HR Holdings Ltd (trading as Base Seal PNG) v Pacific Rim Constructors Pte Ltd [2019] PGSC 38; SC1802 (30 April 2019)

SC1802

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 31 & 33 OF 2017

BETWEEN:
HR HOLDINGS LIMITED
TRADING AS BASE SEAL PNG
Appellant/Applicant

AND:
PACIFIC RIM CONSTRUCTORS PTE LTD
Respondent

Waigani: Collier, Anis and Liosi JJ
2019: 30 April

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 – failure to act with due diligence and without delay – no reasonable explanation – failure by appellant to appear

Cases Cited:
Burns Philp (New Guinea) Ltd v Maxine George [1983] PNGLR 55
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
Tulapi v Alu [2011] SC1177

Legislation Cited:

Supreme Court Act 1975 ss 4(1), 22(a), 22(b)

Supreme Court Rules 2012 O 7 r 48

Counsel

No Appearance for the Appellant/ Applicant
B Kumo, for the Respondent

JUDGMENT

30 April, 2019

1. BY THE COURT: In today’s matters the appellant was required to show cause why its proceedings in the Supreme Court should not be dismissed for want of prosecution pursuant to O 7 r 48 of the Supreme Court Rules 2012. The two matters initiated by the appellant in the Supreme Court are related, and accordingly were listed and heard together. (It is convenient to refer to the appellant/applicant as “the appellant” for the purposes of this decision).
2. When the matters were called there was no appearance by the appellant. Ms Kumo for the respondent informed the Court that she understood the lawyers for the appellant intended to appear, however they did not.
3. Specifically, the appellant has filed an appeal (SCA No. 31 of 2017) and application for leave to appeal (SCA No. 33 of 2017) in relation to the same judgment of the National Court of Justice in WS No. 595 of 2015. In the National Court the primary Judge dismissed the appellant’s case on 3 February 2017 for “want of prosecution and for failure by parties to comply with Court orders”.
4. Details of the two sets of proceedings are somewhat sketchy. We note that the appellant filed a notice of appeal against the decision of the primary Judge on 15 March 2017 (SCA No. 31 of 2017) on the basis that the appeal lies without leave pursuant to ss 4(1) and 22(a) and (b) of the Supreme Court Act 1975 in that it is against a dismissal order on grounds of law or mixed facts and law. In a separate application for leave to appeal filed on 14 March 2017 (SCA No. 33 of 2017) the appellant sought leave to appeal against the judgment on questions of fact.
5. It appears that there is some duplication of process in respect of the challenge by the appellant to the primary judgment.
6. We also note that the respondent has filed an objection to competency in both sets of proceedings (on 29 March 2019 in respect of both matters).
7. On 12 December 2018, the Registrar of the Supreme Court wrote to the appellant’s lawyers to the effect that, under O 7 r 48 of the Supreme Court Rules 2012:
   • The appeal has been dormant since the filing of the application for leave to appeal and notice of appeal on 14 March 2017 and 15 March 2017 respectively.
   • The appellant has not shown any interest in prosecuting the appeal since initiating the proceedings in 2017.
   • 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 commencing 17 December 2018 and that the appellant may attend Court to be heard.

APPELLANT’S AFFIDAVITS

8. In an affidavit filed on 19 December 2018, in SCA No. 33 of 2017, the director of the appellant, Sir Ramon R Thurecht OBE, deposes the following:

2. In or around 2016, we did earth work for the Respondent and issued our invoices. Upon nonpayment, we instructed Mr. Ralph Deweni of Deweni Lawyers to file a National Court proceedings against the Respondent.
3. We understand an Order was made by Justice Kandakasi as he then was to refer the matter for Mediation which was conducted but no resolution was reached.
4. That is as far as we know and since then we haven’t heard from our lawyers.
5. We checked up at his office but were told by security guards that the Lawyer had closed his office and left. We couldn’t contact Mr. Dewini as he changed his mobile phone.
6. The listing of this Supreme Court matter for Summary Determination in the Post Courier was a surprise to us as we were never advised by our previous lawyer that our National Court matter proceeded to the Supreme Court.
7. We do not know the nature of the appeal as well.
8. We engaged Mr. Louis Yandeken of Yandeken Lawyers last weekend to appear on our behalf to request the Court not to summarily determine the matter, as we intend to conduct a court file search to ascertain the status of the appeal and progress it.

9. Further in an affidavit filed on 29 March 2019 in SCA No. 31 of 2017, Mr Louis Yandeken of Yandeken Lawyers deposed:

1. I have carriage of this matter for the appellant.
2. The following are the steps we’ve taken to progress the matter to obtain a date for full hearing.
3. On 27 February 2019, we filed Index to Appeal Book.
4. On 14 March 2019, we served the Respondent’s lawyers the Notice of Appeal filed 14.03.17, Application for leave to appeal filed 14.03.17, Notice of Appearance filed by us on 08.02.19, and Index to appeal book filed 27.02.19.
5. The index which was scheduled on 20 March 2019 for settlement did not proceed due to unavailability of the Deputy Registrar, Supreme Court. As a result, it was rescheduled to 24 April 2019 at 10:00am for settlement.
6. On 25 March 2019, the Respondent’s Lawyers filed and served their notice of appearance.
7. After the index to appeal book is settled, we will compile the appeal book and once same is certified, file and serve on the Respondent and then get the date for full hearing.

CONSIDERATION

10. 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 that 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.

11. In summary, the Supreme Court Rules 2012 contemplate that appellants prosecute their appeals with due diligence and without delay. The Court has discretionary power to dismiss an appeal for want of prosecution where the appellant has not done any act required to be done by or under the Supreme Court Rules 2012, or otherwise has not prosecuted his appeal with due diligence – see, eg, Burns Philp (New Guinea) Ltd v Maxine George [1983] PNGLR 55; Tulapi v Alu [2011] SC1177; Norr v Ikamata [2005] SC815. In PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd [2005] SC811 the Supreme Court distilled relevant principles, including the following:

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

(a) the length of and reasons for delay on the appellant’s part;

(b) 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.

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.
...
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...

12. 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.
13. The relevant questions for the Court to consider in this case are:
    • Has there been an apparent delay in prosecuting the matter?
    • If so, does the person apparently responsible for the delay have a satisfactory explanation for the delay?
    • Does the justice of the case favour dismissal of the proceedings?

(See Magellan Properties Ltd v Steamships Trading Company Ltd [2016] SC1518)

14. In this case there has clearly been significant delay in prosecuting the proceedings in this Court. Almost two years passed between the filing of the notice of appeal and application for leave to appeal on the one hand, and on the other hand the communication from the Court requiring the appellant to show cause as to why both proceedings should not be dismissed for want of prosecution. We understand that, contrary to the Supreme Court Rules 2012, the relevant Court process was not served on the respondent during that time – indeed Mr Yandeken deposed that the notice of appeal was only served on the respondent’s lawyers on 14 March 2019, being two years after it was filed and following the despatch of the show cause notice by the Registrar.
15. Through the evidence of its director and lawyer, the appellant claims that its delay in prosecuting the proceedings was due to the conduct of its previous lawyers, with whom it has ceased contact. However, the evidence of the appellant indicates no more than that it had instructed its lawyers to pursue the proceedings in the National Court in 2016 after the alleged earth work was undertaken for the respondent, and that it attended the mediation ordered by the primary Judge. The appellant does not appear to have taken an interest in the proceedings since its initial instructions of its lawyer and the attendance at the mediation, until being notified of the listing of the Supreme Court show cause proceedings. Sir Ramon deposes that following the order by the primary Judge:

That is as far as we know and since then we haven’t heard from our lawyers.

16. It is apparent, however, that the appellant has shown no interest in pursuing these proceedings, including for example briefing alternative lawyers to represent it at an earlier stage.
17. It may be that its previous lawyer similarly showed a lack of interest, however there is no evidence beyond the assertion of the appellant to that effect. Certainly there is no evidence before us of any steps taken by the appellant to follow up on the status or progress of this litigation until the show cause notice was sent.
18. The matter was dismissed by the primary Judge for want of prosecution. We note, of course, that there is no attendance today by the appellant to show cause as to why their appeal and application should not be dismissed, and no explanation given to the Court as to its failure to attend today either through its lawyers or other officers. Although we can draw no final conclusions in respect of the alleged want of prosecution of the proceedings at first instance, the history of these proceedings both at National Court and Supreme Court level indicates a lack of interest by the appellant in prosecuting the proceedings with due diligence.
19. In our view the interests of justice favour the dismissal of both proceedings. The appropriate order in both proceedings is that they be dismissed with costs following the event, such costs to be taxed if not otherwise agreed.
    

20 The Supreme Court orders in SCA NO. 31 of 2017 that:

1. The appeal filed on 15 March 2017 be dismissed.
2. The Appellant pay the costs of the Respondent, to be taxed if not otherwise agreed.
   

The Supreme Court Orders In SCA No. 33 of 2017 that:

1. The application for leave to appeal filed on 14 March 2017 be dismissed.
2. The Applicant pay the costs of the Respondent, to be taxed if not otherwise agreed.

___________________________________________________________
No appearance for the Appellant/Applicant
Jema Lawyers: Lawyers for the Respondent