Independent State of Papua New Guinea v Kalaut [2021] PGSC 57; SC2130 (30 July 2021)

SC2130

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 10 OF 2021

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
DAVID MANNING – COMMISSIONER OF POLICE
Second Appellant

AND:
HONOURABLE BRYAN KRAMER – MINISTER FOR POLICE
Third Appellant

AND:
HONOURABLE SOROI EOI – MINISTER FOR PUBLIC SERVICES
Fourth Appellant

AND:
THE PUBLIC SERVICES COMMISSION
Fifth Appellant

AND:
NATIONAL EXECUTIVE COUNCIL
Sixth Appellant

AND:
SYLVESTER KALAUT
First Respondent

AND:
FRED YAKASA
Second Respondent

Waigani: Batari J, Toliken J & Kassman J
2021: 26^th & 30^th July

PRACTICE & PROCEDURE – application to summarily determine appeal – Supreme Court Rules Order 13 Rule 16 – not available to challenge merits or grounds of appeal by summary determination – appellant diligently prosecuting appeal which is ready for allocation of a date for hearing – application dismissed

Cases Cited:

Powi v Southern Highlands Provincial Government (2006) SC844
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156
Behrouz Boochani v The State (2017) SC1566
Namah v Poole [2016] PGSC 24; SC1508
Barrick (Niugini) Ltd v Nekitel SC2092
NCDC v Yama Security Services Ltd (2017) SC1575

Legislation Cited:

Constitution s. 155(4)
Supreme Court Rules Order 13 rule 16(1)(a)

Counsel:

Troy Mileng, for the First, Third, Fourth, Fifth and Sixth Appellants
Derek Woods, for the Second Appellant
David Dotaona, for the First and Second Respondents

DECISION

30^th July, 2021

1. BY THE COURT: In this proceeding filed on 26 January 2021, the Appellants appeal the judgment and orders of the National Court of 22 January 2021 (“the judgment”) in OS (JR) No. 02 of 2020 (IECMS) Sylvester Kalaut and Fred Yakasa v The National Executive Council, The Public Services Commission, Honourable Soroi Eoi, Minister for Public Service, Honourable Bryan Kramer, Minister for Police, David Manning The Commissioner of Police and The Independent State of Papua New Guinea (“the National Court proceeding”).
   
2. In the judgment of 22 January 2021, the National Court declared the appointment of the Second Appellant as Commissioner of Police and Secretary for the Department of Police was unlawful and ordered the quashing of that appointment with effect from 29 January 2021.
   
3. As stated above, this appeal was commenced on 26 January 2021. On 28 January 2021, the Supreme Court stayed the judgment of the National Court of 22 January 2021. The stay remains in force.
   
4. On 10 May 2021, the First and Second Respondents filed the application, now before this court, seeking the dismissal of this appeal on the following grounds:
   
   1. The NEC Decision to abolish the then Department of Police and the then Office of the Secretary to the Department of Police makes the appeal frivolous and vexatious and moot and academic. It renders the appeal not justiciable and no longer presents an existing or live controversy. The Court should avoid giving advisory opinions on abstract propositions of law. The appeal is academic, nugatory and serves no utility.
      
   2. The Appellants have unduly delayed the prosecution of this Appeal and prejudiced the Respondents.
      
   100. The orders sought in paragraphs 1(c) and 1(d) will follow as a natural consequence of the dismissal of this Appeal
        
   4. The orders in paragraph 1(e) are being sought as the disciplinary actions taken by the Second Appellant (through his servants or agents) against the First Respondent are premature, biased, punitive and malicious, and made in bad faith. The actions of the Second Appellant go against the spirit and intent of the stay order of Hartshorn J (sitting as a single Supreme Court Judge) issued on 28 January 2021 to maintain the status quo and not cause disaffection in the Police Force. Furthermore, the National Court is seized of the criminal allegations against the First Respondent, and he is presumed innocent until proven guilty and convicted accordingly to law.
      
   5. The Chairman of NEC, the Police Minister, the Justice Minister and other relevant members of the NEC were contemptuous of the Supreme Court when deciding to abolish the then Department of Police and the then Office of the Secretary to the Department of Police when the legal status of the then Department of Police and the then Secretary to the Department of Police is before the Supreme Court for determination. The NEC Decision interferes with the due administration of justice.”
      
5. At the hearing on 26 July 2021, the Respondents abandoned grounds (c), (d) and (e) and pursued grounds (a) and (b).
   

Background

6. As stated above, this appeal was commenced by the Appellants who filed the Supreme Court Notice of Motion on 26 January 2021. On 28 January 2021, Supreme Court stayed the judgment of the National Court of 22 January2021.
   
7. On 10 February 2021, the Respondents filed Notice of Objection to Competency of the appeal. The objection to competency was dismissed by the Supreme Court on 30 April 2021.
   
8. On 5 March 2021, the Appellants filed a draft index to the appeal book. The draft index was not served on the Respondents.
   
9. The Supreme Court Registry set 30 March 2021 as the date for settlement of the index to the appeal book. Neither the Appellants nor the Respondents attended for settlement of the index. There was no fresh date set for settlement of the index to the appeal book.
   
10. The Respondents have also filed two interlocutory applications which have yet to be heard and determined.
    
    • (a) One application was filed on 22 April 2021 which sought orders to stay disciplinary action which was instituted by the Police Commissioner, the Second Appellant, against Sylvester Kalaut who is the First Respondent.
      
    • (b) The other application was filed on 3 May 2021 which sought orders to discharge the stay order granted by the Supreme Court on 28 January 2021.
      
11. On 4 May 2021, a National Gazette was issued publishing an instrument by the Governor General which abolished the Office of Secretary for the Department of Police and also abolished the Department of Police.
    

Ground (a)

12. The Respondents say, in abolishing the Office of Secretary of the Department of Police and the Department of Police, the Appellants have nullified or rendered of no utility the decision of the National Court of 22 January 2021 and these appeal proceedings. The Respondents also argue those steps taken by the Appellants were an abuse of the process of the court by the Appellants. The Respondents argue the appeal filed 26 January 2021 is now frivolous and vexatious and is “academic, nugatory and serves no utility”.
    
13. Interestingly, the Respondents say the Appellants (except the Second Appellant) “had the legitimate authority and mandate” to take appropriate measures to resolve the issues instead of filing this appeal. But, on the other hand, the Respondents argue in taking those steps, there was abuse of the processes of the court by the Appellants. This is confusing. There were numerous other contentions raised by the Respondents, but we do not consider it necessary to discuss them any further.
    
14. In all of these arguments, the Respondents are essentially asking this court to examine the grounds of the appeal and draw conclusions and determine that the grounds of appeal have been rendered of no utility as a consequence of the gazettal notice referred to.
    
15. The Appellants refute these contentions by the Respondents and maintain that there are serious constitutional issues raised in the appeal in relation to the appointment process of the Commissioner of Police under section 193 of the Constitution.
    
16. We agree with the Appellants that it would not be proper for this court to summarily determine the appeal at this stage when the substantive appeal is not before this court for determination. The hearing of the substantive appeal is the only occasion where this court should closely examine the grounds of appeal and determine the appeal on its merits and in the manner suggested by the Respondents.
    
17. The Respondents relied on section 155(4) of the Constitution and Order 13 Rule 16(1)(a) of the Supreme Court Rules. It has been repeatedly stated by the Supreme court that reliance on section 155(4) of the Constitution is not permitted where remedies are already provided under other laws. See Powi v Southern Highlands Provincial Government (2006) SC844, Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156, Behrouz Boochani v The State (2017) SC1566. In this case, Order 13 Rule 16(1)(a) of the Supreme Court Rules is available and has also been invoked by the Respondents.
    
18. As for reliance on Order 13 Rule 16(1)(a) of the Supreme Court Rules, we say that provision is available where a party seeks to summarily dismiss an appeal proceeding in circumstances where there is failure to comply with procedural requirement of the rules of court or where there is non-compliance with directions of the court with respect to the preparation and prosecution of the appeal. As the Supreme Court said in Namah v Poole [2016] PGSC24: SC1508, the rule relied on did not envisage a challenge to a ground of appeal for being “trivial, vexatious and hypothetical” or an “abuse of process”.
    
19. In Barrick (Niugini) Ltd v Nekitel SC2092, the Supreme Court, when discussing Order 13 Rule 16(1)(a) of the Supreme Court Rules, said “the rule neither contemplates summary determination of an appeal on substantive grounds nor is it to be used as a vehicle to contest substantive issues raised in an appeal.”
    
20. We are satisfied ground (a) of the application is substantive in nature and it is best that the ground be raised at the hearing of the substantive appeal.
    

Ground (b)

21. The Respondents argue the Appellants have delayed the prosecution of the appeal and that has prejudiced the Respondents. We will consider this argument as a contention that the Appellants have failed to prosecute the appeal with due diligence.

22. The Respondents correctly rely on Order 13 Rule 16(1)(a) of the Supreme Court Rules, which, as stated above, is available where a party seeks to summarily dismiss an appeal proceeding in circumstances where there is failure to comply with procedural requirement of the rules of court or where there is non-compliance with directions of the court with respect to the preparation and prosecution of the appeal.

23. In discussing the law on summary determination or summary dismissal, the Supreme Court in NCDC v Yama Security Services Ltd (2017) SC 1575, said at paragraphs 56 to 59:

“56. Order 13 Rule 16(1) of the Supreme Court Rules provides “The Court may summarily determine a matter:- (a) on application by a party; or (b) on referral by a Judge; or (c) on the Court’s initiative; or (d) upon referral by the Registrar in accordance with the procedure set out in sub rule (2) below or pursuant to s11 of the Act.

57. The Supreme Court has consistently said the power to summarily determine a matter is discretionary, similar to the power to dismiss an appeal for want of prosecution to pursuant to Order 7 rule 48 (formerly Rule 53) of the Supreme Court Rules. In General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331 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 finalising 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 correspondent 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.”

58. The Supreme Court has adopted and applied the common law principles in two English cases: General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331, 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 “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.”

59. These principles have been applied in numerous authorities including Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55; Joshua Kalinoe v Paul Paraka (2007) SC874; Peter Norr v Dominic Ikamata (2005) SC815: Bore v Wakore (2015) SC1410: State v The Transferees (2016) SC1488.
    

24. As stated above, this appeal was commenced on 26 January 2021. On 28 January 2021, Supreme Court stayed the judgment of the National Court. On 10 February 2021, Respondents filed Notice of Objection to Competency of the appeal which was heard on 26 April 2021 and dismissed by the Supreme Court on 30 April 2021. On 5 March 2021, the Appellants filed a draft index to the appeal book. The draft index was not served on the Respondents. The appointment for settlement of the index of 30 March 2021 was aborted when the Appellants and Respondents failed to attend. There was no fresh date set for settlement of the index to the appeal book. The Respondents have also filed two interlocutory applications on 22 April 2021 and 3 May 2021 which have yet to be heard and determined. This application now before this court was filed by the Respondents on 10 May 2021.

25. In effect, the Respondents complaint, now made in this application, about “delay” concerns a period of just ten days commencing from 30 April 2021, the date when the Respondents’ objection to competency was dismissed to 10 May 2021, when the Respondents filed their application to dismiss which is now before us. No appeal can be progressed when there is a challenge to the competency of an appeal.

26. The Appellants say the appeal is ready for hearing. The Appellants will be relying on the substantive Notice of Motion filed as the appeal book. All that’s required is allocation of a date for hearing at the next available opportunity.

27. We find the Appellants have progressed the appeal with due diligence. If anything, it is the Respondents who have caused delay by the unsuccessful challenge to the competency of the appeal and to this application which has taken up precious time of the Supreme Court on two separate occasions. Furthermore, the Respondents have two other applications pending hearing.

28. We dismiss ground (b) of the application.

29. Costs shall follow the event. The Respondents shall pay the Appellants’ costs of this application, such costs to be assessed on a party and party basis to be taxed if not agreed.

30. The formal orders of the court are:

1. The Respondents’ application for dismissal of the appeal for want of prosecution filed 10 May 2021 is dismissed.
2. For the avoidance of doubt, Ground (a) of the application filed 10 May 2021 may be raised at the substantive hearing.
   
3. The matter is referred to the Listings Court for listing.
   
4. The Respondents shall pay the Appellants’ costs of this application, such costs to be assessed on a party and party basis and shall be taxed if not agreed.
   

Judgment accordingly:
____________________________________________________________________
Office of Solicitor General: Lawyers for First, Third, Fourth, Fifth & Sixth Appellants
Ashurst PNG Lawyers: Lawyers for the Second Appellant
Dotaona Lawyers: Lawyers for the First & Second Respondents