Koringo v National Broadcasting Commission [2019] PGSC 30; SC1803 (2 May 2019)

SC1803

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 116 OF 2014

BETWEEN:
DAVID PETER KORINGO
Appellant

AND:
NATIONAL BROADCASTING COMMISSION
Respondent

Waigani: Collier, Geita and Liosi JJ
2019: 2 May

PRACTICE AND PROCEDURE – appellant required to show cause why proceedings should not be dismissed for want of prosecution – Supreme Court Rules 2012 O 7 r 48 – enforceable judgment in National Court and outstanding issue concerning assessment of damages – delay in prosecuting the appeal due to lack of resources to finance lawyers and alleged loss of National Court file by Court Registry – want of participation in proceedings by respondent on the record - discretion to award costs

Cases Cited:
Burns Philp (New Guinea) Ltd v Maxine George [1983] PNGLR 55
Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa [2004] SC762
General Accident Fire & Life Assurance Corporation Ltd. v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Magellan Properties Ltd v Steamships Trading Company Ltd [2016] SC1518
Mann v Alpar Trading Ltd [2014] SC1382
Norr v Ikamata [2005] SC815
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd [2005] SC811
Ronald Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Tulapi v Alu [2011] SC1177
Legislation Cited:

Supreme Court Rules 2012, Order 7 Rule 48

Counsel

E. Thoke, for the Appellant

JUDGMENT

2 May, 2019

1. BY THE COURT: Before the Court is a proceeding for the appellant to show cause as to why his appeal (SCA No 116 of 2014), should not be dismissed for want of prosecution, pursuant to O 7 r 48 of the Supreme Court Rules 2012.

BACKGROUND FACTS

2. In 1985 the appellant commenced employment as a broadcast officer with Radio Morobe. The appellant was employed as a permanent employee of the National Broadcasting Commission (NBC).
3. In April 1992 the appellant resigned from his position to contest the General Election. Following a loss in the General Election, the appellant sought to re-apply for re-employment with the respondent. The respondent refused to re-engage the appellant.
4. On or about 13 September 1995,the appellant commenced proceedings in Lae on the grounds that by refusing to re-employ him on the grounds of his political candidature, the NBC had acted unconstitutionally and unlawfully.
5. The respondent did not file a defence in this matter and on 31 October 1995 a default judgment was entered by the National Court in Lae for damages to be assessed.
6. In January 1996, this matter came before Pitpit AJ to determine an application for assessment of damages.
7. On 10 April 1996, the Solicitor-General filed a Notice of Motion seeking to set aside the default judgment. On 26 April 1996, Hinchcliffe J dismissed the application.
8. On 30 July 1996, the National Court in Lae, made an assessment of damages and Ordered the respondent to pay the appellant K146,396.89. The respondent did not appear in these proceedings.
9. The appellant sought to enforce this judgment and was granted by the Court, leave to serve a Garnishee Notice upon the Governor of Central Bank of Papua New Guinea and a Writ of Levy of Property.
10. Subsequently, the respondent through the Office of the Solicitor General filed a Supreme Court Review. The leave to review was granted and the Supreme Court subsequently quashed the assessment of damages and Orders of the National Court dated 30 July 1996 and referred the matter to the National Court for a trial on assessment of damages.
11. In the appellant’s affidavit filed 23 August 2018 at pp 3 - 6, the appellant outlines, in detail, the lengthy delay by the National Court Registry in locating the court file for assessment of damages. The appellant also provides evidence of his efforts and the efforts of his lawyers to locate this file and the effect of the delay on the appellant’s case.
12. On 10 May 2013, a show cause notice was sent to the appellant’s lawyers (Elemie Lawyers). This notice stated that the matter had been listed for summary determination for want of prosecution on 17 July 2013. At the hearing no appearances were made by either party to the proceedings.
13. Accordingly, on 17 June 2013, the National Court made the following orders, which resulted in the proceedings being dismissed for want of prosecution:

1. The matter is completed;
2. The file be closed and archived.

14. The appellant deposed that he became aware of the above orders on 2 December 2013. He further deposed that he was not provided with any notice of the proceedings and that Elemie Lawyers was no longer acting for him and consequently did not attend. The appellant stated that “There were no evidence in the file of any summary determination list being advertised in the newspapers as normally done by the National Court”.
    15. The appellant applied to the National Court for the Orders of the Court dated 17 June 2013 to be set aside and for the entire proceedings to be reinstated. The matter was heard by Sawong J on 21 May 2014. In dismissing the application his Honour provided the following reasons:
        6. I have considered the evidence and the submissions that-have been advanced by both parties. In my view, the evidence and the submissions that have been advanced have been based on the wrong premises for the following reasons.
        7. First is that the Notice of Motion does not “contain a concise reference to the Court’s jurisdiction to grant the orders being sought (see Order 4 Rule 49 (8) of the National Court Rules).
        8. In the present case, the way the Notice of Motion has been pleaded creates a confusion as to what is the concise basis upon which the plaintiff relies to seek the reliefs he seeks in the Notice of Motion. The Motion is so general that it is confusing to say the least. For that reason alone, I find that the motion is incompetent and should dismissed it.
        9. However, there is a second reason why I do not uphold the application. The reason is this. The plaintiff has applied to have “the proceedings which were dismissed summarily on the 17th of June 2013 be reinstated”.
        10. The submissions that have been made and the evidence that have been compiled and filed in support of the application have been made on the basis that the Court had dismissed the proceedings ex-parte. The submissions that have been advanced in my view are misconceived because one only has to look at the terms of the orders that were made on the 17th of June 2013...
        11. As can be seen from the above the Court had at no stage dismissed the proceedings summarily.
        12. For those reasons in my view, the application is completely misconceived.
    16. On 3 September 2014, the appellant filed a notice of appeal against the whole of the judgment of the National Court in Lae.
    17. On 10 July 2018, the Deputy Registrar of the Supreme Court, wrote to the appellants solicitors stating that under O 7 r 48 of the Supreme Court Rules 2012:
        • The Appeal has been dormant since filing the Notice of Appeal on 03^rd September, 2014.
        • The Appellant has not shown any interest in prosecuting the appeal since initiating the proceedings in 2014.
        • The delay in prosecuting the appeal in the circumstances is unreasonable and therefore the appeal should be summarily dismissed in its entirety for want of prosecution.

The letter also stated that the matter had been listed for Summary determination before the Supreme Court during the August 2018 sittings and that the appellant may attend Court to be heard.

18. On 31 August 2018, Hartshorn, Logan and Auka JJ, made the following Orders:
    1. This matter is adjourned to the next sitting of the Supreme Court in October.
    2. The appellant by his lawyer must show cause at that time why this appeal should not be dismissed for Want of Prosecution.
19. On 1 November 2018, Murray, Geita and Polume-Kiele JJ, made the following Orders:
    1. The matter is adjourned to the next Supreme Court sitting for summary determination
    2. Appellant is to file his affidavits immediately to show why his appeal should not be dismissed. Failing which the appeal will stand dismissed.
    3. Appellant and his lawyer are to appear before this Honourable Court on the next Supreme Court sittings. In the event that they fail to appear the appeal will stand dismissed.

RELEVANT LAW

20. Order 7 r 48 of the Supreme Court Rules 2012 states:

Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may –
(a) order that the appeal be dismissed for want of prosecution; or
(b) fix a time peremptorily for the doing of the act and at the same time order the upon non-compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed; or
(c) make any other order that may seem just.

21. In Tulapi v Alu [2011] SC1177, the Court held that the exercise of the power to dismiss for want of prosecution is discretionary in nature “and subject to application of proper principles of law”.
22. The court noted that the Court can dismiss an appeal where an appellant “has not done any act required to be done by or under these rules”, or “otherwise has not prosecuted his appeal with due diligence”. The Court stated that:

The Rule requires the appellant to prosecute the appeal with due diligence and without delay. Where a delay in the prosecution of an appeal is alleged, the applicant for dismissal for want of prosecutions must establish by evidence, a case for the Court to exercise judicial discretion in its favour before the burden shifts to the appellant to satisfactorily explain the delay and demonstrate a readiness to take the next step in the proceeding and proceed without further delay. Failure by the appellant to discharge that onus may leave the Court with little or no choice but to grant the application to dismiss the appeal.

23. In Norr v Ikamata [2005] SC815, the Supreme Court noted the following:

... The law on this issue is clear. We start with the premise that the Supreme Court has discretion under Order 7 Rule 53 (a) of the Supreme Court Rules (SCR) to dismiss an appeal for want of prosecution. We reiterate one important principle in this kind of application, and that is, failure by the appellant to do an act required to be done in relation to his appeal or failure to prosecute his appeal with due diligence does not amount to the automatic remedy of dismissal. The Court’s power under this rule remains discretionary. There are several decisions of the Supreme Court on this issue and we shall refer to them to re-emphasise the law. But first, Order 7 Rule 53 (a) is in the following terms:-

53. When an appellant has not done any act required to be done by or under the rules or otherwise has not prosecuted his appeal with due diligence, the Court may -
(a) order that the appeal be dismissed for want of prosecutions;

The first of such cases is the Supreme Court decision in Burns Philp (New Guinea) Ltd v. Maxine George [1983] PNGLR 55. In that case, the application was made pursuant to Rule 25 of the old Supreme Court Rules 1977, which is in identical terms with Order 7 Rule 48 (a) of the present Rules. The principles enunciated in that case are very important and have been applied in subsequent cases. The Court held inter alia that the power to dismiss for want of prosecution remains discretionary. This was applied in General Accident Fire & Life Assurance Corporation Ltd. v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331; another Supreme Court decision. In the second case, the Supreme Court held that:-

1. The power to dismiss an appeal for want of prosecution pursuant to Rule 53 (a) of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalizing litigation.
2. Matters relevant to the want of due diligence include failure to attend on settlement of the appeal book, failure to explain non attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected.
3. The discretionary power under Rule 53 (a) should not be exercised where no explanation for want of due diligence is made.

...
The appellants and their lawyers have not only delayed in prosecuting their leave applications and appeals, but have offered no explanation or reason for their delay. It is trite law that litigants who file legal proceedings are under an obligation to see that such proceedings reach finality. If they fail to bring their suits to finality, they do so at their own peril. Even when the applications for leave were fixed for hearing twice, the appellants and their lawyers failed to appear to prosecute their applications. On one occasion, they merely sent a letter requesting an adjournment without having the common courtesy to appear to seek such an adjournment. Such is the lack lustre attitude of the appellants and their lawyers which clearly demonstrated a contumelious path they were treading.
...
In our opinion, it is this kind of delay which the National Court allude to as "intentional and contumelious" in Ronald Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133.
Although that was a National Court decision, we are of the view that the principles in it are quite persuasive as they relate to the issue of delay even though under different Rules of Court. The Court adopted and applied the common law principles in two English cases – Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v. James [1978] AC 297 at 298. The relevant principles adopted was this:

That the power of the Court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to service prejudice to the defendant.

On the respondent’s evidence before us, which the appellants have not disputed or refuted, the appellants are clearly guilty of default and this Court is entitled to find, and we so find, that the appellants default in both cases is clearly intentional and contumelious. We also find that the delay by the appellants and their lawyers was inordinate and inexcusable.
Should the Court grant the respondent’s application to dismiss for want of prosecution? The appellants have done very little in both appeals. It had taken them 10 months from the filing of their appeals and application for leave to appeal to settle the index to the appeal books. Despite that, they have not taken any reasonable steps to prosecute their applications for leave. In other words, they have decided to, "let the sleeping dog lie", to adopt the phrase used by Woods, J in Ronald Nicholas’s case (supra).

24. Further in PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd [2005] SC811 the Supreme Court distilled propositions relevant to the exercise of the Court’s discretion to dismiss an appeal for want of prosecution. Their Honours observed that:

An appeal might be struck out if it is not set down as required by the rules.

(1) Where an appeal has not been set down as prescribed the power to dismiss for want of prosecution remains discretionary.

(2) The discretion is to be exercised having regard to all the circumstances of the case including, inter alia,

1. The length of and reasons for delay on the appellant's part;
2. The extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;

c. The availability of a transcript, and
d. Any negotiations between the parties.

(3) Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal, failure to attend on settlement of the appeal book, failure to explain non attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected. The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.
(4) The discretionary powers under O7 r53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made. That a lawyer cannot be present because he is appearing before another judge may be an adequate explanation. 7 months delay in applying for the transcript of evidence to be prepared requires a proper explanation and the absence of one may result in the appeal being dismissed.
The Court must consider the whole of the circumstances in which an application for dismissal on the grounds on want of prosecution is brought, in particular events that have taken place since the application was filed. The application to dismiss itself should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful.
...
The general rules that the power of the Court to dismiss an action for want of prosecution should be exercised only where (a) the plaintiff's default had been intentional and contumelious or (b) where there had been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant, apply principally before a trial. Once a judgment has been obtained public interest requires finality to the litigation. The risk to a fair trial is only relevant where evidence is to be called.
(Footnotes in original omitted.)

25. The Court should also consider whether the justice of the case favours a dismissal for want of prosecution: Mann v Alpar Trading Ltd [2014] SC1382.

CONSIDERATION

26. The relevant questions for the Court to consider are therefore:
    • (1) Whether there been an apparent delay in prosecuting the matter?
    • (2) If so, does the person apparently responsible for the delay have a satisfactory explanation for the delay?
    • (3) Does the justice of the case favour such dismissal?

See, Magellan Properties Ltd v Steamships Trading Company Ltd [2016] SC1518.

27. On 3 September 2014, the appellant filed the Notice of Appeal. Since filing the Notice of Appeal, the appeal has remained procedurally dormant until the appellant was advised of this show cause hearing. From the Court’s perspective, the appellant demonstrated an apparent lack of interest in prosecuting the appeal since initiating the proceedings in 2014. We are satisfied that this constitutes a delay in the prosecution of the appeal by the appellant.
28. In cases where delay is established, the onus is on the appellant to explain it: Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa [2004] SC762. In his affidavit in support, filed 1 November 2018, the appellant materially deposed:
    • On 03rd September 2014, I personally lodged this Supreme Court Appeal application SCA No. 116 of 2014 in Waigani against the decision of Justice Don Sawong. By this time Muromu Lawyers ended their representation on behalf of me because of my inability to meet the costs of prosecuting this case in Port Moresby as they were a Lae-based firm.
    • While my situation with finance to get a lawyer had not improved, I made ends meet and was able to, for a short time beginning on 25th September 2014, engage Parker Legal as my lawyers.
    • They started with the request of the court report transcripts by writing to the Court Registry in Lae on 29th September 2014.
    • On 02nd October 2014, I served the Notice of Appeal and the Notice of Appearance on the Respondent’s Managing Director’s office.
    • Since the Court Registry in Lae did not respond, Parker Legal caused another letter on 27^th November 2014 requesting for the court report transcripts along with the invoice which they sent.
    • However, soon after my K1,000.00 Deposit ran out and their professional fees accrued, Parker Legal dropped my case on the basis of non-payment of legal fees by filing a cessation on 02nd April 2015.
    • Besides, on 28th November 2014, I wrote to Gamoga Lawyers to seek advice and also if I could engage his service to take carriage of my case. He then asked me to pay upfront fee of K500.00 so he could create a file and the balance to be paid at a later date for them to progress the case as requested of a total fee of K5,000.00.
    • I could not proceed with the arrangements with Gamoga Lawyers as I simply could not afford to pay the required fees. My friends and relatives also could not afford to assist me as they were fed up of assisting me with legal fees as they have been assisting me since the case was first filed in 1995.
    • Between September 2014 and June 2016, I was receiving two different legal opinions from Parker Legal and Gamoga Lawyers. Parker Legal was encouraging this appeal while Gamoga Lawyers advised me to withdraw this appeal and go by way of a new Originating Summons to proceed the assessment of damages pertaining WS. No. 834 of 1995. However both advices left me confused. Also both did not want to take any tangible step to physically manifest their advice because I was incapable of paying their legal fees.
    • In July 2016, I approached Alfred Manase of Manase & Co. Lawyers to assist me freely and to have an arrangement in place to fairly compensate him for his time after the assessment of damages. However, he declined.
    • Because of the funding situation, I was in a stalemate situation until my friends called me in the village and told me about the notice in the newspapers advising of the Supreme Courts intention to summarily determine my case for want of prosecution.
    • Upon receiving this news, I flew to Port Moresby from Lae on 06th August 2018 and in the following days went to the Supreme Court registry office and enquired as to the exact date for the Supreme Court sitting and if possible I could appear in person as I had not secured the services of a lawyer yet.
    • On 31st August 2018, I appeared before the full Supreme Court in person and requested for an adjournment as I had not secured the services of a lawyer yet. The Supreme Court ordered that the matter be adjourned to the next sitting in October 2018 and also ordered me as an appellant to engage a lawyer to show cause why the appeal should not be dismissed for Want of Prosecution.
    • Following the Supreme Court Order, I had discussions with a Ben Yagi of Themis Lawyers for legal representation in the Supreme Court. On the 10^th September, Mr. Yagi wrote and advised me to make a deposit of K5,000.00 before they could represent me in court as requested.
    • On the 18th September 2018 I enquired at the Supreme Court Registry if the date had been set for the October sitting and also if my lawyer had filed the notice of representation. I was advised that there was no notice was filed by Themis Lawyers and that the date for direction hearing was set for 24th September, 2018. I was also told to go back on 20th September 2018 and collect my letter of advice from the Deputy Registrar of the Supreme Court.
    • On Friday 21st September 2018, I went to Themis Lawyers to advise of the directional hearing date but was told that Ben Yagi was away in Goroka which prompted me to look for another lawyer that may be willing to represent me.
    • As it was getting late I was forced to look for a lawyer over the weekend until I caught up with Waimir Elvis Thoke of Michael C. Thoke Lawyers who heard my story and decided to help me by representing. Hence, Thoke Lawyers are now my lawyers on record.
29. The appellant also provided evidence in relation to his efforts to have the matter resolved through an out of court settlement since 2011. We note his affidavit filed 1 November 2018 in which he deposed the following steps he has taken:

• On 3 October 2017 writing to the Attorney General and Minister for Justice.
• On 1 March 2018 flying to Lae to attend the Attorney-General’s office for an update on the advice from the State Solicitor. The appellant also attended the State Solicitor’s office on this date. The appellant was advised that the State Solicitor’s office could not locate the letter and asked for an additional copy to be lodged with the Ministers office.
• On 3 April 2018, re-lodging the relevant letter with the Minister’s office.
• On 21 August 2018, writing a follow-up letter to the Minister’s office which expressed concern over the “inability of the State Solicitor’s office to provide necessary legal advice on the way forward in addressing the matter”.

30. The appellant’s delay in prosecuting the appeal appears primarily attributable to his lack of resources to finance lawyers. This is not surprising, given that this litigation has been before the Courts since the early 1990s. The appellant’s lack of funds is not, in our view, a particularly compelling reason to warrant the continuation of this litigation before the Court. We note, however, the uncontested evidence of the appellant that his failure to prosecute his case in the National Court for some years was because of the loss of the file in the National Court and his consequent inability to have the matter listed in that Court. This in our view is a compelling reason for the proceedings to continue. We also note that the appellant was represented in Court today by Mr Thoke, which again demonstrates his intent in prosecuting this matter.
31. An important issue referable to this case is the fact that appellant has a judgment in his favour, although of some years standing. We understand that liability was established on the part of the respondent – the only issue outstanding concerns the quantum of damages payable. In our view the interests of justice warrant an order that the appeal continue in the Court.
32. The appropriate order is that the appeal be listed for hearing at the earliest opportunity.
33. There was no appearance by the respondent at today’s hearing. This continues an ongoing pattern of conduct on the part of the respondent in opting to absent itself from hearings involving this litigation, notwithstanding that it is the respondent on the record and remains the subject of a National Court judgment against it in the appellant’s favour. This Court would have been greatly assisted by the attendance and participation of the respondent. The Court has a wide discretion in respect of costs orders in appeals. In the exercise of our discretion we consider that the appellant is entitled to his costs of and incidental to today’s hearing. We consider that the respondent should be required to pay those costs. The appellant’s costs should be fixed in the amount of K3,000 to be paid by the respondent to the appellant by not later than 5 pm on 16 May 2019.
    

34. The Supreme Court orders that:

1. The appeal be listed before the Listing Judge at the next listings.

2. The Appellant’s costs of and incidental to today’s hearing be fixed in the amount of K3,000 to be paid by the Respondent to the Appellant by no later than 5.00 pm on 16 May 2019.
___________________________________________________________
Michael C Thoke Lawyers: Lawyers for the Appellant
No appearance for the Respondents