Ondalane v Ekepa [2023] PGSC 67; SC2413 (30 June 2023)

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SCA NO. 66 OF 2021 (IECMS)
(CONSOLIDATED APPEALS - SCA NO. 96 OF 2021 SCA NO. 131 OF 2021; SCA NO. 139 OF 2021 AND SCA. NO. 7 OF 2022)

PRACTICE AND PROCEDURE – Two applications for summary dismissal of appeals – relevant principles for Supreme Court to exercise power to dismiss a proceeding for want of prosecution or claimed failure to comply with Court Orders – whether alleged discrepancies in appeal book were material – whether delay in compliance prejudiced respondents – interests of justice – applications for summary dismissal dismissed

Two applications for dismissal of five consolidated appeals were filed (variously) by the first, second and third respondents. The basis on which both applications were filed was that the appellants had failed to comply with timetabling orders of the Supreme Court made on 8 November 2022 and 25 April 2023. The respondents relied on Order 7 rule 48 (a), and Order 13 rule 8A and 16(1)(a) of the Supreme Court (Miscellaneous Amendments) Rules 2022. It was not in dispute that the appellants had failed to comply with Supreme Court Orders made on 8 November 2022, by not serving the Appeal Book by 22 December 2022. On 25 April 2023 the Supreme Court allowed the appellant further time to file and serve the consolidated Appeal Book and adjourned the first application for dismissal to the current proceedings. The appellants filed a consolidated Appeal Book on 2 May 2023. The respondents subsequently filed a second application for dismissal of the consolidated appeals, on the basis that the consolidated Appeal Book as filed by the appellants was not in accordance with the settled Index, was not certified by the respondents, and accordingly the appellants had failed to comply with Supreme Court Orders relating to the progression of the appeals.

The Court considered principles relating to the exercise of the Supreme Court’s power to dismiss a proceeding for want of prosecution, or a claimed failure to comply with Court Orders. The Court found that the administration of justice required that the consolidated appeals proceed to hearing, as expeditiously as possible. The application for summary dismissal filed on 3 February 2023 was dismissed and the application for summary dismissal filed on 31 May 2023 was dismissed. The Court also ordered that the costs of the appellants of and incidental to the applications be paid by the first, second and third respondents on a party-party basis.

Constitution of the Independent State of Papua New Guinea 1975
National Court Rules 1983
Supreme Court (Miscellaneous Amendments) Rules 2022
Supreme Court Act 1975
Supreme Court Rules 2012

Cases Cited:
Behrouz Boochani v The State (2017) SC1566
Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Independent State of Papua New Guinea v Kalaut [2021] SC2130
Keam Investments Ltd v Toyota Tsusho (PNG) Ltd (trading as Ela Motors) [2021] SC2118
Koringo v National Broadcasting Commission [2019] SC1803
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156
Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Norr v Ikamata [2005] SC815
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd [2005] SC811
Powi v Southern Highlands Provincial Government [2006] SC844
Tulapi v Alu [2011] SC1177

Counsel
Mr P. Harry, for the First and Second Appellants
Mr J. Haiara, for the Fourth Appellants
Mr P. Mawa, for the First Respondent
Mr N. Saroa, for the Second and Third Respondents
Mr R Uware, for the Fifth Respondent
Ms J. Nandape, for the Sixth Respondent

9. Subsequently on 1 May 2023 a draft consolidated Appeal Book was served on the respondents. Following this, the draft consolidated Appeal Book was filed on 2 May 2023.

10. The respondents informed the appellants on 4 May 2023 that the draft consolidated Appeal Book was not in accordance with the settled Index, and returned the Appeal Book to the appellants.

11. The matter returned for directions in the Supreme Court on 24 May 2023 and 12 June 2023, when the date for the hearing of the 3 February 2023 Application was set down and confirmed. Orders made on 24 May 2023 were:

12. An application was filed on 31 May 2023 by the first respondent, Mr Mark Ekepa (31 May 2023 Application). In the 31 May 2023 Application, the first respondent sought the following Orders:

13. The consolidated appeals arise from several National Court proceedings, namely:

15. In OS 102 of 2021 the National Court relevantly ordered on 25 June 2021 as follows:

16. Also in OS 102 of 2021, on 2 July 2021 the National Court made the following orders, described as by consent of the parties:

17. The National Court Orders of 25 June 2021 were originally the subject of an appeal filed in SCA 66 of 2021 on 1 July 2021 by Kimaleya Ondalene and Yanale Lare. However in a supplementary notice of appeal filed in SCA 66 of 2021 on 15 July 2021, Kimaleya Ondalane and Yanale Lare appealed both the Orders of 25 June 2021 and the Orders of 2 July 2021. In the supplementary notice of appeal the appellants in summary claimed:

18. Subsequently on 10 August 2021, another notice of appeal was filed in SCA 96 of 2021 by Nelson Akiko and Ruben Loli Nalepe. This notice of appeal however only concerned the orders of the National Court of 2 July 2021 in OS 102 of 2021 (IECMS). In this notice of appeal the appellants in summary claimed:

20. Subsequently on 23 September 2021 in OS 208 of 2021 the National Court ordered as follows:

21. Both sets of orders were the subject of a notice of appeal filed in SCA131 of 2021 on 11 October 2021 by Kimaleya Ondalane and Pawe Menepa. In summary the appellants claimed error by the primary Judge:

22. The orders of the National Court of 23 September 2021 in OS208 of 2021 were also the subject of appeal by Nelson Akiko and Ruben Loli Nalepe in a Notice of Appeal filed on 27 October 2021 in SCA139 of 2021. In summary, the appellants claimed error by the primary Judge in endorsing purported consent orders:

24. These orders were the subject of a notice of appeal filed on 25 January 2022 by Kimaleya Ondalane, Pawe Menepa, Ruben Nalepe and Nelson Akiko in SCA 7 of 2022. The appellants claimed, in summary, errors of the primary Judge:

25. Relevant submissions were made by the second and third respondents, the first respondent, the State (fifth respondent), and the appellants.

26. In respect of the second and third respondents, respectively the Hon. Johnson Tuke MP Minister for Mining and the MRA, there appears to be:

27. The second and third respondents stated in the second extract of submissions that that extract was to be read with the first extract of submissions. Plainly, however, the extract of submissions filed on 11 April 2023 related specifically to events prior to the hearing of 25 April 2023. The second extract of submissions and the written submissions were referable to the 3 February 2023 Application, but related to events following 25 April 2023.

29. The second and third respondents relied primarily on evidence of Mr Livingstone Baida, a lawyer with Nelson Lawyers, who acts for the second and third respondents.

30. The first respondent filed an extract of submissions on 19 April 2023 in support of the 3 February 2023 Application. In summary the first respondent submitted:

31. No submissions have been filed by the first respondent referable to his 31 May 2023 Application. However an affidavit in support of the 31 May 2023 Application sworn by Mr Paul Mawa, lawyer for the first respondent, was filed by the first respondent on 31 May 2023. Relevantly to the 25 April 2023 Orders Mr Mawa relevantly deposed, in summary:

32. The first respondent relied on evidence of Mr Paul Mawa, the lawyer with carriage of the matter for the first respondent.

33. The State filed submissions on 19 April 2023 in relation to the 3February 2023 Application. The State submitted, in summary:

36. The appellants relied on evidence of Mr Paul Harry filed 15 May 2023, and an affidavit of Mr Justin Haiara sworn 22 March 2023.

37. Order 7 rule 48(a) of the Supreme Court (Miscellaneous Amendments) Rules 2022 provides for summary dismissal of an appeal for want of prosecution in the following terms:

38. Further, Order 13 Rules 8A and 16(1)(a) of the Supreme Court (Miscellaneous Amendments) Rules 2022 provide for summary dismissal of an appeal for want of prosecution on application by a party as follows:

39. Section 155(4) of the Constitution provides for the inherent powers of the National and Supreme Court to make orders in proper circumstances to do justice in a particular case. At the hearing of the applications, after questioning by the Bench, the applicants in both applications no longer pressed s 155(4) of the Constitution, given the authority of such cases as Powi v Southern Highlands Provincial Government [2006] SC844 that s. 155(4) does not apply if there is already a remedy provided for by any other law (at [19]). See also Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156, Behrouz Boochani v The State (2017) SC1566 and Independent State of Papua New Guinea v Kalaut [2021] SC2130.

40. Relevant principles guiding the exercise of the Supreme Court’s power to dismiss a proceeding for want of prosecution, or where there is a claimed failure to comply with Court Orders, are well-settled, and are not in dispute in the present proceedings. In summary:

42. As we have already observed, the 3 February 2023 Application came before the Supreme Court on 25 April 2023. While the Court on that day adjourned the hearing, it also made the 25 April 2023 Orders which required the appellants to file a consolidated Appeal Book as already contemplated. It appears that their Honours on 25 April 2023 considered they should not exercise their discretion to summarily dismiss the appeals for either want of prosecution or non-compliance referable to the filing of the Appeal Books notwithstanding:

43. Further referable to this point – Mr Saroa for the second and third respondents submitted a number of times during the hearing that they accepted that, subject to ongoing dispute over aspects of the Appeal Book, the appellants had complied with Order 1 of the 25 April 2023 Orders and a combined Appeal Book had been served and filed.

44. It is clear that events – in particular the hearing of 25 April 2023, and the 25 April 2023 Orders – have substantially overtaken the 3 February 2023 Application. That this is so in our view weighs against the Court exercising discretion in the respondents’ favour to dismiss the Appeal, notwithstanding the non-compliance by the appellants with Order 4 of the 8 November 2022 Orders.

45. The written and oral submissions of all parties plainly point to a key issue before the Court being whether the consolidated Appeal Book, filed on 2 May 2023, complied with the settled index in accordance with Order 1 of the 25 April 2023 Orders. In relation to this issue we make the following observations.

46. Despite the fact that this was plainly a key issue, no oral submissions of substance were made by any of the parties at the hearing in respect of the substance of alleged discrepancies in the Appeal Book claimed by the respondents.

47. The respondents made much in their submissions of the obligation on the appellants to prosecute their own Appeals, however that duty equally applies to the respondents in respect of their Applications presently before the Court.

48. Indeed, we note that the Appeal Book itself was not before the Court, such that the Court could itself examine it to consider whether there is merit to the allegations by the respondents of discrepancies and non-compliance with the settled Index.

49. Rather, the respondents relied on an amended Application Book filed on 31 March 2023 (which plainly predated any events on and from 25 April 2023), an affidavit of Mr Livingstone Baida filed 12 May 2023 in which Mr Baida deposed as to the existence of alleged discrepancies and baldly asserted that the appellants had consequently breached the 25 April 2023 Orders, and various letters between the lawyers for the respondents and the appellants.

50. The manner in which the respondents have prosecuted their Applications means that this Supreme Court is called on to make factual findings, on the basis of minimal evidence, and where that evidence is both in dispute and not capable of being properly tested in the appellate process.

53. At para 5 of his affidavit under the heading Chronology of Events, Mr Baida deposed :

Volume	Discrepancies
1	(1) Incorrect description of this document, should read "Volume Five [5]" as per the settled Index (2) Tab 31, Annexure A is missing at page 142 (3) Tab 31, incomplete document at page 147 (4) Tab 31, incomplete document at page 179 (5) Tab 31, incomplete document at page 184 (6) Tab 341, incorrect document at page 234
2	(1) Incorrect description of this document, should read "Volume Two [5]" as per the settled Index (2) Tab 35, paragraph 47 points 1,2,3 and 4 are missing at pages 291 and 292 (3) Tab 35, incorrect documents inserted at page 346 (4) Tab 35, missing documents between pages 357 and 358 (5) Tab 35, incorrect documents inserted at page 364 (6) Tab 35, duplicated documents inserted at pages 367 and 369 (7) Tab 35, duplicate documents inserted at pages 373, 374 and 375 (8) Tab 35, incomplete documents inserted at page 433 (missing pages 25-43)
3	(1) Incorrect description of this document, should read "Volume Three [5]" as per the settled Index (2) Tab 38, missing documents between pages 648, 649 and 650 (3) Tab 38, incorrect document inserted at page 680 (4) Tab 38, incorrect document inserted at page 682 (5) Tab 38, missing documents at pages 700, 720 and 721 (6) Tab 38, incorrect document inserted at pages 740, 741 and 742.
4	(1) Incorrect description of this document, should read "Volume Four (4)" as per the settled Index
5	(1) Incorrect description of this document, should read "Volume Five (5)" as per the settled Index (2) Tab 27, document printed on another document at pages 1175 and 1176

55. An affidavit responding to Mr Baida’s affidavit was filed on 15 May 2023, sworn by Mr Harry (who acts for appellants Kimaleya Ondalane and Yanale Lare). Relevantly Mr Harry deposed as follows:

	Objection by Nelson Lawyers	Response by Appellants
Volume One (1)
(1)	Incorrect description of this document, should ready “Volume 5” as per the settled index.	This objection is wrong as Volume One (1) is correctly the first page. The settled index did not separate the documents into volumes 1-5. Refer to annexure PH12 below.
(2)	Tab 31, Annexure A is missing at page 142.	Only 2 pages containing the page 142. Certification of Incorporation and Extract of the Porgera Land Owner Association were not included. See annexure PH11 below. NB: The Association was not a party to appeals SCA Nos. 66, 96, 131 and 139 of 2021. It was only joined as a party in SCA No. 7 of 2022, whose membership Collier J had ordered was in dispute.
(3)	Tab 31, incomplete document at page 147.	Only the last one page to that document is missing. Mark Ekepa had not provided the full copy of the Constitution in his affidavit filed on 28th May, 2021 in OS No. 102 of 2021, but instead had only provided sections 1 to 6 of the Constitution. His document is incomplete, not the appeal book.
(4)	Tab 31, incomplete document at page 179.	This objection 1s false and misleading. There is no incomplete document at page 179 based upon the fact that the actual affidavit of Mark Ekepa had the judgment of Shepherd J up to paragraph 67 only, and was an incomplete document, not the appeal book.
(5)	Tab 31, incomplete document at page 184.	This objection is also false and misleading. There is no incomplete document because the actual affidavit of Mark Ekepa contained pages 1, 2, 3, 45 and 46 only of the entire judgment of Shepherd J, which had skipped pages 4 to 44. Only page 46 is not included. However, there should not be any confusion as Tab 55 contained the entire published judgment of Shepherd J.
(6)	Tab 341, incorrect document at page 234.	Tab 341 does not exist as Tab 61 is the last Tab. Page 234 is an incorrect document that was included and could easily be discarded.
Volume Two (2)
(1)	Incorrect description of this document, should read “Volume Five (5)” as per the settled index.	This objection is wrong as Volume Two (2) is correctly the first page. The settled index did not separate the documents into volumes 1-5. Refer annexure PH12 below.
(2)	Tab 35, paragraph 47 points 1, 2, 3 and 4 are missing at pages 291 and 292	This objection is also false and misleading and contrary to the actual judgment of Shepherd J. The judgment pages are actually in order and could easily be confirmed by the published judgment of Shepherd J in Tab 55 of the Consolidated Appeal Book.
(3)	Tab 35, incorrect documents inserted at page 346.	Page 346 is the correct document. Its cover page is page 347, which has been reversed with page 346. This is a minor issue.
(4)	Tab 35, missing documents at pages 357 and 358.	This objection is also false and misleading. There are no missing documents. The affidavit of Jonathan Paraia sworn and filed on 24 June 2021 in OS No. 102 of 2021 has only one page in page 257 as an annexure.
(5)	Tab 35, incorrect documents inserted at page 364.	This objection is incorrect. All the documents that were to be included were actually included from pages 364 to 367, however were numbered incorrectly. Page 366 should be the first, page 365 should be the second, page 367 was correctly the third, and page 364 should be the fourth.
(6)	Tab 35, duplicated documents inserted at pages 367 and 369.	This objection is false and misleading based upon the affidavit of Jonathan Paraia sworn and filed on 24 June 2021 in OS No. 102 of 2021 which had pages 367 and 369 as separate documents numbered as pages 80 and 82.
(7)	Tab 35, duplicate documents inserted at pages 373, 374 and 375.	This objection is false and misleading based upon the affidavit of Jonathan Paraia sworn and filed on 24 June 2021 in OS No. 102 of 2021 which had pages 373, 374 and 375 as separate documents numbered as pages 83, 84 and 85.
(8)	Tab 35, Incomplete documents inserted at page 433 (missing pages 25-43).	This objection 1s false and misleading based upon the affidavit of Jonathan Paraia sworn and filed on 24 June 2021 in OS No. 102 of 2021 which had included pages 1 to 24 only of the judgment of Shepherd J. The entire judgment of Shepherd J are included at pages 278-320 and Tab 5 of the Appeal Book.
Volume Three (3)
(1)	Incorrect description of this document, should read “Volume Five (5)” as per the settled index.	This objection is wrong as Volume Three (3) is correctly the first page. The settled index did not separate the documents into volumes 1-5. Refer to annexure PH12 below.
(2)	Tab 38, missing documents between pages 648, 649 and 650.	This objection is false and misleading based upon the fact that the affidavit of Mark Ekepa filed in the proceeding OS No. 17 of 2021 does not include any missing documents in pages 648, 649 and 650.
(3)	Tab 38, incorrect document inserted at page 680.	This objection is false and misleading based upon the fact that page 680 is part of the documents at pages 678-686 of Mark Ekepa's affidavit filed in OS No. 17 of 2021.
(4)	Tab 38, incorrect document inserted at page 682.	This objection is also false and misleading based upon the fact that page 682 is part of the documents at pages 678-686 of Mark Ekepa's affidavit filed in OS No. 17 of 2021.
(5)	Tab 38, missing documents at pages 700, 720 and 721.	This objection is also false and misleading based upon the fact that the affidavit of Mark Ekepa only contained pages 699 and 700 under annexure N, and pages 720 and 721 were part of the documents included in Mark Ekepa's affidavit filed in OS No. 17 of 2021.
(6)	Tab 38, incorrect document inserted at pages 740, 741 and 742.	We agree that pages 740, 741 and 742 were incorrect documents that should not have been included. However, these documents could easily be noted and not referred to. NB: It is important to note that these documents were part of the document filed in the proceeding OS No. 17 of 2021 which is not the subject of any of the appeal.
Volume Four (4)
	Incorrect description of this document, should read “Volume Four (4)” as per the settled index.	This objection is wrong as Volume Four (4) is correctly the first page. The settled index did not separate the documents into volumes 1-5. Refer annexure PH12 below.
Volume Five (5)
(1)	Incorrect description of this document, should read “Volume Five (5)” as per the settled index.	This objection is wrong as Volume Five (5) is correctly the first page. The settled index did not separate the documents into volumes 1-5. Refer annexure PH12 below.
(2)	Tab 27, document printed on another document at pages 1175 and 1176.	The document at pages 1175 and 1176 have been printed on another document, however they are in order and still readable.

56. From Mr Harry’s evidence it appears that the appellants deny non-compliance of the Appeal Book with the settled Index. They conceded:

57. Finally, in her affidavit Ms Nandape (who acts for the PLOA in SCA No 7 of 2022) deposed:

58. Examining this evidence and supporting submissions of the parties, in our view:

59. To that extent, we give no weight to the evidence and submissions of the respondents that they provided “opportunities” to the appellants to “remedy” the Appeal Books to comply with the settled Index.

60. In our view, the issues with the Appeal Book as identified by the respondents do not constitute non-compliance by the appellants with the 25 April 2022 Orders, such as to warrant the exercise of the Court’s discretion as sought in the Applications presently before the Court.

61. Order 7 Rule 43 (10) Supreme Court (Miscellaneous Amendments) Rules 2022 relevantly provides :

62. In this case it is common ground that the Appeal Book was not certified by the respondents prior to filing by the appellants. The respondents contended that the conduct of the appellants in filing the Appeal Book without certification constituted failure by the appellants to do an act required to be done by them under the Supreme Court Rules, for which the appeals could be dismissed.

63. While certification of an appeal book is plainly the norm, there is also authority that an appeal can proceed notwithstanding the refusal by a respondent to certify an appeal book: Karingu v Papua New Guinea Law Society [2006] SC900.

64. In the present case the appellants have referred to the specific terms of Orders 2 and 3 of the 25 April 2023 Orders as justifying their filing of the Appeal Book without the need for certification. In our view this argument has merit. While Orders 2 and 3 of the 25 April 2023 Orders did not specifically dispense with the requirement to obtain certification of the Appeal Book from all parties, those Orders plainly contemplated that the appellants file the Appeal Book forthwith, and if the respondents took issue with the contents of the Appeal Book they were to file an affidavit and bring an application for dismissal.

65. We are not persuaded that the absence of certification of the Appeal Book supports the exercise by the Court of its discretion to dismiss the consolidated Appeal.

66. In respect of the 3 February 2023 Application, it is not in dispute that the appellants were one month and eleven days late in serving the Appeal Book. While the appellants could, and arguably should, have applied to the Supreme Court to vary the 8 November 2022 Orders, we note the explanation of the appellants’ lawyers for the delay, namely the size of the Appeal Book, the process of obtaining documents for inclusion in the Appeal Book (including obtaining documents from the respondents), and the time of year for conclusion of compilation of the Appeal Book (being immediately before the Christmas period when staff were reduced).

67. No transcript of the hearing of the Supreme Court of 25 April 2023 has been provided to this Court, however we infer that the explanation of the lawyers for the appellants was accepted as, at least, plausible by that Court, because their Honours permitted the appellants to file the Appeal Book.

68. The circumstances in this case of a very difficult, complicated, consolidated Appeal, with a lengthy history, involving multiple parties and five volumes of Appeal Book, are factors the Court can take into account in considering the Applications before it.

69. This is particularly so given that the respondents have not identified any prejudice of substance to them specifically arising from the delay on the part of the appellants in the filing of the Appeal Book.

70. Both the appellants and the respondents have asserted that the interests of justice favour their position in respect of the Applications before the Court. Mr Mawa made detailed submissions concerning the history of the litigation and the public interest in having the litigation resolved. However the appellants argued that their rights as landowners had been disregarded in the lower Court, and further that the consolidated Appeal was ready to be heard and determined.

71. The Supreme Court recognises the competing interests of the parties. However, the Supreme Court is also required to administer justice to all parties, including entertaining appeals from decisions of the National Court.

72. On balance, in the circumstances of the Applications presently before the Court, we consider that justice would best be served for the consolidated Appeal to proceed to hearing, as expeditiously as possible.

73. We are not persuaded that the Supreme Court should uphold the Applications and exercise its discretion to dismiss the consolidated Appeal.

74. The 3 February 2022 Application and the 31 May 2022 Application are dismissed.

75. Both the respondents and the appellants have sought their costs in respect of these applications.

76. In the 25 April 2022 Orders the Supreme Court ordered the parties to bear their own costs.

78. Recently in Keam Investments Ltd v Toyota Tsusho (PNG) Ltd (trading as Ela Motors) [2021] SC2118 discussing Order 22 Rule 12 of the National Court Rules, the Supreme Court made the following observations, which in our view apply equally to Order 12 rule 24 of the Supreme Court Rules and the approach the Court ordinarily adopts in making costs orders:

79. Having now determined that the 3 February 2022 Application and the 31 May 2022 Application should be dismissed, we consider there is no reason to depart from the usual approach of ordering that costs follow the event.

80. The costs of the appellants of and incidental to the 3 February 2022 Application and the 31 May 2022 Application are to be paid by the first, second and third respondents on a party-party basis, such costs to be taxed if not otherwise agreed.

________________________________________________________________
Harry Lawyers: Lawyers for the First and Second Appellants
Haiara’s Legal Practice: Lawyers for the Fourth Appellants
Mawa Lawyers: Lawyers for the First Respondent
Nelson Lawyers: Lawyers for the Second and Third Respondents
Solicitor-General: Lawyers for the Fifth Respondent
Nandape & Associates Lawyers: Lawyers for the Sixth Respondent

Supreme Court of Papua New Guinea

Ondalane v Ekepa [2023] PGSC 67; SC2413 (30 June 2023)