Tumbiako v Kaiyo [2023] PGSC 142; SC2493 (3 November 2023)

SC2493

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 40 OF 2022 (IECMS)

(CONSOLIDATED APPEALS - SCA No. 40 OF 2022, SCA No. 41 OF 2022 SCA, No. 42 OF 2022 SCA, No. 43 OF 2022 SCA and No. 44 OF 2022)

BETWEEN:
ELIZABETH TUMBIAKO
Appellant

JOHN TAMITA
Appellant

PIUS AUNAL
Appellant

TOBIAS M HAPOLO
Appellant

WENDY KEPAJA
Appellant

AND:
JOE KAIYO, in his capacity as the Provincial Administrator of Southern Highlands Provincial Government
First Respondent

SAI PILYO, in his capacity as the Deputy Provincial Administrator of Southern Highlands Provincial Government
Second Respondent

JOHN YAWI, Senior Lands Officer
Third Respondent

CURTAIN BROS PAPUA NEW GUINEA LIMITED
Fourth Respondent

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Fifth Respondent

INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Collier J, Miviri J, Purdon-Sully J
2023: 2^nd & 3^rd November

PRACTICE AND PROCEDURE – self-executing order for summary dismissal in the event of want of compliance with timetabling orders of the National Court – requirement of further judicial intervention in event of conditional order for dismissal – failure of appellants to comply with timetabling orders – no explanation for failure to comply – want of prosecution by appellants of proceedings for several years – exercise of discretion to summarily dismiss proceedings pursuant to Order 10 Rule 9A(15)(2) National Court Rules 2005 – inherent jurisdiction of National Court to control its own processes – adjournment application required evidence in support thereof.

In five related matters natural persons who had occupied houses adjacent to a provincial airport sought substantially identical relief in the National Court for, inter alia, breach of contract, negligence, restitution, loss of improvements, and other relief referable to the demolition of those house, including relocation of each occupant. The original proceedings were commenced in 2015. No activity took place on the respective National Court files for several years. In January 2022 the primary Judge made ex parte Chambers orders timetabling each proceeding to settlement negotiations or hearing, which orders included a self-executing order for dismissal of each proceeding in the event of non-compliance. The appellant in each matter was represented by the same lawyers. No steps were taken by any appellant to comply with the timetabling orders. The fourth respondent, the contractor engaged by the State to demolish the relevant houses, filed material in compliance with the National Court timetabling orders. When the matter returned before the primary Judge the lawyer for the appellants sought an adjournment in order to explain the lack of compliance. The adjournment application was opposed by the lawyer for the fourth respondent. The primary Judge granted an adjournment of two hours to enable the appellants the opportunity to put on material. No material was put on by any appellant. His Honour refused an adjournment, and summarily dismissed each proceeding pursuant to Order 10 Rule 9A(15)(2) of the National Court Rules. The appellants appealed on the basis of, inter alia, breach of the Constitution, lack of jurisdiction pursuant to Order 10 Rule 9A(15)(2), breach of the rules of natural justice, and failure to exercise further judicial intervention in respect of a conditional order of the National Court. The fourth respondent opposed the appeals. No other respondent took an active part.

Held:

Appeals dismissed with costs to the fourth respondent. No contradictory orders were made by the primary Judge. The matters were summarily determined pursuant to Order 10 Rule 9A(15)(2), which empowers a Judge of the National Court on his or her own initiative and in the exercise of judicial discretion to summarily dismiss proceedings in the event of want of prosecution. There was no error on the part of the primary Judge in exercising his discretion to summarily dismiss the relevant proceedings. There was no breach of the rules of natural justice, or error in the refusal to grant an adjournment.

Cases Cited:
Baing v PNG National Stevedores Pty Ltd [2000] SC627
CN Mercantile v Fred Martens (2001) N2183
Constitution, Amet v Yama [2010] SC1064
Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (2000) SC627
Ihari v Motor Vehicles Insurance Ltd [2006] SC1317
Kalang Advertising Ltd v Kuppusamy [2008] SC924
Kalinoe v Paul Paraka Lawyers [2014] SC1366
Kasper v Kiap [2020] SC2047
Kave v Yakasa [2014] N5692
Kenken v National Airports Corporation Ltd [2022] SC2247
Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1989] N750; [1988-89] PNGLR 355
Wasis v Elias [2016] SC1485

Legislation:
Constitution of the Independent State of Papua New Guinea
National Court Rules 1983

Counsel
Ms P. Tamutai, for the Appellants
Mr M. Varitimos KC with Mr P. Tabuchi, for the Fourth Respondent

REASONS FOR JUDGMENT

3rd November 2023

1. BY THE COURT: Before the Court are five related appeals with identical grounds of appeal, filed on 13 April 2023 by the appellant in each of:
   • SCA No. 40 of 2022 (Elizabeth Tumbiako);
   • SCA No. 41 of 2022 (John Tamita);
   • SCA No. 42 of 2022 (Pius Aunal);
   • SCA No. 43 of 2022 (Tapias M Hapolo); and
   • SCA No. 44 of 2022 (Wendy Kepaja).
2. Each appeal concerns ex tempore orders by the National Court of Justice on 9 March 2022 dismissing the proceedings in WS No. 864 of 2015, WS No. 865 of 2015, WS No. 866 of 2015, WS No. 867 of 2015 and WS No. 868 of 2015 for want of prosecution. The National Court proceedings were related, in that:
   • The plaintiffs in each National Court matter had the same legal representative;
   • The defendants in each National Court matter were the same; and
   • The proceedings all involved applications concerning resumption and destruction of houses adjacent to Tari airport occupied by the plaintiffs.
3. In each case the appellant is a natural person who at relevant times was living in a L40 House in Tari owned by either the State or the Health Department. Each appellant was employed as a professional working in the health industry. Specifically:
   • The appellant in SCA No. 40 of 2022 was a Nursing Officer working at Tari District Hospital;
   • The appellant in SCA No. 41 of 2022 was a Community Health Worker working at Tari District Hospital;
   • The appellant in SCA No. 42 of 2022 was a Finance and Administration Officer for a Non-Government Organisation called Hela Community Care providing primary health care to the people of the Hela Province;
   • The appellant in SCA No. 43 of 2022 was a Hospital Matron working at Tari District Hospital; and
   • The appellant in SCA No. 44 of 2022 was a Nursing Officer working at Tari District Hospital.
4. At material times:
   • the first respondent, Mr Kaiyo, was the Acting Provincial Administrator of Southern Highlands Provincial Government;
   • the second respondent, Mr Pilyo, was the Deputy Provincial Administrator in the Southern Highlands Provincial Administration;
   • the third respondent, Mr Yawi, was the Senior Lands Officer of the Department of Lands;
   • the fourth respondent, Curtain Bros Papua New Guinea Limited (Curtain Bros), was a company incorporated in Papua New Guinea which operated the business of building and construction;
   • the fifth respondent was Southern Highlands Provincial Government; and
   • the sixth respondent was the State.
5. Before turning to the decision of the primary Judge and the grounds of appeal it is helpful to first examine relevant background facts.

BACKGROUND FACTS

6. All relevant proceedings were commenced by writs of summons in the National Court on 26 June 2015. Amended writs of summons and amended statements of claim were filed in each case on 16 October 2015. The amended pleadings were before the primary Judge.
7. In their respective amended statements of claim each appellant sought relief in respect of events relating to the demolition and removal of their houses for the development of Tari Airport in Hela Province.
8. At first instance in SCA No. 40 of 2022 the appellant, Ms Elizabeth Tumbiako, pleaded in summary:
   • She lived in a L40 House owned by the Health Department.
   • During the time that she lived in the house the State failed to maintain it, however she expended funds and developed the premises.
   • In or about June 2010, the State engaged the services of Curtain Bros to:
     • Carry out the Tari Airport Development, and
     • Demolish and remove buildings or structures and improvements that would interfere with the airport development, and
     • Compensate for improvements, and
     • Carry out relocation of people who were affected.
   • Curtain Bros hired a valuer to value her house and improvements for the purpose of compensation. The appellant gave Curtain Bros her costing and pricings list for payment. There was no objection by Curtain Bros.
   • On or about 21 June 2011, the appellant attended the office of Curtain Bros to meet agents of the fifth respondent and the State. The second and third respondents were also present at that meeting. At that meeting the fifth respondent and the State, by their agents the second and third respondents and Curtain Bros, entered into a contract with the appellant and others.
   • The contract was partly oral, partly in writing and partly by conduct. Relevantly the agreement included provision for her house to be demolished in order for work to commence on the construction of the Tari airport extension, for the appellant to be relocated to a new venue rented to her by Curtain Bros while the State found land and built proper houses, for her improvements and associated properties to be paid out to her, and for weekly rental payments to be made to her by Curtain Bros. Various payments were made in accordance with that agreement.
   • The State failed to fully carry out its obligations under the contract, and thereby breached the contract.
   • By reason of the breach of contract the appellant suffered loss and damages, particularised as compensation in lieu of accommodation (in the sum of K249,600.00 plus sum outstanding to date of judgment) and loss of improvements in the amount of K11,300.00.
   • In the alternative, the second and third respondents and Curtain Bros were responsible for the eviction exercise which was not carried out in a proper manner, such that the State was negligent in the performance of its duty.
   • In order to induce the appellant to enter the contract the respondents falsely and fraudulently made representations or warranties to the appellant.
   • The State by its servants and agents trespassed on the appellant’s property when it seized and removed the house and improvements.
   • The appellant suffered anguish and mental distress because of the malicious conduct of Curtain Bros and the State.
   • The appellant sought restitution from the State for its conduct to unjustly enrich itself.
   • The constitutional rights of the appellant were breached.
9. The facts pleaded by the other appellants are substantially identical with variations. In SCA No. 43 of 2022 for example the appellant, Mr Hapolo, pleaded that the L40 House in which he resided was owned by the State rather than the Health Department. Similarly, Ms Kepaja did not plead anguish and mental distress.
10. Further, while the claimed compensation in lieu of accommodation was the same for all appellants, other loss and damage claimed by the appellants varied significantly, including:
    • In respect of Mr Tamita in SCA No. 41 of 2022:
      • Claimed loss of improvements totalled K103,400.00
      • Claimed loss of stock totalled K60,000.00
      • Claimed loss of household items totalled K65,000.00
      • Claimed cost and loss from eviction totalled K10,740.00
      • Claimed loss of nutritional garden crops totalled K6,800.00
    • In respect of Mr Aunal in SCA No. 42 of 2022:
      • Claimed loss of improvements totalled K34,300.00
      • Claimed moneys paid upon eviction totalled K4,600.00
      • Claimed loss of nutritional garden crops totalled K3,000.00
    • In respect of Mr Haplol in SCA No. 43 of 2022:
      • Claimed loss of improvements totalled K66,910.00
      • Claimed cost of resettlement totalled K5,430.00
    • In respect of Ms Kepaja in SCA No. 44 of 2022:
      • Claimed loss of improvements totalled K11,500.00
11. An amended defence was filed by Curtain Bros on 7 June 2016 in each National Court proceeding. Although a defence was filed by the second respondent on 23 September 2015, no defences were filed by any other respondent and no amended defences was filed by the second respondent.
12. In June 2018 the Mendi National and District Courthouse was destroyed by fire. The appellants submitted that, as a result, their cases were in abeyance until the primary Judge issued chambers orders/directions ex parte in all matters on 17 January 2022. Those orders were as follows:

1. This matter is adjourned to 7^th March, 2022 at 9.30 am or soon thereafter.

2. The parties are required to comply with previous orders of the court in so far as they are pending by end of January 2022.
3. Unless already done the parties shall file and serve on each other affidavits of all the evidence they respectively rely upon by no later than 07^th February. 2022 for the Plaintiff and 14^th February, 2022 for the Defendant.
4. Unless the affidavits already do so, the parties shall by 21^st February, 2022 give discovery to each other of the documents pleaded in their respective pleadings or they will be relying upon at the trial.
5. The parties are directed to have this matter settled and return to the Court with draft consent orders finalising the proceeding, unless the parties can demonstrate to the satisfaction of the Court the existence of an issue that warrants resolution by trial having regard to the judgment in the matter of Able Construction Ltd vs WR Carpenter Ltd (2014) N5636.
6. For the purposes of settlement, the Plaintiff forward a Settlement Proposal to the Defendant by 07^th February, 2022, if not already done, to which the Defendants shall respond by 14^th February 2022.
7. The Plaintiff shall also draft and forward to the Defendants, a Statement of the relevant Facts and issues for Resolution (Statement) by 07^th February, 2022, to which the Defendant shall respond by 14^th February, 2022.
8. The Statement shall be in the form of a table having three columns, with the first one containing paragraph numbers, the second stating only the relevant facts chronologically guided by the questions of who said or did what to who, when, where, how and the consequences that followed but without stating any arguments, submissions, conclusions, opinions or the law, with the final column indicating where appropriate any disputed fact with a statement of the alternative narrative and concluded with a statement of issues presented for resolution immediately below the table.
9. The parties shall meet in settlement conference on 25^th February, 2022, discuss the matters in dispute between them in the substantive matter, have them resolved and incorporate the terms of settlement into a draft consent order for the Court’s endorsement.
10. Failing settlement, the parties shall settle the Statement and come ready to address the Court on the points in contention for the court to consider and issue a binding opinion or refer the matter for resolution by mediation or a form of ADR.
11. For the purpose of any mediation order, the parties shall come with draft consent order with agreements on the mediator to be appointed, all fees payable and dates for the various steps to be taken including, the actual mediation conference dates which shall commence and conclude in the month of April, 2022.
12. Failing any compliance of any of these will result in the proceeding standing dismissed with costs if the defaulting party is the Plaintiffs or judgment shall be entered for the Plaintiff with the reliefs sought or sought or such other reliefs the Court considers appropriate with costs shall be granted if granted if the defaulting party is the Defendant.
13. The time of the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.

HEARING BEFORE THE PRIMARY JUDGE

13. All matters returned before the primary Judge on 9 March 2022 at Ialibu in Southern Highlands Province. Present in Court on that day were the lawyer for the appellants, and the lawyer for Curtain Bros.
14. The lawyer for the appellants submitted to his Honour that she became aware of the matter the previous Monday, which appeared to be two days before the hearing, and that she sought an extension of the previous orders for the appellants to ensure compliance. The following exchange took place:

HIS HONOUR: You better also be in the same boat as – have you filed an affidavit explaining?
MS NORINGI: No, your Honour, I have not managed to file an affidavit.
HIS HONOUR: You better be. No, you do not get an adjournment without a case being made out.
MS NORINGI: Yes. Your Honour, we have served the ---
HIS HONOUR: And I am seeing also a similar affidavit by the court staff of Mendi National Court talking about their public toksave going out the 24^th, copies left with counsel Tamutai on the 26^th. So you cannot be telling me you are not aware, counsel. The affidavit speaks for itself and so you need to be explaining and make a case for adjournment. If you cannot, then the self-executing orders take effect.
MS NORINGI: Your Honour, you will note from the file – I take note of the court’s position. However, you will note on the file that I am not the lawyer in carriage of all these five matters.
HIS HONOUR: And who is?
MIS NORINGI: Yes, my boss, Mr Tamutai, is in carriage of this matter.
HIS HONOUR: That is irrelevant, counsel, that is irrelevant.
MS NORINGI: Yes.
HIS HONOUR: The orders were brought to the law firm’s notice. So, you were on notice.
MS NORINGI: Yes. However, like I have mentioned, I was not aware of these orders until on Monday afternoon. I am the only lawyer based in Mount Hagen in carriage of the Wabag and Mendi matters.
HIS HONOUR: How is that a problem for the court? How is that a problem for the court?
MS NORINGI: Your Honour, yes, that is not a problem for the court. If this court can have this matter adjourned to Friday for counsel to file an affidavit explaining reasons for non-compliance?
HIS HONOUR: All right, since I have done likewise for Mr Sino’s matter, you might feel up done if I do not. So, I will adjourn to the 11^th as well. That is for an affidavit explaining the non-compliance.
(Extract of transcript, pg. 3-4)

15. At that point the lawyer for Curtain Bros indicated to his Honour that Curtain Bros opposed the adjournment. The following exchange took place:

MR KULT: Your Honour, if I may.
HIS HONOUR: Yes Yes, Mr Kult, I did not hear you. Sorry. Ms Noringi, I forgot there is another counsel involved. So, yes Mr Kult?
MR KULT: Your Honour, this matter returns for directions for the court to see parties’ compliance pursuant to the 17 January court orders. The court orders are on file, document number 16 as per the court staff’s affidavit deposing to – they have made it known to parties, the court orders. The plaintiff, as per the – sorry, our client the fourth defendant, as per those court orders, term 3 which applies to our client, it states and if I may quote: “Unless already done, the parties shall file and serve on each other affidavits of all the evidence they respectively rely upon by no later than 7 February 2022 for the plaintiff and 14 February 2022 for the defendants.” Your Honour, the fourth defendant has complied with that order. Your Honour, in compliance, we have filed the affidavit of Justin Francis McGann.
HIS HONOUR: Yes, and I see your affidavit by ---
MR KULT: Document number 17.
HIS HONOUR: Yes. So, you are saying the defendant – the fourth defendant has complied with the orders, affidavits have been served, notice of the orders have been communicated. So, you are opposed to the adjournment?
MR KULT: Yes, your Honour.
(Extract of transcript, pg. 4-5)

16. At this point his Honour said:

HIS HONOUR: All right, then it sounds like you are not willing to adjourn. You oppose the adjournment, you are prepared to make submissions?
MR KULT: Yes, your Honour.
HIS HONOUR: As to non-compliance and consequences?
MR KULT: And that the matter be dismissed for that.
HIS HONOUR: Okay. All right, Ms Noringi, did you come prepared for that possibility or not?
MS NORINGI: No, your Honour.
HIS HONOUR: I will stand it down briefly while I deal with the other matters. Look up the law on what kind of requirements a party must meet to avoid a self-executing order from taking effect, all right. There is enough Supreme Court decisions on point. You look that up, both sides, and then come ready to assist the court.
MS NORINGI: As the court pleases.
HIS HONOUR: All right, thank you, matter is stood down. Perhaps to be on the certainty side of things we adjourn this one to 1.30pm
MS NORINGI: That is fine.
...
(Extract of transcript, pg. 5-6)

17. The matter returned before the primary Judge at 1.35pm following the luncheon adjournment. Counsel for the appellants made submissions concerning the extension of a self-executing order, and that further judicial act is required to confirm dismissal. Counsel continued:

MS NORINGI: ... However in this case, the court has to inquire further as to why the – sorry, the non-complying party did not comply with the orders of the court and, your Honour, in ---
HIS HONOUR: That is where Kalang Advertising Limited comes in. You need to provide reasonable explanation for the non-compliance and if no reasonable explanation is offered or some explanation is offered but is not considered reasonable enough then the self-executing order gets – take the proper effect.
MS NORINGI: That is correct.
HIS HONOUR: That is probably more the case on point than the ToRobert v ToRobert matter.
MS NORINGI: Yes, thank you, your Honour. Hence, for me to provide a reasonable explanation, unless this court is going to accept my oral explanation, then I can ---
HIS HONOUR: We stood it down so you could do an affidavit.
MS NORINGI: Yes.
HIS HONOUR: That is what you should have come prepared with.
MS NORINGI: That is correct your Honour. In that instance, your Honour I propose for – because my learned friend is flying in from Port Moresby, I propose I can – the plaintiff can meet the costs – a fixed sum – and for the plaintiff to file an affidavit by no later than Friday explaining non-compliance. And, your Honour, the plaintiff has not filed an affidavit also.
HIS HONOUR: Plaintiff has not?
MS NORINGI: He has not filed an affidavit.
(Extract of transcript, pg. 8-9)

18. The primary Judge asked Counsel for the appellants when the last activity in the matters had taken place. Counsel informed his Honour that the lawyer with carriage of the matters for the appellants had journeyed to Mendi to uplift the last orders on the files and serve the defendants.
19. His Honour then sought submissions from the lawyer for Curtain Bros. The following exchange took place:

MR KULT: Your Honour, your Honour has clearly – your Honour made the orders on the 17^th. The defendants have clearly not replied – complied. They had one month to do so.
HIS HONOUR: The plaintiffs, you mean.
MR KULT: I mean, sorry, your Honour, the plaintiffs. They did not comply with any of those orders. The defendant, however, within that same period of time which were given to them – sorry, the defendants complied ---
...
MR KULT: Yes, our Honour, given the nature of the order, that is order number – term number 12 of the orders, the case law is very clear in Kalang Advertising v John Wasis: “Where such an order is made, a party cannot come to court and where an explanation is given, it must be in permissible form,” that is by an affidavit. Your Honour, therefore, given the case law your Honour is very well aware – I would just like to quote from paragraph 13 of the judgment by the Supreme Court in John Wasis and Others v Margaret Elias and Others (2016) SC148, the Supreme Court stated, and I quote: “We add, a conditional or self-executing order is not one...(reads).... Result in an unfavourable consequence.” Your Honour, given that case law and order 10 rule 9(a), 15(2) of the National Court Rules – sorry, the Listing Rules in the National Court Rules and term 12 of your Honour’s orders on the 17^th, we ask that these proceedings be dismissed.
(Extract of transcript, pg. 10)

20. The primary Judge then asked Mr Kult to explain the nature of the evidence filed by Curtain Bros, namely affidavits of Justin McGann and Annette Haru. The following exchange then took place:

HIS HONOUR: That is all right, that is going into the substance of the claim which is essentially the defendant – your client is saying we are the wrong party effectively, we were the contractors, no right whatsoever in ownership of the land or the interest thereof, contract, contract negotiations, compensations that were all – had nothing to do with Curtain Brothers.
MR KULT: Correct, your Honour.
HIS HONOUR: All right, okay. And so your position is give effect to the self-restraining order?
MR KULT: Term 4 of your ---
HIS HONOUR: You have done your ---
MR KULT: And then as well ---
HIS HONOUR: You have done your – your client has done what is required of it, that is to file affidavits of the evidence it relies upon – and the plaintiff has not, counsel.
(Extract of transcript, pg. 11-12)

21. In reply, Counsel for the appellants sought that the matter be adjourned with costs, noting that the matters had all been in abeyance for some time. Ms Noringi continued:

MS NORINGI: Your Honour, like I have mentioned, all these – our clients, the plaintiffs, are located in Tari, not within our reach so to speak. So, we are trying to contact them. The lead plaintiff in this matter is Mr Tamita – John Tamita, that is in proceeding 865 of 2015 and we have been having meaningful talks on the phone, asking him to come in to provide evidence to substantiate their claims. But I believe Mr Tamita has a difficulty also to locate the other four plaintiffs to bring them into our office for us to pull out relevant evidence and compile the affidavits. So, on that basis, your Honour, I will ask this court to adjourn – not adjourn – extend the previous chamber issued court orders for the last time, failing which the self-executing order can take effect thereof.
(Extract of transcript, pg. 13)

DECISION OF THE PRIMARY JUDGE

22. The primary Judge noted that there had been a Judge in residence at Mendi until the court house had burned down, that there had been a period when there was no sittings, but subsequently Judges had sat at Mendi on circuit.
23. His Honour summarised the nature of the dispute between the parties and continued:

It seemed there was no appreciation by counsel for the plaintiff in issuing the proceedings without first understanding or establishing the relevant facts. Those relevant facts should be the ones that would constitute witness evidence should the matter not get settled. Nobody should come to court and issue proceedings without being satisfied that the evidence is present to support the claim. Many lawyers m Papua New Guinea seem to issue proceedings, then fish for evidence and that fishing for evidence sometimes, it is taking too much time, too much delay. There is also a delay in proceedings.
If a plaintiff was well and truly positioned or grounded on the relevant facts prior to issuing proceedings, those facts should be clearly established and on issuance of proceedings, the evidence supporting the claim should also be filed and served on the defendant, that will enable the defendant to consider the case on the merits. Instead of what is happening today; the defendants says okay, what is the evidence on this? And so that is when it starts, the conversation just seems to be going around in circles.
In this case, the plaintiff - in these related cases, quite straightforward, the plaintiffs should have filed and served all of their affidavits by now if they were serious with their claim and there is factual foundation for it and the law supports them. That has not happened. The court has, therefore, issued those chambers orders for parties to bring the evidence in...

24. Importantly, his Honour observed:

According to the orders, the plaintiffs were to file and serve their affidavits by 7 February 2022. The plaintiffs failed and the defendant filed its affidavit by the 11^th, which was three days ahead of the deadline of 14 February, and has served the order - sorry, that affidavit on the plaintiffs and the plaintiffs have not returned the favour. Also, there has been - of all the orders – simple communication of a settlement proposal would have been straightforward. That has not been done. So, just what is the explanation for all of that? What is the explanation for the plaintiffs' obvious failure in complying with any, if not all, of the orders? Not one explanation is offered before this court.
Counsel having carriage or counsel appearing on behalf of the plaintiffs on instructions from the principal of the law firm she is appearing from, simply says she was given these fi les and she is saying a few things but those are not evidence in proper affidavit form. They are matters alluded to from the bar table and this cannot be taken into account. That is against the law to do so especially when there is sworn evidence in the case and there is apparent compliance demonstrated on the court file. They are not prepared to take into account any of the suggestions or allegations that are put forward by the counsel appearing for each of the plaintiffs in these cases.
So, what we are left with is not one single explanation as to why, (1), the plaintiff could not – the plaintiffs could not bring the evidence in at the time of filing their proceedings – each of their proceedings – or soon thereafter. And if for whatever reason they failed to do that, at least when the orders were made by this court on 17 January, what prevented them from bringing their evidence in? That is not before the court. Where does the fault lie? Is it the client not coming with the evidence or is it the plaintiffs – sorry, the lawyer.

25. His Honour continued:

Counsel suggests from the bar table that their clients were not forthcoming with their evidence. Well, how is the plaintiff going to establish its case? What guarantee is there that this case is going to be attended to and all orders are going to be complied with? There is not one single commitment given by the plaintiffs – any of the plaintiffs or counsel appearing. There is only a possibility that it might happen and in the meantime counsel says costs would be a sufficient compensation for the other side. But I am not too sure costs alone is a sufficient compensation. These proceedings go back to 2015. What about the evidence? Are the evidence intact? The memory of witnesses, is it intact? Has the delay caused any loss of memory, loss of evidence? All of that is not in evidence.

26. In relation to the issue of adjournment, his Honour referred to the decision of the Supreme Court in Kalinoe v Paul Paraka Lawyers [2014] SC1366, and observed that such an application must be supported by an affidavit which:

... must set out facts and not speculations; arguments, submissions, opinions and conclusions of the deponent but depose to facts going into (1), steps taken to prepare and attend to the scheduled event; (2), what factors, if any, beyond his or her control prevented him or her from preparing and proceeding with the said event. How the adjournment will not result m any prejudice to the other side but injustice to him or her, the applicant. What steps he or she has and will soon be taken ensure that the said event to be adjourned will occur without further delay on the next adjourned date, and it goes on and the court makes its point. Unless an applicant is able to make out a case in terms of the above, no adjournment should be expected and can be granted That is paragraph 12 of the judgment in Kalinoe v. Paraka. ·

27. His Honour observed that no explanation had been offered for why an adjournment was required.
28. Finally, his Honour queried why the appellants had been unable to file evidence when Curtain Bros was able to do so.
29. In each matter the primary Judge ordered as follows:
    1. Pursuant to Order 10 Rule 9A(15)(2) of the Listing Rules in the National Court Rules and term 12 of orders of 17^th January 2022 and the relevant case law on point as represented Kaland Advertising Limited v Visvanathan Kuppusammy (2008) (SC924) and John Waisis & Ors v.Margaret Elias & Ors (2016) (SC1485), this proceeding is dismissed on account of the Plaintiff’s failure to comply with Court orders, failure to explain his apparent non-compliance of all of the previous orders and her apparent want of prosecution.
    2. The plaintiff shall pay the Defendants costs to be ascertained by taxation if not agreed.
    3. Subject to enforcement proceedings, the Court file to be closed and archived forthwith.
    4. The time for entry of these Orders be abridged to take place forthwith upon the Court signing the Orders.

GROUNDS OF APPEAL

30. The appellants appeal the primary Judge’s decision on the following grounds:

3.1 The Learned Judge erred in mixed fact and law in summarily dismissing the proceedings contrary to Section 155(3) (b) of the Constitution when he acted without jurisdiction, or power, conferred by the Constitution, or by any law, to continue the hearing and make such an order in the same hearing which is contradictory to his earlier order to adjourn the matter to 11th March 2022.

ALTERNATIVELY

3.2. The learned Judge erred in mixed fact and law when he acted without jurisdiction in summarily dismissing the proceedings purportedly under Order 10, Rule 9A(15)(2)(c) of the National Court Rules ("NCR') for non-compliance of the Order made on 17 January 2022, because; that Order, was an ex parte Chamber Order not "issued by the Court at any of the Listings process" defined under Order 10, Rule 9A (1) of the NCR, in particular:-

(a) the order was not made at an open Court Mention; or Direction Hearing; or Pre-Trial Conference; or Status Conference with sufficient notice to parties at d in their presence; and
(b) there was insufficient notice to parties as per Order 10, Rule 9A (7)(1) & (2) of the NCR, prior to issuing of the Chamber Order.

3.3. The learned Judge erred in mixed fact and law in summarily disposing the matter on a verbal application by the Fourth Respondent, because, a conditional Order (Order of 17^th January 2022), of its nature necessitates the exercise of further judicial function of determining that the condition was not satisfied at the specified time (Baing v ANG National Stevedores Pty Limited 2000 PGSC 1, SC627). and thus failed to consider that there was NO:

(a) formal application by way of Motion and Affidavit in Support filed in accordance with Oder 4, Rule 37, 38 & 44 and Order 10, Rule 9A (16) of the NCR, w ich are mandatory provisions; and
(b) forewarning to the Appellant by the Court, and, by the Fourth Respondent to invoke Order 10, Rule 9A (15)(2) of the NCR to dismiss for non-compliance with the Order of 17th January 2022 which was imperative because it was an ex-parte Order; and
(c) application to the Court; and, the Court did not invoke Order 10, Rule 9A (17) of the NCR to, dispense with the requirements of the Rules for filing a Motion before granting the order.

3.4 The Learned Judge erred in mixed fact and law when he exercised his discretion to dismiss the proceedings because he failed to take into account relevant considerations sue as:-

(a) the Chamber self-executing orders of 17 January 2022 were slavishly made ex-parte without the input from parties and therefore when he Order was recalled on 9^th March 2022 for parties to attend, the primary issue should be to validate the Order; and
(b) the matter was never on the Court's list since 5th June 2019, for three years, and, as such warrants a Status Conference before any application ought to be considered; and
(c) the short adjournment from 11:30am to 1:30pm to prepare an affidavit in reply was inadequate because of the remoteness of the Court and the unavailability of a typing facility, and the Lawyer's office being in Mount Hagen; and
(d) the Court's earlier order to stand down the matter from Monday 7^th March to Friday 11th March 2022, during the Court Circuit to give ample opportunity to the Appellant to respond with affidavits; and
(e) the fourth Respondent.s failure to have a formal application before the Court; and
(f) the residential distance of the Appellant who originates from Tari as per the pleadings; and
(g) the self-executing order not exclusive to the Appellant's "doing of the act” but, rather required the co-operative efforts of all parties and the other Five Defendants, except for Curtain Bros (PNG) Ltd, did not file their Defences, and comply with the Order, and make appearances at Court (See Karingu v Papua New Guinea Law Society [2006] PGSC 33; SC900 (28 August 2006); and
(h) lack of reason provided to parties for the self-executing Order which was punitive in nature.

3.5 The Court erred in mixed act and law and breached Section 59 of the Constitution (principles of natural justice) in, not acting fairly, and, not seen to be acting fairly, when, it dismissed the proceedings due to non-compliance of an ex parte Chamber Order made on 17th January 2022 because:-

(a) there was no evidence of forewarning from the Court or the Fourth Respondent to the Appellant that on 9^th March 2022, there will be an application considered to dismiss, the proceedings for noncompliance of the ex parte order so that the Appellant is given the opportunity to prepare to argue the application; and
(b) the Appellant’s lawyer was caught "off-guard" having come to court to have a status conference on the matter as the matter was in hibernation for some time after the Mendi Court house was burnt in 2018 and the last mention was on 5^th June 2019; and
(c) the Appellant’s lawyer was "cut off” by the Court when it immediately referred to principles of law and the need for affidavit evidence, when, the Fourth Respondent even had no motion or affidavit before the Court when making his oral application, and
(d) the Court failed to be coherent and vacate its earlier Order made at the same hearing, to adjourn the matter to 11th March 2022, which acknowledged that the Appellant ought to be given opportunity to prepare its position and proceeded to make an inconsistent order; and
(e) the court relied on an affidavit by a "Court Staff' on service of notice of the self-executing order, without, any notice to the Appellant for the use of it, and, the service of that affidavit to the Appellant; and
(f) there was no formal application by way of Notice of Motion which was served on the Appellant so that the Appellant would be given an opportunity to reply to the application; and
(g) the adjournment for only two hours from 11:30am to 1:30pm was inadequate time for the Appellant to prepare an Affidavit given that the Court was sitting in a remote location at Ialibu not close to the Appellant's lawyer’s office in Mount Hagen about two hours drive away; and
(h) the Court was not yet ending its circuit and would have adjourned from 9th March to 11th March 2022 to give an opportunity to the Appellant to prepare his case; and
(i) the primary respondents namely, the Southern Highlands Provincial Government and the Independent State of Papua New Guinea neither filed a defence nor made appearances nor filed affidavits; and
(j) there was no reason given to the parties for the ex parte self-executing order which appeared to be punitive.

3.6 The learned Judge erred in mixed fact and law when he dismissed the matter because it is unreasonable and no Court doing justice as prescribed under Section 158(2) of the Constitution would have made such a decision especially in the circumstances where:-

(a) the parties were not present when the court arbitrarily made the self- executing order; and
(b) the matter ought to have been mentioned for the validation of the Ex-parte Order and adjourned; and
(c) the adjournment given to the Appellant's lawyer to prepare a response within two hours (11:30am-1:30pm) was inadequate in a remote station which lacks the necessary office services when the lawyer's office is two hours drive away in Mount Hagen; and
(d) an award of Costs would have ideally compensated the other party who never had a formal application before the Court; and
(e) the Court has already agreed that the Appellant required time to prepare an explanation and adjourned the matter to 11th March 2022 but became a "Court of confusion" and made a contradictory order (See Kaeok v Pato [2005] PGSC 46; SC877); and
(f) there was no formal application by way of motion filed by the Fourth Respondent before the Court or evidence of forewarning to the Appellant that such application will be pursued; and
(g) other Respondents also defaulted to comply with the self-executing Order.

3.7. The Learned Judge erred in mixed fact and law when he dismissed the proceedings because the other Respondents were not present in Court, and, also did not comply with the Order of 17^th January 2022, except, for the Fourth Respondent, and, as such, the self-executing order was not "ripe" for enforcement.
3.8 The learned Judge erred in mixed fact and law in arbitrarily dismissing the proceedings when a "conditional order" necessitates the exercise of the further judicial function of determining that the condition was not satisfied at a specified time, by not giving the Plaintiff's lawyer the opportunity to explain the Appellant's position with an affidavit and as such there was never a proper exercise of that judicial function unless the affidavit was presented.

SUBMISSIONS OF THE PARTIES

31. The only active parties to the appeals were the appellants and Curtain Bros. It is convenient for the purposes of this decision to refer to them as “the parties” or “both parties”. Both parties were represented by Counsel, and both made written and oral submissions in the appeal.
32. In summary the appellants submitted as follows:
    • There are distinctive features that can be distinguished from the cases referred to by the primary Judge, namely:
      • (a) The conditional Order was mad ex parte after hibernation for 4 years.
      • (b) First time before the Court for 4 years without going through normal listing process.
      • (c) Only one defendant complied with the Conditional Order to appear.
    • The primary Judge wrongfully considered the Conditional Order to be exclusively applicable to the appellant.
    • The primary Judge did not have authority under the Constitution to make two contradicting orders and acted without jurisdiction, or by any law to continue the hearing.
    • The primary Judge did not have the jurisdiction to summarily dismiss the proceeding under Order 10, Rule 9A(15)(2)(c) of the National Court Rules because that Order was an ex parte Chamber Order not issued by the Court at any of the listing process defined under Order 10, Rule 9A(1) of the National Court Rules.
    • The Court Order of 17th January 2022 was a conditional order that needed further judicial function to be exercised as required by the principles of law governing conditional/self-executing orders. Curtain Bros did not make an appropriate application to the Court. An oral application cannot perfect a conditional or self-executing order.
    • The primary Judge summarily dismissed the entire proceeding based on a verbal application and failed to consider there was no:
      • (a) No formal application by way of motion and affidavit in support;
      • (b) No forewarning to the Appellants by the Court and by the Fourth Respondent; and
      • (c) No application to the Court, and the Court did not invoke Order 10, Rule 9A(17) of the National Court Rules to dispense with the requirement of the rules for filing a Motion before granting the Order.
    • The primary Judge failed to take into account relevant considerations in relation to:
      • Self-executing order made on 17 January 2022 were slavishly made ex-parte without input from the parties.
      • The matter was never on the Court’s list since 5^th June 2019.
      • The short adjournment to prepare an affidavit in reply was inadequate.
      • The Court made an earlier order to stand down the matter until 11 March 2022.
      • Fourth Respondents failure to have a formal application before the Court.
      • Residential distance of the Appellant.
      • The self-executing order was not exclusive to the Appellants and majority of respondents did not comply with the Order and make a appearance at Court (see Karingu v Papua New Guines Law Society [2006] SC900).
      • Lack of reasoning provided to parties for the self-executing Order.
    • The primary Judge breach s 59 of the Constitution by not acting fairly and not seen to be acting fairly when his Honour dismissed the proceeding due to non-compliance of an ex-parte Chamber Order, because:
      • No evidence of forewarning from the Court from the Court or the Fourth Respondent to the Appellants.
      • The Appellants’ lawyer caught “off guard” as he was there for a status conference after the hibernation of the matter.
      • Appellants’ lawyer was “cut off” by the Court when it immediately referred ti principles of law and the need for affidavit evidence.
      • The Court failed to be coherent and vacate its earlier Order.
      • The Court relied on an affidavit of its Court staff to show service of the notice of the self-executing order made on 17 January 2022 without any notice to the Appellant for the use of the affidavit and there was no service of that affidavit.
      • No formal application by way of Notice of Motion which was served on the Appellants.
      • The adjournment of two hours was inadequate time for to prepare Affidavits as the Court was in a remote location and not near the lawyer’s office.
      • The Court was not going to end its Circuit until the 11^th March 2022 which would have given the Appellant time to prepare case.
      • No appearances made by some of the respondents.
      • No reason given to the parties for the ex parte self-executing Order which appeared to be punitive.
33. Curtain Bros submitted in summary as follows:
    • The transcript from the primary hearing established that:
      • The lawyers for the appellants were aware of the Orders made 17 January 2022 and the general consequence of non-compliance;
      • The appellants failed to comply with the 17 January 2022 Orders and no affidavit had been filed explaining reason for such non-compliance;
      • The primary Judge adjourned the matter until 1:30pm to provide the lawyer for the appellants an opportunity to be better prepared and assist the Court;
      • Notwithstanding such adjournment, the lawyer for the appellants acknowledged there were no affidavits to assist the Court and that Counsel could not assist the court on case law on point at that time; and
      • The lawyer for the appellants never contended on 9 March 2022 that the 17 January 2022 Orders should never have been made.
    • The appellants failed to file any material to substantiate the non-compliance with the 17 January 2022 Orders and the delay in prosecuting the proceeding. In dismissing the appeal, the primary Judge exercised a wide discretion that is supported on well-established and uncontroversial principles.
    • The appellate court should be slow to interfere with an order made in the exercise of discretion: Kenken v National Airports Corporation Ltd [2022] SC 2247.
    • In exercising his discretion, the primary Judge was correct to rely on the Supreme Court decisions of Kalang Advertising Limited v Visvanathan Kuppusamy [2008] SC924 and John Wasis & Ors v Margaret Elias & Ors [2016] SC1485. The present appeals are materially indistinguishable from these authorities.
    • It is trite law that matters of fact stated over the bar table are not admissible evidence and the lawyer for the appellants should have filed an affidavit to explain himself of the delay.
    • As emphasised in Kalang:
      • The Court may summarily determine a matter on its own initiative;
      • Any explanation for avoiding the defence being struck out could only be properly put to the Court in the form of an affidavit; and
      • Attending the Court and giving oral explanations are insufficient as the explanation should be given in an admissible form.
    • There are various Supreme Court authorities supporting the dismissal of an appeal from a National Court decision that dismissed proceedings for failure to comply (see Lomai v Seal (Manus) Ltd [2008] SC1326 and Kalang and John Wasis).
    • The appellants did not formally challenge the 17 January 2022 Order by any appeal or application nor did the appellants even raise any contention on 9 March 2022 that the earlier Order should never have been made.
    • The case of Lomai emphasised a lack of any challenge to a self-executing order in finding that the appellants in those circumstances weas bound by such order.
    • The current case was instituted in June 2015, and amended in October 2016, arising from facts dating back to 2011-2014. The appellants evidenced no interest in prosecuting the National Court proceeding over several years, which resulted in the primary Judge making Orders on 17 January 2022 to progress the matter. The interests of justice require, at the very least, the parties comply with court orders.
    • The primary Judge did not require the 17 January 2022 Orders to dismiss the proceedings, rather the primary Judge could have exercised the wide discretion to dismiss the proceedings for want of prosecution given the years of delay between the commencement of the proceeding in 2015 and January 2022.
    • Any argument that there was no prejudice if the proceedings was not dismissed is misconceived. The proper administration of justice requires compliance with Court orders and the efficient and timely prosecution of proceedings. Fairness dictates the quick disposition of matters to, for example, avoid defendants being the subject of Court proceedings that take many years without getting anywhere near having a trial.
    • The appellants have also been tardy in pursuing the appeal, having filed the appeal books late.
    • The grounds of the Notice of Appeal in each appeal are misconceived as they do not appreciate either the relevant facts, National Court Rules, or the well-established legal principles referred to in the authorities set out in the fourth respondent’s submissions.

CONSIDERATION

34. It is common ground that the decision of the primary Judge to dismiss the proceedings in the circumstances of the hearing of 9 March 2022 was an exercise of judicial discretion. As the Supreme Court explained in Kenken v National Airports Corporation Ltd [2022] SC2247:
    19. It is common ground that the decision by the primary Judge to summarily dismiss the National Court proceedings was an exercise of discretion by the primary Judge. Relevant principles are well settled. As explained in such cases as The Government of Papua New Guinea v Barker [1977] PNGLR 386 and Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] SC488, appellate Courts approach appeals against exercise of discretion with caution. As explained in Barker, what must be shown is that the primary Judge:

... exercised his discretion upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or not taken into account some matter for consideration. Then and then only then... the lower court having been shown to be clearly wrong in its decision, or it appearing that otherwise injustice will be done, the appellant court may exercise its own discretion in its own discretion in substitution for that of the lower court, if it has the material for doing so.

20. See also Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] SC788 and Manase v Polye [2013] SC1329.
21. Accordingly, it is for the appellants to demonstrate that his Honour erred in the exercise of his discretion....
35. We have considered the grounds of appeal and the submissions of the parties in each appeal. There is extensive overlap between many of the grounds of appeal, and accordingly we have grouped them by issue for our consideration.
36. In that light, we are satisfied that the appeals must be dismissed for the following reasons.

Alleged contradictory orders

37. We do not accept that there was – as submitted by the appellants – either conduct on the part of the primary Judge contrary to s 155(3)(b) of the Constitution (ground of appeal 3.1) or conflicting orders made by the primary Judge in respect of adjournment of the proceedings (ground of appeal 3.5(d)). In this context we note again the following exchange between the primary Judge and the lawyers at the hearing:

MS NORINGI: Yes. However, like I have mentioned, I was not aware of these orders until on Monday afternoon. I am the only lawyer based in Mount Hagen in carriage of the Wabag and Mendi matters.
HIS HONOUR: How is that a problem for the court? How is that a problem for the court?
MS NORINGI: Your Honour, yes, that is not a problem for the court. If this court can have this matter adjourned to Friday for counsel to file an affidavit explaining reasons for non-compliance?
HIS HONOUR: All right, since I have done likewise for Mr Sino’s matter, you might feel up done if I do not. So, I will adjourn to the 11^th as well. That is for an affidavit explaining the non-compliance.
MR KULT: Your Honour, if I may.
HIS HONOUR: Yes Yes, Mr Kult, I did not hear you. Sorry. Ms Noringi, I forgot there is another counsel involved. So, yes Mr Kult?
(Extract from transcript, pg. 4)

38. It is clear from this transcript that, in fact, his Honour did not actually make an order of adjournment. His Honour indicated his preparedness to do so in light of conduct of earlier matters in the National Court that day. Indeed his Honour may have proceeded to make the adjournment order by the appellants but it was at that point that the lawyer for Curtain Bros drew the primary Judge’s attention to his presence, and both lawyers continued to make submissions concerning the issue of adjournment of the proceedings.
39. Exchanges of this nature are entirely unremarkable in a busy court room, during case management hearings. No binding order was made by the primary Judge to adjourn the proceedings, such that the actual order dismissing the proceedings was in any way “contradictory”. Ground 3.1, which the appellants submitted at the hearing was their “main ground” of appeal, lacks merit, as does ground of appeal 3.5(d).

Order 10 rule 9A (15) of the National Court Rules 1983

40. Order 10 r 9A (15) relevantly provides:

15. SUMMARY DISPOSAL
(1) The Court may summarily determine a matter :

(a) on application by a party; or
(b) on its own initiative; or
(c) upon referral by the Registrar under (3) below.

(2) The Court may summarily dispose of a matter in the following situations:

(a) for want of prosecution since filing the proceedings or since the last activity on the file; or
(b) for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or
(c) for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.
(d) under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.
(e) on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.

...

41. The question whether the primary Judge was empowered to summarily dismiss the proceedings pursuant to O 10 r 9A(15)(2) was complicated by the fact that his Honour dismissed the proceeding in circumstances where a self-executing Order had been made, and not satisfied. A key argument on the part of the appellants was that the primary Judge lacked jurisdiction to make orders pursuant to O 10 r 9A(15)(2)(c) because:
    • The self-executing Order made by the primary Judge on 17 January 2022 pursuant to which the proceedings were ultimately dismissed was made ex parte in Chambers, and was therefore not “made or issued by the Court at any of the listing processes”,
    • Other than Curtain Bros, the respondents similarly did not comply with his Honour’s self-executing Order of 17 January 2022, and
    • In order for the self-executing Order to be given effect, further judicial intervention was required.
42. Rule 9A(15)(2) was relevantly discussed by Murray J in Kave v Yakasa [2014] N5692 where her Honour said:
    26. ...It is, however noted that, the terms of Rule 15 (2) (a) and (c) are almost same as the terms of Order 4, Rule 36 of the National Court Rules. Consequently, I find the discussions by other Courts of applicable principles with regard to Order 4, rule 36 appropriate.
    27. The Application of Order 4, Rule 36 was discussed by Kandakasi J in Vivisio Seravo v. Jack Bahafo (2001) (N2018) and followed by Cannings J in Ahmadiyya Muslim Mission v BSP Ltd (2005) N 2845.
    28. In Viviso Seravo, when determining an application for dismissal brought under Order 4, Rule 36 of the National Court Rules, the Court held that, the principles governing want of prosecution under Order 10, Rule 5 of the National Court Rules apply to Order 4, Rules 36 applications.
    29. On Page 3 of the Judgment in Seravo, under the sub heading, "want of prosecution" His Honour, Kandakasi J stated:

"It is now clear law especially in the context of Order 10, Rule 5 of the National Court Rules that an application for a dismissal of proceedings for want of prosecution may be granted if:

(1) The Plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

(2) There is no reasonable explanation given by the plaintiff for the delay; and

(3) That the delay has caused injustice or prejudice to the defendant".

30. Cannings J, followed the judgment in Seravo in 2 of his judgments in the cases, namely John Naile v Sepik Coffee Producers Ltd (2004) N2637 and Ahmadiyaya Muslim Mission (Supra) and added to the list of considerations by Kandakasi J, the following:

(1) The Court should specifically look at the conduct of the parties and their lawyers and
(2) The duty of the Court to give paramount consideration to the dispensation of justice.

31. As the terms of Rule 9A (15) (2) (a) and (c) are essentially the same as that of Order 4, Rule 36 of the National Court Rules, I consider those principles or considerations set out by Kandakasi J and Cannings J in their respective judgments relevant and applicable in the context of Rule 15 (2) (a) and (c) as well.
43. It is not in dispute in the present case that further judicial intervention may be necessary to give effect to a self-executing Order. In Wasis v Elias [2016] SC1485 the Supreme Court had regard to circumstances where, at a directions hearing, a Judge of the National Court ordered appellants to, inter alia, consider amending the statement of claim by providing further and better particulars of the claim, and to report to the Court at the next return date. At the next return date the appellants informed the Court that they did not amend the pleadings, and the respondents made an oral application to have the proceedings dismissed on the ground that the appellants failed to comply with the previous order pursuant to Rule 9A(15)(2)(c) of the National Court Rules. The primary Judge did not dismiss the proceedings, but ordered the appellants to explain, at the following return date, why the order was not complied with and the steps taken to comply with the order. Failing that, the proceedings would be dismissed. When the matter returned again for directions the respondents informed the Court that the appellants had not complied with those orders either, and sought to have the proceedings dismissed. The primary judge found the appellants' explanation for the default was unsatisfactory and dismissed the proceedings.
44. In relation to the self-executing order in the proceedings, their Honours in Wasis at [12] referred to the earlier decision in Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (2000) SC627, being authority for the proposition that a conditional order requires further judicial function of determining that the condition was not satisfied at the specified time. Their Honours continued:
    13. We add, a conditional or self-executing order is not one that should be treated lightly. We say this because the order itself puts the party subject of the order on notice that a certain consequence will occur at a specified date in the future if the conditions of the order are not met. Thus, it is of utmost priority that the party required to comply adhere to its terms. Failure may result in an unfavourable consequence.
45. Returning to the question of jurisdiction of the National Court, we are not persuaded that the primary Judge lacked jurisdiction to dismiss the proceedings pursuant to O 10 r 9A(15)(2) as contended by the appellants in ground of appeal 3.2 and related grounds of appeal, for the following reasons.
46. First, it is a fundamental principle that the onus rests on plaintiffs to diligently prosecute their claim. It is not in dispute that, at 17 January 2022 when the primary Judge made the relevant self-executing Order, and again at 9 March 2022 when the matter returned before his Honour, no action to progress their respective claims had been taken by plaintiffs since the amended writs of summons and amended statements of claim were filed in 2015. As the primary Judge pointed out to the lawyer for the appellants, no satisfactory explanation was provided by the appellants as to why such prosecution had not occurred. The lawyer for the appellants submitted from the Bar Table that there had been issues in respect of contacting the appellants, however as his Honour correctly pointed out such submission did not constitute proper evidence which his Honour could take into account.
47. Second, and following the previous point, it is not the role of the Court to promote a moving party’s claims on behalf of that party. In ground of appeal 3.4 (b) the appellant complained that “the matter was never on the National Court's list since 5th June 2019, for three years, and, as such warranted a status conference before any application for dismissal ought be considered.” To the extent that the appellants appeared to contend that it was the responsibility of the National Court to bring the proceedings before the Court for a status conference during the period 2015-2022 to advance the litigation, we reject that proposition. A better question is why the appellants did not, either through their lawyers or otherwise, seek to have the matter return before the Court for a status conference within that time. Unfortunately it is unclear to us why this did not occur. Equally, it was unclear to his Honour, for whom it was a relevant consideration in determining that the appellants had not prosecuted their own case.
48. Third, ground of appeal 3.5(b) contends that the appellant’s lawyer was caught "off-guard" having come to court to have a status conference on the matter as the matter was in hibernation for some time after the Mendi Court House was burnt in 2018. We consider that this ground of appeal entirely lacks merit in circumstances where:
    • There was no evidence before his Honour of prejudice to the appellants or the conduct of their case by the loss of the Mendi Court House;
    • We consider it reasonable to infer that the appellants’ lawyers continued to retain their own files and could have prosecuted the matter in the National Court of Justice elsewhere than Mendi; and
    • The destruction of paper files at the Mendi Court House did not prevent the continued administration of justice in Mendi. We note, for example, that at the time of the destruction of the Mendi Court House paper files had been electronically scanned and were available.
49. Any “hibernation” of the proceedings at first instance must, in the absence of adequate explanation be squarely placed at the feet of the appellants. This was, of course, a relevant consideration for his Honour.
50. Fourth, we note that the timetabling Orders of 17 January 2022 (which included the self-executing Order) were made by his Honour in Chambers, ex parte. There is no affidavit evidence before us of the manner in which the parties or their lawyers became aware of the making of these Orders. However:
    • Although we note the submission of the lawyer for the appellants during the hearing that she had only become aware of the proceedings days before the hearing of 9 March 2022, we also note the comment of the primary Judge during the hearing that Mendi Court House public toksave was issued on “the 24^th, copies left with counsel Tamutai on the 26^th”. We understand that this refers to Court news being made available in late January 2022. No issue was taken at the hearing by the lawyer for the appellants concerning this statement of his Honour and the receipt of copies of the toksave.
    • We note that Curtain Bros filed material in compliance with order 3 of 17 January 2022 (namely, that the defendants file affidavits by 14 February 2022). Specifically, Curtain Bros filed an affidavit of Mr Justin Francis McGann sworn 11 February 2022. It appears that service of this affidavit on the appellants’ lawyers was confirmed by the affidavit of Ms Annette Haru sworn and filed 4 March 2022. To that extent, it is plain that the fourth respondent, at the very least, was informed of the orders of 17 January 2022, and complied with them to the extent that it could.
51. In our view the lawyers for all parties were made aware of the timetabling orders (including the self-executing Order) of 17 January 2022.
52. Fifth, in ground of appeal 3.2 the appellants claimed that the primary Judge summarily dismissed the appellant’s claims pursuant O 10 r 9A(15)(2)(c), but lacked jurisdiction to do so because the self-executing order of 17 January 2022 was issued in Chambers and therefore was not “made or issued by the Court at any of the listing processes” within the meaning of para (c). Even if it could be said that the self-executing order of 17 January 2022 was not “made or issued by the Court at any of the listing processes”, we reject the proposition that the primary Judge lacked jurisdiction to dismiss the proceedings, because:
    • His Honour did not purport to dismiss the proceedings pursuant to O 10 r 9A(15)(2)(c) as the appellants claimed. The order of 9 March 2022 was made pursuant to O 10 r 9A(15)(2).
    • It cannot be inferred from the terms of his Honour’s order of 9 March 2022 that it was made pursuant to O 10 r 9A(15)(2)(c). His Honour specifically referred in the relevant order to the Supreme Court decisions of Kalang Advertising Ltd v Kuppusamy [2008] SC924 and Wasis v Elias [2016] SC1485. In both cases the Supreme Court examined the power of the National Court summarily determine matters before it. Neither case relied exclusively on O 10 r 9A(15)(2)(c).
    • The National Court has inherent power to control its process, and may make such orders as are necessary to do justice in the circumstances of a particular case: s 155(4) of the Constitution, Amet v Yama [2010] SC1064 at [19], Kasper v Kiap [2020] SC2047 at [11].
    • In any event O 10 r 9A(15)(2)(a) of the National Court Rules specifically empowers the National Court to summarily dispose of a matter for want of prosecution since filing the proceedings or since the last activity on the file. The timetabling orders (including the self-executing Order) of 17 January 2022 were plainly made to provide the parties with a framework to progress the respective claims. Equally plainly, the appellants for unexplained reasons did not take action in accordance with those Orders. It follows that it was entirely open to the primary Judge to find that this conduct of the appellants was intentional, that the delay in prosecuting the litigation was inordinate and inexcusable, and that it caused prejudice to the respondents who had been the subject of the claims for 7 years.
53. Sixth, in Baing v PNG National Stevedores Pty Ltd [2000] SC 627 at page 6 the Supreme Court explained that conditional orders – such as, in the present case, a self-executing order – required the exercise of further judicial function of determining whether the condition had been satisfied at the specified time. To the extent that the appellants in the present case claimed that the self-executing order of the primary Judge required further judicial function, we are satisfied that the listing of the matter to return on 9 March 2022, and the hearing conducted on that date, constituted such further judicial function within the meaning explained by the Supreme Court in Baing and such later authorities as Wasis v Elias.

Absence of formal application for summary dismissal and notice to appellants

54. In ground of appeal 3.3 the appellants complained of the absence of formal application by the fourth respondents (or any respondent) for summary dismissal, and the absence of notice to the appellants of the prospect of summary dismissal.
55. As we have already noted, O 10 r 9A(15)(1) empowers the Court to summarily determine a matter on its own initiative, as well as on application by a party. The primary Judge made the orders of 17 January 2022 from Chambers, on the initiative of the Court. The notice to the parties of the consequences of failure to progress the litigation was made plain from the orders of the primary Judge of 17 January 2022. The parties must have been aware from the terms of the 17 January 2022 orders that there was a prospect of summary determination of the proceedings should there be a failure to comply.
56. That there was no formal application by Curtain Bros to have the appellants’ claims summarily determined was no bar to the primary Judge dismissing those claims for want of prosecution by the appellants.
57. We reject this ground of appeal.

Rules of Natural Justice

58. A number of grounds of appeal concern the alleged breach of the rules of natural justice by the primary Judge. In particular we note grounds of appeal 3.5, 3.6 and 3.8. These grounds revolve around the appellants’ claims of lack of forewarning, refusal to adjourn, and lack of opportunity to explain.
59. In our view these grounds of appeal have no merit.
60. In relation to the ultimate refusal of the primary Judge to adjourn the proceedings as sought by the lawyers for the appellants, the mere fact that the appellants wanted an adjournment was insufficient to warrant such an order. It is trite to observe that an applicant for adjournment has the onus to show actual prejudice and not merely speculative prejudice. This prejudice or reason for adjournment must be supported by adequate affidavit evidence: Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1989] N750, Ihari v Motor Vehicles Insurance Ltd [2006] SC1317 at [18], Kalinoe v Paul Paraka Lawyers [2014] SC1366 at [12]. No evidence was adduced to this effect by the appellants to support the grant of an adjournment.
61. At the hearing before the primary Judge of 9 March 2022, the lawyer for the appellants submitted that she did not have carriage of the matter. Of itself, this is not a valid reason for adjournment: Melina Limited trading as CN Mercantile v Fred Martens (2001) N2183 and Ihari v Motor Vehicles Insurance Ltd [2006] SC1317 at [19].
62. Further, we note that the primary Judge adjourned the proceeding for two hours to allow the lawyers for the appellants to undertake action referable to the proceedings. As we observed at the hearing, an affidavit supporting an adjournment could have been prepared during that time, notwithstanding that the office of the lawyers was some distance away in Mount Hagen. We do not consider that the failure of the appellants to take advantage of the opportunity offered by the primary Judge constituted a breach of natural justice by his Honour.

Other respondents not in Court

63. The appellants contended in ground of appeal 3.7 that the primary Judge erred in dismissing the proceedings when only the lawyer for Curtain Bros was in Court on 9 March 2022, and no material had been filed by the other respondents.
64. As Counsel for Curtain Bros submitted at the hearing, the failure of the appellants to file evidence in accordance with Order 2 of 17 January 2022 to which the respondents could properly respond provides a compelling reason why the other respondents did not file material of their own.
65. To the extent that the appellants in this ground of appeal contend that the self-executing order was not “ripe” for enforcement, as was pointed out to Counsel for the appellants at the hearing of the appeals it was open to the appellants to seek default judgment against defendants to the primary proceedings who had not filed either notices of intention to defend or defences. Alternatively, and obviously, the appellants could have sought to appeal the self-executing order of 17 January 2022.
66. The appellants took none of these actions to prosecute their own claims. In that light, the view of the primary Judge that there had been a want of prosecution by the appellants is plainly vindicated.

CONCLUSION

67. In our view the appellants’ grounds of appeal have no merit. The appeal in each matter is dismissed.
68. Curtain Bros has sought its costs of and incidental to the appeal on a party and party basis, to be taxed if not otherwise agreed. Such costs follow the event. An order in those terms is appropriate.
    
69. The Court orders that:
    • (1) The appeals in SCA No. 40 of 2022, SCA No. 41 of 2022, SCA No. 42 of 2022, SCA No. 43 of 2022, SCA No. 44 of 2022 be dismissed.
    • (2) The appellants pay the costs of the fourth respondent of and incidental to the appeal on a party and party basis, such costs to be taxed if not otherwise agreed.

________________________________________________________________
Tamutai Lawyers: Lawyers for the Appellants
Young & Williams: Lawyers for the Fourth Respondent