Secretary, Department of Mineral Policy & Geohazards Management v Manton Group Ltd [2018] PGSC 64; SC1727 (2 November 2018)

SC1727

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 42 OF 2018

BETWEEN
SECRETARY, DEPARTMENT OF MINERAL POLICY & GEOHAZARDS MANAGEMENT
First Appellant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND
MANTON GROUP LIMITED
First Respondent

AND
SIAM NIUGINI LIMITED
Second Respondent

SOUTH FLY DISTRICT DEVELOPMENT AUTHORITY
Third Respondent

Waigani: Manuhu, Kangwia & Anis, JJ
2018: 1 & 2 November

SUPREME COURT – Application to dismiss for want of prosecution – Order 7 Rule 48(a) of the Supreme Court Rules– delay in service of notice of appeal - delay in settling index to appeal book - Order 7 Rules 33, 34, 40 and 41 of the Supreme Court Rules – alleged breaches - whether there was undue delay – appeal book filed and ready – substantive appeal ready – exercise of discretion

Case cited:

Peter Donigi and Or v. Papua New Guinea Banking Corporation (2002) SC691

Counsel:

K. Imako, for the Appellants
B.S. Lai, for the First and Second Respondents

RULING

2^nd November, 2018

1. BY THE COURT: This is an application filed by the first and second respondents (the respondents) seeking to dismiss the appeal for want of prosecution. The application was filed on 13 July 2018 pursuant to Order 7 Rule 48(a) of the Supreme Court Rules (SCR). In support, the respondents rely on the affidavit of Malcolm Kana filed on 13 July 2018.

2. The application, except for the third respondent who was unrepresented, was contested. We heard arguments from the parties on 1 November 2018 and reserved to 9:30am this morning. This is our ruling.

ISSUES

3. The main issues are, (i) whether there was delay by the appellants in serving the notice of appeal, (ii), whether there was delay by the appellants in making appointments and in settling the Index to Appeal Book (ITAB), with the Registrar of the Supreme Court, and (iii), subject to the Court’s finding in the affirmative in regard to the two issues, whether these are sufficient grounds for the Court to exercise its discretion in favour of the respondents and dismiss the entire appeal for want of prosecution.

BACKGROUND

4. We note that the appellants’ substantive appeal is ready for hearing. In the substantive appeal, the appellants challenge the decision of the trial judge, who on 2 April 2018 granted summary judgment for a liquidated sum of K13,538,222.32 in favour of the respondents.

5. The primary claim relates to recovery of costs associated with the upkeep of a landing barge. The respondents alleged that they had, under contract, procured the purchase of a landing barge named MV CAPELLA for the third respondent as agreed but that for want of acceptance of the barge by the third respondent or by the State, that it had incurred substantial costs for its keeping and maintenance.
COMMOM GROUND

6. The parties are at common ground that service of the notice of appeal was delayed by thirteen (13) days after its filing. The parties are also at common ground that the settlement of the ITAB had taken about 30 days, which upon completion had led to filing of the Appeal Book (AB). The AB we note was filed on 17 August 2018.

SERVICE – NOTICE OF APPEAL

7. Based on the common grounds as stated, it is, in our view, not difficult to find that there may be some form of delays by the appellants whether it be in serving the filed notice of appeal or in the listing and settling of the draft ITAB. The real issue we see is whether the delays are such that they should warrant us to exercise our discretion and dismiss the entire appeal.

8. We were drawn by counsel for the respondents, to Order 7 Rule 13 of the SCR. It reads in part, A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party—(a) affected by the relief sought by the notice of appeal...... Counsel submits the 13 days it had taken the appellants to serve them with a sealed copy of the notice of appeal, amounts to non-compliance with the mandatory requirements as stipulated under Order 7 Rule 13. The appellants in reply, refer to the affidavit of Kenneth Imako filed on 26 October 2018. They submit that they had initially filed an application for leave to appeal and a notice of appeal, the latter they say was filed in anticipation that leave to appeal may be refused. The said earlier notice of appeal is described as SCA 59 of 2018. Supreme Court Judge Justice Dingake, in his ruling on 4 June 2018, in relation to the appellants’ application for leave to appeal, ruled, inter alia, that leave was not necessary and had directed the appellants to file a notice of appeal. The appellants, using proceeding SCA 42 of 2018, which they had used to apply for leave to appeal, filed the present notice of appeal on 20 June 2018 in compliance with the Supreme Court’s direction. In so doing, the appellants submit that they had two notices of appeal, one filed earlier in SCA 59 of 2018, and the other filed later upon the Court’s direction in SCA 42 of 2018. To avoid confusion or to follow due process, the appellants submit, they had to hold onto the present notice of appeal until after they have had the opportunity to withdraw the notice of appeal that was filed earlier in proceeding SCA 59 of 2018. That opportunity arrived on 4 July 2018 when both matters were listed before the Directions Court. The appellants submit that they served the present notice of appeal on the respondents a day before the direction hearing which was held on 4 July 2018. On 4 July 2018, the appellants sought and were granted leave to withdraw the notice of appeal in proceeding SCA 59 of 2018. The discontinuance of proceeding SCA 59 of 2018, they submit, paved way for proceeding SCA 42 of 2018 to be dealt with as a substantive appeal.

9. We have considered the evidence of both sides. In our view, the explanations given by the appellants on point in their submissions, is substantiated or verified by their evidence. We note that the respondents’ argument on this ground is solely based on whether the delay of 13 days constitutes a substantive or mandatory breach under Order 7 Rule 13 or division 11 of the SCR.

10. The Court’s power under Order 7 Rule 48(a) is discretionary. See case, Peter Donigi and Or v. Papua New Guinea Banking Corporation (2002) SC691. The Supreme Court therein further stated and we quote in part:

That discretion, is usually exercised where there is a case of undue delay on the part of an appellant to prosecute his appeal without any satisfactory explanation for such a delay. Where, an appellant fails to do any of the acts required by the Supreme Court Act or the Rules, it also paves the way for the Court to dismiss the proceedings. Further, where an appellant has done all the acts required by the Act or the Rules but does not take any steps to prosecute his appeal it attracts an exercise of the discretion in favour of a dismissal

11. In the present case, we find the 13 days delay period by the appellants, in serving the notice of appeal upon the respondents, to be minimal or less significant. In the end, we find that the delay does not amount to undue delay. Even if we were wrong in this regard, we also find that the appellants have provided a satisfactory reason. Obviously and at that material time, there existed two notices of appeal. The appellants it seems, took steps to remove the earlier notice of appeal in SCA 59 of 2018 which was, in our view, the correct thing to do to avoid confusion or to avoid for example being accused of abusing the Court process. After or when the appellants were satisfied that proceeding SCA 59 of 2018 was certain to be discontinued, they went on to serve the present notice of appeal on the respondents, that is, 13 days after its filing.

INDEX TO APPEAL BOOK

12. The respondents’ two remaining arguments relate to settling of the ITAB. They allege breaches of Order 7 Rules 33, 34, 40 and 41 of the SCR. These rules are part of divisions 11, 12, 13 and 14 of Order 7, that deals with settling an appeal book in preparation for hearing.

13. In our view and with respect, we find no utility for these 2 grounds. We say that for the following reasons. Firstly, we simply note the fact that the AB for this case has already been filed. It was settled and filed by the parties on 17 August 2018, that is, more than 2 months ago from today, or say less than 2 months after the present notice of appeal was filed. We also note that both parties have signed the certificate of correctness of the AB which obviously means that they have settled the ITAB. This was also clarified by counsel for the appellants in his submission to the Court at the hearing on 1 November 2018.

OTHER CONSIDERATIONS

14. We also note these two considerations. Firstly, we note that the sum of money concerned in the substantive appeal is substantial, that is, K13,538,222.32. Such a claim should, in our view, require proper or careful consideration on the merits of the appeal. The second reason is this. We note that the appellants’ have already successfully obtained a stay order in the Supreme Court. This, to us, suggests that there are arguable or meritorious grounds of appeal that have been noted by the Supreme Court that would be argued at the substantive appeal hearing at a later date. When we consider these, to end the appeal now would be careless, unwarranted and may be against the interest of justice.

SUMMARY

15. We are disinclined to exercise our discretion. We will refuse the respondents’ application to dismiss the appeal for want of prosecution.

COST

16. Cost is discretionary. We will order cost to follow the event.

17. In this case, the appellants have asked for cost for defending the application to be awarded on an indemnity basis. We decline to make such an order for such scale of cost to apply. We do not think that the application is totally baseless. There is evidence of some delay which was noted. We also note the fact that this is not a straight forward appeal commenced by the appellants. The appellants had applied for leave to appeal; they had filed a separate notice of appeal and later had to have that withdrawn; and they were granted leave to file the current notice of appeal. These actions obviously may have contributed to this application by the respondents.

18. For these reasons, we will award cost to be awarded under or using the party/party scale of costs, to be taxed if not agreed.

COURT ORDER

19. We make the following orders:

1. The first and second respondents’ application to dismiss the appeal for want of prosecution is refused.
2. The first and second respondents shall pay the appellants’ cost of the application on a party/party basis to be taxed if not agreed.
3. The substantive appeal hearing is vacated and relisted before the Supreme Court listings Judge.
4. Time for entry of these orders is abridged to the date of settlement by the Registrar of the Supreme Court which shall take place forthwith.

____________________________________________________________
Corrs Chambers Westgarth: Lawyers for the Appellants
B.S. Lai Lawyers: Lawyers for the First and Second Respondents