SC2754

PAPUA NEW GUINEA
[IN SUPREME COURT OF JUSTICE]

SCA 141 of 2020

BETWEEN:

THEODOSIOS MONOGENIS Appellant

AND:
STEVEN O'BRIEN trading as
O'BRIENS LAWYERS
Respondent

Waigani: Hartshorn J.
2022: August 4th, 9th

September 1 stApplication to dismiss an appeal for want of prosecution and for constituting an abuse of process

Cases cited:
Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33
Independent State of Papua New Guinea v. Hon. Belden Namah (2020) SC2037
Idumava Investment Ltd v. National Fisheries Authority (2013) SC1273
Jacob Popuna v. Ken Owa (2017) SC1564
Nae Ltd v. Curtain Bros Papua New Guinea Ltd (2015) N6124
Rex Paki v. Motor Vehicles Insurance (PMG) Ltd (2010) SC1015
Timothy Patrick v. Pepi Kimas (2010) N3913
Yema Gaiapa Developers Pty Ltd v. Hardy Lee (1995) SC484

Overseas case
Attorney General v. Barker [2000] EWHC 453 (Admin)
Joshua Kalinoe v. Paul Paraka (2007) SC874
Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529

Counsel:
Mr. E. Tolabifor, the Appellant
Mr. P. W. Smith, for the Respondent

1st September 2022

1.	HARTSHORN J:  This is a decision on a contested application to dismiss a notice of appeal.
(appeal).

Background

2.	The judgment appealed is in a proceeding that had been commenced by the applicant now respondent, Mr. O'Brien (respondent), for bills of costs rendered to the respondent now appellant, Mr. Monogenis (appellant), to be taxed pursuant to s. 63 Lawyers Act.

3.	This appeal seeks to appeal the National Court judgment of 1 6th October 2020 (judgment appealed). The appellant claims that the primary judge erred in law in holding the appellant personally liable for the liabilities of BCMS Solutions PNG Ltd and Pacific International Freight PNG Ltd and that this also amounts to a contravention of sections 16 and 79 Companies Act 1997.

This application

4.	The respondent seeks to dismiss this appeal pursuant to Order 7 Rule 48 (a) Supreme Court Rules. He submits that the appeal should be dismissed as it has not been prosecuted with any or any due diligence as the appeal was not served on the respondent for 118 days after filing, the appellant has failed to take any steps to advance the appeal for about 21 months and the appellant has given no reason or justification for the delay.

5.	Further, the respondent submits that the appeal should be dismissed pursuant to the inherent jurisdiction of this court as it is vexatious and an abuse of process as the judgment appealed does not exist.

6.	The appellant submits that the appeal should not be dismissed as the reason for the delay in prosecuting the appeal was because of settlement discussions which occurred. The appellant does not dispute owing an amount for costs but disputes the quantum. Further, the judgment appealed does exist, it is submitted.

Abuse of process

7.	I consider first the issue of whether this proceeding is an abuse of process. The respondent submits that as the judgment sought to be appealed does not exist, this appeal is an abuse of process.

Consideration

8.	In the application, there is only reliance upon Order 7 Rule 48(a) Supreme Court Rules. The inherent jurisdiction ofthis court is not relied upon in the application. 

9.	As to whether a single judge of the Supreme Court should consider whether an appeal is an abuse of process when an application seeking such redress is not before the court, notwithstanding that the appellant did not take issue with this court's authority to do so, I refer to the Supreme Court judgment of Independent State ofPapua New Guinea v. Hon. Belden Namah (2020) SC2037, in which at [9] and [10] the Court said:

"9. In regard to there not being an application before the court seeking redress for abuse of process, we reproduce [27] ofAmet v. Yama (2010) SC1064from the decision ofSalika DCJ (as he then was) and Batari J:

"27. The issue ofcompetence is to do with legal andjurisdictional aspects ofthe court process. More often than not, this concerns the validity ofthe very proceedings before the court.

Hence, it can be raised and determined at any stage ofthe proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:

"It is settled law that, the Courts have an inherentjurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage ofthe proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence ofthe very proceedings brought before the Court.

10. Further, in Wilson v. Kuburam (2016) SC1489, Gavara Nanu J with whom Bona J agreed, said at [31]:

"In any event, this Court has the inherentjurisdiction to consider and determine the issue of abuse ofprocess on its own initiative as it is a relevant issue which has arisen before the Court:

Anderson Agiru v. The Electoral Commission (supra)
 
10.	In this circumstance therefore I am satisfied that this court has the authority to proceed to hear whether the substantive appeal is an abuse of process.

Law

11.	As to what constitutes an abuse of process in the context of this case, in Jacob Popuna v. Ken Owa (2017) SCI 564, the Supreme Court stated [18]:

"18. In our view, the processes of this Court have been improperly used by the applicants. As Gavara-Nanu, J noted in Michael Wilson v Clement Kuburam (supra) at [25]:

"The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210." "

12.	In Nae Ltd v. Curtain Bros Papua New Guinea Ltd (2015) N6124, the Court reproduced the following classic statement of Lord Diplock in the House of Lord's decision of Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529, as to the inherent jurisdiction of a court to deal with an abuse of its process:

"This is a case about abuse ofthe process of the High Court. It concerns the inherent power which any court ofjustice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration ofjustice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds ofcircumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

13.	In this instance, the respondent has put in issue and relies on evidence to the effect that the judgment appealed does not exist. It is a non-existent decision. There was no judgment or decision given by the primary judge on 16th October 2020 in the National Court proceeding from which this appeal emanates, the respondent submits.

14.	The evidence relied on by the respondent is unrebutted. Notwithstanding this serious and fundamental allegation concerning the judgment appealed, there is no evidence from the appellant on this issue and counsel for the appellant had no submissions on point. This court is entitled therefore to proceed on the basis that the judgment appealed being a decision dated 16th October 2020, does not exist. As the appellant has not attempted to amend the Notice of Appeal or give evidence to the effect that the judgment appealed does not exist it is assumed that the appellant continues to proceed on the basis that the judgment appealed being a decision dated 16th October 2020 in fact does exist.

15.	To appeal a decision which does not exist, in my view, is vexatious and an abuse of process. I reproduce the following passage by the then Lord Chief Justice of England and Wales, Lord Bingham of Cornhill, in Attorney General v. Barker [2000] EWHC 453 (Admin) at [19] which is apposite:

"The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.

16.	in this instance, this proceeding is bound to fail as the judgment appealed does not exist and so it is frivolous; its effect if it is permitted to continue, will be to subject the respondent to inconvenience and expense out of all proportion to any gain likely to accrue to the claimant; it involves an abuse of the process of the court, as it is a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. The ordinary and proper use of the court process in this instance, obviously, is to seek to appeal a judgment which does exist.

17.	Given the above, I am satisfied that this appeal is frivolous, vexatious and an abuse of court process. Consequently, it should be dismissed.

Order 7 Rule 48(a) Supreme Court Rules
18.	Notwithstanding the above finding, I consider the application to dismiss further under the Supreme Court Rule relied upon in the application to dismiss, Order 7 Rule 48(a). It is as follows:
"48. 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 or a Judge may —

(a)	order that the appeal be dismissed for want of prosecution …

19.	The relevant principles governing this rule and its predecessor Order 7 Rule 53, are well established and are found in many case authorities including Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55; General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33 and Joshua Kalinoe v. Paul Paraka (2007) SC874.

20.	In Joshua Kalinoe v. Paul Paraka (supra), the Supreme Court discussed the rule in this way [17] and [20]:

"This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya v Somare & Others (2004) SC 762. See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811. Thus i fan appellant has delayed in prosecuting his appeal the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances. … …

Turning to the requirements of Order 7 r 53 (a), the question is: Did the appellants fail to do any act required to be done under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence which would warrant, this Court to dismiss the appeal for want of prosecution?

21.	The first matter I consider which is raised by the respondent under Order 7 Rule 48(a), is that the appellant served the notice of appeal 118 days after it was filed. This is not disputed by the appellant. Order 7 Rule 13 Supreme Court Rules requires service of a copy of a notice of appeal without delay. Compliance with this Rule is mandatory by virtue of the use of the word "shall"

22.	In considering the predecessor to Order 7 Rule 13, Order 7 Rule 12, the Supreme Court in Yema Gaiapa Developers Pty Ltd v. Hardy Lee (1995) SC484
(Amet CJ, Kapi DCJ, Los J) said:

… periods of 7 to 14 days in affecting service in the city or town where the registry is located and where the appeal has been instituted, is unacceptable delay and in default ofO. 7 r. 12. "

23.	I respectfully agree with this statement. In this instance, there is no dispute that the parties are represented by lawyers with offices in Port Moresby and that this appeal is filed in this Supreme Court registry, Waigani.

24.	In Idumava Investment Ltd v. National Fisheries Authority (2013) SC 1273, the Court, (Injia CJ, Gabi J, Sawong J) found that a delay of 29 days in serving the notice of motion which instituted the appeal, was a breach of Order 7 Rule 13 Supreme Court Rules. This was one of the reasons why the appeal was dismissed.

25.	There is no explanation why it took 118 days to serve the notice of appeal. The lawyers who represent both parties have offices in Port Moresby. A period of 1 18 days is considerably in excess of the periods of time in Yema Gaiapa (supra) and Idumava (supra). As it is clear that the notice of appeal has not been served without delay, an act required to be done under the Rules has not been done. This is an act which is required to be done to prosecute the appeal. Given the length of time it took to effect service and in the absence of any explanation as to why service took so long, I am satisfied that the appeal should be dismissed for want of prosecution because of this factor alone.

26.	I also consider a further matter raised by the respondent. That is that the appellant has not taken any action to prosecute the appeal since it was filed. That is one year five months of inaction to the time of filing of the application to dismiss and one year nine months to the time of the hearing of the application to dismiss. There is no evidence from the appellant explaining this inaction. Counsel for the appellant refers to delay being caused by the appellant's numerous attempts at settlement with the respondent.

27.	The onus is upon the appellant to prosecute his appeal with due diligence. That the appellant has made attempts to settle the proceeding does not detract from his obligation to prosecute his appeal with due diligence. I am not satisfied that the reason given for delay is a satisfactory explanation for not progressing the appeal for between 17 and 21 months. The appeal should be dismissed for want of prosecution because of this delay.

28.	As I have found that the appeal should be dismissed for being amongst others, an abuse of process, for breach of the Supreme Court Rules requiring service without delay and for want of prosecution, it is not necessary to consider the other submissions of counsel apart from as to costs.

29.	The respondent seeks his costs on an indemnity basis. In regard to an application for costs on a solicitor client basis or on an indemnity basis, in Timothy Patrick v. Pepi Kimas (2010) N3913, Gavara Nanu J said as to costs being awarded on a solicitor client basis:

".. the applicant must demonstrate that there are grounds upon which such award may be made; for instance, the applicant having to defend proceedings which are frivolous and vexatious and are an abuse ofprocess. See, Gulf Provincial Government -v- Baimuril Trading Pty Ltd [1998] PNGLR 311; or that the applicant is being dragged into the Court and is made to suffer and incur unnecessary costs. See, Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47.

30.	In Rex Paki v. Motor Vehicles Insurance (PNG) Ltd (2010) SC 1015, the Supreme Court stated that:

"The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.

31.	In this instance there is evidence that notice was given to the lawyers for the appellant that such costs would be sought and the reasons why if the appeal was not withdrawn. Notwithstanding this notice, the appellant did not discontinue or withdraw the appeal.

32.	I am satisfied that the necessary requirements for an order for solicitor client costs have been made out: Rex Paki v. Motor Vehicles Insurance Ltd (supra). The appeal is without merit and the conduct of this proceeding has caused the respondent to incur unnecessary costs. The appellant however, has persisted with this proceeding notwithstanding the notice from the lawyers for the respondent to do otherwise.

Orders

33.
a.	This appeal is dismissed pursuant to the inherent jurisdiction of this court and Order 7 Rule 48(a) Supreme Court Rules.
b. 	The appellant shall pay the costs of the respondent of and incidental to this appeal on a solicitor client basis such costs to be taxed if not otherwise
Agreed.

Lawyers for the Appellant	Kopunye Lawyers
Lawyers for the Respondent	O 'Briens