Kuima Security Services Ltd v Kikora [2021] PGSC 40; SC2113 (31 May 2021)

SC2113

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 33 OF 2018

REVIEW PURSUANT TO SECTION 155 (2)(b) OF THE CONSTITUTION

BETWEEN:
KUIMA SECURITY SERVICES LIMITED
Applicant

AND:
ROBERT YAL KIKORA
Respondent

Waigani: Gavara-Nanu, Makail and Collier JJ
2021: 31^st May

APPEALS AND REVIEWS – Applications to review orders of a Judge of the National Court pursuant to s 155(2)(b) of the Constitution – application by respondent for dismissal of entire proceedings for want of prosecution – where initial application to review was incompetent – whether delay to file application for leave to review was excessive – lack of activity by applicant to prosecute proceedings – proceedings dismissed for want of prosecution

The National Court at first instance found in favour of the plaintiff Mr Yal Kikora against his former employer, the defendant Kuima Security Services Ltd. Kuima Security Services Ltd sought to review that decision pursuant to s 155(2)(b) of the Constitution, initially by filing an application to review, and more than 2 years later by filing an application for leave to review. The only other activity by Kuima Security Services Ltd on the file was the lodgement of a draft index of the Review Book. Mr Yal Kikora filed an application for dismissal of the proceedings for want of prosecution.

Held:

The first application filed by Kuima Security Services Ltd was incompetent, and the entire proceedings should be dismissed for want of prosecution. There had been inactivity and excessive delay by Kuima Security Services Ltd, whose only engagement with the proceedings appeared to be responsive to applications filed by Mr Yal Kikora (including the application for dismissal for want of prosecution).

Cases Cited:

Burns Philp (NG) Ltd v George [1983] PNGLR 55
Kalinoe v Paraka (2007) SC874
Kavi v Australian and New Zealand Bank Ltd (2020) SC1951
Kumbu v Mann (2018) SC1710
Lovika v Malpo (2019) SC1895
Munziong v Seneka (2013) SC1291
National Development Bank Ltd v Ianagalio (2014) N 4931

Legislation:

Constitution s 155(2)(b)
Supreme Court Rules 2012 O 7 r 28, O 11 r 48(b)

Counsel:

Mr R Gileng Otto, for the Applicant (Respondent to the application for dismissal for want of prosecution)
Mr L B Mamu and Mr J Fish-Unua, for the Respondent (Applicant to the application for dismissal for want of prosecution)

31^st May, 2021

1. BY THE COURT: Before the Court is an application for summary dismissal filed on 23 September 2020 by Mr Robert Yal Kikora, the respondent in the substantive proceedings SC Rev No. 33 of 2018 Application by Kuima Security Services Limited and Robert Yal Kikora. Mr Yal Kikora seeks the following order:
   

(a) This Review Application pursuant to Section 155 (2)(b) of the Constitution styled as S.C. Review No. 33 of 2018: Application by Kuima Security Services Limited –v- Robert Yal Kikora be dismissed for want of prosecution pursuant to Order 7, Rule 48 and Order 11 Rule 28 (b) of the Supreme Court Rules 2012.

2. The application came before the Court for determination on the papers. The Court is indebted to both parties for their detailed written submissions.
   
3. Before turning to this application it is useful to outline relevant background facts.

BACKGROUND

4. On 11 April 2018, pursuant to s 155 (2)(b) of the Constitution, Kuima Security Services Limited (Kuima Security Services) filed an application to review orders made by a Judge of the National Court on 12 January 2018 in WS NO. 1283 of 2014 Robert Yal Kikora and Kuima Security Services Ltd (11 April 2018 Application to Review). Those orders were as follows:
   

(1) The Defendant shall pay the Plaintiff the total sum of K20,910.73 within 3 months after the date of service of this order on the Defendant.
(2) In addition the Defendant shall pay to the Plaintiff interest on the total sum of K20,910.76 at the rate of 8% per annum in respect of the period from 13/2/12 to 12/1/18 within 3 months after the date of service of this order on the Defendant.
(3) In addition the Defendant shall pay the Plaintiff’s costs in the fixed sum of K1,000.00 within 3 months after the date of the service of this order on the Defendant.
(4) Time for entry of the order is abridged and the file is closed.

5. The grounds of review as set out in the application were as follows:
   

(1) The learned trial judge erred in law and fact in assessing damages in the amount of K20,910.72 to be paid by the Applicant within three months when there was insufficient credible admissible evidence to establish that the Plaintiff was entitled to the amount ordered by the court.
(2) The learned trial judge erred in law and fact when he failed to properly consider and give sufficient weight to the evidence of the Applicant which was presented in the trial on assessment of damages.
(3) The learned trial judge erred in law and he failed to comply with the principles of natural justice when he failed to ensure that the Applicant was notified or advised of the date for the submission on assessment of damages and to appear and present submissions.

6. Kuima Security Services sought the following orders:
   

(1) Leave be granted to the Applicant to review the order of the National Court of 12^th January 2018.
(2) The judgment of the 12^th January 2018 against the Applicant be quashed in its entirety.
(3) The amount of damages be assessed by the Supreme Court or alternatively remitted back to the National Court for rehearing.
(4) The orders for costs against the Applicant be quashed and the Respondent be ordered to pay the Appellant’s costs.

7. A Draft Index to Review Book was filed by Kuima Security Services in the Supreme Court Registry on 16 May 2018.
   
8. By affidavit sworn 22 September 2020 Mr Yal Kikora deposed in summary:
   
   • He had commenced proceedings in the National Court in WS No. 1283 of 2014 for wrongful dismissal and was successful.
   • The Court Order of the National Court dated 12 January 2018 was served on the office of Kuima Security Services in Lae, Morobe Province, on 13 February 2018. Annexed to his affidavit was an Acknowledgement of Service signed by “Alex Temamko, Investigator” as having received the Court Order on behalf of Kuima Security Services, following service by a Senior Constable from Lae Police Station.
   • Kuima Security Services filed the 11 April 2018 Application to Review without seeking leave.
   • Kuima Security Services had not paid Mr Yal Kikora in accordance with the orders of the National Court.
     
9. By affidavit sworn 22 September 2020, Ms Emma Wurr, the lawyer with carriage of the matter for Mr Yal Kikora, deposed materially:
   
   2. On Friday, 18th September 2020. I conducted a file search of this matter at the Supreme Court Registry.
   3. My search revealed that the Applicant did not seek leave of the Court, and the Court did not grant leave, yet the Applicant went ahead to file the Draft Index to the Review Book on 16th May 2018.

Enclosed and marked A is a true copy of the File Index.

4. After the Draft Index to the Review Book was filed, there was no activity on the file. The Supreme Court registry set the matter down for Settlement of the Draft Index on 26th February 2019 at 10:00am and 10th September 2019 at 1:30pm respectively. However it seems the Applicant failed to appear on those dates to settle the Draft Index. The matter was left in abeyance thereafter with no activity on the file.

Enclosed and marked B and C respectively are true copies of the letters

5. The Applicant ought to have sought leave first before fling the Draft Index to the Review Book. Nonetheless it seems the file has not been active until the matter was listed by the Supreme Court for Call Over recently this year.
6. Themis lawyers filed a Notice of Appearance for the Applicant on 28^th August 2020 however apart from that, no active steps have been taken by the Applicant to progress this Application for Review.
10. On 1 October 2020 and pursuant to s 155 (2)(b) of the Constitution, the lawyers for Kuima Security Services filed an Application for Leave to Review (1 October 2020 Application for Leave to Review). This application materially stated as follows:
    

1. LEAVE TO APPLY FOR REVIEW

1.1. The decision of the National Court made on 12th January, 2018 and entered on the 16th January, 2018 wherein the National Court made the following Orders in the National Court proceedings, WS NO. 1283 of 2014 - Robert Yalkikora vs. Kuima Security Services

(a) The Defendant shall pay the Plaintiff the total sum of K20,920.73 within 3 months after the dates of service of this order on the Defendant.
(b) In addition, the Defendant shall pay to the Plaintiff interest on the total sum of K20. 910.76 at the rate of 8% per annum in respect of the period from 13/2/12 to 12/1/18 within 3 months after the date of service of this order on the Defendant.
(c) Furthermore, the Defendant shall pay the Plaintiffs costs in the fixed sum of K 1000.00 within 3 months after the date of service of this order on the Defendant.
(d) The Plaintiff as mortgagee is at liberty to exercise its right to foreclosure and sell the land and property described as Allotment 20. Section 292, Lae, Morobe Province.
(e) Finally, the lime for entry of the (e) order is abridged and the file is closed.

1.2. The decision was made after the National Court assessed damages in the absence of the Applicant. The Applicant is aggrieved by the decision and is seeking leave to review same having lost its right of appeal.

2. GROUNDS

2.1 The learned trial judge erred in law and fact in assessing damages in the amount of K 20,910.72 to be paid by the Applicant within three months when there was insufficient, credible and admissible evidence to establish that the Plaintiff was entitled to the amount ordered by the court.
2.2. The learned trial judge erred in law and fact when he failed to properly consider and give sufficient weight to the evidence of the Applicant which was present in the trial on assessment of damages.
2.3. The learned trial judge erred in law when he failed to comply with the principles and present submissions.

3. THE ISSUES INVOLVED

3.1 Whether the Plaintiffs evidence was sufficient to warrant the award of K 20.910.72 as damages to be paid by the Applicant.
3.2. Whether the trial judge's exercise of judicial discretion in not taking into account evidence of the Applicant amounts to a miscarriage of justice.
3.3. Whether the Applicants right to natural justice was breached when it was not accorded the right to be heard during the hearing on assessment of damages.

4. REASONS WHY LEAVE SHOULD BE GRANTED

4.1. The trial judge, in the exercise of his judicial discretion, failed to properly consider the weight of the evidence prior to assessing damages in the amount of K 20.910.72 to be paid by the Applicant to the Plaintiff.
4.2. The trial judge, in the exercise of his judicial discretion, failed to consider and take into account the evidence of the Applicant when assessing damages.
4.3. The Applicants right to natural justice was breached when it was not accorded the right to be heard during the hearing on assessment of damages.

SUBMISSIONS OF THE PARTIES

11. Mr Yal Kikora submitted, in summary:
    
    • The 11 April 2018 Application to Review failed to comply with the Supreme Court Rules, as no application for leave to review the decision of the primary Judge had been either filed or granted in accordance with the Supreme Court Rules. The application was drafted in terms of Form 5 of the Supreme Court Rules, which can only be used after leave has been granted to an applicant. It followed that the 11 April 2018 Application to Review was incompetent.
    • In any event the 11 April 2018 Application to Review was filed one month and 15 days after the lapse of the 40-day grace period for the filing of appeals pursuant to s 17 of the Supreme Court Act.
    • Principles guiding the exercise of the discretionary power of the Supreme Court to dismiss appellate proceedings for want of prosecution are well-known: see for example Burns Philip (PNG) Ltd v George [1983] PNGLR 55. The Supreme Court should exercise its discretion in this case.
    • The 1 October 2020 Application for Leave to Review should not be entertained by the Court, because it was filed late, including after Mr Yal Kikora’s application for summary dismissal was served on the lawyers acting for Kuima Security Services.
    • There is no evidence of Kuima Security Services progressing the matter or taking the necessary steps to prosecute its application, including applying for the transcripts of the proceeding in the National Court.
      
12. In its written submissions, Kuima Security Services conceded that the 11 April 2018 Application to Review failed to comply with the Supreme Court Rules. It attempted to correct that defect by filing the 1 October 2020 Application for Leave to Review, and sought the opportunity to be heard on that application. It further submitted, in summary:

• There were genuine reasons for its failure to file an appeal within the 40 day period stipulated by the Supreme Court Act, including:
  • (a) The 11 April 2018 Application to Review was filed 3 months after the National Court made its ruling, which was not an unreasonable delay.
  • (b) As explained in the affidavit of Kuima Security Services’ director Mr Anton Kaupa sworn 11 April 2018, although judgment on liability in the National Court proceedings was handed down on the same day as the trial (that is, 13 February 2017), the primary Judge directed that submissions in respect of the assessment of damages were to be made before his Honour on 21 September 2017.
  • (c) The lawyer for Kuima Security Services did not attend the National Court hearing before his Honour on 21 September 2017 due to other court commitments in Lae. The lawyer sent a letter to Mr Yal Kikora’s lawyers requesting an adjournment of the 21 September 2017 hearing, however he heard nothing until 22 January 2018 when an order of the National Court of 12 January 2018 was served on Kuima Security Services in Lae by the police.
• Although there was a delay of approximately 2 years and 7 months, Kuima Security Services filed the draft index to the Review Book and also the Review Book itself on a misapprehension of the law and the Supreme Court Rules. This constituted prosecution of the review application.
• It was only when Kuima Security Services instructed its present lawyers that errors of process were identified and rectified, and the proceedings progressed.

CONSIDERATION

13. Order 5 Division 1 of the Supreme Court Rules relevantly provides:
    
    1. An application to the court under Constitution Section 155(2)(b) lies with leave only, or without leave. Where the application lies with leave only the provisions of Order 7 Division 2 shall be followed, substituting the word “applicant” for the word “appellant” and the word “application” for the word “appeal”.

2. ...
3. An application for leave for review shall be made before a Judge.

4. Where the application lies without leave or where leave has been granted the application for review shall be instituted by an application to review and shall—

(a) be entitled under the Section of the Constitution by which it is made together with the year and number of the application; and
(b) be entitled with the name of the person making the application; and
(c) state briefly particulars of the judicial act to be reviewed; and
(d) the order sought in lieu thereof; and
(e) be in accordance with form 5; and
(f) be signed by the person seeking the review or his lawyer; and
(g) be filed in the registry.

5. The review shall be served as soon as possible on all parties to the National Court proceedings from which the judicial act to be reviewed arises.
6. A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review.
   
14. Plainly, and as was properly conceded by Kuima Security Services, the 11 April 2018 Application to Review was incompetent in terms of s 155 (2)(b) of the Constitution, in that no application for leave to review the decision of the primary Judge had been filed, and no leave to review granted by the Supreme Court: Munziong v Seneka (2013) SC1291, Kumbu v Mann (2018) SC1710, Lovika v Malpo (2019) SC1895.
    
15. Notwithstanding that Kuima Security Services subsequently filed the 1 October 2020 Application for Leave to Review, we consider that the circumstances of this case warrant an order for dismissal of the entire proceedings for want of prosecution by Kuima Security Services.
    
16. First, an application for dismissal for want of prosecution can be made pursuant to Order 7 Rule 48 and Order 11 Rule 28(b) of the Supreme Court Rules. Order 7 Rule 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.

17. Order 11 Rule 28(b) provides:
    

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:
(a) ...
(b) Order 7 Division 19 (Time, and want of prosecution);

(We note that Order 7 Rule 48 is in Division 19 of Order 7 of the Supreme Court Rules.)

18. Second, principles relevant to the discretion of the Supreme Court to dismiss proceedings for want of prosecution were discussed in Burns Philp (NG) Ltd v George [1983] PNGLR 55, where the Supreme Court observed:
    

The discretion will be exercised having regard to all the circumstances of the case and in particular to the length of and the reasons for the delay on the appellant’s part. The extent to which, having regard to any delay in setting the matter down, the evidence likely to be adduced by the appellant or the respondent is or is likely to be less cogent than if the action had been set down and brought within the time allowed may also be another relevant factor.

19. In Kalinoe v Paraka (2007) SC874, after referring to the equivalent rule in the Supreme Court Rules then in force, the Court observed:
    
    17. It is plain from the terms of this rule that the grounds for an application for want of prosecution must show that 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. This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya -v- Somare & Others (2004) SC 762. See also PNG Nambawan Trophy Ltd -v- Wynasty Holding Ltd (2005) SC 811. Thus if an appellant has delayed in prosecuting his appeal the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances.

...

20. Turning to the requirements of Order 7 r 53 (a), the question is: Did the appellants fail to do any act required to be done under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence which would warrant, this Court to dismiss the appeal for want of prosecution?
20. We also note the more recent discussion of relevant principles by the Supreme Court in Kavi v Australia and New Zealand Bank Ltd (2020) SC1951.
    
21. Third, we note that the 1 October 2020 Application for Leave to Review was filed by Kuima Security Services more than two and a half years after the orders of the primary Judge were made. In our view this constitutes excessive delay by Kuima Security Services in prosecuting its claimed legal rights in respect of those orders.
    
22. Fourth, we reject the submission of Kuima Security Services attributing blame for its delays in prosecuting its application(s) to alleged conduct of Mr Yal Kikora’s legal representatives. Such evidence as is before the Court, relating to lack of knowledge on the part of Kuima Security Services or its lawyer of the final orders made in the National Court proceedings, indicates that that lack of knowledge derived from their own conduct. We note for example evidence of the failure of Kuima Security Services’ lawyer to attend the National Court on 21 September 2017 to make submissions concerning the assessment of damages, allegedly because of other commitments of the lawyer in Lae. This explanation is entirely unpersuasive, particularly where there is no evidence that prompt action was taken by Kuima Security Services or its lawyer to ascertain whether the National Court hearing of 21 September 2017 had been actually adjourned. As the Supreme Court recently reiterated in Kavi v Australia and New Zealand Bank Ltd (2020) SC1951 at [10], a lawyer’s other commitments are not a reasonable excuse for not attending court on time (see also National Development Bank Ltd v Iangalio (2014) N4931).
    
23. Fifth, we note that Kuima Security Services filed a Draft Index to Review Book on 16 May 2018 referable to the 11 April 2018 Application to Review, however evidence of Ms Wurr is unchallenged that the Supreme Court Registry set the matter down for Settlement of the Draft Index on both 26 February 2019 and 10 September 2019 with no appearance by, or on behalf of, Kuima Security Services in either date. No satisfactory explanation has been provided by Kuima Security Services for that want of appearance.
    
24. Finally, other than the Draft Index, it seems that the only actions taken by Kuima Security Services to challenge the orders of the primary Judge were responsive to steps taken by Mr Yal Kikora, namely:
    
    • The incompetent 11 April 2018 Application to Review, filed by Kuima Security Services only following the service of the primary Judge’s final orders on Kuima Security Services; and
    • The 1 October 2020 Application for Leave to Review, filed by Kuima Security Services only following the filing on 23 September 2020 of the present summary dismissal application.
      
25. In our view no reasonable explanation has been offered by Kuima Security Services, not only for the delays of Kuima Security Services in filing proper process, but in overall failing to prosecute its challenge to the decision and orders of the primary Judge. It is appropriate to dismiss the proceedings for want of prosecution. To avoid confusion we dismiss both applications filed by Kuima Security Services in these proceedings.
    
26. There is no reason that costs should not follow the event, and we order costs in Mr Yal Kikora’s favour.

THE COURT ORDERS THAT:

(1) The Application to Review filed 11 April 2018 and the Application for Leave to Review filed 1 October 2020 be dismissed.
(2) Kuima Security Services Limited pay the costs of Robert Yal Kikora of and incidental to the proceedings, to be taxed if not otherwise agreed.

___________________________________________________________________ Themis Lawyers: Lawyers for the Applicant
Public Solicitor: Lawyers for the Respondent