SC2205
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 35 OF 2019

JIM TAPAKO
Appellant

V

RURAL DEVELOPMENT BANK LIMITED
Respondent

Waigani: Cannings J, Shepherd J, Auka J
2022: 23rd February

SUPREME COURT – practice and procedure – summary determination of matter on own initiative of the Court – abuse of process – Supreme Court Rules, O 13, r 16 (summary disposal). 

JUDGMENTS AND ORDERS – costs – lawyer’s responsibility for wasted costs – Supreme Court Rules, O 12, r 11 (liability of lawyer). 

At the time set for hearing of an appeal, the respondent complained that it had not been given notice of the hearing until the day before the hearing and had not certified correctness of the appeal book and was therefore unprepared for the hearing. The respondent made an oral application for dismissal of the appeal for want of prosecution. In responding to the oral application, the appellant’s counsel could not rebut the allegations that service of the notice of hearing had not occurred in accordance with the directions of the listing judge or that the respondent had not been given a proper opportunity to certify the appeal book. The appellant made an oral application for adjournment. 

Held: 

(1)	The oral application for adjournment was refused due to the abuse of process of which the appellant’s lawyers were guilty. 

(2)	The oral application for dismissal was declined as being unnecessary as the same result could be achieved by the Court acting on its own initiative under O 7, r 49 and O 13, r 16 of the Supreme Court Rules to summarily determine the appeal on the ground of abuse of process constituted by the appellant’s repeated non-compliance with orders of the Court regarding the hearing of the appeal.

(3)	The appellant shall pay the respondent’s costs on a lawyer-client basis subject to a direction under O 12, r 11(1)(c) of the Supreme Court Rules that the appellant’s lawyers repay to the appellant the amount of costs ordered to be paid to the respondent. 

Cases Cited

There are no cases cited in the judgment. 

Counsel

L Aigilo, for the Appellant
R J Kaki, for the Respondent

23rd February, 2022

1.          BY THE COURT: When this appeal came on for hearing on 23 February 2022 at 9.30 am, the respondent’s counsel, Mr Kaki, complained that the respondent had only been given notice of the hearing of the appeal on the afternoon before the hearing and that he had not certified the correctness of the appeal book and was therefore unprepared for the hearing. He made an oral application for dismissal of the appeal for want of prosecution. 

2.     In responding to that application, the appellant’s counsel, Mr Aigilo, could not rebut the allegations that service of the notice of hearing had not occurred in accordance with the directions of the listing judge, as there was no affidavit of service on which he could rely. Nor could he rebut with evidence the allegation the respondent had not been given a proper opportunity to certify the appeal book. The appellant made an oral application for adjournment. 

3.     While exchanging with counsel on how to deal with the appeal, we drew their attention to the orders of the listings Judge, Justice Makail, who had on 8 November 2021, in the presence of Mr Aigilo and in the absence of any lawyer for the respondent, directed that the appeal was set for hearing on 23 February 2022 at 9.30 am, that the appellant was to file and serve a notice of hearing forthwith and that written submissions were to be filed and served by 10 December 2021.

4.       We adjourned briefly to consider the matter and returned with an extempore ruling to the following effect. 

5.        The oral application for adjournment was refused due to the abuse of process of which the appellant’s lawyers were guilty. 

6.        The oral application for dismissal was declined as being unnecessary as the same result could be achieved by the Court acting on its own initiative under O 7, r 48 and O 13, r 16 of the Supreme Court Rules. 

7.         Order 7, r 48 (time, and want of prosecution) states:

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 may—

(a)	order that the appeal be dismissed for want of prosecution; or
(b)	fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non-compliance, order that it be so dismissed; or
(c)	make any other order that may seem just. [Emphasis added.]

8.           Order 13, r 16(1) (summary disposal) states:

	The Court may summarily determine a matter:

(a)	on application by a party; or
(b)	on referral by a Judge; or
(c)	on the Court’s own initiative; or
(d)	upon referral by the Registrar in accordance with the procedure set out in sub- rule (2) below or pursuant to s 11 of the Act. [Emphasis added.]

9.      We invoked the power of the Court to summarily determine the appeal on the own initiative of the Court on the ground of flagrant abuse of process constituted by the appellant’s repeated non-compliance with orders of the Court regarding the hearing of the appeal in that:

•	the appeal book was filed by the appellant’s lawyers without certification by the respondent’s lawyers;

•	a notice of hearing was not filed and served forthwith and only served on the day before the hearing;

•	no written submissions had been filed and served by the appellant’s lawyers, when they were required by 10 December 2021.

10.     This was an appropriate case in which to order the appellant to pay the respondent’s costs on a lawyer-client basis, as the respondent’s time and the Court’s time had been wasted due to the lack of diligence on the part of the appellant’s lawyers, subject to the direction under O 12, r 11(1)(c) of the Supreme Court Rules that the appellant’s lawyers repay to the appellant the amount of costs ordered to be paid to the respondent. 

11.     Order 12, r 11(1) states:

Without limiting the Court’s discretion to award costs in a proceeding, if costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court or a Judge that a lawyer is responsible (whether personally or through a servant or agent), the Court or a Judge may, after giving the lawyer a reasonable opportunity to be heard, do any of the following: 

(a)	disallow the costs as between the lawyer and the lawyer’s client; or 

(b)	if the lawyer is acting as instructed counsel— disallow the costs as (c) 
between the counsel and the counsel’s instructing lawyer; or 

(c)direct the lawyer to repay to the client, costs which the client has been
ordered to pay to another party; or 
(d)	direct the lawyer to indemnify any party other than the client against costs payable by the party indemnified. 

12.     We put to Mr Aigilo, by way of giving him an opportunity to be heard on this issue, that it was appropriate to make an order under O 12, r 11(1)(c). He stated that such an order would be acceptable. 

ORDER

1.	Pursuant to O 7, r 48(c) and O 13, r 16(1)(c) of the Supreme Court Rules, the appeal is summarily dismissed on the Court’s own initiative due to abuse of process on the part of the appellant in that (a) the appeal book filed on 8 September 2021 was without certification by the respondent’s lawyers and (b) there have been breaches of the orders of Justice Makail of 8 November 2021 requiring the appellant to file and serve a notice of hearing forthwith and to file and serve submissions by 10 December 2021.

2.	The appellant shall pay the respondent’s costs of the entire appeal on a lawyer-client basis, which shall, if not agreed, be taxed.

3.	Pursuant to O 12, r 11(1)(c) of the Supreme Court Rules, Gibson Bon Lawyers are directed to repay to their client, the appellant, the costs which the Court has ordered by term 2 of this order to be paid by the appellant to the respondent.

4.	The appeal is thereby determined and the file is closed.
________________________________________________________________
Gibson Bon Lawyers:	Lawyers for the Appellant 			
R J Kaki: 	 Lawyer for the Respondent