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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCREV NO 05 OF 2011
REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)
IN THE MATTER OF THE DISMISSAL OF THE PROCEEDINGS
WS NO. 1049 OF 2004 STEPHEN AMBO (DECEASED) BY HIS NEXT OF KIN SAKAIRE AMBO & ORS -v- AME LAWYERS
APPLICATION BY STEPHEN AMBO (DECEASED) BY HIS NEXT OF KIN SAKAIRE AMBO
BETWEEN
STEPHEN AMBO (DECEASED) BY HIS NEXT OF KIN SAKAIRE AMBO
Applicant
AND
PHILIP AME, PRINCIPAL OF AME LAWYERS
(Respondent
Waigani: Davani, David & Makail, JJ
2012: 29th & 31st August
SUPREME COURT REVIEW - Review of National Court decision - Summary dismissal of proceedings - Dismissal for want of prosecution -
Exercise of discretion - Grounds of dismissal - Non appearance by parties at directions hearing - Grounds of review - Denial of natural
justice - Error of law - Constitution - s. 155(2)(b).
Facts
This is an application for review of the decision of the National Court summarily dismissing proceedings for want of prosecution. The National Court dismissed the proceedings because at the directions hearing, none of the parties appeared. The main contention by the applicant is that because the respondent failed to inform him of the adjourned date, that he did not attend the directions hearing and when the matter was dismissed, he was denied natural justice.
Held:
1. The National Court has power to dismiss proceedings for want of prosecution. It is an exercise of discretion and is exercised based on proper principles of law. The onus is on the applicant to establish that the primary judge improperly exercised his discretion when he dismissed the proceedings.
2. A party who initiates proceedings has an obligation to prosecute it with due diligence and despatch.
3. A party to litigation has a two-fold obligation. First and foremost is to the Court and secondly to the other party or parties. That obligation includes complying with directions and attending directions hearing on dates fixed by the Court. A failure may result in the Court exercising powers available to it to dismiss proceedings for want of prosecution.
4. Where an applicant seeks to quash an order of dismissal of proceedings for want of prosecution relying on the review powers under s. 155 (2) (b) of the Constitution, it is exercised in special circumstances where some injustice is manifest (see Avia Aihi v. the State [1981] PNGLR 81). Leave to review was granted after the Court was satisfied that;
- It is in the interests of justice that leave be granted;
- There are cogent or convincing reasons or exceptional circumstances; and
- There are clear legal grounds meriting a review of the decision.
5. A person affected by a Judicial Act may ask the Court to exercise its inherent and discretionary power of review which exercise is at the Court's discretion. See Avia Aihi v. The State (supra) [1981] PNGLR 81 where Kearney DCJ said;
"A person affected by a Judicial Act... may yet ask this Court to exercise its inherent and discretionary power of review...(however) whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion...it is a truly discretionary jurisdiction."
See Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138 per Injia .J;
"Review of such decision of the National Court under s. 155 (2) (b) should only be granted in the most exceptional of case on an important point of law which clearly has merits or on parts of evidence where there is gross error clearly manifest on the face of the record."
See also Jonathan Kumba v. Kuk Kuli [2000] PNGLR 173, the Court said;
"The power of review by the Supreme Court of a National Court decision under s.155(2) (b) is discretionary. In that regard, the Supreme Court has the inherent discretionary power to hear and determine the applications. The discretion is unfettered."
6. The review jurisdiction of the Supreme Court is available to quash a decision of the National Court where the National Court has made a mistake, the Supreme Court can correct that mistake either by appeal, or in this case, by review, through the exercise of its inherent powers under s.155 (2) (b) of Constitution. (See Application of Herowa Agiwa [1993] PNGLR 136).
7. The applicant has failed to establish that he was denied natural justice, that an error of law was committed by the primary judge when dismissing the proceedings for want of prosecution and there was a wrongful exercise of discretion.
8. The application is dismissed with costs.
Cases cited:
Avia Aihi v. the State [1981] PNGLR 81
Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138
Application of Herowa Agiwa [1993] PNGLR 136
Jonathan Kumba v. Kuk Kuli [2000] PNGLR 173
Counsel:
Mr M Mann-Rai, for the Applicant
Respondent in person
31st August, 2012
DECISION
1. BY THE COURT: This is an application for review of the decision of the National Court summarily dismissing proceedings for want of prosecution, and to, amongst others, set aside the National Court's orders of 03rd August, 2010. The application is made pursuant to s. 155(2)(b) of the Constitution, which provision gives the Supreme Court inherent powers to review all judicial acts of the National Court.
2. On 03rd August, 2010, the National Court dismissed the proceedings because at the directions hearing, none of the parties appeared.
3. The proceedings in the National Court arose from a professional negligence claim against the respondent for allegedly failing to lodge a claim for compensation within time against the Motor Vehicles Insurance Limited. The applicant was not aware of the dismissal of the proceedings until after the statutory time period for lodging an appeal had expired. Hence, he filed the application for review, leave having been granted by the Supreme Court on 30th April, 2012.
4. A short history of the case is that on 17th June, 2010, the matter was fixed for directions hearing before the National Court. Counsel for the applicant appeared. The respondent did not. His Honour then issued further directions for parties to comply with earlier directions including settling the claim through mediation for which they were to appoint a mediator and a time frame to commence and conclude it. The trial Judge then adjourned the matter to 14th July, 2010. On 14th July, 2010, only the respondent appeared. His Honour once again adjourned the matter to 03rd August, 2010 and directed the respondent to inform the applicant of the date of adjournment. He further ordered that if the applicant failed to turn up on the next adjourned date, the proceedings were to stand dismissed unless parties agree to settle the matter out of Court or reach an agreement to appoint a mediator in accordance with the Court's directions of 17th June, 2010. On 03rd August, 2010, none of the parties appeared. The trial Judge thereupon dismissed the matter for want of prosecution.
5 The applicant seeks to set aside the orders to dismiss, of 3rd August, 2010. The National Courts power to dismiss proceedings for want of prosecution is an exercise of discretion and must be exercised based on proper principles of law. Where an applicant seeks to quash an order of dismissal of proceedings for want of prosecution relying on the review powers under s. 155 (2) (b) of the Constitution, it is exercised in special circumstances where some injustice is manifest (see Avia Ahi v. the State [1981] PNGLR 181). In this case, leave to review was granted after the Court was satisfied that;
- It is in the interests of justice that leave be granted;
- There are cogent or convincing reasons or exceptional circumstances; and
- There are clear legal grounds meriting a review of the decision.
"A person affected by a Judicial Act... may yet ask this Court to exercise its inherent and discretionary power of review...(however) whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion...it is a truly discretionary jurisdiction."
"Review of such decision of the National court under s. 155 (2) (b) should only be granted in the most exceptional of case on an important point of law which clearly has merits or on parts of evidence where there is gross error clearly manifest on the face of the record."
(See Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138).
"The power of review by the Supreme Court of a National Court decision under s.155(2) (b) is discretionary. In that regard, the Supreme Court has the inherent discretionary power to hear and determine the applications. The discretion is unfettered."
Again, without the benefit of the transcripts showing the basis on which leave was granted, we reiterate that the onus is upon the applicant to show that the trial Judge improperly exercised his discretion because those are the only substantive grounds of review pleaded in the Application for Review, that is, the trial Judge's improper exercise of discretion when he dismissed the proceedings (See grounds 2.1.1 (i) to (xivi) and 2.2, 2.3, 2.4, 2.5, 2.6, 2.7)
10. The main contention by the applicant is that the respondent failed to inform him of the date of the adjournment and as a result he did not attend. He submits that if he had been informed, he would have attended. He submits further that there was denial of natural justice when the National Court heard the matter in his absence and dismissed it for want of prosecution. It was also submitted that parties were negotiating an out of Court settlement and that demonstrated that the applicant was pursuing the settlement in accordance with the directions of the Court of 17th June, 2010. The applicant submitted that this was not a case where he did not do anything. He submits that for these reasons, there was an error of law committed on the face of the record.
11. Some submissions were also made in relation to the merits of the claim. However, these submissions are relevant to the application for leave, which leave has already been granted.
12. We consider that the applicant, as the party who initiated the proceedings, has an obligation to prosecute it with due diligence and despatch. We also consider that a party to litigation has a two-fold obligation. First and foremost is to the Court and secondly, to the other party or parties. That obligation includes complying with directions and attending directions hearing on dates fixed by the Court. A failure may result in the Court dismissing the proceedings for want of prosecution.
13. In the present case, it is noted with concern that on the dates fixed by the Court for directions hearing, there were instances where only one party attended and on one occasion, none of the parties appeared. The parties' lack of appearances is intentional and contumelious. As a result, the Court did not know if the parties had complied with the direction to settle the matter out of Court. This was the concern raised by His Honour when the matter came on for directions hearing on 14th July, 2010. That is why he stressed that if the applicant failed to appear at the next hearing date, the proceedings were to stand dismissed unless parties settled the matter out of Court.
14. On 14th July, 2010, the matter was further adjourned to 03rd August, 2010. On 21st July, 2010, the respondent informed the applicant's lawyers of the directions hearing but not the date. It is one thing to blame the other party for failing to inform the other of the date of adjournment and it is another to comply with directions of the Court including attending hearings on dates fixed by the Court. Each was duty bound to attend the directions hearing on dates fixed by the Court.
15. In our view, the applicant had no reason to be unaware of the dates for the directions hearing. According to the endorsement on the Court file (see p 133 of AB), on 17th June, 2010, a Mr Daniels appeared for the applicant. The respondent did not. His Honour adjourned the matter to 14th July, 2010. On 14th July, 2010, the respondent appeared and the applicant did not. There is no explanation by the applicant as to why his lawyers did not appear on that date. Mr Daniel was in Court on 17th June, 2010 when his Honour adjourned the matter to 14th July, 2010, so should have been well aware of the date of adjournment and should have attended.
16 We are also of the view that each party must accept full responsibility for their failure to attend the directions hearings on the dates fixed by the Court. The applicant's lawyers were well aware of the date of directions hearing of 14th July, 2010 and did not attend. His Honour had issued directions to progress this matter to trial including exploring the option of an out of Court settlement. While parties were obliged to comply with these directions and out of Court settlement negotiations, they were equally obliged to attend directions hearings on the dates fixed by the Court. The reason is obvious. The Court must be informed of the progress of the parties' compliance with its directions and out of Court settlement negotiations. For these reasons, we are not satisfied that the applicant was denied natural justice.
17. As to the other ground, when parties failed to attend on 03rd August, 2010, especially the applicant, it was the third time their attendance was found wanting His Honour had no one to call on to assist him on the progress of the matter. If parties were negotiating an out of Court settlement, his Honour was unaware because there was no one there to report on that. Given the circumstances that confronted his Honour at that time, he was left with very limited options. The most appropriate order he could have made in the circumstances was the dismissal of the proceedings.
18. For all the above reasons, we are not satisfied that there was an error of law committed by his Honour when he dismissed the proceedings for want of prosecution.
19. We dismiss the application and order the applicant to pay the costs of the Review to be taxed if not agreed.
Formal Orders
The Court's formal orders are:
_________________________________________
Warner Shand Lawyers: Lawyers for Applicant
Philip Ame Lawyers: Lawyers for the Respondent
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