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Kafafi v Victor [2024] PGSC 87; SC2616 (5 July 2024)

SC2616

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 106 OF 2022

BETWEEN:
MAX KAFAFI
in his capacity as employee pursuant to s. 40.1 of the Enterprise
Agreement 2019 and a member of the Third Applicant Union
First Appellant

AND:
NUG MAMTRIN
in his capacity as President of PNG Communication Workers
Union and signatory of the Enterprise Agreement 2010
Second Appellant

AND:
PNG COMMUNICATION WORKERS UNION
as a party to the Enterprise Agreement 2019
Third Appellant

AND:
XAVIER VICTOR
as Acting CEO of Telikom (PNG) Limited
First Respondent

AND:
TELIKOM PNG LIMITED
Second Respondent

Waigani: Hartshorn J, Kangwia J, Miviri J
2024: 28^th May, 5^th July

SUPREME COURT – practice and procedure - Application to dismiss an application for leave to appeal for want of prosecution

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
Joshua Kalinoe v. Paul Paraka (2007) SC874

Counsel:

Mr. J. Napu, for the Appellants
Mr. F. So, for the Respondents

5^th July 2024

1. BY THE COURT: This is a decision on a contested application to dismiss this application for leave to appeal (application for leave).

Background

2. The first appellant, now deceased, sued the respondents for unlawful termination of employment and sought damages. Default judgment was entered in favour of the first appellant. The appellants seek leave to appeal an interlocutory judgment which set aside the default judgment.

This application

3. The respondents seek to dismiss this application for leave pursuant to Order 7 Rule 48 (a) Supreme Court Rules. They submit that the application for leave should be dismissed as it has not been prosecuted with any or any due diligence as the application for leave has not been progressed since it was filed in August 2022. Further, the appellants have not filed any evidence in response to the application to dismiss explaining why the prosecution of the application for leave to appeal has not been progressed and why it has been delayed.

4. The appellants submit that the application for leave should not be dismissed as the reason for the delay in prosecuting the application for leave was because of the death of the first appellant. The wife of the first appellant has now filed an application seeking to be substituted for her late husband. Further, the application for leave to appeal should not be dismissed as any delay in prosecuting the application was not intentional and the subject matter of the proposed appeal is such that it is not in the interests of justice that this proceeding be dismissed.

Law

5. 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.

6. 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) SC762. See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC811. Thus if an 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?”

7. The case authorities confirm that where a respondent seeks to dismiss an appeal, in this instance an application for leave to appeal, for want of prosecution, the onus is on him to make a case for the Court to exercise its discretion in his favour. Once the respondent has made a case for want of prosecution, the onus then shifts to the appellant to provide a reasonable explanation as to why the appeal should not be dismissed.

Consideration

8. The respondents submit that the appellants have not prosecuted the application for leave with due diligence as no action has been taken to prosecute the application for leave for one year four months at the date of the application. Further, there is no adequate reason or explanation for this period of delay.

9. We are satisfied on the evidence that the respondents have made a case for the application for leave to be dismissed for want of prosecution given the length of time that has elapsed without action being taken to prosecute the application for leave. The onus now shifts to the appellants to provide a reasonable explanation as to why the appeal should not be dismissed.

10. Here, there is an absence of evidence as to the reasons for the delay in prosecuting this application for leave. This is notwithstanding the lawyers for the appellants having notice of the application to dismiss for some considerable time. Such circumstances would normally result in an application to dismiss being successful.

11. The only evidence that has been relied upon by the remaining appellants is an affidavit of the widow of the first appellant, Ms. Martha Kafafi, which is in support of her application to be substituted for the first appellant. In her affidavit Ms. Kafafi deposes amongst others as to her marriage to the first appellant and as to his death. Ms. Kafafi also deposes that she wishes to pursue the matter commenced by her husband as he has outstanding entitlements with the respondents.

12. The power to dismiss pursuant to Order 7 Rule 48(a) Supreme Court Rules is discretionary even when an appellant has not done any act required or has not prosecuted the appeal with due diligence. The discretion is to be exercised judicially having regard to all of the circumstances of the case.

13. That the first appellant died just over a year after the application for leave was filed and was in poor health beforehand may be taken by the court as an adequate reason for the application for leave not being prosecuted during that time. After the first appellant’s death, his widow, Ms. Kafafi would have been confronted with adjusting to life without her husband and to the inevitable changes to her life which would have ensued. The prosecution of this proceeding would not have been her primary consideration. It is in such circumstances, that this court finds that it is in the interests of justice that this application to dismiss for want of prosecution should not succeed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

a) This application to dismiss for want of prosecution is refused.

2. The costs of and incidental to the said application to dismiss for want of prosecution shall be costs in the appeal.

__________________________________________________________________
Napu Lawyers: Lawyers for the Appellants
Ketan Lawyers: Lawyers for the Respondents