The Independent State of Papua New Guinea and Chief Migrations Officer, Rabura Mataio v the Transferees and Amnesty International (2016) SC1488

• Jurisdiction: Papua New Guinea
• Judge: Sakora J & Gavara-Nanu & Ipang JJ
• Judgment Date: 26 February 2016
• Court: Supreme Court
• Citation: (2016) SC1488
• Docket Number: SCA No 31 of 2014
• Year: 2016
• Judgement Number: SC1488

Full Title: SCA No 31 of 2014; The Independent State of Papua New Guinea and Chief Migrations Officer, Rabura Mataio v the Transferees and Amnesty International (2016) SC1488

Supreme Court: Sakora J & Gavara-Nanu & Ipang JJ

Judgment Delivered: 26 February 2016

SC1488

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 31 OF 2014

BETWEEN

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Appellant

AND

CHIEF MIGRATIONS OFFICER, RABURA MATAIO

Second Appellant

AND

THE TRANSFEREES

First Respondent

AND

AMNESTY INTERNATIONAL

Second Respondent

Waigani: Sakora J & Gavara-Nanu & Ipang JJ

2016: 25 & 26 February

PRACTICE & PROCEDURE – Summary Determination – Supreme Court Rules, 2012 - Orders 13 rr 15 & 16 (1) (b) and 11 r 32 – Referral for summary determination by a judge - Slip rule Application filed out of time – Delay - Application not meeting requirements of Form 4 – Application dismissed for want of prosecution and for being incompetent.

Cases cited:

Agiru v. Kaiabe [2015] PGSC2; SC1412

Barawa Ltd v. Mamalau [2013] PGSC50; SC1301

National Capital Ltd v Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392

Counsel:

I. Molloy with F. Matiabe, for the Appellants

E. Wurr, for the Respondents

26th February, 2016

1. BY THE COURT: Before us for summary determination is an application for leave for a slip rule application by the respondents filed under the slip rule principle (slip rule application). The Chief Justice in a direction hearing conducted on 18 February, 2016 referred the matter for summary determination for want of prosecution under Order 13 r 16 (1) (b) of the Supreme Court Rules 2012. In referring the matter for summary determination, the Chief Justice also directed that the appellants be at liberty to file any application they may wish to file, to summarily dismiss the slip rule application.

2. The Chief Justices’ referral was made on the ground that the respondents had either failed to attend Court hearings or to comply with the directions of the Court and not taking the necessary steps to progress the matter to trial for a period of 6 months. It is significant to note that Ms. Wurr of counsel for the respondents has conceded that there had been a delay by the respondents to progress the matter to trial but argued that the delay is not inordinate and that there are explanations for the delay. She relied on the affidavit of Jim Wala Tamate, Public Solicitor, sworn on 23 February, 2016.

3. The appellants have also pursuant to the direction given by the learned Chief Justice filed an application to dismiss the slip rule application on other grounds, namely that the slip rule application was filed 22 days after this Court delivered its decision disposing of the proceeding, from which the slip rule application arises, on 5 August, 2015, thereby breaching the requirement of Order 11 r 32 (1) of the Supreme Court Rules, which provides:

(1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

4. It is significant to note that this rule is in mandatory terms by reason of the word “shall”. Ms. Wurr has conceded that the respondents filed their slip rule application 22 days after the order disposing of the proceeding was given on 5 August, 2015. In other words, it is not disputed that the respondents’ slip rule application was filed out of time. It is also not disputed that no application was made by the respondents within the 21 days of the order disposing of the proceeding being given to extend time to file the slip rule application out of time.

5. Looking at Mr Tamate’s affidavit, the relevant paragraphs for purposes of the issue at hand are paragraphs 14 to 19. This is conceded by Ms Wurr. Paragraph 14 apparently confirms that the slip rule application was filed out of time and paragraph 15 confirms that Ms Wurr did not appear in Court on 12 February, 2016, when she was required to do so. On that day, the matter was adjourned to 18 February, 2016, to allow Ms Wurr to appear in Court. Ms Wurr again did not appear in Court on 18 February, 2016, because she was in Madang on duty travel. Mr Tamate deposes in his affidavit that none of the other lawyers from his Office could appear in Court on 18 February, 2016, on behalf of Ms Wurr because his Office was short of lawyers.

6. We find the explanations given by the respondents’ lawyers for not turning up in Court on 12 and 18 February, 2016, very unsatisfactory. We do not consider their explanations reasonable. There is evidence from the affidavit of Ms. Flora Matiabe sworn on 19 February, 2016, that on 15 February, 2016, she served a sealed copy of the Orders given by the Court on 12 February, 2016, on the Public Solicitor’s Office. She further deposes that on 17 February, 2016, she spoke to Mr Ramsey Pariwa of Public Solicitor’s Office by phone and told him that the respondents’ slip rule application was returning to Court on 18 February, 2016, for summary determination. On that same day, Ms Matiabe also emailed Mr Pariwa confirming their telephone discussion. It is clear from this that the respondents’ lawyers had no excuse for not turning up in Court on 18 February, 2016.

7. The return dates set by the Court constituted orders of the court, the parties were therefore obligated to comply and turn up in Court on those dates. Thus the failure by the respondents’ lawyers to turn up in Court on the return dates was tantamount to defying the orders of the Court. In such situations, the Court has the inherent power to even dismiss the proceeding summarily under Order 13 r 16 (1) (c) of the Supreme Court Rules.

8. Having considered the materials before us and submissions made by counsel, we are not satisfied that the explanations given by the respondents’ lawyers for not progressing...