Kimisopa v Paraka [2014] PGSC 21; SC1345 (2 May 2014)

SC1345

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 3 OF 2007

BETWEEN:
HON. BIRE KIMISOPA, MP, MINISTER FOR JUSTICE
First Appellant

AND:

WINNIE KIAP, SECRETARY – NATIONAL EXECUTIVE COUNCIL
Second Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third appellant

AND:

PAUL PARAKA trading as PAUL PARAKA LAWYERS
Respondent

Waigani: Gavara-Nanu, Kandakasi & David JJ
2014: April 30
2014: May 2

APPEAL – Practice and Procedure – Application to dismiss for want of prosecution – Onus on the applicant to show lack of due diligence by the appellants in prosecuting the appeal – Appellants providing reasonable explanation for delay – Applicant contributing to the delay. Application to dismiss refused.

Cases cited:

Burns Philip (New Guinea) Ltd .v.Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd .v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331.
Norr .v. Domonic Ikamata and The State (2005) SC815
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd & Ors SC 811.
Yer, Secretary for Department of Finance .v. Yama (2009) PGSC 13; SC 990

Counsel:

I. Molloy, for the respondent/applicant
P. Mawa, for the appellants/ respondents

2nd May, 2014

1. BY THE COURT: This is an application by the respondent/applicant to dismiss the appeal for want of prosecution. The application is made pursuant to the application filed on 22 July, 2013 and Order 7 r 48 of the Supreme Court Rules, 2012.

2. The appeal was lodged on 3 March, 2007, against the orders of the National Court made in favour of the applicant on 2 March, 2007. The applicant argued that the appellants have not taken steps to complete what they are required to do under the Supreme Court Act, Chapter No. 37, and have not taken active steps to diligently prosecute the appeal.

3. We note from the endorsements on the Court file that there were actions taken up to 30 April, 2010. Notable actions which the Court takes judicial notice of are:

i. on 21 March, 2008, an application by the applicant to stay was refused by Davani J, sitting as single Judge of the Supreme Court. Costs ordered against the applicant.

ii. on 21 July, 2009, the objection to competency by the applicant was dismissed. Costs were ordered to be costs in the appeal.

iii. on 30 April, 2010, application by the applicant to dismiss stay orders was dismissed with costs.

4. On 8 July, 2010, Mawa Lawyers wrote to Paraka Lawyers informing them that they had received the transcripts and after perusing them would proceed to finalise the Appeal Book (p.329 A/B).

5. We note from paragraph 9 of the affidavit sworn by Mr. Paul Mawa of counsel for the appellants that in late 2011, the State withdrew instructions to his firm in this matter and instructed O'Brian Lawyers. His Honour Justice Poole who was with O'Brian Lawyers then had the carriage of the matter until his Honour's appointment to the bench. Mr. Mawa says in the affidavit that when the State re-engaged his firm in 2013, appropriate steps were taken to progress the appeal.

6. Mr. Mawa told the Court that towards the end of 2011, the State withdrew instructions to his firm after he nominated to stand for the 2012, general elections.

7. Mr. Mawa also explained that one main reason for the delay in the appeal being compiled and heard was the continued refusal by Paraka Lawyers to agree to the draft index to the Appeal Book, which his firm prepared. There is evidence that the applicant took issue with the draft index.

8. The law relating to application to dismiss for want of prosecution is well settled in this jurisdiction. The applicant must among other things show that there is lack of due diligence by the appellants to prosecute the appeal; the delay is inordinate and there is no reasonable explanation for such delay. These are questions of fact. The Court has wide discretion when deciding whether to dismiss the appeal for want of prosecution: General Accident Fire & Life Assurance Corporation Ltd .v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331; Burns Philp (New Guinea) Ltd .v. Maxine George [1983] PNGLR 55 and Norr .v. Domonic Ikamata and The State (2005) SC815.

9. Looking at the materials before us, we find that whilst there is delay by the appellants to prosecute the appeal, we also note that the delay was partly caused by the applicant making a number of interlocutory applications after the appeal was filed on 3 March, 2007, as shown above. The period from 21 March, 2008 to 3 April, 2010, was when applicant's above interlocutory applications were dealt with, thus any delay in that period was caused by the applicant: Yer, Secretary for Department of Finance .v. Yama (2009) PGSC 13; SC990. In regard to 2011, we are satisfied that there were steps taken by the appellants to progress the appeal until towards the end of the year when the State withdrew instructions to Mawa Lawyers. The delays in 2012, appear to be because of the need for the appellants to brief out to a new firm when Mr. Mawa was involved in 2012, general elections as a candidate. In these circumstances we cannot find any conduct by the appellants or their lawyers that was dilatory and lacking diligence. The appellants have in our view given reasonable explanations for the delays in 2012. PNG Nambawan Trophy Ltd .v. Dynasty Holdings Ltd & Ors SC811. The end result is that we find no basis to dismiss the appeal for want of prosecution.

10. Whilst we find the foregoing sufficient reasons to dismiss the application, we also note from the materials before the Court that the orders obtained by the applicant in the National Court, the subject of this appeal, may not be proper. This is a matter which should be determined in the appeal. We consider this as a relevant matter to have regard to because if the orders given by the National Court were improper or were unlawful then all the actions taken by the applicant to give effect to those National Court orders as well as this application would have no legal basis.

11. Mr. Mawa told the Court that he has compiled the appeal book.

12. In the circumstances, we make the following orders:

i. the application be dismissed.

ii. the draft index prepared by the appellants be the settled index to the appeal book.

iii. the appellants to finalise the appeal book in accordance with their draft index.

iv. the appellants to file and serve the certified appeal book by Friday 16 May, 2014.

v. the matter to return before the Supreme Court on the first directions hearing date after 16 May, 2014, for appropriate directions.

vi. the applicant to pay the appellants' costs and incidental to the application.

Orders accordingly.

________________________________________________________
Mawa Lawyers: Lawyers for the Appellants
Paraka Lawyers: Lawyers for the Applicant