Independent State of Papua New Guinea v Transferees [2016] PGSC 6; SC1488 (26 February 2016)

SC1488

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 31 OF 2014

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND

CHIEF MIGRATIONS OFFICER, RABURA MATAIO
Second Appellant

AND

THE TRANSFEREES
First Respondent

AND

AMNESTY INTERNATIONAL
Second Respondent

Waigani: Sakora J & Gavara-Nanu & Ipang JJ
2016: 25 & 26 February

PRACTICE & PROCEDURE – Summary Determination – Supreme Court Rules, 2012 - Orders 13 rr 15 & 16 (1) (b) and 11 r 32 – Referral for summary determination by a judge - Slip rule Application filed out of time – Delay - Application not meeting requirements of Form 4 – Application dismissed for want of prosecution and for being incompetent.

Cases cited:

Agiru v. Kaiabe [2015] PGSC2; SC1412
Barawa Ltd v. Mamalau [2013] PGSC50; SC1301
National Capital Ltd v Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392

Counsel:

I. Molloy with F. Matiabe, for the Appellants

E. Wurr, for the Respondents

26th February, 2016

1. BY THE COURT: Before us for summary determination is an application for leave for a slip rule application by the respondents filed under the slip rule principle (slip rule application). The Chief Justice in a direction hearing conducted on 18 February, 2016 referred the matter for summary determination for want of prosecution under Order 13 r 16 (1) (b) of the Supreme Court Rules 2012. In referring the matter for summary determination, the Chief Justice also directed that the appellants be at liberty to file any application they may wish to file, to summarily dismiss the slip rule application.

2. The Chief Justices' referral was made on the ground that the respondents had either failed to attend Court hearings or to comply with the directions of the Court and not taking the necessary steps to progress the matter to trial for a period of 6 months. It is significant to note that Ms. Wurr of counsel for the respondents has conceded that there had been a delay by the respondents to progress the matter to trial but argued that the delay is not inordinate and that there are explanations for the delay. She relied on the affidavit of Jim Wala Tamate, Public Solicitor, sworn on 23 February, 2016.

3. The appellants have also pursuant to the direction given by the learned Chief Justice filed an application to dismiss the slip rule application on other grounds, namely that the slip rule application was filed 22 days after this Court delivered its decision disposing of the proceeding, from which the slip rule application arises, on 5 August, 2015, thereby breaching the requirement of Order 11 r 32 (1) of the Supreme Court Rules, which provides:

(1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

4. It is significant to note that this rule is in mandatory terms by reason of the word "shall". Ms. Wurr has conceded that the respondents filed their slip rule application 22 days after the order disposing of the proceeding was given on 5 August, 2015. In other words, it is not disputed that the respondents' slip rule application was filed out of time. It is also not disputed that no application was made by the respondents within the 21 days of the order disposing of the proceeding being given to extend time to file the slip rule application out of time.

5. Looking at Mr Tamate's affidavit, the relevant paragraphs for purposes of the issue at hand are paragraphs 14 to 19. This is conceded by Ms Wurr. Paragraph 14 apparently confirms that the slip rule application was filed out of time and paragraph 15 confirms that Ms Wurr did not appear in Court on 12 February, 2016, when she was required to do so. On that day, the matter was adjourned to 18 February, 2016, to allow Ms Wurr to appear in Court. Ms Wurr again did not appear in Court on 18 February, 2016, because she was in Madang on duty travel. Mr Tamate deposes in his affidavit that none of the other lawyers from his Office could appear in Court on 18 February, 2016, on behalf of Ms Wurr because his Office was short of lawyers.

6. We find the explanations given by the respondents' lawyers for not turning up in Court on 12 and 18 February, 2016, very unsatisfactory. We do not consider their explanations reasonable. There is evidence from the affidavit of Ms. Flora Matiabe sworn on 19 February, 2016, that on 15 February, 2016, she served a sealed copy of the Orders given by the Court on 12 February, 2016, on the Public Solicitor's Office. She further deposes that on 17 February, 2016, she spoke to Mr Ramsey Pariwa of Public Solicitor's Office by phone and told him that the respondents' slip rule application was returning to Court on 18 February, 2016, for summary determination. On that same day, Ms Matiabe also emailed Mr Pariwa confirming their telephone discussion. It is clear from this that the respondents' lawyers had no excuse for not turning up in Court on 18 February, 2016.

7. The return dates set by the Court constituted orders of the court, the parties were therefore obligated to comply and turn up in Court on those dates. Thus the failure by the respondents' lawyers to turn up in Court on the return dates was tantamount to defying the orders of the Court. In such situations, the Court has the inherent power to even dismiss the proceeding summarily under Order 13 r 16 (1) (c) of the Supreme Court Rules.

8. Having considered the materials before us and submissions made by counsel, we are not satisfied that the explanations given by the respondents' lawyers for not progressing the matter expeditiously to trial and for their failure to attend Court on 12 and 18 February, 2016 reasonable. We would for these reasons dismiss the respondents' slip rule application filed on 27 August, 2015, for want of prosecution. If we are wrong in this view, which we do not think we are, we find that the slip rule application is incompetent as it was filed outside of 21 days, which was in breach of Order 11 r 32 of the Supreme Court Rules. Furthermore, the slip rule application in its form does not conform to Form 4 in the Supreme Court Rules, which is a mandatory requirement under Order 13 r 15.

9. Filing of a slip rule application is regulated by Orders 11 r 32 and 13 r 15 of the Supreme Court Rules, thus the requirements under these rule being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetence and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412.

10. Order 11 r 32 of the Supreme Court Rules, grants power to the Court to hear a slip rule application as long as the application meets the requirements of the above mentioned rules viz; that it is competent. The need for a slip rule application to conform to Form 4 under Order 13 r 15, as stated earlier is a mandatory requirement and therefore it is a pivotal consideration on the issue of the competency of such an application. Therefore, even if an application was filed within 21 days as required under Order 11 r 32, if the application did not conform to Form 4, the application would be incompetent of the basis of want of form:: Barawa Ltd v. Mamalau [2013] PGSC 50; SC1301 and National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392. In this case the application does not conform to Form 4. This was conceded by Ms. Wurr. This is another reason why the slip rule application is incompetent.

11. For the foregoing reasons, we dismiss the slip rule application filed by the respondents on 27 August, 2015, in its entirety with costs.

Orders accordingly,

____________________________________________________________
Kuman Lawyers: Lawyers for the Appellants
Public Solicitor: Lawyers for the Respondents