Vitolo v Mararea Land Group Inc [2024] PGSC 79; SC2609 (2 August 2024)

SC2609

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 162 OF 2021

BETWEEN:
PHILIP VITOLO
Appellant

AND:
MARAREA LAND GROUP INCORPORATED
First Respondent

AND:
HONOURABLE JUSTIN.TKATCHENKO in his capacity as the MINISTER FOR LANDS & PHYSICAL PLANNING
Second Respondent

AND:
IRUNA ROGAKILA in his capacity as the Registrar of Incorporation Land Groups
Third Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND:
NEW BRITAIN PALM OIL LIMITED
Fifth Respondent

Waigani: Pitpit J, Dowa J & Carmody J
2024: 29^th July & 2^nd August

APPEAL – Practice – Supreme Court – principles in relation to dismissal for want of prosecution – burden of proof on respondent who seeks dismissal – respondent failed to discharge the burden of proof – leave to dispense with requirements to comply with rule – failure to provide explanation for non-compliance with rule.

Cases Cited
Burns Philip (New Guinea) Limited v Maxine George [1983] PNGLR 55
The Girl Guides Association of PNG & Ors v Mary Kamang & Ors [2022] PGSC 141; SC2342

Legislation

Constitution, Section 155 (4)
Supreme Court Rules 2012 Order 2 rule 1(h); Order 5 rule 9; Order 7 rule 48(a); Order 12 rule 37(2)

Counsel

Mr L. Kandalyo, for the Appellant
Mr H. Leahy, for the Respondent

JUDGMENT

2^nd August 2024

1. BY THE COURT: This is a decision with respect to two Applications. The first is an application by the first Respondent to dismiss the Appellant’s Notice of Motion for want of prosecution. The second is a Notice of Motion seeking dispensation of compliance with the rules to permit a review of a Taxing Master’s decision.
   
2. The Applications arose as a result of proceedings commenced in 2018 by the Applicant/First Respondent (“Mararea Land Group Incorporated”) seeking leave for a judicial review of the Second Respondent’s powers with respect to certain decisions relating to the registration of title.
   
3. Over the subsequent years the Appellant/Applicant (“Mr Vitolo”) brought various interlocutory applications resulting in Supreme Court orders in 2021, 2022 and 2023 that he pay Mararea Incorporated’s costs.
   
4. On 25 September 2023 a Certificate of Taxation (“the Certificate”) was issued with respect to those orders by the Deputy Registrar of the Supreme Court certifying that he had “taxed the costs of the First Respondent in the sum of K48,691.00.”
   
5. It is from that decision that the Application and Notice of Motion currently before the Court arose. Both matters were to be heard together.
   

Application by Mararea Incorporated

6. Mararea Incorporated’s Application filed 18 March 2024 seeks orders, inter alia, that “Pursuant to Order 7 rule 48 (a) of the Supreme Court Rules, the Appellant’s Notice of Motion filed 27 October 2023 be dismissed for want of prosecution.”
   
7. Order 7 rule 48 (a) states:
   
   48. 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 or a Judge may-

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

(b) ...

(c) ...
8. The law on applications to dismiss for want of prosecution is relevantly discussed in the case Girl Guides of Papua New Guinea v Kamang [2022] PGSC 141; SC 2342:

“16. The law on application for dismissal under Order 7 Rule 48 is settled in various decisions of this court. Refer to Burns Philip (NG) Ltd-v-George [1983] PNG LR 55, General Accident Fire & Life-v-Ilimo Farm [1990] PNGLR 331, Attorney General-v-Papua New Guinea Law Society (1997) SC 530, PNG Nambawan Trophy Ltd-v-Dynasty Holdings Ltd (2005) SC811, Kalinoe-v Paralia (2007) SC874, Nicholas -v- Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133, and Tulapi-v-Aku (2011) SC 1177.

17. The principles distilled from these cases are:
    1. The Court’s power to dismiss is discretionary.
       
    2. 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).
       
    100. If any appellant has delayed in prosecuting his appeal, the appeal should be dismissed unless there are reasonable explanations for the delay (Kalinoe-v-Paraka).
         
    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).
       
    5. 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).”
       
8. Turning to the present case, Mararea Incorporated’s Application was supported by an affidavit of Mr Bolena Masere. The affidavit sets out in detail the history of the Supreme Court costs orders. However, no reference is made in it to acts or omissions which are relied upon to establish the failure of Mr Vitolo to prosecute the Notice of Motion with due diligence.
   
9. Instead, the affidavit deposes to the requirements of Order 12 rule 37(2) which states:
   

37. (1) ...

(2) A party aggrieved by the taxed costs may, within 14 days from the date of issue of the Certificate of Taxation, apply to the Court or a Judge, for leave to review the taxing officer’s decision, such application to be supported by affidavit .....

(3) ...

10. Mr Masere states, at paragraph 30, that Mr Vitolo “sought review of the decision of the taxing officer” and refers to the 14 days within which a review application should be brought. He asserts that the application should have been filed by 9 October 2023. As the application (being the Notice of Motion) was filed on 27 October 2023 he states it was 18 days late and should be dismissed. That, it appears, is the basis for the Application seeking that the Notice of Motion be dismissed for want of prosecution.
    
11. Mararea Incorporated’s Application is misconceived. Mr Vitolo did not simply seek an Order pursuant to 12 rule 37 (2). In fact, his Notice of Motion was to the opposite effect and was in two parts. The relevant orders sought by Mr Vitolo were:
    
    1. Pursuant to Order 5 r. 39 and/or Order 2 r. 1(h) of the Supreme Court Rules and the inherent powers of the Supreme Court under s.155(4) of the Constitution, leave be granted to the Appellant to dispense with requirements to comply with Order 12 r. 37 (2) of the Supreme Court Rules; and
       
    2. Pursuant to Order 12 r. 37 of the Supreme Court Rules, the decision of the Taxing Master in relation to the Bill of Costs certified on 25 September be reviewed.
       
12. In short, Mr Vitolo wished to be relieved of his obligation to comply with Order 12 rule 37(2) so that the Taxing Master’s decision could be reviewed despite his non-compliance with rule 37(2). There is no specified time within which such a dispensation with compliance application should be brought, however it is evident that a Court would expect a timely application in circumstances where a party was seeking to be relieved of compliance with a rule.
    
13. Given that Mararea Incorporated seeks an order that the Notice of Motion be dismissed for want of prosecution, Mr Vitolo’s actions require consideration. The Certificate of Taxation was issued on 25 September 2023. The Notice of Motion was filed on 27 October 2023. Mararea Incorporated’s Application was filed on 18 March 2024. That does not demonstrate a want of prosecution on the part of Mr Vitolo – particularly in the context of the heavy workload of both the Court and the Registry and the intervening Court Christmas vacation period. Without something further, it could not be said that the appeal was not prosecuted with “due diligence”.
    
14. An example of the type of sworn evidence which might be expected would be an affidavit deposing to the fact that Mararea Incorporated had written to Mr Vitolo advising him that unless he had the matter listed for hearing that the Application to dismiss the Notice of Motion for want of prosecution would be brought. No such evidence was before the Court.
    
15. Nor does it demonstrate a failure to do an act “required to be done by or under these rules.” There was no statutory requirement to bring the review application and the rule expressly states that a party “may” apply. It was a matter for Mr Vitolo. Having failed to comply with the 14-day limitation he sought the dispensation with compliance leave. It is then a matter for this Court as to whether the leave sought should be granted – that issue will be discussed later in these reasons.
    
16. Again, it has been long established that the burden of proof is on the respondent who seeks dismissal based on want of prosecution as enunciated in cases such as The Girl Guides Association of Papua New Guinea and Others v Mary Kamang and Others (supra) at para 8, that:
    

Once the respondent has made a case for want of prosecution, the onus then shifts to the appellant to provide a reasonable explanation as to why the appeal should not be dismissed.

17. Other than the passage of a relatively brief period of time since the filing of the Notice of Motion, Mararea Incorporated has not deposed to any circumstance which would amount to a want of prosecution. As discussed in cases such as Burns Philip (New Guinea) Limited v Maxine George [1983] PNGLR 55 (the facts of which differ to some extent from the issue before this Court but from which the relevant principles can be distilled) the power to dismiss for want of prosecution is discretionary.
    
18. Mararea Incorporated, bearing the onus of proof, has not made a case for want of prosecution. Accordingly, the Application is dismissed.
    

Notice of Motion filed by Mr Vitolo

19. As previously stated, Mr Vitolo filed a Notice of Motion on 27 October 2023 seeking, inter alia, the following orders:
    
    1. Pursuant to Order 5 r. 39 and/or Order 2 r. 1(h) of the Supreme Court Rules and the inherent powers of the Supreme Court under s.155(4) of the Constitution, leave be granted to the Appellant to dispense with requirements to comply with Order 12 r. 37 (2) of the Supreme Court Rules; and
       
    2. Pursuant to Order 12 r. 37 of the Supreme Court Rules, the decision of the Taxing Master in relation to the Bill of Costs certified on 25 September be reviewed.
       
20. The relief is sought pursuant to Order 5 rule 39 and/or Order 2 rule 1(h) of the Supreme Court Rules and the inherent powers of the Supreme Court under s. 155(4) of the Constitution. Each of those provisions will be considered.
    
21. Order 5 rule 39 states:
    

39. The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.

22. The difficulty with Order 5 is that it is headed “Review of National Court”. Rule 39 of Order 5 falls under the Division 2 heading “Election Petition Reviews”. The matter the subject of the Notice of Motion is a Taxing Master’s decision, not an order from an Election Petition. Order 5 rule 39 is not, therefore, applicable.
    
23. It is not apparent to this Court why relief is sought pursuant to Order 2 rule 1(h). Order 2 falls under the heading “Administrative Matters”. Rule 1 relevantly states:
    1. The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to-
       (a) Sittings and vacations

(b) The registry

(c) Documents

(d) Lawyers

(e) Fees

(f) Funds in Court

(g) Contempt of Court

(h) Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed.

24. There is no reference to Taxing Master decisions and the listed items are all administrative in nature and do not deal with substantive law.
    
25. Even if it was to be accepted that Order 2 rule 1(h) might include substantive matters of law (which this Court does not accept given the rule of statutory interpretation esjusdem generis) rule 1(h) states “Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed.” The question then is – Is there a rule in the Supreme Court Rules with respect to decisions of the Taxing Master? The answer is in the affirmative. As discussed above with respect to Mararea Incorporated’s Application, Order 12 rule 37 sets out the procedure to be followed with respect to a Review of the Decision of a Taxing Officer. Order 2 rule 1(h) is not, therefore, applicable.
    
26. Finally, Mr Vitolo seeks to rely on the Constitution s. 155(4) which states “Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”
    
27. The inherent powers of the Supreme Court under Section 155(4) of the Constitution can be invoked where no statute law or rules of Court make no provision for exercise of judicial power in a particular case. In the present case, Mr Vitolo’s main relief is for a review of the Taxing Officer’s award on taxation of costs. Order 12 rule 37 of the Supreme Court Rules makes provision for challenging a Taxing Officer’s decision by the Court. Thus, Section 155(4) of the Constitution is not applicable.
    
28. During the hearing, counsel for the appellant was directed to Order 12 rule 38 of the SCR. In practice that is a provision known to be used for applications for an extension of time for a review, although it is not clear on the face of it that that is its intention. In any event, if it is a rule that provides for application for leave to apply for an extension of time to comply with rule 37(2) the fact remains that an affidavit would still be required deposing to the reason that the application could not be brought within the 14 days.
    
29. The Court will now turn to consider the merits of the application in the interest of justice.
    
30. Mr Vitolo seeks an order that leave be granted to dispense with requirements to comply with Order 12 rule 37(2). For the application to succeed, the appellant is required to provide an explanation for the failure to file his application within the required 14 days. In support of that application, he filed an affidavit. That affidavit sets out at length the history of the various Supreme Court applications which resulted in orders that Mr Vitolo pay Mararea Incorporated’s costs. However, no explanation is given as to why he did not file the application within the 14 days and why he should be granted leave from complying with the rule when he had already failed to comply with the requirements of Order 12 rule 37(2). He was simply out of time to bring the application. That is no doubt the reason for which he brought the Notice of Motion.
    
31. An affidavit was also filed by Mr Leroy Kandelyo. That affidavit was similarly silent. As previously stated, at the very least this Court would have expected sworn evidence as to why the Order 12 rule 37(2) application could not have been brought within the 14 days.
    
32. It would seem that Mr Vitolo seeks the indulgence of this Court by requesting it dispense with the compliance of the rules but nevertheless seeks an order, pursuant to Order 12 rule 37(2) – the very Order he has not complied with – for a review of the decision of the Taxing Master. It is absurd, to say the least.
    
33. He seeks that Order without any sworn evidence disclosing the reasons for his failure to comply and any other relevant circumstances. Such a position cannot be countenanced by this Court. Further, any application of s. 155(4) with respect to the issue of orders necessary to do justice in the circumstances of this case weigh in favour of Mararea Incorporated who have existing orders dating back to 2021 for their costs to be paid.
    
34. For the forgoing reasons, the Notice of Motion is dismissed.
    

COSTS

35. Although Mr Vitolo’s Notice of Motion has been dismissed by this Court that dismissal did not necessarily arise as a result of the Application brought by Mararea Incorporated. It arose due to deficiencies in Mr Vitolo’s material. Similarly, Mararea Incorporated’s Application was dismissed due to deficiencies in its material.
    
36. In those circumstances there shall be no Orders as to Costs. The parties shall bear their own costs.
    

ORDERS

37. The Court orders that:

1. The First Respondent’s Application is dismissed
2. The Appellant’s Notice of Motion is dismissed.
3. The parties shall bear their own costs
   

Emmanuel Lawyers: Lawyers for the Appellant
Pacific Legal Group Lawyers: Lawyers for the First Respondent
No Appearances for the Second, Third and Fourth Respondents