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Bank South Pacific Ltd v Southern Highlands Provincial Government [2015] PGSC 58; SC1466 (30 October 2015)

SC1466

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 122 OF 2011

BETWEEN:

BANK SOUTH PACIFIC LIMITED
Appellant

AND:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Respondent

Waigani: Manuhu, J Yagi, J & Polume-Kiele, J
2015: 29th & 30th October

SUPREME COURT APPEAL – Civil appeal – practice and procedure – conditional orders – Supreme Court Rules, Order 7 Rule 48 – order made to file written extract of submission - failure to comply with order within time fixed by the Court.

Cases cited:

Andrew Baing & Ano r v PNG National Stevedores Pty Ltd & Anor (2000) SC627
Dr. Allan Kulunga v Western Highlands Provincial Government & Ors (2006) SC856

Counsel:

M. Wilson, for the Appellant/Respondent
N. Gimaia, for the Respondent/Applicant

DECISION

30th October, 2015

1. BY THE COURT: This is an application under Order 7 rules 48(a) and (b) of the Supreme Court Rules (SCR). The application is made by the respondent to dismiss the proceeding for want of prosecution. It is made pursuant to application filed on 25 March 2015.

2. The application is supported by two affidavits; the first is sworn by Naewa Gimaia and filed on 12 February 2015 and the second is an affidavit of search sworn by Edwin Gesi filed also on 12 February 2015. The application book was served on the appellant through its lawyer in August 2015. A notice of hearing of the application was also served on the appellant on 18 October 2015.

3. The appellant has not filed any affidavit in reply.

4. The facts are not disputed. The substantive appeal was fixed for hearing before the Supreme Court on 18 December 2014. The parties were ordered by the Court to file written extract of submissions prior to the hearing date. The respondent complied with the court order. However, the appellant failed to comply with the order. As a consequence, when the matter came before the Court for hearing on 18 December 2014 and in noting the failure by the appellant the Court made a self executing or conditional order in the following terms:

"1. Subject to compliance with paragraph 2, the matter is adjourned to the next sittings of the Supreme Court in February 2015 to come before the Supreme Court listings Court in February 2015 who will allocate a date in February 2015.

2. All extracts of submissions must be filed by or before end of January 2015 and in the event such is not filed, the appeal stands dismissed for want of prosecution.

3. Mr. Koeya Peri to pay legal costs of today's appearance and all related costs to be assessed on solicitor client basis to be taxed if not agreed."

5. On 10 February 2015 a search was carried out on the Court file and it revealed that the appellant had not filed its extract of written submissions. The time for doing that, that is, the filing of extract of submissions, had expired at the end of January as per the orders made. Consequently the respondent filed the application on 25 March 2015.

6. We accept the submission by the respondent with regards to the principles pertaining to conditional orders. The leading authority on this subject is the Supreme Court case of Andrew Baing & Anor v PNG National Stevedores Pty Ltd & Anor (2000) SC627.

7. In that case the respondents obtained an order requiring the appellants to give discovery of documents. The order was accordingly served on the appellants. The appellants failed to comply with the orders for discovery. Consequently a conditional or self executing order was made by the Court. The appellants defaulted again in term of compliance with the conditional order. As a result the respondents filed an affidavit with the Registrar of the National Court and obtained orders striking out the appellants' defence and entering judgment in favour of the respondents. The appellants applied to the Court to have the orders set aside. The Court refused the application. The appellants sought leave of the Supreme Court to appeal contending, amongst others, that the trial Judge erred in refusing to set aside the order. In deliberating on the issue in the appeal the Supreme Court made the following statement:

"But what is equally clear is that said orders were conditional orders. We say they were conditional orders because the terms of it were conditional upon the happening of some event in the future. The event was that the Appellants were to "make file and deliver a list of documents verified by affidavit within forty eight hours (48) of the making of this Order." This meant that if the appellants did not comply with the terms of the order, the respondent had to come back to the Court and make an appropriate application to the Court. Thus, this required further judicial function to be exercised in determining that the condition had not been satisfied at the specified time."

8. In this case the Supreme Court made orders on 18 December 2014 directing the appellant to file its extract of submission by the end of January 2015. The appellant did not comply with the order of the Supreme Court. The failure necessitated the filing of the present application by the respondent. The appellant has not filed any affidavit material providing for any explanation let alone a reasonable one as to why it failed to comply with the order. It also took no step whatsoever to vary the conditional order for example extending the time line for compliance. see Dr. Allan Kulunga v Western Highlands Provincial Government & Ors (2006) SC 856.

9. In the circumstances we are satisfied that this is a clear case where the appellant has failed to comply with an order of the Supreme Court. The respondents have therefore acted appropriately and in accordance with the law in making this application.

10. We therefore make the following orders:

1. The application is granted.
   
2. The appeal is dismissed for want of prosecution and or compliance with Court Order of 18 December 2014.
   
3. The appellant pays the respondent's cost in the proceeding including this application which cost is to be taxed, if not agreed.
   

_____________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellants
Liria Lawyers: Lawyers for the Respondent