|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No. 34 OF 2014
BETWEEN:
DANLEY TINDIWI & 25 OTHERS
Plaintiff
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Respondent
AND:
ENGA PROVINCIAL GOVERNMENT
Second Respondent
Waigani: Kirriwom, Murray & Ipang, JJ
2014:18 December
2015: 28 October
PRACTICE & PROCEDURE: Appeal against summary dismissal of proceedings under Order 10 Rule 9A (15) of the National Court Rules – Exercise of Discretion – Grounds for dismissal – Delay in prosecuting the claim and non-compliance of Court orders – Negotiations to settle out of Court is not a reason for the delay in prosecuting a claim – No error in the exercise of discretion.
Held
Appeal is dismissed
Case cited:
Bean vs. Bean [1980] PNGLR 307
Curtain Brothers (PNG) Ltd vs. University of Papua New Guinea (2005) SC 788
Lina Kewakali vs. The State (2011) SC 1091
Counsel:
Mr. Terry Injia, for the Appellants
Mr. Tauvasa Tanuvasa, for the First Respondent
No appearance for the Second Respondent
28th October, 2015
against a decision of the National Court, dismissing the proceeding they commenced against the respondents, Independent State of Papua New Guinea and Enga Provincial Government.
3. On 11 April 1997, the appellants obtained default judgment on their claim. It seemed the appellants did not take any steps immediately following the entry of the default judgment, to progress their claim either through out of Court settlement discussions or setting the matter down for trial on assessment of damages, until sometime in 2010, when the Court constituted by Kandakasi J, initiated discussions between the parties to settle the claim out of Court.
5. On 30 September 2013, the Court constituted by Davani J, having noted the history of the matter, allowed a further adjournment
of the matter to
9 December 2014 and further ordered that adjournment to be the last, and that, when the matter returns on the adjourned date, the
plaintiffs’ Counsel is to inform the Court of the matter being settled. Failing that, the matter be referred for summary determination.
6. On 9 December 2013, when the matter returned before the Court, Her Honour noted her orders of 30 September 2013 were not complied with. Accordingly, Her Honour referred the matter for summary determination and fixed that for hearing on 14 February 2014.
7. On 14 February 2014, the Court constituted by Davani J again, rejected the appellants’ unopposed submission that settlement negotiations were in progress and that settlement was imminent, and dismissed the entire proceedings with each party to their own costs.
8. Being aggrieved by that decision, the appellants filed the present appeal.
9. There are four grounds of appeal.
10. We will set them out as they appear in the appeal and address them individually. But before we get to that, we note the grounds of appeal raise allegations of errors by the trial Judge in the exercise of her discretion under Order 10 Rule 9A (15) of the National Court Rules, ("the Rules") in summarily dismissing the appellants’ claim, and so it is necessary to set out first the principles on appeals against decisions involving exercise of discretion.
11. It is now settled law that, an appellate court will be slow to overturn a decision of a lower court that was a result of that court’s exercise of its discretionary power unless an identifiable error, such as:
(i) acting on wrong principles or
(ii) giving weight to extraneous or irrelevant matter or
(iii) failed to give or take into account relevant considerations or
(iv) making mistakes with facts.
has occurred, or furthermore, where there is no identifiable error, the decision must be unreasonable or plainly unjust.
Only in those circumstances can the appellate court interfere and overturn a decision resulting from the exercise of a discretion: Bean vs. Bean [1980] PNGLR 307; Curtain Brothers (PNG) Ltd vs. University of Papua New Guinea (2005) SC 788; Lina Kewakali vs. The State (2011) SC1091.
12. We now turn to consider the grounds of appeal.
First ground of appeal.
13. This ground is in the following term:. Her Honour Justice Davani erred in the exercise of her discretion under Rule 15 (2) of National Court Listings Rules 2005 in summarily dismissing the entire proceeding against the weight of the undisputed evidence before her on 14th of February 2014, that showed that:
(i) the Plaintiffs/Appellants had appeared at all hearing dates set by the National Court since 2012;
(ii) the Plaintiffs/Appellants had taken active steps to negotiate out of Court settlement with the Defendant;
(iii) negotiations for out of court settlement were slow due to the Defendants lack of co-operation;
(iv) the Plaintiffs had complied with all the orders of the Court given in the proceedings including but not limited to Orders of 19th of September 2013, and had taken all reasonable steps to negotiate settlement of the Court proceeding with Defendant/Respondent;
14. The appellants argued that:
(i) Her Honour failed to specify the jurisdictional basis for the exercise of her discretion and in doing so, failed to apply the relevant principles governing the exercise of that discretion under Order 10 Rule 9A (15) (2) of the Rules.
(ii) Her Honour failed to give proper weight to the evidence before her. The evidence was that the appellants had taken all steps available to finalize settlement negotiations with the respondents however settlement had failed due to the respondents' lack of co- operation to settle the matter, or allow talks to progress settlement.
(iii) The orders of 30 September 2013 were unreasonable and prejudiced the appellants in that it put the burden of settling the matter on the appellants rather than the respondents who were the parties to be compelled to settle the matter or give its positions to the Court if it was not willing to settle.
15. We find as follows: Firstly, we find the argument that Her Honour failed to specify the jurisdictional basis for the exercise of her discretion to be flawed. There are no appeal grounds on this point. The 4 grounds of appeal are clear. Except for ground 3, it raises the issue of whether or not, Her Honour, the trial judge properly exercised her discretion under Order 10 Rule 9A (15) of the Rules.
That is the issue in this ground as well as Ground 2 and 4. The Appellant must address what is raised in the appeal grounds. They cannot raise any argument outside the appeal grounds.
Having raised in Grounds 1, 2 and 4, the issue that, Her Honour did not exercise her discretion properly under Order 10 Rule 9A (15) (2) of the Rules, to our minds, the appellants have no doubt accepted that the trial judge had exercised her powers under Order 10 Rule 9A (15) (2) of the Rules. Therefore, the fact that Her Honour did not specifically refer to that provision as the basis for her decision is not an issue before us.
16. Secondly, the principal reason the trial judge dismissed the proceeding, was the appellants’ failure to progress the matter, since it was filed in 1996. This is evident in the transcript.
At page 49 of the Appeal Book at Paragraph 2, Her Honour stated: “this has been ongoing since 1996, and as you are aware it has come before me many times .....”
17. The proceeding was instituted on 6 December 1996. Default Judgment entered on 11 April 1997. Up to the date the proceeding was dismissed, 18 years had elapsed and the matter had not progressed in Court at all.
The appellants argument is that, they were actively perusing out of Court settlement. The evidence relied upon by the appellant showed that the steps they claim to have taken to progress the out of Court settlement only started in 2013. Prior to that, there is no evidence of what steps were taken if any. More importantly, there is no evidence of any steps taken to progress the matter in Court since Default Judgment was entered. In the circumstances, there is clearly no reason for the delay in prosecuting their claim. Her Honour, no doubt addressed her mind to the background of this matter before making her decision, to summarily determine the proceeding, which she did on 14 February 2014. Her Honour’s intention to consider and summarily determine this matter was first made known to both parties on 30 September 2013, then later on 9 December 2013. This is stated in Paragraph 22 and 23 of Mr. Injia’s affidavit of 13 February 2014.
18. The Court’s power to summarily determine a matter is provided for in Order 10 Rule 9A (15) of the Rules.
This provision reads:
(1) The Court may summarily determined a matter;
- on application by a party; or
- on its own initiative; or
- upon referral by the Registrar under (3) below.
(2) The Court may summarily dispose of a matter in the following situations:
The provision is very clear as to;
(1) How a court can summarily determine a matter and
(2) The circumstances in which a court can dispose of a matter.
19. In the present case, we accept that the trial judge did not refer to this provision but at the same time we note that her intention to summarily determine the appellants' proceeding is no secret. The trial judge made that known to the parties on 30 September 2013 and later on 9 December 2013. The provision that deal with summary disposal of a matter is Order 10 Rule 9A (15) of the National Court Rules. By directing that the matter is referred for summary determination, Her Honour was invoking Rule 9A (15) of the Rules.
It was then open to the Court under Order10 Rule 9A (15)(1)(b) of the Rules to summarily determine the proceedings on its own initiative, on the basis that: (1) the matter had not progressed since default judgment was entered (want of prosecution – Order 10 Rule 9A(15)(2)(a) of the Rules and (2) for non compliance with the Court orders of 30 September 2013 ( Order 10 Rule 9A(15)(2)(c) of the Rules.
20. For those reasons, we find there were no errors by the trial judge in exercising her discretion to summarily dispose of the matter.
We dismiss this ground.
Second ground of appeal.
21. This ground reads: Her Honour Justice Davani erred in the exercise of her discretion under Rule 15(2) of the National Court Listings Rules 2005 in summarily dismissing the entire proceedings when she disregarded the submissions of the learned counsel for the Defendant who submitted that the proceeding should not be Summarily Determined as out of Court settlement with the Defendant was imminent.
22. When a matter is referred for summary determination, the Plaintiff is required to show cause why a matter should not be summarily
disposed of.
The appellants argued that an out of court settlement with the respondents was imminent, and that was supported by the respondents.
Despite that the trial judge dismissed the proceedings, thereby wrongly exercising her discretion.
23. The trial judge did not disregard the submissions by the respondents in support of the appellants. That was considered but in her view which is set out on page 50 of the appeal book, Her Honour found that the position taken by the appellants and supported by the respondents had been the same for the last couple of years, and when no settlement was reached, instead of progressing the matter to trial, the appellants kept on waiting for settlement.
24. At Paragraph 2 of page 50 of the appeal book, the trial judge said.
“I have said this time and time again so when parties last appeared before me on 30 September last year, one of the many appearances in 2013, that was done because Mr Lains had assured the court on 20 August that settlement is imminent. 21 May 2013, same thing, settlement is imminent and then the same representations on 13 December 2012 and then 20 November 2012. So do you need the court proceedings to give him that payout, whatever it is?”
25. Then at paragraph 5, the trial judge continued to say:
“It is- and I would be doing a real disservice to my authority as a sitting judge when I have on several occasions said “an adjournment for the last time” and nothing has happened. And I think the court has bent over backwards to allow that process to take place but it has not”.
26. And finally in the last paragraph, the trial judge said:
“And we cannot continue to do that. It just means that these proceedings are hanging around in the hope that there is going to be a settlement and I say “hanging around” because that appears to be the case. In the hope that somebody in government will give a favorable ear to that plea but that has not happened and the court should not be held ransom. That is my view”.
27. The trial judge no doubt considered the years that have lapsed since the proceeding was commenced, the last activity that took place and the fact that, despite the failure by the respondents to settle, the appellants have not taken any steps to progress the matter in Court.
28. If the trial judge were to give the parties another opportunity to attempt settlement, where the guarantee is that, it will happen.
There is no evidence of that. There is also no evidence on the readiness for this matter going to trial if settlement fails again.
That has been the trend in that matter for the last 18 years. Given the trend, it was incumbent, in our view, that the appellants
ought to have gone to Court on 14 February 2014 prepared to set the matter down for trial on assessment of damages. That was not
the case. Instead the appellants went to Court with confidence that the Court will further adjourn for them to continue with settlement
negotiations out of court, given the respondents' position.
Just because parties agree to something, does not mean the Court will endorse that. The National Court has inherent jurisdiction to
control and supervise its proceedings to ensure justice is done in a particular case. (Lina Kewakali vs. The State (2011) SC1091.).
29. The trial Judge in this case, after 18 years of no progress in the matter before her, took the control of it and in the exercise of her discretion under Order 10 Rule 9A (15) (1) and (2) of the Rules disposed it off. We find no error by the trial Judge in her exercise of discretion under the relevant provision. This ground is dismissed.
Third ground of appeal.
30. This ground reads: the summary disposal of the matter was unjust, unfair and oppressive of the Appellant’s right to seek redress in the National Court when learned primary judge failed to take into account the fact that:
(i) the matter was long outstanding since 1996;
(ii) the Plaintiffs had been actively pursuing their interests in Court; and
(iii) that out of Court settlement in the proceeding was imminent.
If a person or party institute proceedings, it is incumbent on that party to ensure it progresses to finality. In the event that, negotiations to settle out of Court arises, the progress of the Court proceedings should not be ignored or halted. If it is ignored, then the National Court who has inherent jurisdiction to control and supervise its proceedings can exercise its powers under the Rules to ensure justice is done and maintain good administration.
31. In the case before us, the proceeding was instituted in 1996. Since its institution, the only other activity that took place was entry of the default judgment. This took place in April of 1997. Since then, 17 years have lapsed and the appellants have done absolutely nothing to pursue its interest in Court. (emphasis ours)
32. The trial judge, on 14 February 2014 noted that, and dismissed the proceedings summarily. This is giving effect to the inherent
jurisdiction of the National Court to control and supervise its proceeding. We find the trial Judge’s exercise of discretion
was fair and just in the circumstances.
For this reason, we dismiss this ground as well.
Fourth ground of appeal.
33. This ground reads: Her Honour erroneously formed the opinion against the weight of the evidence that the Plaintiff had failed to do enough to negotiate settlement of the matter with the Defendant/Respondent and consequently erred in the exercise of her discretion under Rule 15(2) of the National Court Listings Rules 2005 in dismissing the proceedings in its entirety.
34. This ground is misconceived. The trial Judge did not dismiss the proceedings because she formed the opinion that the appellants have failed to do enough to negotiate settlement of the matter. It was dismissed because of want of prosecution and failure to comply with Court orders of 30 September 2013.
Whether or not the Appellant did enough to negotiate the settlement was not a consideration in arriving at her decision to dismiss. The consideration was the Appellants’ failure to bring the Court proceedings to finality or at least to a position that they were ready for trial after so many failed attempts at settlement out of Court. That would be a cause or reason not to dismiss the proceedings on 14 February 2014. Since the appellants failed to show cause why their claim should not be dismissed, the trial Judge dismissed their claim. For these reasons, this ground is also dismissed.
Conclusion
35. We have dismissed all the grounds of appeal. It follows that the appeal must be dismissed.
Order
36. The Orders of the Court are:
______________________________________________________
Steeles Lawyers: Lawyers for the Appellants
Office of the Solicitor General: Lawyers for the First Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2015/93.html