Canisius Karingu and Papua New Guinea Law Society (2006) SC900

• Jurisdiction: Papua New Guinea
• Judge: Sakora Davani & Mogish JJ
• Judgment Date: 28 August 2006
• Citation: (2006) SC900
• Docket Number: SCM 7 OF 2005
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC900

Full Title: SCM 7 OF 2005; Canisius Karingu and Papua New Guinea Law Society (2006) SC900

Supreme Court: Sakora, Davani & Mogish JJ

Judgment Delivered: 28 August 2006

SC900

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 7 OF 2005

BETWEEN

CANISIUS KARINGU

Appellant

AND

PAPUA NEW GUINEA LAW SOCIETY

Respondent/Applicant

Waigani: Sakora, Davani & Mogish. JJ

2006: 28 June

28 August

COURT ORDERS - self executing - that if appeal not ready, it shall stand dismissed - o.7 r. 53 of Supreme Court Rules.

COURT ORDERS - self executing - respondents refusal to certify appeal book - appellant claims he is ready to proceed - court will not dismiss appeal.

The Supreme Court Rules, O.7 r.53, provides that if an appellant has not done any act or not presented his appeal with due diligence, the court may either dismiss the appeal for want of prosecution or fix a time for the doing of the act and upon non-compliance, shall stand dismissed.

An earlier Supreme Court ordered that the appeal shall stand dismissed by June 2006 if the appeal books are not filed before the civil call-over, extracts of arguments filed and all other required steps taken and that if the appeal is not ready for argument in June (2006) sittings, that it ‘shall’ stand dismissed.

The appellant was not ready to proceed by the June 2006 sittings because the respondent refused to certify the appeal book. The respondent applied to dismiss the appeal for non-compliance with the earlier Supreme Courts order.

Held

(1) Because the respondent refused to certify the appeal and because the appellant has been diligent in preparing the appeal since the application to dismiss was filed, that the appellant should not be penalized for that and that the self-executing order should not take effect.

(2) The rules are there not to thwart or frustrate the determination and fair hearing of any action, either at first instance or an appeal. It is not intended that these rules should be employed as tools for legal manoeuvring.

Wenum Elkum v PNG [1988-89] PNGLR 662; Aisip Duwa v Ronald Senge [1995] PNGLR 140.

(3) (Davani. J dissenting) : Earlier Supreme Court order was unequivocal in its terms, that the appeal will be dismissed if it is not ready by the June 2006 sittings. If the appeal is not ready to proceed and before the ordered deadline, the applicant must apply to vary the order. O. 7 R. 56 of Supreme Court Rules; Pt. 2 R. 3 of Supreme Court Rules 1970 (NSW); Pt. 40 R. 9 of Supreme Court Rules 1970 (NSW)

(4) (Davani. J dissenting): A self-executing order is either conditional or unequivocal. If unequivocal, as were the terms of this order, the order automatically stands dismissed, unless an application to vary is made before the ordered deadline. FAI General Insurance Co. Ltd v Southern Cross Exploration (1988) 165 CLR 268; Hon. Andrew Baing & The Independent State of Papua New Guinea v PNG National Stevedores Pty Ltd & Bank South Pacific (2000) SC 627: Henry To Robert v Mary To Robert (2004) N2744; Nukumal Plantation v Tukake Ltd (2005) N2781; Cairns on Australian Civil Procedure (1992) Third Edition.

(5) (Davani. J dissenting) : If the applicant applies to vary after the ordered deadline, in this case, after June 2006, he must show that special circumstances exist that warrant a variation, revocation or effectively an extension of time. Such an application was not before the Court. O.7 R. 56 of Supreme Court Rules.

Cases Cited

Papua New Guinea Cases

Wenam Elkum v PNG [1988-89] PNGLR 662 at 665

Aisip Duwa v Ronald Senge [1995] PNGLR 140

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;

Nukumal Plantation Ltd v Tukake Ltd (2005) N2781;

Dan Kakarya v Michael Somare, Koiari Tarata and Francis Kaupa SC 62

Overseas Cases

Turner v Bulletin Newspaper Co. Pty Ltd (1974) 131 C.L.R. 69;

Birkett v James ([1978] AC 297

FA1 General Insurance Co. Ltd v Southern Cross Exploration (1988) 165 CLR 268;

Texts

B.C. Cairns, Australian Civil Procedure (1992) Third Edition;

Counsels

B. Boma, for the Respondent/Applicant

C. Karingu, Appellant in person

DECISION

28 August, 2006

1. SAKORA J: I have had the advantage of reading the separate judgments of their Honours Justices Mogish and Davani in draft form. The history of this appeal has been, with respect, adequately canvassed in both judgments. The pertinent legal principles in respect of self-executing orders vis-à-vis the powers of this Court under Order 7 Rule 53 of the Supreme Court Rules (SCR) have also been, with respect, adequately discussed with the necessary support of the case law in the judgment of her Honour Davani J. Therefore, I see no useful purpose will be served by my repeating these here.

2. The principles of law applicable are acknowledged. However, it is the factual circumstances giving rise to the application of the Papua New Guinea Law Society (PNGLS) that need closer consideration. In the end, therefore, the determination of the application, in my respectful opinion, turns on those facts. And those facts lead me to respectfully agree with the conclusion reached by my brother Mogish J and the reasons he states for this. What follows are few brief remarks and observations, if only to emphasize some of the points made in his Honour’s judgment.

3. The applicant/respondent relies on Order 7 Rule 53 of the SCR, more particularly sub-rule (b). The entire Rule is reproduced hereunder as follows:

53. 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; or

(b) fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non-compliance, order that it be so dismissed; or

(c) make any other order that may seem just.

4. The “doing of the act” which the applicant asserts was not complied with for the rule to apply is the self-executing order contained in the judgment of an earlier Supreme Court (28 April 2006) which entertained the first application to dismiss the appeal. The pertinent extract from that judgment is reproduced hereunder:

Although the Appellant’s explanation for the delay amounts to almost no explanation, we cannot ignore the fact that since this application was filed he has been diligent in taking the steps necessary to prepare for hearing. It appears from the evidence filed that it only requires the co-operation of the Respondent to complete the Appeal Book for certification. We also note that it was not until the eve of the Court vacation that the Respondent commenced to press for progress in the appeal. In those circumstances we propose to follow the statement of principle in SC62 Dan Kakarya v Michael Somare, Koiari Tarata and Francis Kaupa (supra), to the effect that an application to dismiss for want of prosecution might not be successful if the Appellant has remedied his omissions since filing of the application, and refuse the application.

We consider also that it would be appropriate to make some kind of self-executing orders. This appeal is to be ready to be heard in the June sitting of the court, that means the appeal book must be filed before the call-over, extracts of arguments filed in accordance with the rules and all other required steps taken. If the appeal is not ready for arguments in the June sittings it shall stand “dismissed” (page 6).

5. It would appear that following those orders the parties returned to court on 26 May, 2006 before the Chief Justice for directions for the future conduct of the appeal. These directions are set out in full hereunder:

1. In accordance with Order 11 Rule 12 of the Supreme Court Rules that the parties in this matter shall file written submissions.

2. That the said submissions shall be set out in accordance with Order 12 Rule 13 (a) – (e) of the Rules.

3. That the said submissions shall be filed with the Registrar no more than 10 days after the receipt of this Direction (sic) and in sufficient numbers for the Court.

4. That the written submissions shall not be available for inspection until all parties have filed their submissions.

5. When all parties have filed their submissions, each party shall serve a copy of their submissions on each other.

6. That non-compliance with this direction may result in the matter being adjourned by the Court to the next sittings.

6. When the matter went before the Supreme Court on 28 April, 2006, the Appeal Book was not ready. That is why it entertained the respondent’s application pursuant to Order 7 Rule 53 of the SRC, and refusing the application made the self-executing order (supra). With respect, the court was justified in refusing to dismiss, because it would appear (from the judgment, supra) that the appellant had offered some explanation for the delay in finalizing the Appeal Book, and that he had indeed taken some steps to prepare for the hearing since the filing of the respondent’s application. It would appear also that part of the appellant’s explanation which the court took cognizance of was the respondent’s contribution to the delay. At that point in time, therefore, it only required “the co-operation of the Respondent to complete the Appeal Book for certification” (judgment, supra).

7. It would appear from...