Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2013] PGSC 64; SC1230 (30 August 2013)

SC1230

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 15 OF 2006

APPLICATION FOR REVIEW PURSUANT TO SECTION 155 (2) (B) OF THE CONSTITUTION

BETWEEN:

LAE BOTTLING INDUSTRIES LIMITED
Applicant

AND:

LAE RENTAL HOMES LIMTIED
First Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:

VIVISO SERAVO
Third Respondent

Waigani: Injia CJ, Gavara-Nanu & Kawi JJ
2013: 29 & 30 August

PRACTICE & PROCEDURE – Summary determination – Slip rule application - Failure to comply with the directions of the Court – Power of the Court to summarily determine proceeding for failure by the applicant to comply with directions of the Court - Non-compliance continuing and persistent - No reasonable explanation given for the non-compliance - Supreme Court Rules, 2012; O13 rr 8,9,10 (3) and 13 (a) and (b).

Cases cited:

Ace Guard Dog Security Services Ltd v. Yama Security Services Ltd & Lindsay Lai Lai (2003) N2459
Curtain Bros (PNG) Ltd and Curtain Bros (Qld) v. University of Papua New Guinea (2005) SC788
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Hami Yawari v. Anderson Agiru & Electoral Commission (2008) SC948
Joseph Kupo v. Stephen Raphael, Secretary for Defence (2004) SC751
Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218
Motor Vehicles Insurance (PNG) Trust Limited v. Yama Security Services Limited (2009) PGSC23; SC1004.
Patrick Basa v. Bob Dadae and Andrew Trawen, the Electoral Commissioner of Papua New Guinea (2013) N4991
Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110
Virgil Dewitt Perryman and Victoria F. Perryman v. The Minister for Foreign Affairs and Trade [1982] PNGLR 339

Counsel

D. Levy, for the applicant
T. Cooper, for the first respondent

30th August, 2013

1. BY THE COURT: This case comes before the Court for summary determination pursuant to an order made by the Court on 20 February, 2012, under Order 13 r 10 (3) of the Supreme Court Rules, 2012 . The Court made the order following failure by the applicant to comply with the directions given by the Court on 12 December, 2011, and for the failure by the applicant and its lawyers to appear in Court on 20 February, 2012.

2. The undisputed background facts are stated in brief. Prior to 1996, the first respondent held a State lease over a piece of land in Lae. In 1991 the first respondent's lease was forfeited by the State and a new lease over the same piece of land was issued to the applicant. The first respondent successfully challenged the forfeiture of its lease in the National Court by way of judicial review, the National Court in its decision set aside the forfeiture of the first respondent's lease and restored its lease. The applicant applied to the Supreme Court for review of the National Court decision under s. 155 (2) (b) of the Constitution. On 2 September, 2011, the Supreme Court affirmed the decision of the National Court and dismissed the applicant's application for review.

3. On 11 October, 2011, the applicant filed an application in the Supreme Court to re-open the case under the slip rule. The matter was listed for directions hearing on 31 October, 2011, on that day the matter was adjourned to 14 November, 2011, upon an application made by the applicant to give it time to amend its application to re-open. On 14 November, 2011, following failure by the applicant to comply with the directions given by the Court on 31 October, 2011 to file and serve an amended application to re-open by that date, the applicant was again directed to file and serve an amended application to re-open within 14 days or by 28 November, 2011. That direction was made following an application by the applicant for further adjournment to amend the application. The matter was made returnable on 5 December, 2011, for further directions. On 5 December, 2011, the matter was not heard because no judge was available. The matter returned to Court on 12 December, 2011, on that day all the parties appeared in Court. Again following failure by the applicant to file and serve an amended application to re-open for the second time, the applicant applied for extension of time to file the amended application to re-open. As a result, the Court gave further directions that directions given on 14 November, 2011, be extended "to allow the applicant to file the amended application to re-open with a draft Index before the close of business on 10 February, 2012". The matter was adjourned to 13 February, 2012, however, on that day Mr Levy of counsel for the applicant who had the carriage and knowledge of applicant's case failed to appear in Court. Another lawyer from Manase and Company Lawyers, Mr. Lau appeared instead for the applicant. This resulted in the case being further adjourned to 20 February, 2012, on that day applicant's lawyers did not appear in Court, only Mr. Muri Pokia of counsel for the first respondent appeared in Court. Because of the failure by applicant's lawyers to appear in Court on that day, Mr. Pokia successfully applied for the case to be referred to the full Supreme Court for summary determination.

4. At the hearing before us Mr. Levy explained that he did not appear in Court on 13 February, 2012, because he was away in New Zealand. We however note that no supporting evidence was adduced before us by Mr Levy to show that he did indeed travel to or was in New Zealand on 13 February, 2012.

5. Mr. Levy told the Court that his client did not comply with the Court's directions of 12 December, 2011, because it had changed its mind and decided against filing an amended application to re-open. He referred to this as "change of instructions" by the applicant. There is no evidence that this was communicated to the respondents.

6. The Court's power to refer cases for summary determination by the full Supreme Court is conferred by Order 13 rr 10 (3) and 16 (1), (b) of the Supreme Court Rules, 2012. It is to be noted that under Order 13 r 8 (c) the lawyer who has carriage and knowledge of the case must attend all directions hearings.

7. Order 13 r 10 (3) confers discretion on the Court to "adjourn the status conferences as is necessary, to enable the parties to fully comply with its directions or may refer the matter for summary determination".

8. Mere failure to comply with Court's directions may not render a proceeding subject to summary determination or dismissal. Nevertheless, the rules confer broad discretion on the Court in deciding whether to dismiss or to summarily determine a case even in such situations. The relevant principles which the Court should have regard to have been enunciated in many National and Supreme Court decisions. In Curtain Bros (PNG) Ltd and Curtain Bros (Qld) v. University of Papua New Guinea SC788, for instance the Supreme Court said that a default or no-compliance by a party with directions of the Court or requirements of the Rules, should incur or warrant penalty such as dismissal of proceedings if the party in default is the plaintiff, and where such default or non-compliance is repeated and recurrent. The Supreme Court in that case adopted the observations made by the National Court in Ace Guard Dog Security Services Ltd v. Yama Security Services Ltd & Lindsay Lai Lai (2003) N2459. Such default or non-compliance would also incur similar penalty if the other party is prejudiced and its right to a fair trial is denied and where there is no reasonable explanation provided for the default or non-compliance: Kawaso Ltd v. Oil Search PNG Ltd SC1218 and Patric Basa v. Bob Dadae and Andrew Trawen, the Eclectoral Commissioner of Papua New Guinea, N4991.

9. Notably, the parties in this case initially agreed that when the matter returned to Court on 14 November, 2011, consent orders would be issued for the parties to expedite the hearing. However the case was adjourned a number of times without the consent orders being issued because of the applications made by the applicant to give it more time to file an amended application to re-open the case. This resulted in repeated failures by the applicant to comply with the orders of the Court to file the amended application to re-open.

10. The applicant's failure to comply with the Court's directions continued from 31 October, 2011 to 20 February, 2012, which is a period of more than four months. No reasonable explanations were given by the applicant for the non-compliance. This is fatal to the applicant. Even if the failure by the applicant to comply with the Court's directions could be attributed to the negligence of applicant's lawyers, the applicant cannot be relieved from being penalised with the case being summarily determined: Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110, Hami Yawari v. Anderson Agiru & Electoral Commission (2008) SC 948 and Patrick Basa v. Bob Dadae and Andrew Trawen, Electoral Commissioner of Papua New Guinea (supra).

11. Furthermore, when the failure by the applicant to comply with Court's directions for over four months without any reasonable explanation is seen in the light of the whole of the circumstances, the resultant delay is extraordinarily serious especially given that the applicant has applied to re-open the case which had already been dismissed by the National Court and subsequently by the Supreme Court. This in our opinion placed a heavy and onerous responsibility on the applicant to ensure that it complied strictly with the directions of the Court, the Rules of Court and the practices and procedures of the Court. It was in the interest of the public that the application was duly dispatched and brought to finality within a reasonable time and with minimum delay. This responsibility lay on the appplicant: General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1992] PNGLR 331 at 334 and Motor Vehicles Insurance (PNG) Trust Limited v. Yama Security Services Limited (2009) PGSC23; SC1004. It is to be further noted that the lack of reasonable explanation does not relate only to the applicant's failure to comply with the Court's directions, it also relates to the failure by the applicant's lawyer Mr. Levy to attend the directions hearings on 13 and 20 February, 2012. We find these defaults and non-compliance intentional and contumelious.

12. In the result, we consider that to do otherwise than to dismiss in the absence of any reasonable explanation by the applicant and its lawyers for their default and non-compliance would result in the failure for us to have sufficient regard to the facts and circumstances of the case and the principles to which we adverted.

13. Mr Levy informed the Court that the applicant had incurred costs in improving the land, but that is an irrelevant consideration and we will not entertain it. The pertinent issue for us to determine is whether the applicant and its lawyer had reasonable explanation for the defaults and non-compliance. We have found that there were no reasonable explanations given.

14. Any damages suffered by the applicant should be claimed from its lawyers for their negligence and dilatory conduct, especially for their failure to provide a reasonable explanation for the delays and non–compliance with the directions of the Court and to attend the directions hearings on 13 and 20 December, 2012: Joseph Kupo v. Stephen Rapahel, Secretary for Defence (2004) SC 751 and Virgil Dewitt Perryman and Victoria F. Perryman v. The Minister for Foreign Affairs and Trade [1982] PNGLR 339.

15. The application is therefore dismissed.

16. The applicant will pay the first respondent's costs and incidentals to the application.

17. The second and third respondents will pay their own costs.

18. Orders accordingly.

_________________________________________
Manase & Co. Lawyers: Lawyers for the Applicant
Mirupasi Lawyers: Lawyers for the First Respondent
Solicitor General: Lawyers for the Second and Third Respondents