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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM NO. 12 OF 2021
BETWEEN:
PETER TERRY GIRIRE
Appellant
V
INVESTMENT PROMOTION AUTHORITY BY ITS OFFICERS ACTING REGISTRAR OF COMPANIES MS HARRIET KOKIVA AND DEPUTY REGISTRAR OF COMPANIES MALIS
MININGI
First Respondent
AND:
KALIP SALO, SANTEE MARGIS,
JONATHAN SALO, LUKE FREEMAN,
GILIS TOM, WILLIAM TAMARU,
LINDSAY MANOAH, KURU PERESI,
ISMAEL KAEL & NATHANIEL BELO
Second Respondent
AND:
MUSSAU TIMBER DEVELOPMENT LIMITED
Third Respondent
AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent
Waigani: Manuhu and Anis JJ
2021: 23rd November
2022: 25th February
SUMMARY DETERMINATION – Order 13 Rule 16(1)(b) – Supreme Court Rules – referral by Listings Judge of the Supreme Court – Failure to comply with court issued directions – consideration – whether valid or reasonable explanation provided – whether the directions, which were the subject of the referral, have been complied with – whether interest of justice demands summary determination of the matter - exercise of discretion
Cases Cited:
Peter Girire v. Investment Promotion Authority and Ors (2020) N8412
Peter Girire v. Investment Promotion Authority and Ors (2020) N8687
State v. Colbert [1988] PNGLR 138
Peter Donigi v. Base Resources Limited [1992] PNGLR 110
Small Business Development Corporation v Danny Totamu (2010) SCI054
Kosu Maila Anda Ltd v. United Pacific Corporation Ltd (2020) N8275
Counsel:
E. Donigi with counsel assisting L. Titmur, for the Appellant
F. Alua, for the Second and Third Respondents
25th February, 2022
1. BY THE COURT: This matter was referred by the Listings Court for summary determination. We heard arguments from the parties on 23 November 2021 and reserved our ruling. Shortly after, we were saddened by the passing of one of the members of the bench the Late Justice Koeget. The parties were notified, and upon drawing their attention to s. 3 of the Supreme Court Act Chapter No. 37 on 22 February 2022, they have agreed for the remaining members of the bench to rule on the matter.
2. This is our ruling.
BACKGROUND
3. Briefly, the appellant was the plaintiff in the National Court proceeding OS (JR) 503 of 2020. On 22 May 2020, leave was granted to him to apply for judicial review. The National Court’s decision granting leave is published as an unreported judgment as Peter Girire v. Investment Promotion Authority and Ors (2020) N8412. The trial Judge briefly described the proceeding at paragraphs 3 and 4 as follows:
3. The plaintiff is aggrieved by the decision of the first defendant of the 30th May 2019 to allow the second defendant to lodge documents and Investment Promotion Authority forms to change the directors and shareholders of the third defendant when the changes were unauthorized and illegal effectively altering and removing the original directors and shareholders. As a result of this action the plaintiff was removed as chairman of the third defendant. That the first defendant is a public official of a public office who has not discharged his discretion justly and reasonably in compliance of a process of law hence the position of the plaintiff in the third defendant has been affected. These are the material facts necessary at this stage when leave is sought.
4. He relies and invokes Section 395A Companies Act amendment 2014
4. On 7 December 2020, the National Court, upon hearing an application to dismiss the proceeding by the second and third respondents (respondents), dismissed the judicial review proceeding. The decision is also published as an unreported judgment described as Peter Girire v. Investment Promotion Authority and Ors (2020) N8687. The appeal stems from the said decision of the Court.
REFERRAL
5. On 4 October 2021, Makail J, sitting as a single judge in the Listings Court, issued the following directions:
6. When the matter returned on 1 November 2021, His Honour issued the following directions:
7. So, the matter is referred to us for summary determination hearing, that is, pursuant to Order 13 Rule 16(1)(b) of the Supreme Court Rules, which states in part, The Court may summarily determine a matter:... on referral by a Judge. We note that the matter requires application of discretion. The onus, in this case, would be on the appellant to convince us why we should not exercise our discretion to summarily dismiss the appeal.
ISSUES
8. It seems to us that the parties failed to comply with the Court’s earlier directions of 4 October 2021, which is why the matter was referred to this Court. As such, the main issues, in our view, would be as follows, (i), what were the reasons for this failure and whether the explanations provided are satisfactory or justified, and (ii), regardless or in addition to the reasons provided, whether interest of justice requires that the matter should be summarily dismissed.
CONTENTIONS
9. We have considered the arguments submitted by the parties.
10. As for the appellant, he refers to and relies on his affidavit filed on 17 November 2021. Counsel also made submissions based on his extract of submissions dated 20 November 2021 which he handed up to the Court on 23 November 2021. The appellant said many things through his counsel. But essentially, he submits that it was his previous lawyers Tony Waisi Lawyers that had not properly attended to his case or taken steps towards complying in the Court Directions of 4 October 2021. Secondly, he submits that he has substantially complied in terms of filing the Appeal Book and requesting for additional transcripts to be included into the Appeal Book through his new lawyers. He submits, amongst others, that this Court should not dismiss the proceeding but instead issue directions for the matter to proceed to listings for a hearing date to be allocated.
11. As for the respondents, counsel referred to and relied on the affidavit of one of the second respondents, namely, Kalip Salo filed on 8 November 2021. Counsel did not hand up any written submissions. The respondents’ argument is that they support the Court’s referral, and they argue that the matter should be summarily dismissed. Counsel submits, amongst others, that despite the fact that the appellant has filed a very thick affidavit, there is no iota of explanation given as to why he failed to comply with the Court directions. As such, the respondents submit that the matter should be summarily determined because the appellant has breached the terms of the Court Order of 4 October 2021.
CONSIDERATION
12. We note that Mr Waisi who was the lawyer for the appellant, ceased to act for him on the eve when the matter was set to return for Court Directions on 1 November 2021. This was revealed in the affidavit of the appellant of 17 November 2021. Ama Wali Lawyers were then instructed on 25 October 2021 to act for the appellant in the matter. They filed their Notice of Appearance on 27 October 2021.
13. We note that the referral of the matter for summary determination stems from alleged want of compliance of the Court Order of 4 October 2021. We note that all the parties (including counsel for the State) were present when the Court issued the said court directions. “What did the directions say?” “Who was to do what?” We ask ourselves these questions. When considering the actual terms of the Court Order, and in particular, terms 1 and 3, we note the following. Firstly, we note that the requirement to obtain additional transcripts from the CRS was not specially bestowed or ordered against the appellant. Rather, it was ordered against the parties to the appeal proceeding. Term 1 of the Order reads in part: The matter is adjourned to Monday 1st November 2021 at 9:30am pending parties to obtain additional transcripts from the CRS for inclusion in the Appeal Book. [Underlining is ours].
14. Secondly, we refer to term 3 of the Court Order. It reads, Parties shall file and serve written submissions and extracts of arguments by or before Friday 20th October 2021. We note that both parties were also directed to take this step, and we note that both parties have also failed in that regard. That said, we note that compliance of term 3 was dependent upon terms 1 and 2. Term 2 states: The revised Appeal Book shall be filed and served by Friday 29th October 2021. Term 2 was not complied with because term 1, which was ordered against the appellant and the respondents, was not complied with in the first place.
15. At this juncture and given our above observation, we find both parties to be at fault in that they have breached the Court Order of 4 October 2021. We also find it disingenuous for a party, namely, the respondents, to be pointing fingers at the appellant for the said breaches. We take into account the fact that the matter was referred to for summary determination, not by the respondents, but by the Court’s own volition, and so we ask ourselves this. “Should we exercise our discretion and dismiss the proceeding at this stage?”
16. To assist us, we take the following factors into consideration. Firstly, we note that the appellant has had issues with its former lawyers. Most of his submissions and evidence covered the alleged actions or inactions by his former lawyers on the matter, which we find is of little or no significance for this purpose. But as of 25 October 2021, the appellant had engaged new lawyers to act for him, and we note that they have taken steps to progress the matter since. We also find it difficult to ignore the fact that the appellant has already compiled and filed the Appeal Book which is voluminous, that is, 7 volumes in total. We note that despite the claims by the respondents that the Appeal Book did not comply with its internal requirements specified under the rules, that it was recognized by the Court and the parties on 4 October 2021 where directional orders were issued, that is, for the Appeal Book to remain and for additional court transcripts to be included. To us, this means that the Appeal Book is substantially or almost ready with only a small portion of documents to be added.
17. Our third consideration is this. The appellant had wanted to be heard in the judicial review proceeding in the National Court. Leave was granted and he was on his way to be heard on the substantive matter when the matter was dismissed upon an application that was moved by the respondents. Effectively, he therefore did not have his day in Court in the Court below. He was aggrieved and files this appeal. And now he faces a similar situation where the Court is about to put an end to his claim, but this time, once and for all. In the present case, it is not entirely his fault that the situation has come to this. Rather, both the appellant and the respondents, as we have found above, contributed to this situation at hand. So, we ask ourselves this. “Should we now shut out the appellant completely from his appeal and quest to be head in the appeal proceeding?”
18. In our view, it would not be in the interest of justice if we simply summarily dismiss the appeal without taking into account the special circumstances or circumstances surrounding this matter as we have covered above in our brief decision. Having said that, we acknowledge that it is not an excuse for one to breach court orders or directions. Parties are required to adhere to orders or directions that are issued by the Court; such directions are issued particularly for the proper administration of matters that are pending hearings. We also note here that failure by a lawyer to act in a matter for his or her client cannot in itself be a valid excuse for not complying with court orders or directions or from taking steps in Court proceedings. See cases: State v. Colbert [1988] PNGLR 138, Peter Donigi v. Base Resources Limited [1992] PNGLR 110, Small Business Development Corporation v Danny Totamu (2010) SCI054 and Kosu Maila Anda Ltd v. United Pacific Corporation Ltd (2020) N8275. However, in the present case, our powers are discretionary, and, in our view, this is a matter which we believe should not be summarily dismissed but rather should be progressed to hearing.
EXERCISE OF DISCRETION
19. We therefore decline to exercise our discretion to have the matter summarily dismissed. Instead, we will issue directions for the parties to include further transcript of proceedings, which should be filed separately, which shall be regarded as part of the already filed Appeal Book. This shall occur within a month or so from today. The parties are to settle that and return before the Listings Court in April 2022 where the matter should be allocated a hearing date.
COST
20. As this was a referral by the Court’s own volition and given our findings that parties were equally responsible for failing to comply with the Court Direction of 4 October 2021, we will order each party to bear their own costs of this hearing.
ORDERS OF THE COURT
21. We make the following orders:
________________________________________________________________
Ama Wali Lawyers: Lawyers for the Appellant
Alua Lawyers: Lawyers for the Second & Third Respondents
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