Air Niugini Ltd v Piokole [2021] PGSC 33; SC2106 (27 May 2021)

SC2106

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 83 OF 2017

BETWEEN:

AIR NIUGINI LIMITED
First Appellant

AND:

REI LOGONA
Second Appellant

AND:
CLARK PIOKOLE
First Respondent

AND:
AIRLINE PILOTS ASSOCIATION
Second Respondent

AND:

PNG NATIONAL AIRLINE PILOTS UNION
Third Respondent

SCR NO. 87 OF 2017

APPLICATION FOR LEAVE TO REVIEW
PURSUANT TO S.155(2)(b) CONSTITUTION
CLARK PIOKOLE
First Applicant

AND:
NATIONAL AIRLINE PILOTS UNION
Second Applicant

AND:
AIRLINE PILOTS ASSOCIATION
Third Applicant

AND:
REI LOGONA
First Respondent

AND:
AIR NIUGINI LIMITED
Second Respondent

Waigani: Manuhu J, Shepherd, J and Tamate, J
2020: 10^th October
2021: 27^th May

SUPREME COURT – Practice and Procedure – Application to dismiss slip rule applications for want of prosecution – Order 7 Rule 48 and Order 11 Rule 28(b) Supreme Court Rules - principles for dismissal of proceedings for want of prosecution discussed – delay of 12 months excessive and unreasonable – inability of Registry staff to locate missing Court files or failure by Registry staff to respond to listing requests not a reasonable explanation for delay – lawyers/parties experiencing difficulties with Registry responses when Court file is missing should promptly liaise with Registry and other lawyers/parties for creation of supplementary Court file so that a motion can be filed seeking directions or orders from Court to progress matters to substantive hearing – prejudice caused by delay – public interest in finality of litigation.

Cases Cited:

Gelu v Somare (2009) N3647

Kandapaki v Enga Provincial Government (2015) SC 1463

National Development Bank Ltd v Iangalio (2012) N4931

Pacific Equities & Investments Ltd v Goledu (2008) N5397

Pacific Equities & Investments Ltd v Pomaleu (2011) N5396

PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811

Tai v ANZ Banking Group (PNG) Ltd (2018) SC1681.

Counsel:

Mr Clayton Joseph, for the Applicants for Dismissal
Mr Moses Murray and Mr Livai Ipato, for the Respondents to the Dismissal Application

DECISION

27th May 2021

1. MANUHU J and SHEPHERD J: This is a decision on an application to dismiss a series of slip rule applications which had sought leave for the Supreme Court to revisit a substantive appellate judgment of the Court.
2. The matter before the Court is an application filed on 9 June 2020 by Air Niugini Limited and Rei Logona (Air Niugini) seeking orders that the following four applications of the respondents in SCA No. 83 of 2017, who are the applicants in SCR No. 87 of 2017, be dismissed for want of prosecution pursuant to O.7 r.48 and O.11 r.28(b) of the Supreme Court Rules (SCR):

(a) ‘Application for Leave for Slip Rule Application’ and ‘Slip Rule Application to Re-open Proceeding SCA No. 83 of 2017 pursuant to Section 155(4) of the Constitution’ both filed 15 May 2019 by the respondents in SCA No. 83 of 2017; and

(b) ‘Application for Leave for Slip Rule Application’ and ‘Slip Rule Application to Re-open the Proceedings Referenced SCR No. 87 of 2017 pursuant to Section 155(4) of the Constitution” both filed 15 May 2019 by the applicants in SCR No. 87 of 2017.

We refer collectively to these four applications as the Slip Rule Applications.

3. Air Niugini’s application to dismiss is supported by four affidavits contained in its Application Book (AB):

(a) affidavit of service of Marere Ivaharia filed 9 June 2020 (AB, 28-32)

(b) affidavit of search of Allan Dian filed 9 June 2020 (AB, 33-28);

(c) affidavit of Clayton Joseph filed 9 June 2020 (AB, 39-103);

(d) affidavit of Rei Logona filed 3 July 2020 (AB, 104-131).

4. The application to dismiss is contested by Clark Piokole, the Airline Pilots Association and the PNG National Airline Pilots Union. Their explanation as to the reasons for the delay in prosecuting their Slip Rule Applications is contained in the affidavit of their counsel, Moses Murray, filed 28 July 2020 (AB, 132-148].

Background to consolidated proceedings in SCA No. 83 of 2017 and SCR No. 87 of 2017

5. The background to these proceedings is set out in the affidavit of Rei Logona.
6. The Airline Pilots Association is an industrial association whose members are expatriate air pilots (the Association).
7. The National Pilots Union is an industrial association whose members are PNG National air pilots (the Union).
8. Clark Piokole is a former National air pilot who was employed by Air Niugini. Mr Piokole’s employment with Air Niugini was terminated on 3 December 2014.
9. Prior to 1 January 2015 Air Niugini’s pilots were employed under individual contracts on different terms according to whether the pilot was a National or expatriate. Different terms for these alternative contracts of employment had been agreed between Air Niugini and the Association and between Air Niugini and the Union.
10. To reduce expenditure and to standardise its pilots’ terms of employment by eliminating the distinction between National and expatriate pilots, Air Niugini embarked on a series of meetings between representatives of Air Niugini and its pilots between July and December 2014. As a result of those meetings, Air Niugini made new offers of employment to each of its employed pilots based on a single standardised pro forma contract. The offers were open for acceptance until 31 December 2014.
11. Mr Piokole was the only pilot wanting to continue his employment with Air Niugini who refused to accept Air Niugini’s new offer of employment. All other pilots, except for pilots who did not wish to continue to be employed by Air Niugini, accepted the new offers of employment they received from Air Niugini and each of them signed the standardised 2015 contract (2015 Contract) which commenced on 1 January 2015.
12. The 2015 Contract was subject to renewal every two years for a total duration of six years. The last two years of the six-year term expired on or about 31 March 2021 and prior to that Air Niugini and its employed pilots were to engage in discussions for the continuation of employment of those pilots who had signed the 2015 Contract.

Chronology of events in these consolidated Supreme Court proceedings

13. The chronology of events for these proceedings is largely set out in the affidavit of counsel for Air Niugini, Clayton Joseph.
14. Air Niugini’s appeal in SCA No. 83 of 2017 (the Appeal) filed 10 July 2017 and the application of Mr Piokole, the Union and the Association in SCR No. 87 of 2017 for leave to review under s.155(2)(b) of the Constitution (the Review) filed 12 September 2017 arose from the decision in National Court proceedings OS No. 6 of 2015 delivered on 15 May 2017 whereby the primary judge made declarations that the 2015 Contract was unlawful and void ab initio, that the pilots’ contracts executed with Air Niugini in 2012 were current and applicable and that Mr Piokole’s 2012 contract with Air Niugini could be replaced by a mutual agreement. The National Court also made orders, among others, that damages for stress and anxiety be assessed for Mr Piokole and for other pilots who were members of the Union.
15. The Appeal and the Review were consolidated by order of a single judge of this Court on 10 October 2017.
16. The Appeal and the Review were heard by the Supreme Court (David J, Hartshorn J, Yagi J) on 11 December 2017. Their Honours delivered the reserved decision of the Court on 25 April 2019 and allowed the Appeal on the basis that the Association and the Union did not have standing to be joined in Mr Piokole’s proceedings in the National Court. The Court also found that the primary judge had made findings on matters which were not pursued or claimed by the pilots. The Supreme Court ordered that the Review be dismissed as it did not require consideration because the Appeal had been allowed. The orders of the primary judge were quashed and all claims made by Mr Piokole and the pilots in OS No. 6 of 2016 were dismissed.
17. The Slip Rule Applications in SCA No. 83 of 2017 and SCR No. 87 of 2017 were filed in the Supreme Court Registry (the Registry) by the Respondents’ lawyers, Murray & Associates, on 15 May 2019.
18. By letter dated 3 June 2020 Ashurst Lawyers acting for Air Niugini gave notice to Murray & Associates to the effect that as the Slip Rule Applications had not been progressed for a period of more than 12 months since date of filing on 15 May 2019, application would be made to the Supreme Court by Air Niugini for the Slip Rule Applications to be dismissed for want of prosecution.
19. Air Niugini’s contested application to dismiss the Slip Rule Applications filed on 9 June 2019 came on for hearing by this Court on 1 October 2020.

Contentions

20. Air Niugini applies to dismiss the Slip Rule Applications for want of prosecution for these reasons:

(1) The order of the Supreme Court in SCA No. 83 of 2017 which upheld Air Niugini’s Appeal and dismissed the Respondents’ Review in SCR No. 87 of 2017 was, as already noted, made by David J, Hartshorn J and Yagi J on 25 April 2019.

By operation of O.11 r.32 SCR, the Respondents’ applications for leave to proceed with their Slip Rule Applications seeking to revisit and set aside the final judgment and orders which were made by the Supreme Court in SCA No. 83 of 2017 and SCR No. 87 of 2017 were required to be filed within 21 days from 25 April 2019, that is to say no later than 16 May 2019. The Respondents’ Slip Rule Applications were filed within time on 15 May 2019.

However, after the filing of the Respondents’ Slip Rule Applications on 15 May 2019, a period of more than 12 months elapsed without leave to proceed with the Slip Rule Applications having been obtained by the Respondents. Air Niugini submits that this delay was excessive and unreasonable and that the delay justified the filing by Air Niugini on 9 June 2020 of its present application to dismiss the Slip Rule Applications for want of prosecution.

(2) Air Niugini contends that although Murray & Associates acting for the Respondents wrote a series of letters to the Registry in an endeavour to obtain a hearing date for the applications for leave and to progress matters, that is to say letters dated 23 May 2019, 9 September 2019, 6 December 2019, and more recently 1 June 2020, the Respondents have not filed any affidavit material to corroborate the assertion that the 2019 letters were actually delivered to the Registry.

(3) Air Niugini argues that even if the three 2019 letters were delivered by Murray & Associates to the Registry, which Air Niugini does not admit, the absence of any response from Registry officers to list the Slip Rule Applications for leave for directions or hearing, coupled with the hearsay assertion by Mr Murray that Registry staff had informed lawyers with Murray & Associates, that the Court’s files could not be located, are not satisfactory explanations by the Respondent as to why the leave applications had still not been listed for hearing by early June 2020.

In support of this contention, Air Niugini’s counsel relies on three cases where it was held that the Court will not accept as satisfactory explanations that the Court file was missing or that Registry officers did not respond to correspondence to list matters for directions or hearing: Gelu v Somare (2009) N3647 at para. [30]; National Development Bank Ltd v Iangalio (2012) N4931 at para [13] and Pacific Equities & Investments Ltd v Pomaleu (2011) N5396 at para. [12].

(4) Further, Air Niugini contends that the Court should not accept as satisfactory any explanation that there was a change of the lawyer having carriage of the Respondents’ Slip Rule Applications. This submission was made to counter the suggestion for the Respondents that the departure of Otto Dekas from employment with Murray & Associates on 28 January 2020 was a contributing factor to delay in Mr Murray’s actioning of the Slip Rule Applications.

(5) Air Niugini says that it has been prejudiced by the Respondents’ delay in three ways:

(a) the delay in prosecution of the Slip Rule Applications has impeded Air Niugini’s ability to conduct its day-to-day business as an airline in regard to matters affecting the employment of its pilots because the delay has caused uncertainty in regard to the 2015 Contract and the renewal of employment of its pilots;

(b) pilots employed by Air Niugini are aware that Mr Piokole, the Association and the Union are continuing to challenge the legality of the 2015 Contract by virtue of the Slip Rule Applications notwithstanding that the Supreme Court has definitively determined that the 2015 Contract is legal, and this causes animosity and dissatisfaction by the pilots towards Air Niugini.

(c) Air Niugini and its employed pilots were expected to negotiate the renewal of the 2015 Contract on 1 October 2020, the very day of this Court’s hearing of Air Niugini’s application for dismissal of the Respondents’ Slip Rule Applications, and that this has caused major inconvenience to Air Niugini.

(6) That it is in the interest of justice that there be finality to these appellate and Constitutional review proceedings.

21. In answer, Mr Murray, counsel for the Respondents, asserts that his affidavit filed 28 July 2020 shows that there has been no negligence or lack of due diligence on the part of the Respondents or Murray & Associates and that whatever delays have occurred in prosecuting the Slip Rule Applications are solely attributable to the Registry’s inability to have located the Court’s files for SCA No. 83 of 2017 and SCR No. 87 of 2017 prior to July 2020.
22. The only evidence adduced by the Respondents to explain why delays in prosecuting the Slip Rule Applications occurred is the affidavit of Mr Murray. The explanation given by Mr Murray is as follows:

(1) After the Slip Rule Applications were filed by Murray & Associates Lawyers on 15 May 2020, a follow-up letter dated 23 May 2019 addressed to the Assistant Registrar of the Supreme Court was delivered to the Registry the next day, 24 May 2019. The letter, which was signed by Otto Dekas, an employed lawyer with Murray & Associates, requested that the two leave applications for the main slip rule applications be listed before a single Judge for hearing. A copy of this letter from Mr Dekas to the Assistant Registrar is annexure “MM-A” to Mr Murray’s affidavit.

(2) As no response was received to the letter of 23 May 2019, Mr Dekas wrote a second letter to the Registry on 9 September 2019, this time addressed to the Deputy Registrar, requesting that the leave applications be fixed for hearing the next month. A copy of this letter is annexure “MM-B” to Mr Murray’s affidavit.

(3) A third letter dated “0 December 2019” (sic) signed by Mr Dekas and addressed to the Deputy Registrar was delivered to the Registry on 6 December 2019, this time requesting that the leave applications be fixed for hearing in early 2020. A copy of this letter is annexure “MM-C” to Mr Murray’s affidavit.

(4) Mr Dekas departed his employment with Murray & Associates Lawyers on 28 January 2020 and thereafter the carriage of this matter for the Respondents passed to Mr Murray.

(5) On 1 June 2020 Mr Murray wrote to the Deputy Registrar and made reference to the earlier 3 letters to the Registry signed by Mr Dekas which had elicited no response. Mr Murray’s letter of 1 June 2020 asserts that he personally attended at the Registry on 14 February 2020 but was advised by Registry staff that they had “no information as to the status of the matter” and that he was told to continue to check with the Registry. Mr Murray also made an observation in his letter of 1 June 2020 to the effect that the coronavirus lock-down of the Registry which had commenced on 23 March 2020 [and continued until 20 May 2020] did not help matters. Mr Murray repeated Mr Dekas’s earlier requests for the leave applications to be given a hearing date. A copy of this letter dated 1 June 2020 is annexure “MM-D” to Mr Murray’s affidavit.

(6) Mr Murray deposes in para. [5.4] of his affidavit that he personally delivered his letter of 1 June 2020 to the Registry the same day and that he spoke to Registry staff member Thomas Sigally, who informed him that the Court’s file had not been able to be located at the Registry.

(7) The letter from Ashurst Lawyers dated 3 June 2020 giving notice that they had been instructed to file an application for Air Niugini on 8 June 2020 seeking an order to dismiss the Slip Rule Applications was delivered to the office of Murray & Associates on 5 June 2020.

(8) Mr Murray deposes in paragraph 5.6 of his affidavit as follows:

5.6 On Friday 05th June 2020, I personally attended at the Supreme Court Registry and made another follow-up with Mr. Sigally. He apologized for the fact he was unable to locate the file yet. I discussed with him the fact that the Respondents by its lawyer’s letter dated Wednesday 03rd June 2020 have given notice of its intention to file an application seeking order of court to dismiss this proceeding for want of prosecution. His response was that “it was not your fault” and you can explain that in your affidavit.

(9) Mr Murray caused a letter dated 6 June 2020 which he had signed to be delivered to the office of Ashurst Lawyers on 9 June 2020. The letter, a copy of which is annexure “MM-G” to Mr Murray’s affidavit, stated to the effect that the reason for the delay in prosecuting the Slip Rule Applications was because of the Registry’s continuing failure to locate the Court’s file(s) for SC No. 83 of 2017 and SCR No. 8 of 2017, despite four previous follow-up letters from Murray & Associates to the Registry having been delivered, copies of which were enclosed.

(10) According to Mr Murray, he then had a meeting at the Registry with Acting Deputy Registrar Mr David Gonol on 24 June 2020. Mr Murray gave Mr Gonol copies of the four follow-up letters from his law firm and said that Mr Sigally had informed him of the difficulties which Registry staff had experienced in locating the Court file(s). Mr Murray states at para. [5.8] of his affidavit that after discussing with Mr Gonol that Ashurst Lawyers had filed an application seeking to have the matter dismissed for want of prosecution, he requested Mr Gonol to give his approval for Mr Sigally to swear an affidavit of explanation as to the problem the latter had encountered in locating the Court file(s). Mr Murray then continues at para [5.8]:

5.8 Mr Gonol said [that] won’t be necessary. He is confident that the file is somewhere and that Mr. Sigally will do his very best to locate it. He reiterated that I can file an affidavit of explanation.

(11) Two weeks later Mr Murray received a phone call from Mr Sigally on 10 July 2020. Mr Sigally informed Mr Murray that the Court’s file(s) had been located in the Court’s archives and that there was a letter from Mr Gonol which was ready for Mr Murray to collect from the Registry.

(12) A copy of Mr Gonol’s letter dated 8 July 2020 to Murray & Associates is annexure “MM-J” to Mr Murray’s affidavit. Mr Murray says he personally collected that letter from Mr Gonol at the Registry at 10.10 am on 10 July 2020 after meeting with Mr Gonol and Mr Sigally there. Mr Gonol’s letter advised that the leave applications for the Slip Rule Applications had been listed for directions hearing on 13 July 2020 at 9.30 am before the duty Judge.

(13) Mr Murray completed the evidence for the Respondents as to the reasons for the delay in prosecuting the Slip Rule Applications by deposing in para. [7] of his affidavit as follows:

7. In spite of information provided by us to Ashurst Lawyers regarding the difficulties faced by the Supreme Court Registry in locating the file, it went ahead to file an application seeking orders to dismiss this proceeding for want of prosecution. It must be noted also that at the relevant time of their filing of application documents, they were sealed with no document number given. This explained the only reason that the file could be located.

Law on want of prosecution

23. Air Niugini relies on O.7 r.48 and O.11 r 28(b) SCR as the source of this Court’s jurisdiction to dismiss the Slip Rule Applications for want of prosecution.
24. Order 7 Division 19 SCR comprises Rules 48 to 51 which deal with the procedure for applications to dismiss an appeal for want of prosecution. Order 7 r.48 provides:

48. 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.

25. Order 11 r.28(b) SCR extends the power of the Supreme Court to dismiss a matter for want of prosecution to any proceedings before the Court, not just appeal proceedings:

28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:
,,,
(b) Order 7 Division 19 (time and want of prosecution).

26. References in case law to dismissal of appeals for want of prosecution have equal relevance to dismissal of all other applications that come before this Court. The Slip Rule Applications in this instance are amenable to dismissal for want of prosecution under O.7 r.48 SCR by operation of O.11 r.28(b) SCR if sufficient cause can be shown by Air Niugini in the circumstances of this case.
27. The principles for dismissal of proceedings for want of prosecution under O.7 r.48 SCR are well settled. Counsel for Air Niugini has referred us to Pacific Equities & Investments Ltd v Goledu (2008) N5397 where Hartshorn J at para. [16] summarised the principles enunciated by the Supreme Court in the earlier case of PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811 (Los J, Salika J, Lay J) as follows:

(1) An appeal may be struck out if it is not set down as required by the Rules and the power to dismiss in this instance remains discretionary.

(2) The discretion is to be exercised having regard to all the circumstances of the case including, inter alia, the length and reasons for delay on the appellant’s part.

(3) Where the applicant has established failure on the part of the appellant to do an act, the onus then shifts to the appellant to explain the failure to do the act or the delay.

(4) 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 and failure to provide any explanation for dilatory conduct where any 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.

(5) The discretionary powers should not be exercised in favour of the respondent to the application to dismiss where no explanation for want of due diligence is made. That a lawyer cannot be present because of attendance before another judge may be an adequate explanation.

(6) The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of want of prosecution is brought, in particular, events that have taken place since the application was filed. The application to dismiss 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.

28. Additional principles which the Court must bear in mind when determining whether to exercise its unfettered discretion to dismiss proceedings for want of prosecution are these:

(7) Prejudice or injustice to any of the parties, the conduct of the parties, the balance of convenience and the overall interests of justice: see Pacific Equities & Investments Ltd v Pomalue (2011) N5396supra); Tai v ANZ Banking Group (PNG) Ltd (2018) SC1681.

(8) Order 11 r.32 SCR requires applications made to the Supreme Court after disposal of a proceeding, including applications for leave to proceed with a slip rule application, to be filed and served “within 21 days of the order disposing of the proceeding”. A slip rule application, including the leave application, must therefore be made promptly because public interest demands that there be finality in litigation: Tai v ANZ Banking Group (PNG) Ltd (supra).

Consideration – the evidence and application of law to the facts

29. We deal first with Air Niugini’s contention that there is no proof that Murray & Associates delivered its letters dated 23 May 2019, 9 September 2019 and 6 December 2019 to the Registry, the implication being that those letters were perhaps fabricated to support the Respondents’ response to Air Niugini’s application to dismiss the Slip Rule Applications for want of prosecution. We place little weight on this allegation by Air Niugini and the inferences to be drawn from it. Perusal of the copies of the three letters from Murray & Associates which are annexures “MM-A”, “MM-B” and “MM-C” to Mr Murray’s affidavit (AB, 139 -141) indicates that the copies of these first two letters contain handwritten receipts. The copy letter dated 23 May 2019 bears an endorsed receipt on the right-hand side at the foot of the copy which we accept was signed by Registry staff member Mary Iamo dated 24 May 2019 at 10.30 am. A similar but indistinct receipt is to be found at the right-hand side at the top of the copy letter dated 9 September 2019. The copy of the third letter dated 6 December 2019 does not have any endorsed receipt signed by a member of the staff of the Registry, but we find that to be of no consequence. We accept Mr Murray’s averral that in his belief the originals of all three letters were delivered to the Registry but went unanswered.
30. In similar vein we give no credence at all to Mr Murray’s oral submission that Ashurst Lawyers’ clerk Allan Dian could have interfered with the Court file(s) for this matter at the Registry in early June 2020 by conspiring with an unidentified member of Registry staff to have allowed the filing of Air Niugini’s application to dismiss on 9 June 2020 and for that Registry staff member to have then hidden the Court file(s) from his co-worker Thomas Sigally. We find this submission to be entirely without foundation and we reject it out of hand, there being no evidence at all to substantiate such an allegation.
31. However, having reviewed the totality of the affidavit evidence of the parties, we are satisfied that Air Niugini has established a prima facie case that there was failure on the part of the Respondents, or rather on the part of their lawyers, to progress the Slip Rule Applications for more than 12 months from date of filing of those applications on 15 May 2019 to the date of filing of Air Niugini’s application to dismiss for want of prosecution on 9 June 2020. The onus now shifts to the Respondents to explain the reason for that delay.
32. The principal argument advanced by Mr Murray to counter Air Niugini’s contention that there was excessive delay and lack of due diligence by Murray & Associates in pursuing the Slip Rule Applications to hearing is that the cause of the delay was solely attributable to the inability of the staff of the Supreme Court to have located the Court’s files for SCA No. 83 of 2017 and SCR No. 87 of 2017. Mr Murray points out that it took the Registry almost 14 months to track down the whereabouts of the Courts’ file(s). The Slip Rule Applications were filed on 15 May 2019. The Court’s file(s) apparently then went missing and the hearsay evidence of Mr Murray was that the file(s) did not re-surface again until they were found in the Court’s archives by Registry staff member Mr Sigally on or about 7 July 2020, notwithstanding that Air Niugini’s application to dismiss was filed at the Registry almost a month earlier by Ashurst Lawyers’ clerk Allan Dian as court document no. 28 on the Court’s consolidated files for SCA No. 83 of 2017 and SCR No. 87 of 2017 on 9 June 2020 .
33. We pause at this juncture to note that Mr Murray in his oral submissions for the Respondents conceded the relevance of all of the case authorities cited by counsel for Air Niugini, as augmented by the cases which were included in Mr Murray’s written extract of argument.
34. The transcript of the proceedings which came before us on 1 October 2020 contains the following acknowledgement by Mr Murray at p. 12:

MR MURRAY: ... I have no problems with all the judgments that are cited by my friend, and including the ones that I have in my submission. ... But I will attempt your Honours to differentiate all these matters from the current matter ...

35. Mr Murray, having agreed during oral submissions that the case authorities relied on by Air Niugini were relevant as to the principles applicable to applications to dismiss for want of prosecution, then endeavoured to distinguish those cases on the facts. Mr Murray submitted to the effect that none of the cases relied on by Air Niugini dealt with the situation where the Registry was at fault but had instead largely arisen from circumstances where appellants’ lawyers had been dilatory and had failed to exercise due diligence to progress their clients’ cases to substantive trial or hearing. Mr Murray submitted that this was the distinguishing factor which exonerated his law firm and the Respondents from fault in not prosecuting the Slip Rule Applications prior to Ashurst Lawyers’ filing of Air Niugini’s application to dismiss on 9 June 2020.
36. The transcript of the proceedings before us on 1 October 2020 shows at page 17 that Mr Murray summarised his oral submissions for the Respondent’s response to Air Niugini’s application to dismiss in these terms:

MR MURRAY: The case laws that are cited simply show that there must be a reasonable explanation. Your Honours have the wide discretion to either dismiss or not to dismiss and I am asking your Honours to apply your discretion given the circumstances of the way this matter came before your Honours today is that it was never a fault of my representing my clients. If it was a mix up, let us take it as that within the Registry. It was a mix up and eventually when the mix up was found the file started moving and it moved from the Registry to the first hearing – the first listing and it went before Makail J ...

37. We do not accept that allegations of fault on the part of the Registry in not locating the Courts’ files and non-response to correspondence from Murray & Associates are a proper or satisfactory explanation for the delay which occurred. Moreover, such allegations ignore case law relied on by Air Niugini in support of its application to dismiss.
38. A leading National Court case, directly on point but not addressed by Mr Murray, is Pacific Equities & Investments Limited v Pomaleu (supra). This was an appeal against the decision of the chairman of the Securities Commission of Papua New Guinea to appoint Melanesian Trustee Services Limited as the trustee of the Pacific Balance Fund and the Pacific Property Trust. When called upon by the respondents to the appeal to give an explanation as to why the appellate proceedings had not been progressed for a period of 2 years 9 months, the appellant blamed staff of the National Court Registry for failure to have had the matter listed before the Court, despite reminder correspondence and various attendances by the appellant’s lawyers at the Registry in their endeavours to have the matter progressed to substantive hearing.
39. Hartshorn J, when assessing the appellant’s explanation as to the reasons for delay in Pacific Equities and Investments Ltd v Pomaleu, observed at paras. [12] and [13] as follows:

12. ... there is evidence of numerous letters being written to the National Court registry by PEIL’s lawyers requesting to have the proceedings listed. What is of concern with this explanation is that if one letter sent is unanswered, then perhaps another letter should be sent but if there is no reply to that second letter, then a notice of motion should be filed seeking appropriate relief, such as directions or having the matter set down for trial. To my mind, it is not satisfactory to continue to send letters when they are not being answered ... As to blaming the National Court registry staff, in Zachery Gelu v. Sir Michael T. Somare (2009) N3647 I said in regard to a similar submission that:

“It is all too easy to blame Court staff. It is not appropriate in my view, for an applicant to sit and wait for a reply. It was always open to the applicants to file a notice of motion seeking further directions or a hearing date if they believed by that by writing to the Registry or the Associate they were not obtaining satisfaction.”

13. In this instance, to continue to send letters, 8 in total, for almost 1 year when they all remained unanswered, is not indicative of proper action being taken to progress the proceeding, and does not support a submission that there is a reasonable explanation for delay.

40. See also National Development Bank Ltd v Iangalio (supra) where Hartshorn J observed at para. [13]:

13. ... If the court file was missing the parties should have liaised with the National Court Registry to arrange for a supplementary file to be created. There is no evidence of this. As to court staff or the Registry contributing to the delay, as I remarked in Gelu v Somare (2009 )N3647, it is not appropriate for an applicant to sit and wait for a reply from the Registry. It is always open to an applicant to file a notice of motion seeking further directions or a hearing date if they believe that by writing to the Registry they are not obtaining satisfaction.

41. Moreover, when it was put to Mr Murray during the course of the hearing of Air Niugini’s application to dismiss that a supplementary file could have been created to replace the missing Court file(s) so as to progress the Slip Rule Applications by having the leave applications listed for hearing, Mr Murray agreed that this could have been done, but was not. We refer in this regard to the following exchange between the Bench and Mr Murray during the course of the hearing of Air Niugini’s application to dismiss which is recorded at pp. 18 and 19 of the transcript:

SHEPHERD J: [to Mr Murray] ... you yourself would have had copies of all of the documents and could have created a supplementary file.

MR MURRAY: Yes, your Honour, I totally agree with you. As I said, I inferred it to Mr Gonol, would not a supplementary file be in order ...

...

SHEPHERD J: So, you accept the fact that you would have been able to create a supplementary file?

MR MURRAY: Yes, your Honour, yes, I accept, that is right.

SHEPHERD J: And can you explain what happened between the writing of your [law firm’s] letter of 6 December 2019 to the Deputy Registrar and 6 June [2020]? We accept the fact that corona virus intervened as from March [2020] onwards. But there appears to be no explanation between most of December and beginning of March in relation to progressing this forward. Could a supplementary file – once you were aware that there was a problem with the file in the registry have been created by you to assist the registry?

MR MURRAY: Your Honour, if I may assist the court in this respect. The matter of supplementary file was raised in 2019 towards the end of December and I totally agree with you. We raised it with Mr Sigally and Mr Gonol and, your Honour, if I may say and it is from the bar table, they said there is no need, the file is here somewhere.

SHEPHERD J: Well, the problem is that evidence is not before us.

MR MURRAY: That is correct your Honour, I am aware of that.

42. We observe that there is no evidence as to what communications may have passed between Mr Murray in his meetings with Mr Sigally post-January 2020 or with his first meeting (and possibly only) meeting with Deputy Registrar Mr Gonol on 24 June 2020 at the Registry regarding the creation of a supplementary Court file to enable the Respondent’s Slip Rule Applications, including the leave applications, to be progressed. But it is obvious that had such a supplementary file been created in February 2020, soon after Mr Murray took over the carriage of this matter for the Respondents following the departure from his firm of Mr Dekas on 28 January 2020, Mr Murray would have been able to have filed a motion at the Registry seeking directions or orders to progress the leave applications. That did not happen, as was conceded by Mr Murray.
43. Applying Hartshorn J’s reasoning in Pacific Equities & Investments Ltd v Pomeleu and National Development Bank Ltd v Iangalio, we find that for Murray & Associates to have sent three letters to the Supreme Court Registry between May to December 2019, which remained unanswered, followed by an interval of 6 months for the next letter to have been written on 1 June 2020 seeking to progress the leave applications for the Slip Rule Applications, this is unacceptable as explanation for an overall delay of more than 12 months. When Murray & Associates did not receive any response from the Registry to the three letters sent by Mr Dekas in 2019, the first step which Mr Murray should have taken when he took over the carriage of the matter on the departure from the firm from Mr Dekas on 28 January 2020 was liaison with the Registry and Ashurst Lawyers during February 2020 for the creation of a supplementary file, followed by the filing by Murray & Associates of an interlocutory motion seeking orders that the leave applications for the Slip Rule Applications be listed for directions before the duty Judge. That was not done. Instead Mr Murray waited until 1 June 2020 to communicate in writing his concerns to the Registry. We find that this delay was excessive and unreasonable.
44. We also find that Air Niugini has been prejudiced by the delay for the reasons advanced by counsel for Air Niugini during submissions. Those reasons are set out in para. 19(5) of this Decision. They are based on the evidence of Mr Logona contained in paras. 11(a), (b) and (c) of his affidavit. The Respondents filed no affidavit evidence in rebuttal of Mr Logona’s evidence on the issue of the prejudice sustained by Air Niugini as a result of the Respondents’ delay in prosecuting the Slip Rule Applications.
45. The overall delay of more than 12 months has clearly impacted on Air Niugini’s day to day administration, particularly as regards matters of employment of its pilots. The very filing of the Respondents’ Slip Rule Applications on 15 May 2019 challenged a final determination of this Court, the highest Court in the land, which had overturned a ruling of the National Court affecting the employment rights of its pilots. It is inevitable that the Slip Rule Applications would bring uncertainty not only to Air Niugini and also to those pilots who were intent on negotiating the conditions of their new employment contracts following the expiry of the standardised 2015 Contract. The Slip Rule Applications, including the leave applications, should have been dealt with promptly after the Applications were filed. They were not. Whatever delay Murray & Associates experienced with obtaining responses from the Registry during the latter half of 2019 could have been avoided had that law firm taken a proactive approach in early 2020 by ensuring that a supplementary Court file was created and by then moving the Court for directions to progress the leave applications. It is of significance that on the very day of hearing of Air Niugini’s application for dismissal of the Slip Rule Applications for want of prosecution, that is to say on 1 October 2020, the pilots were scheduled to commence the negotiation of the renewal of the conditions in their standardised 2015 Contract with Air Niugini.
46. A further compelling reason why the application for dismissal before us must succeed is because it is in the interests of justice in this particular case that there be finality to this litigation.
47. In Kandapaki v Enga Provincial Government (2015) SC 1463, Cannings J said at para. [11] in relation to slip rule applications made under O.11 r.32 SCR:

The 21-day requirement [for filing after disposal of a proceeding by the Supreme Court] has been imposed for a very good reason: to advance the finality of the litigation and to oblige any party proposing to apply for leave to do so quickly.

48. In Tai v ANZ Banking Group (PNG) Ltd (supra), Gavara-Nanu J held that unreasonable delay in prosecuting a slip rule application is detrimental to the fair and proper dispensation of justice by the courts. His Honour went on to say at para. [5]:

The principles relating to slip rule applications are settled in this jurisdiction. They may be summarised as follows. A slip rule application should only be used to correct a glaring error of law or fact, and the Court must be satisfied that the error is on a critical issue affecting the applicant: James Marabe v Tom Tomape (No. 2) (2007) SC857. Thus an error must also affect the applicant for there to be a slip and for the case to be reopened. The error should be a little short of extraordinary, and must affect the applicant. Public interest in the finality of litigation will preclude all, except a clearest slip or error which would warrant the case to be reopened: Re Nomination of Governor General, Application by Sir Pato Kakaraya (No. 3) 2004) SC752 and Richard Dennis Wallbank and Jeanette Minifie v. Independent State of Papua New Guinea [1994] PNGLR 76. The purpose of a slip rule application is not to allow rehashing of arguments already raised: The Election of Governor General (No. 3) (supra) and Trawen v. Itanu [2011] PGSC14; SC1109.

[underlining added]

49. In the present instance, we observe that the Respondents’ Slip Rule Applications filed on 15 May 2019 plead that the Supreme Court in its substantive judgment delivered in SCA No. 83 of 2017 and SCR No. 87 of 2017 on 25 April 2019 misapprehended at least 21 matters of fact or law. Without canvassing the merits of the voluminous allegations of misapprehended matters of fact or law pleaded in the Slip Rule Applications, it is immediately apparent to us that the Respondents, being aggrieved by the Supreme Court’s otherwise final judgment, wish to rehash the arguments that were put to the Supreme Court during the hearing of the substantive appeal. It is only the clearest of slips or errors made by the Supreme Court which could warrant the reopening of the Court’s otherwise final judgment, and those slips or errors must verge on the extraordinary. In these circumstances we consider that the Slip Rule Applications would have little chance of success.
50. Be that as it may, our concern here is that in view of the unreasonable delay of the Respondents and their lawyers in prosecuting the Slip Rule Applications, the Respondents should not be free to litigate ad infinitum matters which have been the subject of a determinative judgment of the Supreme Court. Public interest demand that this litigation be brought to finality to prevent abuse of the Court’s processes.

Conclusion

51. For the reasons given, we grant Air Niugini’s application to dismiss the Slip Rule Applications.
52. Costs will follow the event. The Respondents will pay Air Niugini’s costs of and incidental to these proceedings.

Order

53. The terms of the formal Order of the Court are:

(1) The proceedings in SCA No. 83 of 2017 and SCA No. 87 of 2017 relating to the Slip Rule Applications of Clark Piokole, Airline Pilots Association and PNG National Pilots Union (the Respondents) are dismissed for want of prosecution.

(2) The two proceedings are entirely dismissed.

(3) The judgment and orders of the Supreme Court in SCA No. 83 of 2017 and SCA No. 87 of 2017 delivered on 25 April 2019 are affirmed.

(4) The Respondents shall pay Air Niugini’s costs of and incidental to the dismissal of these two proceedings for want of prosecution on a party/party basis, such costs to be taxed if not agreed.

Judgment accordingly.

_______________________________________________________________

Ashurst Lawyers: Lawyers for the Applicants
Murray & Associates: Lawyers for the Respondent