Pokia v Yallon [2015] PGSC 91; SC1662 (25 February 2015)

SC1662

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 105 of 2013

BETWEEN:
MURISO POKIA
Appellant

AND:
MENDWAN YALLON
First Respondent

AND:
DOROTHY NANAI
Second Respondent

AND:
Senior Constable
JOB EREMUGO
Third Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J
2015: February 18^th and 25^th

Applications for extension of time, review of taxed bill of costs and judgment upon taxed bill of costs

Cases Cited

Anthony John Polling v. MVIT (1986) PNGLR 228
Wari Vele v. Powes Parkop (2008) SC945

Counsel:

Ms. M. Kias, for the second, third and fourth Respondents
Mr. M. Pokia, in person, the Appellant

ORAL DECISION DELIVERED ON

25^th February, 2015

1. HARTSHORN J: Three applications came before the Court for determination. Two applications of the appellant, Mr. Pokia and one application of the first respondent, Ms. Mendwan Yallon.

2. I was satisfied that the first respondent and also the other respondents had been served and had notice of the applications being heard on 18^th February at 9:30am. I thus permitted the applications to proceed notwithstanding there was no appearance on behalf of the first respondent.

Application for extension of time filed 17^th November 2014

3. This application of the appellant is made as he filed an application for judgment for taxed costs, one day after the time allowed to do so by a single Supreme Court Judge.

4. The Judge ordered on 4^th November 2014, that amongst others:

“Leave granted to the appellant to withdraw the Amended Application filed on 20^th October 2014 with liberty to file an application for judgment for taxed costs within 7 days from today”.

5. The appellant filed an application for judgment for taxed costs on 12^th November 2014, one day after the time permitted.

6. The appellant relied upon Order 2 Rule 1(h) Supreme Court Rules, which provides that:

“.... Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to –

(h) Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed.”

7. It is submitted that there is no specific Rule in the Supreme Court Rules concerning an extension of time that is fixed by a Judge to do something.

8. A quick perusal of the Supreme Court Rules indicates that this submission is correct. Thus Order 1 Rules 15(1) and (2) National Court Rules are relied upon. They are:

“(1) The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgment or order.

(2) The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.”

9. The appellant submits that the relevant principles that apply in a consideration of whether the time fixed by a court to do something should be extended are as set out in the case of Anthony John Polling v. MVIT (1986) PNGLR 228, per Wilson J:

“During the course of argument I was referred by Mr Bolam, the plaintiff’s counsel, to the case of Morres v Papuan Rubber and Trading Co Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141 at 143, 144. The judgment, although dealing with irregularity in the nature of non-compliance with rules governing appeals is useful and pertinent to the broad issue in point in this case. At 143-144 the then Chief Justice of New South Wales (Sir W P Cullen) had this to say:

“Now, I am equally satisfied that the Court has power to act, where justice requires, in the way of permitting the prosecution of an appeal notwithstanding default in compliance with the rule of serving the notice of motion upon the other side. I think that s 16 of the Supreme Court Procedure Act, No 49 of 1900, enables the Court to allow the prosecution of an appeal notwithstanding default in the service of that notice. And it is extremely desirable that the rules should not be allowed to stand in the way of serving the interests of justice. If justice requires that the severity of a rule should be relaxed, then it is of extreme importance that the Court should relax it. As was said by the Master of the Rolls in the case of Re Coles & Ravenshear ([1907] 1 KB 1at 4), ‘Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.’ But when a party, who has neglected to observe those requirements which the rules place him under for protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules. If a rule is one merely regarding a matter of detail in which the other party can be placed in as good a position as if the rules had been complied with, then in regard to such matters of detail the Court ought not to be very strict, because, the main purpose to be served being the carrying out of the particular proceeding, the mere matter of detail ought not to stand in the way of that purpose being served. But where it is a matter which definitely affects the right of the party, then although the Court has full power to condone the breach of the rules, it would require to see that the object to be served is one that justice really requires under the particular circumstances.”

With due deference to the learned Chief Justice I find much commonsense and fairness in those comments. In particular I adopt as criteria for guidance in such applications the interests of justice in the particular case and the proposition as to whether in reality the other party is in as good a position as if the rules had been complied with, or to put it another way, whether the party has been disadvantaged in regard to its rights in the matter.”

10. In this regard I refer to the following passage in Wari Vele v. Powes Parkop (2008) SC945 in which the Court, of which I was a member said at paragraph 23:

“As with all applications made after the first opportunity to establish the appellant or applicant’s rights has been missed, the first issue to be established is why that time limit was missed, a Rule has not been complied with or otherwise why dispensation is required. There has to be some reasonable explanation. The second matter to be explained is the delay, if any, which has occurred between the expiry of the time limit and the making of the application to waive/extend the time limit. Next, it should be established that the relief sought by the applicant will not unduly prejudice the respondent’s conduct of his case. Lastly it should be established that the grant of dispensation will enable all of the issues in contention to be promptly put before the Court without further delay. These are principles of general application .....”

11. This case concerned an application to strike out an application for leave to review a National Court decision which dismissed an election petition, however the principles referred to in this passage in my view, are relevant to an application to extend time, such as the one presently before this Court.

12. The first consideration then is whether the appellant has a reasonable explanation for not filing his application for judgment in time. In his first affidavit sworn 17^th November 2014, the appellant deposes that he confused himself as to the deadline given by the court that he had to meet, and that he never intended to disobey the court order.

13. As to whether this is a reasonable explanation: that someone can confuse himself, albeit an experienced lawyer, is possible, and the fact that the application was filed a day late, does tend to support this explanation – why would someone on purpose, file an application that is to his advantage, a day late? Given this and the absence of submissions to the contrary, I am satisfied that this is a reasonable explanation.

14. The second consideration is whether there has been delay that has occurred between the expiry of the time limit and the application to extend. Here it is only one day. There has not been any delay.

15. The third consideration is whether the relief sought by the appellant will unduly prejudice the respondent’s conduct of his case? In this instance, I am not satisfied that the respondents’ conduct of their case will be prejudiced and in any event, there is no evidence or submission from the respondents to the contrary.

16. The fourth consideration is whether the relief sought will enable all of the issues in contention to be promptly put before the Court withstanding further delay. In this instance the substantive issues in contention have been dealt with, so in that context this consideration is perhaps not relevant. Again there is no evidence or submission from the respondent to the contrary.

17. I also take into account the appellant’s submission that the order he seeks to extend, the 4^th November 2015 order, is related to practice and procedure and does not determine any rights of parties.

18. Given the above, I am satisfied that the extension of time sought should be granted and I order accordingly.

Application of first respondent filed 9^th December 2014

19. This application seeks that the appellant’s taxed bill of costs be reviewed pursuant to s. 155(4) Constitutions.

20. As the first respondent is not present to move the application, the appellant seeks that the application be dismissed for want of prosecution. This Court has inherent power to control its own proceedings. This includes dismissing an application for want of prosecution. Secondly, Order 2 Rule 1 (h) Supreme Court Rules provides that the National Court Rules shall apply where they contain a relevant provision, there is no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed. A perusal of the Supreme Court Rules has not revealed to me a provision that deals with the dismissal of an interlocutory application for want of prosecution. Consequently, there may be recourse to the National Court Rules.

21. Order 4 Rule 49(17) National Court Rules provides that the Court may of its own motion or upon application strike out or dismiss a motion which is not prosecuted within one month after it is filed or if it is adjourned twice.

22. In this instance the first respondent’s application was filed on 9^th December 2014. Even if the court vacation is taken into account, it is still over one month since the application was filed and it has not been prosecuted.

23. Consequently, as the first respondent is not present to move her application, I am satisfied that the appellant is entitled to the application being dismissed, either pursuant to the inherent jurisdiction of the court or Order 4 Rule 49(17) National Court Rules and Order 2 Rule 1(h) Supreme Court Rules.

24. Further, the first respondent relies upon s. 155(4) Constitution. It is settled, that s. 155(4) Constitution is to be available for the enforcement of a primary right in the absence of other legislation. Here, Order 12 Rule 37 Supreme Court Rules provides for a review of taxed costs within fourteen days from the date of issue of a certificate of costs. Section 155(4) Constitution cannot be used to override that existing law. Consequently, the first respondent has relied upon an incorrect provision and the relief sought cannot be granted using that provision.

25. The appellant for the above reasons, is entitled to have the first respondent’s application dismissed, and I order accordingly. The application of the respondent filed 9^th December 2014 is dismissed.

Notice of motion for judgment on taxed costs filed 12^th November 2014

26. For this application, the appellant submits that he has served the Registrar’s Certificate of Taxation, all the respondents have not paid and thus he seeks judgment for the taxed costs, pursuant to Order 12 Rule 36(3) Supreme Court Rules in the sum of K75,406.00. Order 12 Rule 36(3) Supreme Court Rules provides that:

“If, after 14 days from the date of service of the certificate of taxation, the costs remain unpaid, the Court or a Judge may, on motion by a party, supported by an affidavit, direct the entry of judgment for costs in the amount stated in the certificate of taxation.”

27. So that I am able to exercise my discretion properly, I require more information to be able to do so.

28. Consequently, this application for judgment on taxed costs is adjourned so that the appellant shall put before the court in affidavit form, all of the documentation that he submitted for his bill of costs to be taxed.

29. The application is adjourned part heard to 9:30am 20^th March 2015.
_________________________________________________________________
The Appellant : In person
Solicitor General : Lawyers for the Second, Third and Fourth Defendants