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Pywan v Pywan [2022] PGNC 522; N10028 (17 October 2022)
N10028
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 11 OF 2021
JOSEPH PYWAN
Appellant
V
SANDRA PYWAN
First Respondent
Waigani: Miviri J
2022: 14th & 17th October
PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – Against Maintenance Orders – Motion to
dismiss – Order 18 Rule 7 (1) (c) NCR Want of Prosecution – Summary Determination of Appeal – Failure to Comply
with Directions – Whether Material Sufficient – Balance Not discharged – Motion Dismissed – Cost follow event.
Cases Cited:
Pruaitch v Manek [2019] PGSC 123; SC1884
Nukundji v Ten [2021] PGNC 64; N8816
Melanesia Trustee Services Ltd v Tongayu [ 2021] PGNC 81; N8815
Juali v The State [2001] PGSC 17; SC667
General Accident Fire & Life v Farm [1990] PNGLR 331
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Takori v Yagari [2007] PGSC 48; SC905
Gelu v Somare [2009] PGNC 21; N3647
Philip v Tiliyago [2019] PGSC 17; SC1783
PNG Deep Sea Fishing Limited v Critten [2010] PGSC 53; SC1126
Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346
Counsel:
R. Inua, for Appellant
M. Kasa, for Respondent
RULING
17th October, 2022
- MIVIRI, J: This is the ruling on the respondents Notice of motion of the 30th September 2022 seeking dismissal of the appeal on the basis of Order 18 Rule 7 (1) (c) and Order 12 Rule 4 (a) (i) of the National Court Rules for the summary disposal of the appeal.
- There is no Order 12 Rule 4 (a) (i) of the National Court Rules and therefore does not advance the cause of the respondent. He is left with Order 18 Rule 7 (1) (c) which is headed Pre-Hearing Conference
at which amongst others is addressing the issuing of directions as necessary to make the proceedings ready for the hearing. In other
word preparation to the eventual hearing of the matter. In this respect orders in the form of directions that are made to bring the
matter eventually to a hearing of the matter. In the present the affidavit of Sandra Pyawan of Erima Mambu National Capital District
sworn dated the 27th September 2022 filed the 30th September 2022 is relied upon as the basis by the Respondent to advance her motion.
- In it she contends that the appellant was ordered on the 10th August 2022 to compile, file and serve the appeal book by the 05th September 2022. She is the respondent in the proceedings and deposes that since the filing of this appeal on the 21st May 2021 there has been so much delay on the part of the appellant. And for that reason, she has instructed her lawyers to move for
the dismissal of the proceedings. She has particulars of the orders that were issued of the 10th of August 2022 as annexure “A” which is clear that 1. The appellant to compile, file and serve the appeal book by or before 15th September 2022. 2. Further directions to be issued subject to the filing of the appeal book. 3. The matter was to return to court
on 05th September 2022 at 9.30am for further directions.” It is undisputed that the appellant has not filed the appeal book in accordance with the directions that were issued.
- But in that affidavit, she further deposes that the appellant’s lawyer forwarded the draft Index to the appeal book on the 29th of August 2022 on the basis of which her lawyer sought instructions with her within a week and to respond to it. And because of the
short time her lawyer sought consent of the appellant’s lawyer for consent adjournment and directional orders. And on the basis
of which they returned to Court on the 05th September 2022 and Court endorsed the Consent Directions for the appellant to file and serve the Appeal book by the 15th September`2022 which appellant has not done so in compliance.
- And on the 06th September 2022, after going through the evidence from the District Court and being instructed, my lawyer emailed Mr. Inua stating
their response to the draft Index what the documents we wanted to include. And that was sent by email and Respondent was instructed
the lawyer to see him back on the 15th September 2022. And that by then the appeal book would have been filed and served so that she could get a copy of it. And when she
returned to see her lawyer on the 15th September 2022, her lawyer informed that the Appeal Book had not been received nor any feedback from Mr Inua. So, she asked me to
hand deliver our letter in response to the Draft Index dated 06th September 2022, just in case Mr. Inua did not receive her email. And when she went to the office of Mr. Inua to serve the letter,
he said that he had received the email of her lawyer and refused to sign the proof of service. And on the 26th September 2022, I was served annexure “B”, a summons to appear at the village Court on the 29th September 2022 for dissolution of our customary marriage. In the district court the appellant argued that our marriage was dissolved
and he refused to pay maintenance. That decision is currently being appealed in the National Court in this proceedings therefore
the proceedings in the Village Court be stayed pending the outcome of the present proceedings. And that the actions of the appellant
and his lawyer are unnecessarily delaying the case.
- The applicant further relies on the evidence of Natasha Kasa affidavit sworn 28th September 2022 which basically echoes the same evidence of the applicant set out above. It is clear that there was communication
between the parties by the 22nd September 2022, Mr Inua requesting that the lawyer of the respondent forward her submissions to be included in the Appeal book. And
to which she responded on the 27th September 2022 that it was not required that an extract of submissions be filed within to complete the appeal book. And there has
been receipt of the appeal book. This motion is dated the 29th September 2022 filed the 30th September 2022.
- By his affidavit dated the 10th October 2022 Riben Inua deposes that he is the principal of Inua Lawyers and has carriage of the current matter. And that he has
read the affidavit of Ms Natasha Kasa and Ms Sandra Pyawan and affirms most of the facts set out above in these affidavits. That
he was not able to file the appeal book within the time set because he was moving office from Gerehu to Gordons for the past 4 weeks
and most of their workstations and files were in disarray including this matter. Notwithstanding the appellant’s lawyers personally
served the appeal book on the respondent on Monday the 3rd October 2022 and service of the appeal book was executed 12 days late from the 15th September 2022. In this affidavit the lawyer has admitted that he was the offending party not the client. He was not in compliance
of the orders because he was moving office from Gerehu to Gordons and workstations were in disarray including files and this file
was no exception. And pleads that for his actions his client should not be penalized in the course of action instituted.
- It is an honest act on the part of the lawyer in admitting his failure in serving his client and complying with the court order on
filing and service of the appeal book the heart of the proceedings here. Which is as to maintenance orders in favour of the children
and the spouse. Which matter is by its nature an emotional matter involving relationship in marriage that is currently before the
Village Court for dissolution evidenced by the affidavit of the applicant here set out above. It is not a light matter where the
relationship has amounted to two children, girl 16 years old, and a boy 6 years old. The former is frequenting between both parents,
whereas the latter is not because of his age. It is not a light matter to be defeated by non-compliance of directions to file an
appeal book let alone any other directions of Court to make the ready for hearing by the rules relied here for dismissal. Because
rules must be complied with to ensure fairness and ready disposal of the matter instituted. But they cannot be used as a source to
extinguish the fire and urge for Justice. They are a means to Justice and cannot strictly cut of the hand of Justice. Here is a relationship
that has anchored with the fate of two young children from a marriage that is intended to be dissolved by the parties before the
village court. It is their prerogative but the fate of the two children and their lives is also paramount in this consideration.
Because there is no failure on the part of the appellant but of the lawyer, he cannot arguably be made to forfeit the cause of action
at no fault of his but of his lawyer who was moving office and therefore has not complied since for 12 days now since the initial
orders of the 15th September 2022. The lawyer has not explained to avoid the order but has conceded that he is at fault. He proposes that costs would
source out his failure and the action be allowed survival and its day in court for the appellant.
- Given these facts is there serious breach of the orders made by this court on the part of the appellant necessary and fulfilling the
application to entail dismissal of the action pursuant to Order 18 Rule 7 (1) (c), which is headed Pre-Hearing Conference at which
amongst others is addressing the issuing of directions as necessary to make the proceedings ready for the hearing. And filing of
an appeal book is necessary to start and initiate the appeal which has not been done here failure of the lawyer, not the client appellant?
And looking back all other filings necessary have been on due time and have been in order except for this12 days where the appeal
book has been outstanding. And it is not the appellant who is at serious fault in the matter. It is the lawyer who was moving office
from Gerehu to Gordons.
- Is this a clear case for summary determination for the Courts discretion to be invoked pursuant. And acceding would not deny a genuine
cause of action instituted. It is by its facts and circumstances, ought to be summarily determined. There has been want of prosecution,
that there has been no due despatch and diligence in the prosecution of the appeal. It discloses no reasonable cause of action and
would amount to a frivolous and vexatious action as such should be dismissed: Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). It would not attain or is not attenable at the hands of the appellant instigating.
- This is not a case where two and half years and one month has lapsed since initial filing of the appeal 14th July 2019. Nothing has eventuated since. The result is that the respondent has had to sacrifice the fruits of the Judgment at first
instance. Her two children the subject of the reliefs for maintenance have had to do without so that this appeal is proceeded with.
Nothing has been done and the evidence does not support that it has been prosecuted with diligence. There is on the material presented
inordinate delay that has been observed by this Court in Nukundji v Ten [2021] PGNC 64; N8816 (13 May 2021) and Melanesia Trustee Services Ltd v Tongayu [2021] PGNC 81; N8815 (13 May 2021). Both decisions followed the principles affirmed in this regard by the Supreme Court in Juali v The State [2001] PGSC 17; SC667 (30 July 2001) in criminal appeals and in civil in General Accident Fire & Life v Farm [1990] PGSC 13; [1990] PNGLR 331 (25 July 1990). I ask myself in view that is this a case from the materials relied and the law set out above constituting an inordinate
delay in the prosecution of the appeal by the appellant. And given the material above does the application of the respondent sustains
in view of the materials she advances? Is there merit her cause of action bearing in mind all set out above?
- It is clear this is not the situation that was observed by the Supreme Court observed in Pruaitch (supra) that “ piecemeal interlocutory applications to National Court and multiple appeals to Supreme Court can constitute abuse of process.
Circumstances which give rise to abuse of process are varied and not limited to fixed categories – Court must take into account
circumstances of case, prejudice to each of the parties and need for public confidence in administration of justice – Delay
in conduct of proceedings and failure to take available procedural steps are factors capable of constituting abuse of process.” And in the light of which would be more prejudice in keeping the appeal afloat given that this is two children who are innocent of
any of the dispute between the parents who will be made to suffer unnecessarily without their maintenance and upkeep. Here the father
must meet his obligations and meet them well to support the mother, respondent.
- The appellant in my view in the light of all set out above will be derailed from the seat of Judgment. They are his children also
emanating from that union intended to be dissolved by and through the village court process current. And that process will be allowed
its course without any orders estopping from this Court. A stay is not eminent in the light of McHardy v Prosec Security and Communication Ltd [2000] PGSC 31; [2000] PNGLR 279 (30 June 2000) and will follow from the facts of the case here. The dissolution will proceed in the village court as set without
any orders from this Court staying. The appeal is from the decision of the District Court and will follow the course meted out by
the process emanating from the rules of Court followed except for the filing of the appeal book at no fault of the appellant but
the lawyer moving office from one location originally to another anew.
- I am fortified in this view because “our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without
a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and
the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming
before the court. That right cannot be lightly set aside,” Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari
[2007] PGSC 48; SC 905 (28th February 2007). In order words rules did not take the hand of Justice away because there was non-compliance. Taking the hand of Justice
away meant the body was not there to serve Justice. It was therefore no light matter. The facts and circumstances of the present
do not depict what is observed in Gelu v Somare [2009] PGNC 21; N3647 (16 April 2009). And extended further is not likened to being given time to comply as in Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). Here there is affidavit material by lawyer for the appellant admitting his failure in compliance because of moving
his office from one location to another. And that it is not the appellant who is at fault for non-compliance. Thought it is not in
compliance of PNG Deep Sea Fishing Limited v Critten [2010] PGSC 53; SC1126 (10 December 2010) that an application has been filed to vary the directional orders, but it is a case where admission has been made
by the lawyer for the failure. But he pleads to save the cause of action as it is not the fault of the appellant. In my view that
is consistent with Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988] PGSC 20; [1988-89] PNGLR 346 (1 September 1989) because there are cogent or convincing reasons apparent or identifiable on the basis of which this application
must be denied considering that substantial miscarriage of Justice would occur and is apparent if the motion is granted. Because
the challenge is appeal against maintenance orders of the District Court. Which is against fate of two innocent children from that
relationship. Both are innocent of what is and has come out from the parents, it is necessary that that appeal be heard and determined
to see out what the law says in respect. That the appellant is versed of his responsibilities emanating. Including custody and the
like flowing. Summarily acceding to the application made will deny and substantial injustice would be bestowed putting paramount
orders to file the appeal book. Here it has been breached but not to the extreme. It is 12 days breach and appeal book has been served
in the hands of the respondent to endorse to move the matter to hearing. Appellant is not at fault but his lawyers is. He will not
be made to sacrifice demise of the cause of action no fault of his. Instead, costs will be awarded for the failure to comply with
a court direction against the lawyer for the appellant not the appellant. This is an order that befalls the lawyer and not the appellant
so the cause of action is not stalled and proceeds its natural cause.
- Accordingly, the application by the Respondent by her Notice of motion of the 27th May 2021 is denied. The appeal remains intact and costs will follow the cause. The appellants lawyer will file proof of the payment
of costs of the breach of the order by or before Monday 31st of October 2022. The respondent will endorse the appeal book by or before the Friday 04th November 2022. And the appellant will upon return of the appeal book file it by or before Friday the 11th of November 2022. And the matter will return for directions on Monday 14th November 2022 at 9.30am.
- The orders of the Court are:
- (i) The Respondents motion to dismiss is denied with costs.
- (ii) The lawyer for the appellant will be penalized with costs for breaching the directions to file the appeal book on the 15th September 2022.
- (iii) The appellants Lawyer will file proof of the payment of costs of the breach of the order by or before Monday 31st of October 2022.
- (iv) The appeal is intact and cost will be in the cause to follow the event if not agreed to be taxed.
- (v) The respondent will endorse the appeal book by or before the Friday 04th November 2022.
- (vi) The appellant will upon return of the appeal book file it by or before Friday the 11th of November 2022.
- (vii) The matter will return for directions on Monday 14th November 2022 at 9.30am.
- (viii) Costs will be against the Respondent in the cause.
Orders Accordingly.
__________________________________________________________________
Inua Lawyers: Lawyer for the Appellant
Office of the Public Solicitor: Lawyer for the Respondent
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