SC2694

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 123 OF 2023

BETWEEN:
PACIFIC SERVICES NETWORK LTD
Appellant

AND:
KOIARI WAN LTD
Respondent

WAIGANI: LOGAN J, TOLIKEN J, POLUME-KIELE J
29 OCTOBER 2024

PRACTICE & PROCEDURE – where the appellant appeals from the dismissal of the proceedings for non-compliance with a self-executing order – where the appellant did not comply with case management orders – whether the primary judge erred in exercising their discretion to perfect the self-executing order – appeal dismissed

Facts

The appellant commenced proceedings by writ in the National Court against the respondent. The proceedings were brought under the IECMS system. The primary judge made timetabling orders on 30 September 2022 for the provision of evidence and settlement offers. These orders also included a self-executing order that provided for the dismissal of the proceedings if the plaintiff failed to comply or the granting of judgment for the plaintiff if the defendant failed to comply.

The appellant did not comply with the initial timetabling orders by 10 October 2022. The proceedings were relisted on 10 July 2023 and the primary judge dismissed the proceedings.

Held:

1.	[Logan J, with Toliken J and Polume-Kiele J agreeing]: The primary judge did not make any error of principle and the exercise of the discretion was a reasonable one.

Cases cited

Karingu v Papua New Guinea Law Society [2006] PGSC 33; SC900
Lomai v Seal (Manus) Limited [2008] PGSC 57; SC1326
Wasis v Elias [2016] PGSC 5; SC1485

Counsel

Mr. S. Dewe and Mr. E. Wembri for the appellant
Mr. L. Baida for the respondent

Oral decision delivered on
29th October 2024

1.	LOGAN J: On 31 May 2022, the appellant, Pacific Network Services Limited, instituted proceedings in the National Court by a writ against the respondent, Koiari Wan Limited.  In those proceedings it was alleged that the respondent, through its managing director, approached the appellant through a Mr Paul Gigmai, in relation to the possibility of a joint venture agreement between the two companies for the extraction of gravel and river sand on the respondent’s customary land.  

2.	The statement of claim alleged that the defendant company was registered as a vehicle for the landowners of Sohava Enage to engage in commercial dealings with third parties in commercialising their natural resources.  It was further alleged in the statement of claim that there was a joint venture agreement dated 9 August 2018 which carried with it particular obligations for the defendant.  

3.	It was alleged that particular obligations had been breached such that the appellant suffered loss and damage.  The damages’ claim was, as is apparent from the prayer for relief in the statement of claim, ultimately open ended in that it included the claim for general damages for breach of agreement, loss of business and investment as well as “stress, frustrations and inconveniences.” But the basic quantified amount in the damages’ claim was said to be monies in the sum of K2,109,076.65 being for allegedly outstanding invoices and services rendered to the defendant.  As can be seen, the claim was therefore of a commercial nature and not an insubstantial one.  

4.	Koiari Wan gave a notice of intention to defend and on 23 July 2022 filed a defence and cross claim.  In turn, Pacific Network Services on 5 August 2022 filed a reply and defence to the cross claim.  

5.	The case was one brought under the IECMS system and attracted the application of particular listing rules designed to expedite the hearing and determination of commercial matters.  To this end, the proceeding was case managed.  

6.	It came before the primary judge for case management on 30 September 2022, at which time the following orders were made:

1.	The parties shall file and serve on each other affidavits of all evidence they respectively rely upon by no later than 10 October 2022 for the Plaintiff and 20 October 2022 for the Defendant.
2.	Given the straightforward nature of the claim, the parties are directed to have the [proceeding] settled and return to the Court with draft consent orders finalizing the proceeding, unless the parties can demonstrate to the satisfaction of the Court the existence of an issue as outlined in Order 2 Rule 2 (3)(b) (i) to (x) (A) and (B) of the ADR Rules 2022 that warrants resolution by trial.
3.	For purposes of settlement, the Plaintiff shall forward a Settlement Proposal to the Defendant by 10 October 2022, to which the Defendant shall respond by 20 October 2022.
4.	The Plaintiff shall also draft and forward to the Defendant a Statement of Relevant Facts and Issues for Resolution by 10 October 2022, to which the Defendant shall respond by 20 October 2022.
5.	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 whom, when, where and 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 the issues presented for resolution immediately below the table.
6.	Parties shall meet in settlement conference on 24 October 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.
7.	Failing settlement, 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 process.
8.	For the purposes of any mediation order, the parties shall come with a draft consent order with agreements on the mediator to be appointed, all fees payable and the dates for the various steps to be taken including, the actual mediation conference dates which shall commence and conclude within the balance of the month of October or in November 2022.
9.	Failing compliance with any of these orders will result in the proceeding standing dismissed with costs if the defaulting party is the Plaintiff, or judgment shall be entered for the Plaintiff with the reliefs sought or such other reliefs the Court considers appropriate with costs shall be granted if the defaulting party is the Defendant.
10.	The matter shall next return to Court on 7 November 2022 at 9:30 am or soon thereafter.
11.	The time for entry of these orders is abridged to take place forthwith upon the Court signing them.
7.	Unfortunately, the appellant did not comply with the terms of order 1 by the time specified.  That is not to say that there were not affidavits of evidence later filed but they were not filed by not later than 10 October 2022.  

8.	In turn, that had what might be described as a ‘ripple effect’ in relation to subsequent steps being completed as contemplated by the case management order of 30 September 2022.

9.	The appellant realised that it was not in compliance and, on 4 November 2022, filed a notice of motion by which it applied for an extension by variation of the times specified in the order of 30 September 2022.  Filed in support of that application was an affidavit made by a Mr Cedrick Ju of the appellant’s solicitors, Jema Lawyers.

10.	In that affidavit, Mr Ju offered, at [3]-[6], an explanation for the non-compliance which had occurred, deposed to when particular affidavits had been filed and also deposed to, or foreshadowed, that yet further affidavits were proposed to be obtained and filed:
3. I understand that term one of the Court Order dated 30th September 2022 requires parties to file and serve affidavits to rely on by or before 10th October 2022.
4. Due to the following reasons, the Plaintiff did not comply with term one of the above Order to file relevant affidavits by or before 10th October 2022;
a) Between 3rd October 2022 to 8th October 2022, I was un-able to contact and locate Mr Paul Gigmai, the managing director of the Plaintiff company.
b) On the 9th of October, 2022 I called him on his Digicel mobile number and advised him to depose his affidavit in support of the statement of claim. He responded that he’s sick and he’s in his sick bed.
c) On the 24st October [sic] 2022 he deposed his affidavit and serve at our office, I finalized it and filed it on the 27th October, 2022.
5. Given the above reasons, the affidavit of Paul Gigmai was filed out of time.
6. Furthermore, in relation to the content of the Statement of Claim, the Plaintiff will file two more affidavits from the following employees of the Plaintiff;
a) Peter Ambane, the operations manager of the Plaintiff Company, he’s out of the province at the moment, we will get him to depose his affidavit on the damages suffered on the properties and operations of the Plaintiff’ and
b) Kolkia Kunagil, the accounts recovery officer to depose his affidavit on the financial constraints suffered by the Plaintiff.
11.	The chronology just given may be supplemented by reference to an affidavit made by the respondent’s lawyer, Mr Livingstone Baida, which was filed on 7 July 2023. He attests, and the fact is, that the application to extend time has not been moved by the appellant.  

12.	That affidavit was made in response to a direction given by the primary judge on 10 July 2023 in the exercise of a case management function.  The case came on before his Honour that morning.  His Honour directed that any explanation for delay or non-compliance be the subject of affidavit evidence.  His Honour stood the case down until the afternoon for that purpose.  Mr Baida’s affidavit was responsive to that direction.  
13.	It will be noted that order 9 of the orders made on 30 September 2022 is what might be described as a ‘self-executing order’.  That order was nonetheless conditional in the sense that it required a judicial determination and related exercise of discretion in relation to any non-compliance: the Court had to be satisfied that there had been non-compliance and also as to the reasons why that had occurred.  

14.	The learned primary judge, having reviewed the events which had occurred, came to dismiss the proceeding for reasons which he delivered ex tempore.  In the course of those reasons, his Honour stated, amongst other things and quoting the practice direction governing the IECMS:
 
“The aim is to bring matters filed in the IECMS to a close as quickly as possible. Maximum allowance might be anything between one and two years.  The orders are specific and not unusual.  These kinds of orders have been made in a number of cases.  Some of them have resulted in matters expedited even within six months of filing, some within three months of filing.  And only when parties pay attention, and mostly it is the plaintiff, they have been resolved expeditiously.  And in this matter, for reasons known only to the plaintiff, now purportedly disclose the managing director going somewhere and not being able to attend to this matter.  The plaintiff was not able to comply with orders that were issued by the court.”
15.	His Honour later continued:

“In this case reference by the affidavit handed up by counsel for the plaintiff, it talks about the plaintiff’s managing director, Mr Gigmai, being out of town from 3 to 8 October.  So, if that was the case what else was in the way of the plaintiff complying with all of the orders?  What prevented the plaintiff from communicating a settlement proposal as required by the orders in term 3?  Same thing goes for the draft statement as required by term 4 and then for the parties to meet in settlement conference on 24 October.  If for whatever reason the plaintiff’s managing director was out of town where is the evidence of communicating that fact to the other side?  None.  So, basically this is a last-minute attempt by the plaintiff trying to explain a way, the apparent failure to fully comply with the orders of the court.”
16.	I interpolate that his Honour’s understanding that a communication of a settlement proposal, the furnishing of a draft statement, and meeting in a settlement conference by a time as specified was not inaccurate.  

17.	His Honour then continued. 

“So, those cases are on point having referred there to Kalang Advertising Ltd v Kuppusamy [2008] SC924 and Wasis v Elias [2016] SC1485.  That elaborates or give meaning in life to order 10 rule 9(A) sub-rule (15) further sub-rule (2) of the listing rules. So, I turn to any reasonable explanation offered. I did already indicate there is no reasonable explanation offered, even the simplest of things to do, which was to communicate a settlement proposal. And when there was no satisfactory explanation offered then the full warning orders are clear to be given effect to, and that is what must happen today.  The plaintiffs have the duty and obligation to take all steps necessary to have the matter prosecuted diligently.  Failing to do so has consequences, dire consequences.  The plaintiff did try to get around the time frames given by way of filing a notice of motion on 4 November 2022 for extension of time but that has not been moved at all.  No evidence is before the court as to what steps the plaintiffs took to have that motion listed and prosecuted.  It simply has been left in abeyance, not prosecuted and all, until this return and in light of submissions for dismissal.  Is counsel for the plaintiff asking for extension of time?”
18.	In the result and having considered the self-executing order and the events of non-compliance, his Honour determined that the proceeding should be dismissed and ordered accordingly.  

19.	It is against that order of dismissal that the appellant now appeals to this Court.  There was, in the result, no contest as to the correctness of the primary judge’s understanding of the circumstances of default.  What was pressed before us for the appellant was this was an unreasonable order of dismissal.  In other words, a judicial act which was so unreasonable that no reasonable judicial officer could have so ordered.

20.	On analysis though, the submissions both orally and in writing for the appellant really amounted to arguments as to other ways in which the Court might have dealt with the events of default which had occurred.  Apart from a general submission that the outcome was unreasonable, no error of principle was highlighted in the submissions made on behalf of the appellant.  

21.	Attention was drawn to the position, and the position is indeed, that the National Court did possess, even in the face of order 9, a discretion to extend time.  But, all that highlighted that what had occurred here was the exercise of a judicial discretion, a valid judgment in respect of matters of practice and procedure.  

22.	The Court only allows an appeal on such matters where an error of principle is demonstrated.  To do otherwise would encourage those with a litigious disposition or a deep pocket to challenge cases which are unremarkable in their particular outcome in applying a discretion. 

23.	As I have mentioned, the order was of a self-executing character.  The cases mentioned by the learned primary judge show that his Honour was well aware of that character and pronouncements which had been made earlier by this Court concerning such orders.  

24.	A convenient starting point in relation to such authority is Lomai v Seal (Manus) Limited [2008] PGSC 57; SC1326, in which the Court stated at [14]:  

“Litigants and especially lawyers representing their clients must take heed of court orders and comply with them.  Orders or directions by the court are to be obeyed by all parties who seek redress through the courts and all persons to whom the order relates.  A party may not like an order made, but as long as it remains enforced, he must obey its command.  This has been emphasized many times over in this jurisdiction in reported and unreported cases, including Patterson v PNG Law Society where the court said when quoting the often cited principle of Hadkinson v Hadkinson [1952] 2 All ER 567 per Lord Justice Lomer at p 569:
‘It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck v Cremer [1846] EngR 924; (1846) 1 Coop T Cott 205; 47 ER 820: "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.’”
25.	Order 9 of those orders made on 30 September 2022 had ramifications both for the appellant, as well as the respondent.  It was never challenged by either party.

26.	This is not an appeal against the making of that order but rather whether or not it should be given effect to according to its terms.  It is nothing to the point, therefore, as to whether or not such an order should or should not have been made at a first case management hearing, as some of the submissions made on behalf of the appellant suggest. It was made, it was not challenged and it fell for compliance, subject to the exercise of a discretion.  

27.	Earlier in time in relation to self-executing orders are observations made by Davani J in Karingu v Papua New Guinea Law Society [2006] PGSC 33; SC900.  Although her Honour’s observations were made in a dissenting judgment, that dissent was as to the outcome not as to the character of self-executing orders.  So much is made clear by the express statement of agreement by Sakora J with her Honour’s discussion of principle.  Her Honour stated, at [16]-[25]:

“16. But generally, it is incumbent upon the appellant to show the court that the orders should not take effect. On that note, the appellant submits that the court must exercise its inherent discretion under s.155(4) of the Constitution to vary the orders of 28 April, 2006, to extend time and to make further orders that the appeal be prosecuted at the next sittings of the Supreme Court. He submits this relying on the respondent’s refusal to certify the appeal book, as pointed out above. But I emphasize again that there is no affidavit material before me deposing to those events. So I am left with a court order that has not been complied with. What can the court do under these circumstances?
Cairns on "Australian Civil Procedure" states this:
A self-executing order can be made when the court orders a party to take a step required under the rules, for example, delivering particulars or giving discovery of documents. In default of compliance with the order, there is provision for the automatic striking out of the action or defence. What makes the order self-executing is the quality that the penalty applies automatically on the failure to comply with the order. An example of a self-executing order is the order made in Bellenger v Watson (1980) 3 N.T.R. 28. There the court ordered the plaintiff to deliver answers to interrogatories within 28 days, with the claim being struck out on failure to comply. When the answers were not delivered, the plaintiff’s claim was struck out automatically without any further adjudication by the court. For an order to be effective as a self-executing order, it must be expressed in unequivocal terms" (pg. 453). (See Broers v Forster (1981) 36 A.L.R. 605; Turner v Bulletin Newspaper Co. Pty Ltd (1974) 131 C.L.R. 69 at 74.) 
In Turner v Bulletin Newspaper Co. Pty Ltd (supra), the Supreme Court of Victoria struck out a statement of claim as tending to embarrass the fair trial of the action. It was a defamation claim. The court ordered the filing of an amended statement of claim to plead certain matters and further ordered that failing service of this amended statement of claim showing the complied conditions and to be done within a certain period, that the action will stand dismissed. The action was dismissed. When the appeal eventually reached the High Court of Victoria, it dismissed the appeal because of the non-compliance by the plaintiff of orders, one of which was the filing of an amended statement of claim, to plead in the manner ordered by the court. 
17. In the High Court, on consideration of the appeal, Jacobs, J, said;
"In my opinion there is no power to dismiss an action when a statement of claim which discloses a cause of action is struck out because of defects in the form of pleading. This cannot be done directly and it cannot be done indirectly by imposing conditions relating to the form of pleading, breach of which will result in dismissal of the action. Where the form of pleading is defective, the court can certainly strike it out entirely and is not bound to reframe it for the plaintiff’s benefit. But when it does so, leave to remake it must be given, if leave is necessary." (pg.97).
18. A self-executing order must be clear, with no other conditions attached, apart from striking out.
19. Australian Civil Procedure (supra) – goes on to state at pg.453;
 "The effect of a self-executing order depends on the rule pursuant to which it is made. Where the rule allows the court to strikeout an action or defence, then that penalty may be made to follow a failure to comply with the order. If the rule merely permits a pleading to be struck out, then that penalty may be imposed as part of the self-executing order. Where the rule under which the order is made allows judgment to be given then judgment is given under the self-executing orders. If the order simply allows a pleading to be struck out, a default judgment is entered because of failure to plead."
20. Generally speaking, on the hearing of applications to dismiss or applications of a similar nature, following the non-compliance with conditions of a self-executing or conditional order, the courts must exercise some degree of laxity, considering the nature of the matter before them and circumstances leading up to and surrounding the application, and of course the rules that govern applications to dismiss. And the self executing or conditional orders that courts make ultimately determines whether the applicant should return to court to make further application or whether they should just file orders. The courts in Papua New Guinea considered the effect of self-executing or conditional orders in Hon. Andrew Baing & the Independent State of Papua New Guinea v PNG National Stevedores Pty Limited & Bank of South Pacific (2000) SC 627, Henry To Robert v Mary To Robert (2004) N2744 and Nukumal Plantation Ltd v Tukake Ltd (2005) N2781. In all three judgments, the court held that self-executing or conditional orders could not operate automatically but required that parties return to court to make further application before these orders could take effect. But on review of these decisions, the self-executing orders required that further judicial function take place before these orders could take effect e.g. in Hon. Andrew Baing v the Independent State of Papua New Guinea (supra), the trial court made the following orders;
 "1. That the first and third defendants make and file and deliver a List of Documents verified by affidavit within forty-eight hours (48) of the making of this order.
2.	That in default of compliance with this order, and on the filing of an affidavit of non-compliance the Defence be struck out and interlocutory judgment be entered for the plaintiff against the first and third defendants."

21. The defendants failed to file the list of documents within the ordered time period. The plaintiffs filed an affidavit with the Registrar and asked for entry of judgment which was done.
22. On appeal, after a refusal by the National Court to set aside these orders, the Supreme Court said that the nature of the orders required that further judicial function be exercised i.e. by an appropriate application to the Court, before the Court could determine if the condition had been satisfied. The Supreme Court in that decision also had regard to FA1 General Insurance Co. Ltd v Southern Cross Exploration (1988) 165 CLR 268, which court considered the meaning and effect of conditional orders and where Gaudron, J said at pg.289;
 "A conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time".
23. But Gaudron, J, said this when interpreting rules of court which provided for the setting aside or variation of orders. These were pt.2 r.3 and pt.40 r.9 of the Supreme Court Rules 1970 (NSW) which read respectively as;
Pt 2 r. 3 –
 "(1) The court may, on terms, by order, extend or abridge any time fixed by the rules on by any judgment or order.
(2)	The Court may extend time under sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires."
Pt. 40 r. 9 states;
 "(4) In addition to its powers under sub-rules (1), (2) and (3), the court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5)	Nothing in this rule affects any other power of the court to set aside or vary a judgment around".
24. Which leads me to the conclusion that some orders, although self-executing, are conditional in nature, requiring further applications, subject of course to the rules under which such orders were made. And if such rules are non-existent, that the court could then exercise its inherent discretion and powers. But for the order to be effective as a self-executing order, it must be expressed in unequivocal terms.
25. The provisions in our National Court Rules on the setting aside or variation of judgments and orders are based on the NSW Supreme court Rules. But we do not have the equivalent in our Supreme Court Rules. Should the Court fall back on its inherent powers under s.155(4) of the Constitution? In this case, because of the appellant's inability to have the appeal ready for hearing, the court issued these self-executing orders.”
28.	Later in time is Wasis v Elias [2016] PGSC 5; SC1485, in which this Court made the following observations, at [12]-[13] and [16]-[17], in relation to self-executing orders:

“12. There is no dispute that on the return date, the respondents did not file a notice of motion nor did they rely on a notice of motion to seek dismissal of the proceedings for want of compliance with the conditional order. However, as was held by the Supreme Court in Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (supra), what is relevant and important is that a conditional order requires further judicial function of determining that the condition was not satisfied at the specified time.

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.
…
16. The onus is on the appellants to diligently prosecute their claim. There is no point in giving instructions, and then sitting back and expect the leaders to bring home the results. Each appellant had an obligation to work together to achieve a result that is favourable to them. This can only be achieved through progressive updates of the case by the lead appellants and provision of information when required by the Court. The evidence before his Honour fell short of establishing this. For this reason, we are not satisfied that it was not open to his Honour to reach the conclusion he did.

17. In our view as the appellants were the subject of the conditional order and failed to satisfactorily explain the default, in the exercise of his further judicial function, it was open to the primary judge to satisfy himself if the order was complied with. Similarly, it was open to the respondents to seek perfection of the conditional order if the appellants failed to comply with it. The conditional order put the appellants on notice that if they failed to satisfactorily explain why they did not comply with the earlier order, the proceedings would be dismissed.”

29.	Of particular note in that discussion is the statement by the Court in [17] that the appellants had failed to satisfactorily explain that default and, in the exercise of its further judicial function, it was open to the primary judge to satisfy himself if the order was complied with.  That is really all that occurred here, along with, as [17] also indicates, it being open to the respondent to seek perfection of the conditional order.  What was entailed here was the exercise, in the end, of a discretion as to whether to extend time, nonetheless, or to perfect the self-executing order upon being satisfied as to non-compliance.  

30.	It is nothing to the point as to whether one or the other or each of us may or may not have chosen, against the factual background revealed, to have perfected the self-executing order.  

31.	I am not at all persuaded that it was not reasonably open against that background for the primary judge to have decided nonetheless that the order should be perfected to the end of dismissing the proceeding.

32.	Particularly persuasive in that regard, is the failure on the part of the appellant to prosecute diligently its application for an extension of time as filed in November 2022.  His Honour was, in my view, entitled to form a view that this was a party who was not taking the litigation, and the related court order, for its case management seriously.

33.	Section 59 of the Constitution applies to exercises of judicial power as well as administrative power. Thus, it requires that parties to a proceeding be given an opportunity to be heard.  That opportunity, in this case, was regulated by particular rules governing cases being heard with through the IECMS procedure. 

34.	The extension of an opportunity to be heard is not to be equated with whether a party has taken that up. What occurred here was not in any way defiant with the requirements of section 59 of the Constitution, but rather in conformity with them. 
 
35.	An opportunity to be heard was extended to the appellant.  It chose, for reasons which were not persuasive, not to take that opportunity up in a commercial case requiring expeditious attention by both its lawyers and its corporate officers to be bringing the case expeditiously to trial.  That had consequential effects on the respondent, which was entitled to expect, the case having been brought on under those rules, that it will be prosecuted with due diligence and in compliance with the court orders.

36.	Being unpersuaded that there is any error of principle or any outcome which was unreasonable, it necessarily follows in my view that the appeal should be dismissed.

Upon a costs application, after delivery of reasons of Toliken J and Polume-Kiele J on the substantive appeal

37.	Upon the pronouncement of the order for dismissal, counsel for the respondent made an entirely orthodox submission for costs on the basis that costs should follow the event.  The appellant resisted that, seemingly on the basis that there was some pervasive question of principle of genuine importance which was raised in circumstances where the public interest warranted a departure from the usual way in which a costs discretion is judicially exercised.  Of course, the costs discretion is it at large, but it does call for exercise as a matter of judicial discretion and the ordinary course is that that discretion is exercised such that costs follow the event.  Here, the event is an order of dismissal which is in favour of the respondent.

38.	In my view, this case is not one which raises any general question of principle.  In making that observation I am conscious that the case was one where a self-executing order was made at the very first case management hearing.  But I will remind myself too that that order was never challenged.  When one steps beyond that, for reasons which I gave above, there is much case law already in this jurisdiction in relation to the nature and character of self-executing orders.  In my view, the appeal raises no question of principle of general importance, but rather the application of settled principles in relation to self-executing orders against particular facts.  

39.	For these reasons, I would order that the appellant pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

40.	TOLIKEN J:  For my part, I share the views of the President.  In regard to firstly, the principles that pertain to non-compliance with court orders and in regard to self-executing or conditional orders, I too am of the view and I agree with the President that, in this case, the appellant ought to have shown to our satisfaction that the primary judge in the exercise of his discretion had erred in principle.  

41.	I too agree that the appellant, through counsel, has not shown that the primary judge erred in the exercise of his discretion.  I would like to just add a little bit on the ground of appeal on denial of natural justice under section 59 of the Constitution.  And I again agree entirely with what the President had said in regard to section 59 of the Constitution, that this Court is or must observe natural justice.  In this case, everybody that is coming before the Court must be given the right to be heard by an impartial tribunal.

42.	The appellant here had the opportunity.  It availed itself to the rules of court which allowed it to apply for extension of time to comply with the orders of 30 September 2022 because orders 1, 3 and 4 were not complied with, despite the fact that affidavits were filed after the event or after the time prescribed in those orders.  In respect of order 4 on the statement of agreed facts and disputed facts and legal issues, that was not complied with at all. 

43.	So, I say that you cannot complain of being denied the right to be heard if you do not take steps to avail yourself to the rules that allow you to make your case before the trial judge.  Even when the appellant did take steps, which was the case here when the appellant filed the notice of motion on 4 November 2022 for extension of time, it sat on that motion, which by the time this matter came up, probably the second time on 30 July 2023, the motion was stale.  There was nothing for the trial judge to consider.   

44.	So, the appellant here cannot shift the blame to the primary judge of denying it the right to be heard when it in fact was at fault.  Not only did it not comply with directional orders which, by order 9 of those orders, forewarned the appellant that the consequence of non-compliance would be dismissal of the matter, that was not enough; its notice of motion to seek for extension of time was not prosecuted within one month or within the time that is stipulated under order 4 rule 49 subrule 17 of the National Court Rules. 

45.	So, really if there is anybody to be blamed for shutting itself out from the Court, it is the appellant.  It had the opportunity to be heard by applying for an extension of time, which it did, but it sat on it until the motion went stale.  

46.	So, the upshot of all this is that I agree with the President that I have not been convinced that there was an improper exercise of discretion by the trial judge in dismissing the proceedings in the Court below for the reasons which his Honour stated in his ex tempore judgment.  So, I also agree that the appeal should be dismissed.

On the costs application
47.	I agree with the President Justice Logan, and, for the reasons that his Honour has stated, I too will order that the appellant pays the respondent’s costs, to be taxed if not agreed.

48.	 POLUME-KIELE J:  Thank you, President.  I adopt the facts of the case as read out by the President and concur with the reasons as he has presented in his ruling in relation to the appeal by Pacific Network Services Limited v Koiari Wan Limited. I agree fully with the conclusions which are in the ex tempore judgment as read out.  But I would like to add something and make comments in relation to the matter.

49.	It is settled law that an appellate court will be slow to overturn a decision of a lower court that was a result of that court’s exercise of its discretionary powers, unless an identifiable error, such as acting on wrong principles or giving way to extraneous or irrelevant matters, or fail to give or take into account relevant considerations or making mistakes with facts, is present.

50.	I have heard counsel for the appellant in making submissions in relation to the matters.  I found no plausible reasons being given by the appellant in relation to the exercise of discretion by the trial judge.

51.	I would also like to reiterate the statement that was stated in the case of Wasis v Elias in which the President has made reference to, at [13]:

“… [C]onditional or self-executing order is not one that should be treated lightly. We say this because the order itself puts the party subject to the order on notice that certain consequence will occur at a specific date in the future if conditions of the order are not met. Thus, it is of utmost priority that the party required to comply and adhere to its terms and failure may result in an unfavourable consequence.”  
52.	That is the consequence of this appeal in which I agree and concur with my learned brothers that the appeal is dismissed.

On the costs application
53.	Thank you, President.  I also concur with the reasoning that has been provided by the President.  This is an appeal which has been dismissed.  There has been no substantive principles or new principles of law which relates to conditional or self-executing orders. I concur that the appeal be dismissed as it has already been dismissed and the appellant to pay the costs of the respondent, these costs to be taxed if not agreed.

Orders

1.)	The appeal be dismissed.
2.)	The appellant pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
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Lawyers for the appellant:    Jema Lawyers
Lawyers for the respondent: Nelson Lawyers