N2424

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. NO. 217 OF 2001

BETWEEN:

NIUGINI GOLD JEWELLERS LIMITED
(Appellant)

AND:

MARIE SMITH
(Respondent)

LAE: KIRRIWOM, J
2002: 16th OCTOBER
2003: 3rd JULY

APPEAL – Practice – Dismissal for Want of Prosecution – Power to dismiss discretionary – Lack of due diligence to prosecute appeal – Undue delay – Relevant considerations – What constitutes undue delay depends on individual facts of each case – No satisfactory explanation from appellant – Appeal dismissed for want of prosecution. 

Cases cited:
Arthur Ageva of Roku village on behalf of Gaibudobu, Kurul and Tanomotu Clans of Roku village v Bobby Gaigo (deceased) of Luarima Clan, Naime Daure (deceased) and all the Idihus of Tatana village and Madaha Resena of Tatana village [1987] PNGLR 12
Burns Philp v. Maxine George [1983] PNGLR 55

Counsel:
Michael Mumure for the Appellant/Respondent 
David Poka for the Respondent/Applicant

3rd July 2003

RULING

KIRRIWOM, J.: This matter came before me on 16th October 2002 upon a motion filed by the Applicant Marie Smith who is the Respondent in the appeal lodged by the Appellant Niugini Gold Jewellers Limited against a decision of the District Court in Lae. The motion was filed on 7th June 2002 and seeks an order for this appeal to be dismissed for want of prosecution. 

Chronology

The history of this matter is as follows:

1.	On 27th August 2001 the District Court in Lae awarded the Complainant Marie Smith a sum of K3,637.02 plus interest and costs to be paid by the Defendant Niugini Gold Jewellers Limited. 

2.	Aggrieved by this decision the Defendant appealed to the National Court on 26 September 2001 against both the finding of liability and the quantum award.

3.	According to the record of entries of documents filed in relation to this proceeding, on 7 June 2002 this motion was filed with a supporting affidavit of Janethie Tinga sworn 28 May 2002. I will refer to her affidavit later.

4.	The motion first came before the court on 23 August 2002 for mention and was stood over to 20 September 2002 when it was further adjourned to 11 October 2002.

5.	On 11 October 2002 the Court gave directions to the Appellant’s lawyer to file an affidavit in reply to the Respondent’s evidence filed in support of her application for dismissal of the appeal.

6.	On 15 October 2002 Michael Mumure swore an additional affidavit setting out the reasons for the appeal not being prosecuted diligently. I will return to this affidavit later in the judgment.

This appeal is governed by the District Court Act and the requirements of the Act are clear. An appeal has to be lodged within one month of the decision which pronounced the order or when the adjudication was made – sec. 220(2) District Court Act. Within 40 days after the lodgement of appeal, the appellant shall set the appeal down for hearing on a date to be fixed by the Registrar of the National Court – sec. 226. Under s.227 the order or conviction is enforceable against the appellant after 40 days if the appeal is not set down for hearing. Section 228 further provides that no less than 7 days from the date fixed fore hearing of the appeal the Registrar must advise the Respondent of the date fixed for the hearing of the appeal.

However equally important also is section 224 which imposes a duty on the Clerk of District Court to provide certified true copies of depositions and other documents plus original exhibits in the matter to the Registrar of the National Court upon receipt of the copy of the Notice Of Appeal. Section 225 is likewise important because it stresses the need for the magistrate’s reasons for decision in the matter. Both sections are expressed in these terms:

224.	Deposition, etc., to be forwarded to Registrar of National Court.

(1)	The Clerk of the Court the decision of which is appealed against, immediately after notice of appeal is lodged with him, shall forward to the Registrar of the National Court a copy, certified by him to be a true copy—

(a) of the conviction, order or adjudication; and
(b) of the reasons given by the Court for the making of the conviction, order or adjudication, if any reasons were given at the time when the decision was pronounced; and
(c)of the complaint; and
(d) of the depositions; and
(e) of all other proceedings before the Court relating to the conviction order or adjudication, together, subject to Subsection (2), with the original exhibits (if any) relating to the conviction, order or adjudication.

(2)	Where, in the opinion of the Clerk, it is impracticable to forward the exhibits required under Subsection (1), the Clerk may forward to the Registrar of the National Court, instead of the exhibits, a list and description of those exhibits.

225.	Report by Magistrate.

(1)	Where no reasons were given by the Court for the making of the conviction, order or adjudication, the Clerk of the Court the decision of which is appealed against, immediately after the notice of appeal is lodged with him, shall notify the Magistrate who constituted the Court by which the conviction, order or adjudication was made, of the notice of appeal.

(2)	Immediately after being notified of a notice of appeal under Subsection (1), the Magistrate shall forward to the Registrar of the National Court a written report setting out the reasons for the making of the conviction, order or adjudication.

The Entry of Appeal To The National Court was filed on 6th November 2001 but dated 26 October 2001. However since then no action was taken on the matter, leaving aside the requirement by the Clerk of Court under section 224, until the motion for dismissal of the appeal by the Respondent.

The Respondent’s application for dismissal of the appeal is founded on two grounds:

1.	For want of prosecution
2.	For being defective

Want of Prosecution

The law according to decided cases is that the appellant must take all such steps as are reasonably practicable in the circumstances to get the appeal prepared and heard. He must be reasonably diligent and expeditious in the taking of those steps; in other words he should not be guilty of unreasonable delay- see ARTHUR AGEVA OF ROKU VILLAGE ON BEHALF OF GAIBUDOBU, KURUI AND TANOMOTU CLANS OF ROKU VILLAGE v BOBBY GAIGO (DECEASED) OF LUARIMA CLAN, NAIME DAURE (DECEASED) AND ALL THE IDIHUS OF TATNA VILLAGE AND MADAHA RESENA OF TATANA VILLAGE [1987] PNGLR 12 (Kapi Dep CJ, Bredmeyer, Cory JJ) -26 February 1987.

In Burns Philp v. Maxine George (1983) P.N.G.L.R. 55, the Supreme Court held that:-

(1)	Where an appeal has not been set down as prescribed the power to dismiss for want of prosecution remains discretionary;

(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 transcript; and
(d)	any negotiations between the parties.

The issue before me now is whether the appellant has inordinately delayed in the prosecution of this appeal?

The Respondent submits that since the filing of the notice of appeal the appellant took no positive action to expedite hearing of the appeal until a letter dated 15 February 2002 was forwarded to the lawyers for the appellant when the appellant through its lawyers responded by forwarding a sealed copy of an Entry of Appeal for Hearing which the Respondent submits is defective because it was filed out of time, contrary to section 226. Ms Tinga deposes to the following in her affidavit that I referred to earlier:

2.	The Appellant’s lawyers filed the Notice of Appeal and the Recognizance on Appeal on the 26th of September 2001 and were served with the said Court documents on the 5th of October 2001 undercover of their letter of 1st October 2001. Annexed herewith and marked with the letter "A" is a true copy of their letter together with the said documents.

3.	No further correspondence or appeal documents were forthcoming from their end until mid-February 2002. on or about the 15th of February 2002, I wrote a letter to the Appellant’s lawyers putting them on notice that should they not furnish further appeal documents to us, then we will make an application to dismiss the appeal. Annexed herewith and marked with the letter "B" is a true copy of our letter of 15th February 2002 which was hand-delivered to the Appellant lawyers office.

4.	The Appellant’s lawyers then responded by serving us with the Entry of Appeal undercover of their letter of 19th February 2002, which we received on the 20th of February 2002. Annexed herewith and marked with a letter "C" is a true copy of that letter.

5.	On the 1st of May 2002, we wrote another letter to the Appellant’s lawyers again putting them on notice that should we not hear from them within fourteen (14) days from the date of our letter, we instructed to make an application to the National Court for appropriate orders. Annexed herewith and marked with a letter "D" is a true copy of the said letter.

6.	To the date of swearing of this Affidavit, we have not received any other appeal documents apart from the Notice of Appeal, Recognizance of Appeal and Entry of Appeal.

7.	This case has been dragging on since the 20th of September 1999 in the District Court and our client wants this matter to end once and for all.

8.	Further, it seems that the Appeal on foot is defective in that the Appellant has not entered it within forty (40) days as is stipulated under section 226 of the District Courts Act (Chapter 40). The Notice of Appeal was filed on the 26th of September 2001 and the Entry of Appeal was filed on 6th November 2001. Clearly seen, such entry of the Appeal was filed out of time.

Mr Mumure filed an affidavit in reply which he deposed to himself on 23 August 2002 and he explains in two short paragraphs the reasons for the delay in prosecuting the appeal:

2.	As at the date of swearing to this my affidavit, I have not received any District Court depositions pertaining to this appeal.

3.	I have been informed by the District Court Clerks that the District Court file has been filed and stored somewhere in the Court House and they are unable to locate the said file.

Following my direction on 11 October 2002 which I alluded to earlier, Mr Mumure filed an additional affidavit sworn15 October 2002 and states the following:

2.	That on the 23rd August 2002 after this matter was adjourned, I attended at the District Court Registry, Civil Summons Section and requested the Clerk responsible, one Mrs Malu Langtry to locate the District Court file pertaining to this matter and provide copies of same to me.

3.	I was then requested by Mrs Langtry to return on Monday 26th August 2002 and check with her for the file.

4.	On 26th August 2002, I attended at the Registry and was informed by Mrs Langtry that the Court file has been filed and stored away somewhere in the Registry and she was unable to locate the same. I was then advised to check with her the following week, which I did however, she was not at work.

5.	I then caused to the Clerk of Court a letter requesting for the District Court deposition. Annexed hereto and marked with the letter "A" is a true copy of our said correspondence dated 2nd September 2002.

6.	To date, we have not been provided with the court depositions.

7.	I am unable to obtain statement from Mrs Langtry as she is unavailable. I am informed and verily believe that she has resigned from her job.

The appellant’s position regarding this application is that it is not at fault in any way. An appeal has been lodged and it behoved the Clerk of Court to furnish the court depositions for it to compile an appeal book and to seek a hearing date with the Registrar of the National Court. This did not eventuate and at best it could only wait until the depositions became available.

It is also apparent from the evidence given by the appellant (Mr Mumure’s affidavit of 15 October 2002 paragraph 2) that the only time that the appellant took any active step in seeing to the appeal was on 23 August 2002, some 11 months after the appeal was lodged. There is no evidence that any step was taken immediately after lodging the appeal to ensure the availability of the District Court depositions as is usually the case although the law does not impose such responsibility on the appellant. But for purpose of expediency and fairness, it has been an accepted practice that after lodging a notice of appeal, the appellant goes further to request court depositions from the clerk of court with constant reminders thereafter until it is received. Failing this, appropriate application becomes inevitable before the National Court for necessary orders to compel positive action. No evidence has been offered by the appellant in this regard and I conclude that the appellant was content to let the appeal protract as long as it was necessary for the clerk of court to act under s.224 notwithstanding the fact that nobody in the District Court registry knew of this appeal and what it needed to bring it to finality. Such attitude clearly accords no prudence nor diligence on the part of the appellant and I can find no reason to deny the Respondent the relief she seeks on the basis of inordinate delay in the prosecution of this appeal.

Defectiveness due to Non-Compliance of Statutory Requirement

The Respondent further contends that the appeal fails to comply with the requirements of section 226 of the District Court Act in that the appellant did not set the appeal down for hearing within 40 days after lodging the Notice of Appeal. After the appeal was lodged on 26 September 2001, the last day for the appeal to be set down for hearing was 5th November 2001. The appellant was therefore already one day out of time. Whether the court has any discretion in this depends on the circumstances of the case and whether justice of the case merits a different consideration. In this case this anomaly only adds to the conclusion I have already reached on a more substantive ground that this appeal stands begging for prosecution with due diligence and I have not been convinced that necessary steps have been taken to this effect.

The court finds that there has been undue delay in the prosecution of this appeal and therefore upholds the application for dismissal of the appeal for want of prosecution. The decision of the District Court of 27 August, 2001 is to take effect forthwith unless further appealed to the Supreme Court.

Costs for this application and this appeal are awarded to the Applicant.

Lawyers for the Appellant: Gamoga & Co Lawyers
Lawyers for the Respondent: Pryke & Bray Lawyers