Mamtirin v Donnelly [2024] PGSC 67; SC2598 (2 July 2024)

SC2598

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 01 2023 (IECMS)

BETWEEN:
NUG MAMTIRIN
For and on behalf of himself as well as 271 retrenched employees of Telikom PNG Limited, in his capacity as President of PNG Communication Workers Union
First Applicant

AND
MICHAEL LANGOGO
For and on behalf of himself and on behalf of the 271 terminated employees of Telikom PNG Limited, in his capacity as Treasurer of the PNG Communication Workers Union
Second Applicant

AND
LYDIA DAVID
For and on behalf of herself and on behalf of the 271 terminated employees of Telikom PNG Limited, in her capacity as Women’s Representative of PNG Communication Workers Union
Third Applicant

AND
PNG COMMUNICATION WORKERS UNION
In its corporate capacity, for and on behalf of its members, and as a Party to the Enterprise Bargaining Agreement 2010, for and on behalf of the 271 terminated employees of Telikom PNG Limited
Fourth Applicant

V
MICHAEL DONNELLY AS CEO of Telikom PNG Limited
First Respondent

AND
MAHESH PATEL
Chairman of Board of Directors of Telikom PNG Limited
Second Respondent

AND
TELIKOM PNG LIMITED
Third Respondent

Waigani: Kariko J, Geita J & Anis J
2024: 26^th June & 2^nd July

APPLICATION TO DISMISS APPLICATION FOR LEAVE TO APPEAL – Application filed pursuant to Order 7 Rule 48(a) and Order 11 Rule 28(b) of the Supreme Court Rules 2012 as amended – whether there was inordinate delay, whether delay was intentional, whether a reasonable explanation is provided for the delay and whether interest of justice favours granting of the application or otherwise – consideration

The respondents filed an application to dismiss for want of prosecution, the applicants’ application for leave to appeal.

Held:

(1) The Court has jurisdiction under O 7 r 48(a) and O 11 r 28(2) of the Supreme Court Rules to hear an application to dismiss for want of prosecution, an application for leave to appeal.

(2) The principal considerations in deciding whether to dismiss a proceeding are:

• (a) whether there was inordinate delay,
• (b) whether a reasonable explanation is provided for the delay, and
• (c) whether the interest of justice favours granting of the application or otherwise.
  

(3) Ten months delay in not progressing the application for leave to appeal after its filing without any explanation, is an inordinate and intentional delay, and it is in the interest of justice to dismiss it for want of prosecution.

(4) (Obiter) Where a lawyer relies on evidence from an employee which is misleading and dishonest in support of his or her client’s case, it is a serious matter involving possible breaches of the Professional Conduct Rules 1989 to be referred to the Lawyers Statutory Committee.

Cases Cited:
Air Niugini Ltd v. Piokole (2021) SC2106
The Girl Guides Association of PNG v. Hekure Frank and Ors (2022) SC2255
State v. Turu (2008) SC904
Ondolane and Ors v. Ekepa and Ors (2020) SC2413

Counsel:
J Napu, for the Applicants
F So, for the Respondents

2^nd July 2024

1. BY THE COURT: We had two applications listed before us for hearing on 26 June 2024. The first one was by the Applicants seeking leave to appeal which was filed 3 January 2023 (Leave Application), and the second was by the Respondents seeking to dismiss the application for leave to appeal for want of prosecution which was filed 14 November 2023 (Application to Dismiss).

2. We first dealt with the Application to Dismiss where we reserved our ruling to a date to be advised. The Leave Application may proceed later but subject to our ruling on the Application to Dismiss.

BACKGROUND

3. The intended challenge by the Applicants relates to an interlocutory order on cost that was made by Her Honour Wur AJ on 24 November 2022, in proceeding WS(HR) No.12 of 2016, Nug Mamtirin & Ors v. Telikom PNG Limited and Ors (WS 12 of 2016). The issue of cost concerns a certificate of taxation that had been issued by a taxing officer in WS 12 of 2016, for a sum of K950,457.92. The Respondents contested the said taxed cost and applied to have it dismissed.

4 On 24 November 2022, the primary Judge, after hearing Respondents’ motion, made the following orders:

1. Terms 3 and 4 of the Defendants’ Notice of Motion filed 07^th October 2022 are granted; in that pursuant to Order 12 Rule 1 and Section 155(4) of the Constitution, the Plaintiffs’ Bill of Costs filed 24^th January 2022; Application for Taxation filed 24^th January 2022 and Certificate of Taxation filed 13^th September 2022; are struck out/dismissed for being incompetent.
   
2. Cost of this application is to be paid by the Plaintiffs.
   
3. This matter is adjourned to 25^th November 2022 at 9:30am for Directions Hearing to progress the matter to trial.
   

5. The Applicants were aggrieved by the said decision and filed the Leave Application, that is, pursuant to s.14(3)(c) of the Supreme Courts Act Chapter No. 37.

6. Details of the intended grounds of appeal are not necessary for this purpose, so we will instead proceed to address the Application to Dismiss.

APPLICATION TO DISMISS

7. The relief sought in the Application to Dismiss are as follows:

1. Pursuant to Order 7 Rule 48(a) and Order 11 Rule 28(b) of the Supreme Court Rules, the Application herein be dismissed forthwith.
   
2. The Costs of this Application to be paid by the Appellant.
   

JURISDICTION

8. The Respondents properly cited O 7 r 48(a) and O 11 r 28(2) of the Supreme Court Rules for the relief sought in their application.

9. Order 7 r 48(1)(a) of the Supreme Court Rules provides:

Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may—

(a) order that the appeal be dismissed for want of prosecution;

(b) ...

(c) ...

10. O11 r 28(b) of the Supreme Court Rules states that O 7 Division 19 (Time and want of prosecution) applies to any proceedings, substituting the nature of the proceedings for the word “appeal”. The Supreme Court observed in Air Niugini Ltd v Piokole (2021) SC2106 at [25] that this Rule “extends the power of the Supreme Court to dismiss a matter for want of prosecution to any proceedings before the Court, not just appeal proceedings”.

PRELIMINARY ISSUE

11. At the hearing, we made a preliminary inquiry on whether the Application to Dismiss was properly before us for consideration. We heard brief submissions on the subject matter. One of the points of contention raised was whether the Applicants can raise grounds concerning jurisdiction or the competency of the Application to Dismiss given that they did not file a formal objection to competency application that is before us for consideration.

12. We note that there is no formal objection to competency filed by the Applicants. Despite our preliminary inquiry on the matter, we note that the Respondents’ counsel was there ready to move his clients’ Application to Dismiss, which was one of the 2 applications that were formally fixed for hearing before us on that day.

13. In observance of fairness, and in the absence of any formal objection to competency application that is filed, we abstain ourselves or decline to consider the preliminary arguments, but instead, proceed to hear the substantive application.

RESPONDENTS’ GROUNDS - EVIDENCE

14. The main ground for dismissal for want of prosecution cited by the Respondents is delay. They claim that since the time of filing the Leave Application on 3 January 2023, up to the date of filing the Application to Dismiss on 14 November 2023 (the material time), the Applicants had not taken any steps to progress the Leave Application to a hearing. The Respondents submit that it is not difficult to obtain a hearing date for a leave application before a single Judge of the Supreme Court. They submit that the Applicants could have easily obtained a hearing date from the Supreme Court Registry within the 10-month delay period. The Respondents also submit that the same can be said in relation to an application book for the Leave Application which was not settled and filed before 14 November 2023.

15. The delay period at the material time, as submitted to by the Respondents, was 10 months.

16. The Respondents submit that the delay was inordinate, that no reasonable explanation was provided to explain or justify the delay, and that the interest of justice favours granting the Application to Dismiss.

17. In support of the Application to Dismiss, the Respondents rely on the Affidavit of Simon Ketan filed 14 November 2023. Mr. Ketan gave evidence confirming the delay of 10 months. The full length of the delay was 10 months 11 days. Mr. Ketan further deposed that the delay has also prejudiced the Respondents’ interests in the matter.

APPLICANTS’ RESPONSE - EVIDENCE

18. The Applicants did not file any direct affidavit evidence to challenge the evidence of the Respondents.

19. That said, they do rely on an affidavit of service of one Thomas Barry filed 12 April 2024. Mr. Barry is a service clerk in the employ of Napu & Co. Lawyers who are the lawyers for the Applicants. He attaches purported copies of 6 follow-up letters that the Applicants claim had been sent to the Supreme Court Registry to request a hearing date of the Leave Application. The letters are identical except for the dates which vary from 10 April 2023, 12 July 2023, 12 September 2023, 6 November 2023, 6 December 2023, and 22 January 2024. The Respondents challenge the credibility or veracity of Mr. Barry’s affidavit. They rely on the Affidavit of Freddrick So filed 20 June 2024. At paras. 6 & 7, Mr. So deposes and we quote:

6. On the 30^th of April 2024, I attended the Supreme Court Registry and enquired to see Nelly Mando to confirm if she received the six letters on the various dates over a (9) month period as stated in the acknowledgement of receipt.
   
7. At the Supreme Court Registry, Nelly Mando informed me that all the six letters were received on the same date which is the 26^th of March 2024 and not on the respective dates as stated on the six letters.
   

20 This evidence is not rebutted by the Applicants.

CONSIDERATION

21. When we consider the arguments, we are minded to uphold and accept the evidence of the Respondents, that is, the affidavits of Mr. Ketan and Mr. So.

22. We find the Respondents’ evidence credible as well as unopposed.

23. As for the Applicants, the set of letters with varying dates alleged to cover a period of almost 10 months, were received and registered on the same day by the Supreme Court Registry on 26 March 2024. During exchange between the bench and Mr. Napu, it became apparent to us that we had been misled by Mr Napu in submissions. We intimated during our exchange that this was a serious breach, bordering on perjury.

24. The affidavit evidence of Thomas Barry relied upon by the Applicants is not only misleading but is ostensibly dishonest. There are significant discrepancies when the evidence of alleged letters written to the Registrar is compared to the records on the court file. Mr. Napu, who employs the deponent in his law firm, was unable to properly justify the nature of this evidence to the satisfaction of the Court, except to suggest that it was his employee’s doing without his full knowledge.

25. This is a serious matter which requires further scrutiny for possible breaches of the Professional Conduct Rules 1989. Rule 3 states that the duty of every lawyer includes not engaging in conduct that among others, is dishonest, unprofessional or prejudicial to the administration of justice. Rule 4 addresses professional integrity and relevantly provides in r 4(1)(a) that a lawyer shall not try to advance his client’s case by dishonest means. A lawyer is also obliged to ensure that his employees do not engage in conduct that would be a breach of the Rules if the conduct was by the lawyer; r 4(2). Furthermore, a lawyer must also properly supervise all professional work carried out for him and on his behalf by a non-lawyer; r 4(3).

26. It is appropriate that the Registrar refers the apparent breaches of the Professional Conduct Rules 1989 to the Lawyers Statutory Committee for its consideration and deliberation.

27. Given the above, we are minded to and hereby strike out Mr. Barry’s affidavit filed 12 April 2024 from the Court’s record.

CRITERIA FOR DISMISSAL

28. The Court’s power and the considerations for grant or otherwise, in relation to an application to dismiss an appeal, are settled in this jurisdiction. For example, this Court in The Girl Guides Association of PNG v. Hekure Frank and Ors (2022) SC2255 held in part as follows:

1. The Courts power to dismiss is discretionary.
   
2. The power to dismiss for want of prosecution should only be exercised when the Plaintiff’s default had been intentional and contumelious (Nicholas v Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133).
   
3. If an appellant has delayed in prosecuting his appeal, the appeal should be dismissed unless there are reasonable explanation for the delay (Kalinoe v Paraka (2007) SC874).
   
4. The absence of an explanation is fatal to a Respondent for dismissal where an explanation can quite properly be expected (PNG Nambawan Trophy Limited v Dynasty Holdings Ltd (2005) SC811).
   
5. Where delay of prosecution is alleged, the applicant must establish by evidence a case for the Court to exercise its power in its favour before the burden shifts to the Appellant to provide an explanation for the delay and demonstrate its readiness to prosecute the appeal. (Tulapi v Alu (2011) SC1177).
   

29. In State v. Turu (2008) SC904 and Ondolane and Ors v. Ekepa and Ors (2020) SC2413, this Court had also held that the interests of justice are a relevant consideration in the exercise of its discretion, including the consequences of dismissal of the appeal.

FINDINGS

30. Given the fact that the Applicants do not have any evidence whatsoever to oppose the Application to Dismiss, we uphold the Respondents’ submission, and in so doing, we are minded to grant the relief sought which is to dismiss the Applicants’ Application for Leave to Appeal.

31. There is uncontested evidence of delay in the matter. The material delay period was 10 months and 11 days. The delay was inordinate. The Applicants also did not take any material steps to progress the Leave Application at the material time. Material steps include settling the application book and obtaining a hearing date within the 10-month delay period. The Applicants have also not provided any reasonable explanation for the delay except submissions by their counsel over the bar table. Given these, we also find the inordinate delay intentional as well.

32. In regard to interest of justice, we made observations which may be summarised herein:

(i) the intended appeal was interlocutory in nature;

(ii) WS 16 of 2016 was still pending hearing before the National Court;

(iii) WS 16 of 2016 was filed 8 years ago, and a main contributing factor for the delay in the matter being progressed to trial was because of this pending Leave Application;

(iv) we had considered and discussed with counsel on the proposed grounds of appeal at the hearing, and we noted that we were not satisfied that the grounds were absolutely convincing or had very high chances of success; they were rather arguable;

(v) we took into account our findings above herein where we noted a lack of interest demonstrated by the Applicants to progress their Leave Application;

(vi) we also took into account our findings above where we found that the Applicants had misled the Court.

33. When we weigh all that up, we find that interest of justice in this case favours the Respondents.

SUMMARY

34. In summary, we are minded to and will grant the relief sought in the Application to Dismiss. The Leave Application will be dismissed with cost to follow the event.

ORDERS OF THE COURT

35. We make the following orders:

(1) We grant the Respondents’ application and dismiss the Applicants’ Application for Leave to Appeal filed 3 January 2023.

(2) Cost of the proceeding is awarded in favour of the Respondents against the Applicants to be taxed if not agreed.

________________________________________________________________
Napu and Company: Lawyers for the Applicants
Ketan Lawyers: Lawyers for the Respondents