in settling the index to the appeal book? We find there was no delay attributable to the appellant. As stated above, the delay has not been brought on by the appellant but primarily by the conduct of the first and second respondents in showing no interest in the proceedings. Further, the third respondent also contributed to the delay in failing to attend one appointment. On top of that, the Deputy Registrar has demonstrated unwillingness to deal with the draft index as initialled by both the appellant and third respondent.

15. From 26 April 2011 when the appellant filed its draft index, the appellant duly sought appointments with the Deputy Registrar for settlement of the index. The appellant acted with due speed and frequency in seeking an appointment before the Deputy Registrar, all to no avail. At the request of the Deputy Registrar, the draft Index was initialled by both the appellant and third respondent on 19 July 2011. After that, the appellant again acted with due speed and frequency in seeking an appointment with the Deputy Registrar to obtain endorsement of the index that had been initialled by the appellant and third respondent. The appellant's approaches to the Deputy Registrar again proved futile so after seven months of persistence, the appellant then filed the application to dispense on 7 February 2012. Coincidentally, the third respondent filed the application to dismiss for want of prosecution just four days prior, on 3 February 2012.

16. We note each party served their respective applications on the same day 7 February 2012. The appellant argued its application to dispense was not prompted by the third respondent's application to dismiss for want of prosecution as they had no prior knowledge of such filing. This was not refuted by the third respondent and we have no reason to disbelieve the appellant on this aspect.

17. We also find the appellant has consistently informed the third respondent of their approaches to the Deputy Registrar. The third respondent was well aware of the predicament being experienced by the appellant.

18. It is certainly not the case that the appellant has been found wanting in its conduct and explanation. The appellant was well within reason to continue pursuing the Deputy Registrar for endorsement of the index from 19 July 2011 up until 2 December 2011 being the date of its last attendance on the Deputy Registrar. We say this knowing fully that an application of any sort for orders from the court such as that filed by the appellant involves all parties in further legal costs and time. Such measures should be the last resort and that would have been foremost in the mind of the appellant.

19. For the reasons stated, we refuse the third respondent's application for dismissal of the proceedings for want of prosecution.

APPLICATION TO DISPENSE WITH ENDORSEMENT BY THE FIRST AND SECOND RESPONDENTS – DRAFT INDEX TO APPEAL BOOK AND CERTIFICATE OF CORRECTNESS TO APPEAL BOOK

20. As a preliminary point, the third respondent argued that the application of the appellant was not properly before us on the basis that the application is worded as being made pursuant to Order 13, Rule 15 of the Supreme Court Listings Rules 2010 and/or Section 5(a) of the Supreme Court Act. The third respondent argues the application should be made before a single Judge of the Supreme Court.

21. Though a strict reading of such provisions support that contention, we find we have jurisdiction by Order 7, Rule 52 of the Supreme Court Rules which provide that "the court or a Judge may at any time make such orders as appear just for the expediting of the appeal".

22. We also note this objection could quite properly have been raised at directions hearings on 8, 16 or 22 February 2012 when the applications were listed and confirmed for hearing with the full knowledge and consent of counsel for both the appellant and the third respondent. Counsel for the third respondent conceded they had the opportunity at directions hearings and failed to raise this objection. We refuse the objection.

The application

23. The Supreme Court Listings Rules Rule 15 provides for the filing of applications for interlocutory orders which shall be made to the Duty Judge. Section 5(a) of the Supreme Court Act provides that where an appeal is pending before the Supreme Court, a direction not involving the decision on the appeal may be made by a Judge.

24. We repeat our views expressed above and find we have the jurisdiction to make the orders as sought by the appellant and we find our powers are as provided for in Order 7, Rule 52 of the Supreme Court Rules which provide that "the court or a Judge may at any time make such orders as appear just for the expediting of the appeal".

25. Firstly, we note there was no serious objection raised to this application by the third respondent. We also note that the third respondent has initialled the draft Index and was also keen to have the appeal book filed and the appeal heard as soon as possible.

26. The appellant has established the facts and circumstances that have led to its difficulty in securing endorsement of the draft index by the first and second respondents and in obtaining the endorsement of the draft Index by the Deputy Registrar Supreme Court. The draft index was discussed with and approved by the third respondent who confirmed their approval by initialling the draft Index.

27. There is no objection raised to the draft Index by the remaining parties: the first and second respondents. They have shown no (or no serious) interest in the appeal despite being duly served with the notice of appeal and all correspondence as to appointments for settlement of the draft index. Both the appellant and the third respondent say the first and second respondents have not attended on any of the many dates set for settlement of the Index despite having being duly notified.

28. There is no material before the Court providing an explanation for the failure by the Deputy Registrar Supreme Court to receive the appellant and third respondent and in particular to deal with the draft Index on the many dates that were set for settlement of the index. We find there is no explanation at all excusing the Deputy Registrar's consistent failure to deal with the draft index.

We will therefore grant the appellant's application.

Costs

29. Costs shall follow the event. The third respondent was well aware of the circumstances leading to the inability of the appellant to secure an appointment for settlement of the draft index. Being aware of the circumstances, the most appropriate approach should have been to support the appellant in its application seeking dispensation.

30. As we have upheld the appellant's application and have refused the third respondent's application, the third respondent shall pay the appellant's costs of both applications.

ORDER

31. For the reasons outlined above, we order that:

(1) The 3rd respondent's application to dismiss the proceedings for want of prosecution is refused.

(2) The appellant's application to dispense is upheld.

(3) The Court dispenses with the requirement for endorsement of the draft Index to the appeal book by the first and second respondents.

(4) The Court dispenses with the requirement for endorsement of the draft index to the appeal book by the Deputy Registrar Supreme Court.

(5) The appellant's draft index to the appeal book initialled by the appellant and third respondent on 19 July 2011 is taken to be the index to the appeal book for compilation of the appeal book.

(6) The Court dispenses with the requirement for endorsement of the certificate of correctness to appeal book by the first and second respondents.

(7) The appellant shall file and serve the appeal book within 14 days from today.

(8) The third respondent shall pay the appellant's costs of both applications, such costs to be on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
___________________________________________

Steeles Lawyers: Lawyers for the Appellant
Young & Williams Lawyers: Lawyers for the Third Respondent