Ben Keimali v Kotu Akema and Norman Ba’abi and Air Niugini Limited (2010) SC1061

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 08 July 2010
• Citation: (2010) SC1061
• Docket Number: SCA NO 35 OF 2007 & SCA NO 49 OF 2007
• Year: 2010

Full Title: SCA NO 35 OF 2007 & SCA NO 49 OF 2007; Ben Keimali v Kotu Akema and Norman Ba’abi and Air Niugini Limited (2010) SC1061

National Court: Sakora, David & Makail, JJ

Judgment Delivered: 8 July 2010

SUPREME COURT - PRACTICE & PROCEDURE - Application to dismiss for want of prosecution - Discretionary power - Inordinate delay - Failure to prosecute application for leave to appeal and appeal with due diligence - Failure to file and serve draft index to appeal book - Failure to obtain transcript of National Court proceeding - Reasons for default unsatisfactory - Application for leave to appeal and appeal dismissed - Supreme Court Rules, 1984 - O7, r40, r41, r42, r43, r44, & r53(a).

Cases cited:

Papua New Guinea Cases

Donigi v PNGBC (2002) SC691; General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331; Dan Kakaraya v Sir Michael Somare (2004) SC762; The Public Prosecutor v Allen Ebu Marai [1996] PNGLR 81; Richard Naringa v Rural Development Bank Ltd (2006) SC908; Gabriel Yer v Peter Yama (2009) SC990; PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811

RULING

1. BY THE COURT: Before us are two applications by the respondents to dismiss first, the appellant’s application for leave to appeal filed on 8th May 2007 and secondly, the appellant’s appeal filed on 1st June 2007 for want of prosecution pursuant to O7, r53(a) of the Supreme Court Rules. The applications were filed on 26th June 2008 and 5th December 2008 respectively.

2. From our perusal of the two affidavits of the appellant sworn and filed on 27th August 2009, affidavit of Rakatani Raka sworn on 3rd November 2008 and filed on 15th December 2008 and affidavit of Benjamin Nahupa sworn on 23rd June 2008 and filed on 30th June 2008, the following facts are not in dispute: The appellant commenced proceeding against the respondents in the National Court reference WS No 50 of 2005 on 20th January 2005 seeking, inter-alia, orders for reinstatement to his former substantive position of Deputy Air Port Manager of the third respondent and damages following his demotion by the respondents. He was demoted because he was found guilty of committing disciplinary offences.

3. The respondents defended the action in the National Court. The matter went for directions hearing and the National Court issued a number of directions for parties to comply with, including filing and service of a Statement of Agreed and Disputed Facts. The respondents failed to comply with the directions and the appellant applied for default judgment. On 13th April 2007, the National Court heard and refused the application for default judgment and further directed the respondents to comply with the directions. Aggrieved by that decision, on 08th May 2007, the appellant filed an application for leave in SCA No 35 of 2007 to appeal that decision. It was fixed for hearing before the late Chief Justice Sir Mari Kapi on 24th May 2007. On 24th May 2007, parties appeared and had it adjourned by consent to 7th June 2007 to allow the appellant time to file an affidavit to support the application. It has not been prosecuted to date.

4. The appellant denied at the hearing before the late Chief Justice on 24th May 2007, his Honour directed him to pursue the appeal in SCA No 49 of 2007 and withdraw the application for leave in SCA No 35 of 2007. This was because the proceeding was dismissed and the challenge to the refusal of the grant of default judgment would serve no purpose if it was pursued. He claimed that application for leave to appeal in SCA No 35 of 2007 was generally adjourned to await the outcome of the appeal in SCA No 49 of 2007. That was the reason he did not prosecute the application for leave to appeal to date.

5. Meanwhile, on 14th May 2007, the respondents applied to dismiss the proceeding for failure to disclose a reasonable cause of action. They moved the application in the absence of the appellant. It was upheld and the proceeding was dismissed. Again, aggrieved by that decision, on 01st June 2007, the appellant filed an appeal to the Supreme Court in SCA No 49 of 2007.

6. He did not prosecute his appeal in SCA No 49 of 2007 because despite his numerous attendances and requests to the National Court Transcript Division for the transcript to be furnished to him, none was provided until 25th August 2009. Further, he did not forward a draft index to the appeal book to the respondents until a day before the hearing of the application for dismissal. By that time, the respondents had obtained a hearing date for these applications and he had no choice but to appear at the hearing...