Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 135 OF 2016
BETWEEN
ISSAC MINICUS
Appellant
AND
TELIKOM (PNG) LTD
Respondent
Waigani: Gavara-Nanu J, Geita, Bona JJ
2017: 30 October & 15 December
PRACTICE & PROCEDURE - Appeal – Appeal on questions of law and mixed fact and law – Supreme Court Act Chapter No. 37; s. 14 (1) (b).
PRACTICE & PROCEDURE – Appeal – delay – Inordinate delay to prosecute proceeding – Delay of over 2 years 5 months - No reasonable explanation – Such delay a serious abuse of process – delay fatal - Appeal dismissed.
PNG Cases Cited
Bean v Bean [1980] PNGLR 307
Curtain Brothers (PNG) Ltd v UPNG (2005) SC 78
Irabmile Investments Limited v Mobil Oil New Guinea Limited (2015) SC 1440
Telikom PNG Limited v ICCC (2008) SC 906
Legislation Cited
Supreme Court Act
Counsel
N. Kubak, for the Appellant
J Talipan, for the Respondent
15th December, 2017
1. BY THE COURT: The Appellant appeals against the whole of the decision of Sawong J, given on 9 September 2016 in Lae, whereby his Honour dismissed proceeding W.S No. 1287 of 2007, a matter between Issac Minicus v. Telecom (PNG) Ltd, in its entirety.
2. The appeal is brought pursuant to s. 14 (1) (b) of the Supreme Court Act, Chapter No. 37 and Order 7 of the Supreme Court Rules 2012. The appeal lies without leave as it raises questions of law and mixed fact and law.
Background
3. In order to appreciate the reasons why the court below made the orders in the way it did, we state hereunder the relevant background facts in a chronology of events:
1 | 12/11/2007 | Writ of Summons WS 1287 of 2007 issued |
2. | 29/05/2008 | Consent Judgment entered by parties |
3 | 27/02/2014 | Supreme Court reinstated the matter after it went on appeal after the National Court dismissed the claims following a hearing of assessment
of damages pursuant to the consent judgment. |
4 | 19/05/2014 | Letter from the Appellant’s Lawyers to the Deputy Registrar requesting for the file to be transferred to Lae National Court
for listing etc. |
5 | 19/05/2014 | Same letter copied and sent to the Assistant Registrar, National Court Lae requesting for their cooperation to have the case file
listed in National Court, Lae. |
6 | 16/08/2016 | Telekom PNG Ltd filed Notice of Motion seeking to dismiss the whole of the proceeding for want of prosecution and abuse of process |
7 | 13/07/2016 | Telekom file search revealed no activity by the Appellant since the dismissal orders were made save for a lone Affidavit by Issac
Minicus filed on 12 July 2016. |
8 | 08/09/2016 | National Court per Sawong J dismissed the claim for assessment of damages in its entirety with costs. Plaintiff’s failure to
prosecute his claim with due despatch and offered no reasonable explanation for his dilatory conduct. |
9 | 10/10/2016 | Notice of Appeal filed against Sawong J’s decision dismissing the whole of the Appellant’s primary proceedings. |
4. As can been seen from the chronology of events it took the Appellant/Plaintiff more than 2 years and 5 months to prosecute his claims before the primary trial Judge.
5. The ten (10) grounds of appeal relied on are framed in this manner:
6. The ten grounds of appeal can be conveniently summarized in the following three questions:
Appellant failed to prosecute his claim with due dispatch?
Appellant had not offered any reasonable explanation for the inordinate delay to prosecute the proceeding?
Whether or not the trial Judge erred in finding that the Appellant had failed to prosecute his claim with due dispatch?
7. Grounds 2 and 7 are dismissed as the onus was on the Appellant to prosecute the proceeding with due dispatch, not the Respondent. Having to shift blame to the Respondent for not progressing the matter to assessment for damages in our view is a lame excuse by the Appellant because he had the onus to prosecute his claims with due dispatch.
8. The Appellant contended that he took all the necessary steps to prosecute his claims. However, the Court transcripts and court file notations do not support that contention.
9. From the date of the Supreme Court Judgment ordering the matter to go before another court for assessment of damages, viz; 27 February, 2014 to the last recorded file entry, viz; 13 July, 2016, a period of 2 years 5 months had lapsed. The lapse of more than two years became evident before the trial Judge which prompted him to comment in his ruling that the Plaintiff had not taken any steps required of him by the Rules to prosecute his claims with due dispatch.
10. His Honour further commented that the case management regime currently in place required every necessary step must be taken by the parties, more so the Plaintiff to prosecute and progress the proceeding expeditiously to trial.
11. The Plaintiff has indeed failed dismally to prosecute his claims with due diligence and he has failed to show to this Court that he took necessary steps to progress his case to trial. It follows that the trial Judge did not err in his findings on this point. We are therefore unanimous in our decision to dismiss this ground as well.
Whether or not the trial Judge erred in finding that the Appellant had not offered a reasonable explanation for his dilatory conduct?
12. We are of the view that we have adequately covered this ground of appeal and see no utility in discussing it further. For the same reasons given above we would also dismiss grounds 1, 4, 5 and 9.
Whether justice miscarried in the overall circumstances of the primary proceeding?
13. The Appellant’s grounds 3, 6, 8 and 10 are dismissed as they all relate to the primary Judge’s exercise of discretion. The Appellant has not demonstrated that the trial judge had erred in any one or all of the following ways:
14. The Appellant also contended that the primary Judge erred in refusing to accept and consider the evidence contained in the affidavits of Issac Minicus and Norbert Kubak. He also argued that he was denied the opportunity to be heard on the dismissal application. The Appellant also contended that since no objections were raised against the two affidavits the primary Judge erred in not giving weight to them.
15. The Respondent argued that even if the two affidavits and other relevant documentation were considered by the primary Judge they would not have assisted the Court as no evidence was disclosed in them explaining the Appellant’s dilatory conduct of not prosecuting the case with due dispatch.
16. Having heard both counsel on the issues raised we are of the view that the Respondent’s submissions have merit. We find no error in the decision of the trial Judge, in that regard we note that the affidavits relied upon by the Appellant clearly do not provide any reasonable explanation for his apparent failure to prosecute his claims diligently and to progress them to trial with due dispatch: Irabmile Investments Limited v Mobil Oil New Guinea Limited (2015) SC 1440.
17. It is settled law that an appellate court should be slow to interfere with the exercise of discretion by the lower court unless the appellate court is satisfied that the court below clearly erred in its decision.
18. It is also trite law that an appeal may be allowed under two broad principles, first; where there is a clear or identifiable error by the trial judge, second; although there is no clear or identifiable error, the judgment is so unreasonable or plainly unjust on the facts that the appellate court may infer that a substantive error had occurred in the exercise of discretion by the trial judge.
19. In this case, we are not persuaded that the decision or the judgment of the trial judge was unreasonable or plainly unjust on the facts.
20. Case law authorities affirming these principles include Bean v Bean [1980] PNGLR 307; Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788; and Telikom PNG Limited v ICCC (2008) SC 906.
21. For the foregoing reasons, the appeal is dismissed in its entirety with costs to the Respondent.
22. The Orders of the Court are as follows:
i. The appeal is dismissed,
ii. The Appellant will pay the Respondent’s costs of and incidental to the appeal.
_______________________________________________________________
Kubak Lawyers: Lawyers for the Appellant
Telikom PNG Limited In-House Lawyers: Lawyers for the Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2017/50.html