SC2048
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 4 OF 2019

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B)

BETWEEN
BENITA LIVINAI ARORE
First Applicant

AND:
DAVID ARORE
Second Applicant

V

JOY TRAVERTZ ARORE
Respondent

Waigani: Murray J, Anis J, Tamate J
2020:  15th and 17th December

PRACTICE & PROCEDURES – Dismissal of Review Application – Want of Prosecution - Order 7 Rule 48 – Supreme Court Rules 2012 - failure to comply with requirements under Order 7 Rule 33, 34, 35, 40 41 – Supreme Court Rules - settling of index to review book and settling of review book – failure to prosecute with due diligence – considerations – evidence of delay not denied – warning given by the respondent and steps taken following the warning – present status – uncontested evidence filed showing recent steps taken by the applicant and that failure or delay caused by the respondent’s counsel in not responding to the draft index – exercise of discretion

Cases Cited:

Melchior Pep v. Puri Ruing and the Electoral Commission (1999) SC614
Katam Lega v. Bank South Pacific Limited (2012) SC1189
Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 85

Counsel:

Mr A Furigi, for the Applicants
Mr W Donald, for the Respondent

17th December, 2020

1.	BY THE COURT:	We heard the respondent’s application to dismiss the review on 15 December 2020 and reserved our ruling to today at 9:30am.

2.	This is our ruling.

BACKGROUND

3.	The respondent was formerly married to the second applicant.  They had married under statute on 17 May 2012.  In 2018, the respondent applied to dissolve their marriage, that is, by filing a petition in the National Court on 9 March 2018.  The petition was filed against the second applicant.  On 18 April 2019, Justice Kandakasi, as he then was, in an ex-parte ruling, granted an order, namely, Decree Nisi, to dissolve of marriage of the respondent and the second applicant.  The primary judge also granted other orders including orders for child custody, child maintenance, and also, orders to distribute the properties that the couple had acquired during the tenure of their marriage.  The Decree Nisi order became Absolute on 12 July 2019.  The applicants were aggrieved and so they file this review.

4.	Their application for leave for review, was filed on 19 July 2019.  Leave was granted on 18 September 2019.  The applicants then filed their Application For Review on 9 October 2019 (review application).  The review application is pending before the Supreme Court.

APPLICATION TO DISMISS

5.	On 9 October 2020, the respondent filed this present application.  The application is made under Order 7 Rule 48 of the Supreme Court Rules 2012 (SCR 2012).  The main relief sought therein are:

(a)	The Review be dismissed for Want of Prosecution Pursuant to Order 7. Rule 48 of the Supreme Court Rules 201 (sic) for failure of the Applicants to comply with Order 7 Rule Rules 33, 34, 35, 40 and 41 of the Supreme Court Rules 2012.

(b)	The Review be dismissed for Want of Prosecution Pursuant to Order 7 Rule 7 (sic) Rule 48 of the Supreme Court Rules 2012 for failure of the Applicants to prosecute the Review with due diligence.

6.	The application is supported by an affidavit of the respondent filed on 9 October 2020.  The affidavit is marked as Document 6 in the Application Book (AB).  The AB was filed on 2 November 2020 and is not numbered.  We note that we have addressed the deficiency (i.e., the un-numbering of the AB pages) with both counsel and expect that it is not repeated in the future.

7.	Coming back to the evidence, and as for the applicants, they rely in their rebuttal to the application, on their counsel Mr Furigi’s affidavit which was filed on 2 December 2020.  We note that at the start of hearing, Mr Donald, counsel for the respondent, had informed us of the applicants’ intention to rely on the said affidavit, and counsel indicated that he would not object to its use.  As such, the applicants, in their reply, proceeded on that basis and relied on the affidavit of Mr Furigi.

JURISDICTION

8.	The jurisdictional basis of the respondent’s application to dismiss was not contested before us.  But that said, there is, in our view, a need to make certain clarities to the jurisdictional basis, as we will explain.  The jurisdiction relied upon by the respondent is Order 7 Rule 48 of the SCR 2012.  The said rule is applicable to general appeals under Order 7.  Order 5 applies to reviews like in this case.  However, we note that there are no express provisions under Order 5 where one could ask the Court to invoke, to dismiss a review for want of prosecution.  Prior to the SCR 2012, this Court in cases such as Melchior Pep v. Puri Ruing and the Electoral Commission (1999) SC614 and Katam Lega v. Bank South Pacific Limited (2012) SC1189, had or have applied, as sources, various provisions which were derived under old Supreme Court Rules (old rules) as well as under its inherent power, to hear applications that seek to dismiss reviews for want of prosecutions.  In the case of Melchior Pep v. Puri Ruing and the Electoral Commission (supra) for example, the Supreme Court said as follows:

Whilst there is no actual provision in the procedures for Review under the Constitution Section 155 for striking out for want of prosecution there is an inherent power in the Supreme Court to provide an appropriate remedy. As the Supreme Court ruled in the case Applications by Berghuser and Titimur [1995] PNGLR 259 "a judicial review under section 155(2)(b) of the Constitution may be dismissed for want of prosecution if the party seeking the review has not done any act or otherwise has not prosecuted the review with due diligence."

9.	Under the new rules, namely, the SCR 2012, Order 11 Rule 28, in our view, is relevant.  It begins with the heading, RULES OF GENERAL APPLICATION.  And Rule 28 reads:

Division 14.—Other Rules of General Application
28.  The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary:
(a)	Order 7 Division 5 (Objection to competency);
(b)	Order 7 Division 19 (Time, and want of prosecution);
(Underlining ours)

10.	The respondent has therefore and by virtue of Order 11 Rule 28(b) relied upon Order 7 Division 19, or Rule 48 to be precise, to invoke the Court’s jurisdiction under its review jurisdiction to make the application for dismissal for want of prosecution.  We therefore make this clarity and note that the jurisdictional basis of the application is in order.

LAW

11.	Moving on, we ask ourselves this.  What are the relevant considerations that we may have to take into account before exercising our discretion herein?  In Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 85, this Court held in part, and we quote:

(2)	  The discretion is to be exercised having regard to all the circumstances of the case including, inter alia,
(a)	the length of and reasons for delay on the appellant's part;
(b)	the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;
(c)	the availability of a transcript, and
(d)	any negotiations between the parties.

CONSIDERATION

12.	From the arguments presented by the parties, we consider that the main argument appears to be two-fold or is based on sets of facts.  The first is the delay period, that is, from the time of filing the review application after the grant of leave, and the second is the period starting from when the respondent had written to the applicants where she had warned them to take steps to progress the review.

13.	The review application was filed on 9 October 2019.  The applicants do not deny that there was delay.  Their counter argument is this, and we note that the following sets of events are not contested.  On 7 February 2020, the respondent’s former lawyers (the Public Solicitor) wrote a letter to the applicants requesting them to take steps to progress the matter.  The matter did not progress after that letter.  Then on 20 July 2020, the respondent’s former lawyers again wrote another letter dated 20 July 2020, this time warning the applicants that if nothing is done to progress the matter, that the respondent would apply to dismiss the review.  A copy of the letter is in the AB, attached as annexure C to the respondent’s affidavit filed on 9 October 2020.  It reads in part, I have instructions to put you on notice that if no active steps are taken to have this matter progressed before the end of July, 2020 we will file an application seeking dismissal of your client’s application for review for want of prosecution.

14.	Since then, evidence adduced shows that the applicants had taken steps to recall the matter on two occasions before the Directions Court, that is, on 5 August 2020 and later on 19 August 2020, before the matter was adjourned by both parties to the registry to be relisted at some point in time.  After the direction hearings, counsel for the applicants deposed that he served a draft Index to Review Book upon the counsel for the respondent.  Mr Furigi deposes that on 14 September 2020, he received a letter from Mr Donald.  In that letter, Mr Furigi deposes, Mr Donald had asked for inclusion into the draft Index to Review Book, an affidavit that had been sworn and filed by the second applicant.  Mr Furigi deposes that he had done that and on 5 October 2020, he invited Mr Donald into his office where he handed to him the revised draft Index to Review Book.  Mr Furigi deposes that Mr Donald had promised him that he would have a look at the revised Index to Review Book and return that to him with his views.  Mr Furigi deposes that to date of the hearing, Mr Donald has not responded as promised on 5 October 2020, and he deposes further that he was surprised when he learnt that the respondent had taken this step to file this application.

15.	We consider that Mr Furigi’s evidence remains intact.  The respondent nor Mr Donald have filed any evidence to rebut Mr Furigi’s affidavit of 2 December 2020.  Mr Donald tried to give evidence over the bar table to which we have unanimously rejected at the hearing.  Mr Donald appeared to concede to what had been deposed to by Mr Furigi in his affidavit.  We note with interest that in regard to Mr Furigi’s deposition that he had met with Mr Donald at his office on 5 October 2020, Mr Donald has said in reply that he cannot confirm or recall whether he attended at Mr Furigi’s office or not, on the said occasion.  Because Mr Furigi’s evidence is unopposed, we do not see any reason where we could or would doubt it, and so we accept it as the truth of what transpired on 5 October 2020.  Most of the facts which he deposes, we note, are consistent with the accounts as recalled or given by the respondent and her counsel.

16.	In conclusion, we find that there has been delay which appears significant to a certain extent, in terms of progressing the review application by the applicants.  We say this because we note that after the applicants have filed their review application on 9 October 2019, they took no active steps until after they had received a second letter from the respondent on 20 July 2020, warning them of this type of application if no steps were taken to finalise the Review Book and set the review down for hearing.  The delay period there was about 8 to 9 months.  We also find that after July of 2020, the applicants did take steps to list the matter down for directions.  The applicants also prepared and forwarded a draft Index to Review Book to the respondent for her consideration.  The present status of the matter, based on the evidence that we have, is that the final revised Index to Review Book is with the respondent to comment on or sign off on before it could be filed by the applicants.  We find the latter steps and actions taken by the parties relevant and, in our view, has swayed or convinced us against exercising our discretion to dismiss the review application.  With that, we find that both parties are partly to be blamed for the delay.  The applicants on the one hand are responsible for the delay of about 8 months in not progressing the review application, and on the other hand, the respondent by her lawyers’ action in not settling the revised Index to Review Book as per the discussions between the lawyers as captured in Mr Furigi’s affidavit.  The circumstance of this case is such that the ball is in the respondent’s court, so to speak, in so far as settlement of the draft index is concerned.  The respondent’s counsel has the draft which he has yet to send or certify with the applicants for filing.

17.	In our view, the review application should not be dismissed but should instead be progressed for hearing.  The parties should now settle on the revised Index to Review Book and then file a Review Book.  We do not believe that further directions are necessary or should be issued by us when the Review Book is still not in order or filed.  We decline to make such orders except to remark that parties are fully aware of what each of them are required to do and they should do that promptly and only when the matter is ready that it be referred to for listings before the Listings Judge.

SUMMARY

18.	We decline the application to dismiss the review.  We find that although there had been a delay of around 9 months, the applicants did take steps after they had been warned by the respondent, to progress the review application.  We find that there had been discussions and negotiations between the parties after the delay or after 20 July 2020.  The discussions included exchange of correspondence, meeting, and preparation of a draft and a subsequent revised Index to Review Book which is now pending finalization.  We do not believe therefore that justice would be better served if we were to ignore all these facts or considerations and dismiss the review application.

COST

19.	Awarding of cost in this instance is discretionary.  Since we have found both parties at fault, we will order each party to bear their own costs of this application.

THE ORDERS OF THE COURT

20.	We dismiss the application to dismiss the review, with no order as to costs.

_______________________________________________________________
Furigi Lawyers:	Lawyers for the Applicants
Donald & Company Lawyers:	Lawyers for the First & Second Respondents