Girl Guides Association of Papua New Guinea v Kamang [2022] PGSC 61; SC2255 (1 July 2022)

SC2255

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 87 OF 2020 (IECMS)

BETWEEN:
THE GIRL GUIDES ASSOCIATION OF PAPUA NEW GUINEA
-First Appellant-

AND
HEKURE FRANCK, RACHAEL GWARE, KAIA NOU & OTHERS
-Second Appellant-

AND
MARRY KAMANG
-First Respondent-

AND
EMILY DAVID
-Second Respondent-

AND
LUSI DANIEL
-Third Respondent-

AND
BAIA FOILI
-Fourth Respondent-

Waigani: Kaumi J, Narokobi J, Dowa J
2022: 28^th June & 01^st July

PRACTICE AND PROCEDURE – Supreme Court – Dismissal for want of prosecution – Relevant Principles – Power of court to dismiss – Discretionary –Balance of Justice.

The Respondents seek dismissal of the proceedings for want of prosecution under Order 7 Rule 48(a) of the Supreme Court Rules. The application is contested by the Appellants. There was a period of about 11 months where there was no active steps taken by the Appellant to prosecute the appeal.
Held:

1. The Courts power to dismiss is discretionary.
   
2. The power to dismiss for want of prosecution should only be exercised when the Plaintiff’s default had been intentional and contumelious (Nicholas-v-Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133).
   
3. If an appellant has delayed in prosecuting his appeal, the appeal should be dismissed unless there are reasonable explanation for the delay (Kalinoe-v-Paraka (2007) SC874).
   
4. The absence of an explanation is fatal to a Respondent for dismissal where an explanation can quite properly be expected (PNG Nambawan Trophy Limited-v-Dynasty Holdings Ltd (2005) SC811).
   
5. Where delay of prosecution is alleged, the applicant must establish by evidence a case for the Court to exercise its power in its favour before the burden shifts to the Appellant to provide an explanation for the delay and demonstrate its readiness to prosecute the appeal. (Tulapi-v-Alu (2011) SC1177).
   
6. Having consider the various principles in the light of the facts of this case, although there was an inexcusable period of delay, it is not in the interest of justice to shut out the appellants from the judgment seat. Their delay was not intentional or contumelious and on the face of the appeal grounds, they have an arguable case on the merits and ought to be given a chance to prosecute the appeal. In the circumstances, the Court will exercise its discretion to make other orders under Order 7 Rule 48(b) and (c) of the Supreme Court Rules to progress the matter further without delay, but the Appellant will pay the costs of the application.
   

Case Cited:

Attorney General-v-Papua New Guinea Law Society (1997) SC530
Burns Philip (NG) Ltd-v-George [1983] PNGLR 55
General Accident Fire & Life-v-Ilimo Farm [1990] PNGLR 331
Kalinoe-v-Paralia (2007) SC874
Nicholas -v- Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133
PNG Nambawan Trophy Ltd-v-Dynasty Holdings Ltd (2005) SC811
Tulapi-v-Aku (2011) SC 1177.

Legislation Cited:

Girl Guides Association Act, Chapter No.1008.
Supreme Court Rules

Counsel:

A. Koisen, for the Appellants
S. Malaga, for the Respondents

DECISION

01^st July, 2022

1. BY THE COURT. This is an application by the Respondents seeking dismissal of the appeal for want of prosecution pursuant to Order 7, Rule 48 (a) of the Supreme Court Rules. We heard arguments on 28^th June 2022 and reserved our ruling which we now deliver.

Background Facts

2. The First Appellant, Girl Guides Association of Papua New Guinea, is established by an Act, Girl Guides Association Act, Chapter No.1008. The Association is managed by executive committee consisting of the President and commissioners and others appointed from time to time. The Second Appellants are the current interim executive committee members. The Respondents are the executive members of the Association whose term of office have been disputed.
   
3. In proceedings, WS NO.607 of 2018, The National Council of Girl Guides Association of Papua New Guinea and Others-v-Mary Kamang and Others, the Appellants made certain allegations of mismanagement of the Association against the Respondents and sought various declaratory and restraining orders in the lower Court.
   
4. On 03^rd August 2020, the trial judge dismissed the proceedings for want of prosecution and for non-compliance of orders pursuant to Order 10 Rule 9A (15) of the National Court Rules.
   
5. The Appellants filed a Notice of Appeal on 11^th September 2020, followed by a Supplementary Notice of Appeal filed on 14^th October 2020.
   

Application

6. The Respondents seek dismissal of the proceedings for want of prosecution under Order 7 Rule 48(a) of the Supreme Court Rules. The application is contested by the Appellants.
   
7. During the hearing, Mr. Malaga, of counsel for the Respondents raised two preliminary issues on the representation of counsel for the Appellants and the admissibility of responding affidavit evidence.
   

Issues

8. The issues for consideration are:
   
   1. Whether Ms. Koisen is qualified to appear as counsel for the Appellants?
   2. Whether the affidavit evidence of Kaia Nou is admissible?
   3. Whether the appeal should be dismissed for want of prosecution?
      
1. Whether Ms. Koisen is qualified to appear as Counsel for the Appellants?
   
9. At the start of the hearing the Court raised the issue of whether Ms. Koisen was qualified to represent the Appellants. This issue came to the fore when the Court noted that in some of the court documents, Ms. Koisen was named as one of the co-parties in the proceedings. In the National Court proceedings, the trial judge made a specific order in June of 2020, disqualifying Ms. Koisen to act for the Appellant. Mr. Malaga joined in and submitted that Ms. Koisen was not qualified to represent the Appellants. Ms. Koisen addressed the Court submitting that she chose not to continue as a party. She has now assumed the role of counsel. She also says the issue was raised before Hartshorn J, the listing judge and was resolved. We allowed Ms. Koisen to continue as counsel.
   
10. A perusal of the court file shows that the issue was first raised in Court before Hartshorn J on 03^rd November 2020 sitting as a single judge of the Supreme Court. It is apparent that the matter was resolved and is no longer an issue.
    
    2. Whether the affidavit of Kaia Nou is admissible?
       
11. The Appellants’ responding affidavit was deposed to by Kaia Nou sworn and filed 16^th May 2022. Mr. Malaga objected to the admission and use of the affidavit of Kaia Nou on the basis that it contains hearsay material.
    
12. We noted the objection but allowed the Appellant to rely on the affidavit subject to weight to be given to the matters deposed to, on the basis that the objection was made without notice on the 11^th hour.
    
13. We note from the Court file, that the Appellants’ affidavit in response was filed pursuant to a direction of the Court given on 12^th April 2022. The Affidavit was to form part of the Application Book. However, the affidavit did not become part of the Application Book as the Book was already filed by 29^th March 2022. It appears the lawyers for the respective parties did not consult each other to comply with the directions of the Court and did things in isolation.
    
14. As to the merits of the objection, we note the affidavit does contain hearsay material. Ms. Koisen, counsel for the Appellants would be the most qualified person to depose to factual matters contained in the affidavit. Be that as it may, we have allowed both counsels to address the Court on these factual matters which they did and have considered them in our decision.
    
    3. Whether the proceedings should be dismissed for want of prosecution?
       
15. The application is made under Order 7, Rule 48(a) of the Supreme Court Rules. Rule 48 reads:
    

“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.”

16. The law on application for dismissal under Order 7 Rule 48 is settled in various decisions of this court. Refer to Burns Philip (NG) Ltd-v-George [1983] PNG LR 55, General Accident Fire & Life-v-Ilimo Farm [1990] PNGLR 331, Attorney General-v-Papua New Guinea Law Society (1997) SC 530, PNG Nambawan Trophy Ltd-v-Dynasty Holdings Ltd (2005) SC811, Kalinoe-v-Paralia (2007) SC874, Nicholas -v- Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133, and Tulapi-v-Aku (2011) SC 1177.
    
17. The principles distilled from these cases are:
    
    1. The Courts power to dismiss is discretionary.
       
    2. Where delay of prosecution is alleged, the applicant must establish by evidence a case for the Court to exercise its power in its favour before the burden shifts to the Appellant to provide an explanation for the delay and demonstrate its readiness to prosecute the appeal

(Tulapi-v-Alu).

100. If any appellant has delayed in prosecuting his appeal, the appeal should be dismissed unless there are reasonable explanation for the delay (Kalinoe-v-Paraka).
     

4. The absence of an explanation is fatal to a Respondent for dismissal where an explanation can quite properly be expected.

(PNG Nambawan Trophy Limited-v-Dynasty Holdings Ltd).

5. The power to dismiss for want of prosecution should only be exercised when the Plaintiff’s default had been intentional and contumelious (Nicholas-v-Commonwealth New Guinea Timbers Ltd).
   

18. We discuss the following considerations below to assess where the Appellants stand in relation to each of these principles.
    

Have the Respondents established a case for dismissal for want of prosecution?

19. Mr. Malaga of counsel for the Respondents submits that since the filing of the Notice of Appeal on 11^th September 2020, the Appellants have done nothing to progress the appeal to a hearing.
    
20. Ms. Koisen, counsel provided an explanation for the delay, which will be addressed shortly in our ruling. For now, we will consider whether the Respondents have established a case. The facts are undisputed. The decision in the lower Court was made on 03^rd August 2020. The Notice of Appeal was filed on 11th September 2020, followed by a Supplementary Notice of Appeal on 29^th October 2020. On 04^th November 2020 an Order staying the decision of the lower Court was granted. It seems no further activity was conducted until 21^st June 2021 when a draft index was filed. It is clear the Appellants did not settle the index to appeal book nor the appeal book. The current application was filed on 24^th February 2022, about 16 months since the filing of the Notice of Appeal. In our view 16 months of no activity is far too long a delay in prosecuting this appeal. We are satisfied that the Respondents have established a case warranting an application for dismissal for want of prosecution. The next question, is what is the explanation for the delay?
    

Have the Appellants provided an explanation for the delay in prosecuting the appeal.

21. In response to the application, the Appellants submit that they have a good explanation for the delay. Ms. Koisen relies on the facts deposed in the affidavit of Kaia Nou. From the facts deposed, there appears to be three main reasons for the delay:
    
    1. Delay caused by an anomaly in the stay orders.
    2. Illness causing delay in settling the index to Appeal Book.
    100. Respondents’ lawyers lack of cooperation.
         

1. Anomaly in the stay orders
   

22. On 04^th November 2020, Hartshorn J granted a stay of the orders in WS No 607 of 2018. The WS number was incorrectly typed WS No 697 rather than 607. The Appellants submit they made numerous attendances on the Associate and Registry for the correction of the anomaly which consumed a good number of months. We find this reason unacceptable. The anomaly did not stop the Appellants from taking the next step in progressing the appeal.
    
    2. Delay in the settling draft index caused by illness
       
23. A request was made to the Assistant Registrar for settling of draft index on 14^th December 2020. It seems the Registrar fixed 03^rd March 2021 for settlement. The appellants’ lawyer did not attend. A second request was made on 11^th August 2021. The Assistant Registrar fixed 15^th September 2021 for the settlement of index. Ms. Koisen did not attend the Court for the settlement of index on 15^th September 2021. This was because she was hospitalized after being attacked by armed criminals. She attached clinical notes for confirmation. We note that she had a good reason not to attend settlement of index on 15^th September 2021. However, the Appellants have not provided an explanation for their inaction for the period prior to 15^th September 2021, which is about 11 months. Again, the Appellants made no attempt to get a new date after the 15^thSeptember 2021, until this application which was filed about 5 months later. In our view, the Appellants were slow and failed to prosecute the appeal with due diligence.
    
    100. Lack of Response by the Respondents’ Counsel
         
24. Counsel for Appellants submitted that counsel for Respondents did not respond to the draft index. He did not clearly provide his physical place of practice for service. He did not respond to correspondences and emails sent. In short, the Appellants are saying, the lawyer for the Respondents did not cooperate and contributed to the delay in prosecuting the appeal.
    
25. Whilst lawyers have a duty to their clients, they have an equal duty to the Court and ethical duty to their colleagues. They are expected to be courteous and cooperate where necessary to prepare for the final resolution of the dispute between their respective clients. Having said that, it remains the responsibility of the Appellants to take the necessary steps to progress the matter to trial. Where one party finds the other not lagging, the rules of Court provide for procedural directions and dispensation. We find this explanation unacceptable.
    
26. In conclusion, we find that the Respondents has made a case for dismissal for want of prosecution under Order 7 Rule 48(a) of the Supreme Court Rules.
    

Whether the delay was intentional and contumelious

27. The Appellants have provided an explanation for the delay. Although the reasons for delay are not convincing, we are also not persuaded that the delay is intentional and contumelious. It seems the Appellants want to progress the matter but are finding it difficult to find the best way forward in their endeavors.
    

What orders should the court make?

28. Having considered the various principles in the light of the facts of this case, we are of the view that it is not in the interest of justice to shut out the Appellants from the judgment seat. They seem to have an arguable case on the merits of the appeal and ought to be given a chance to prosecute the appeal. The Court is mindful that it has a discretion to make other orders under Order 7 Rule 48(b) and (c) of the Supreme Court Rules to progress the matter further without delay.
    

Cost

29. Cost is discretionary. Although the Respondents have not succeeded in their application, it was prompted by the Appellants failure to prosecute the matter with due diligence. The Appellants shall bear the Respondents’ costs of the application.
    

Orders

30. The Court orders that:
    
    1. The Respondent’s Application for dismissal for want of prosecution is refused.
       
    2. The Appellants shall take steps necessary to settle the index to the Appeal Book by 31^st July 2022.
       
    3. The Appellants shall file the Appeal Book by 31^st August 2022.
       
    4. The Respondents shall willingly attend and cooperate with the Lawyers for the Appellants to endorse the index to the appeal book and the Appeal Book whenever required.
       
    5. The Parties shall attend before the Listing Judge by mid-September 2022 for directions and listings.
       
    6. The Appellants shall pay the costs of the application.
       

Time be abridged

Koisen Lawyers: Lawyers for the Appellants
Malaga Lawyers: Lawyers for the Respondents