Burns Philp (NG) Ltd v George [1983] PGSC 9; [1983] PNGLR 55 (14 March 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 55 - Burns Philp (NG) Ltd v Maxine George 

[1983] PNGLR 55

SC244

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BURNS PHILP (NEW GUINEA) LIMITED

V

MAXINE GEORGE

Waigani

Kidu CJ Kapi DCJ Andrew J

2 March 1983

14 March 1983

APPEAL - Practice - Supreme Court - Striking out for want of prosecution - Failure to set down - Power discretionary - Considerations relevant - Supreme Court Rules 1977, r. 25.

Under r. 25 of the Supreme Court Rules 1977, if an appellant does not set down his appeal for hearing as prescribed, any respondent may apply to the Court by motion on notice for an order dismissing the appeal for want of prosecution.

Held

N1>(1)      Where an appeal has not been set down as prescribed the power to dismiss for want of prosecution remains discretionary.

N1>(2)      The discretion is to be exercised having regard to all the circumstances of the case including, inter alia,

N2>(a)      the length of and reasons for delay on the appellant’s part;

N2>(b)      the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;

N2>(c)      the availability of a transcript, and

N2>(d)      any negotiations between the parties.

Cases Cited

Hewlett v. London County Council (1908) 72 JP. 136.

Tenge Kai Ulo v. Acting Public Prosecutor [1981] P.N.G.L.R. 148.

Notice of Motion

This was an application on notice of motion, pursuant to r. 25 of the Supreme Court Rules 1977, seeking orders dismissing an appeal for want of prosecution.

Counsel

C. Coady, for the applicant/respondent.

R. Thompson, for the respondent/appellant.

Cur. adv. vult.

11 March 1983

KIDU CJ KAPI DCJ ANDREW J: This is an application by notice of motion on behalf of the respondent seeking orders that the appellant’s appeal be dismissed for want of prosecution.

Briefly stated, the history of the matter is as follows: On 3 November 1981, the respondent was awarded damages by the National Court for personal injuries sustained when she was struck by flying glass from a soft drink bottle in the appellant’s store. Notice of appeal and application for leave to appeal was instituted on 1 December 1981.

It is not in dispute that the appeal was not set down by the appellant for hearing as required by r. 25 of the Supreme Court Rules 1977 and it is on this basis that the respondent applies for an order dismissing the appeal for want of prosecution.

The relevant sections of r. 25 are as follows:

N2>“25.    Setting down appeal

(1)      Subject to Subsection (2), unless the court or a judge otherwise orders, an appeal shall be set down by the appellant for hearing at the first sitting of the court to be held after 28 days immediately after the institution of the appeal.

(2)      ...

(3)      If the appellant does not set down the appeal for hearing as prescribed by this section or by any order made under this section, any respondent may set down his cross appeal for hearing and may also apply to the court by motion on notice for an order dismissing the appeal for want of prosecution.

(4)      ....”

Further relevant matters are that on 9 March 1981, the appellant obtained from the registrar a copy of the trial judge’s judgment and on or about 15 March 1982, he received a copy of his Honour’s notes on evidence. From this time on, during 1982, there were negotiations between both sides in relation to a proposed settlement of the appeal proceedings. These negotiations were unsuccessful and the matter has now been set down and is ready to proceed.

For the respondent, it is submitted that r. 25 is mandatory and that as the appeal was not set down within the prescribed period, the Supreme Court has no option but to dismiss the appeal for want of prosecution.

In our judgment, r. 25 does not bind the Supreme Court to dismiss any appeal for want of prosecution on the basis that it was not set down for hearing at the first sitting of the court to be held twenty-eight days immediately after the institution of the appeal, but rather the court has a discretion in the matter. The court has a general power to enforce compliance with the requirements of the rules or orders of the court and if any party fails to comply with any provisions of the rules, the court may make such order as it thinks just including in particular an order that the action be dismissed.

The fact that the power is discretionary may be seen from the preamble to the rules, namely that they are rules made by the Judges of the Supreme Court for regulating and prescribing the practice and procedure of the Supreme Court in relation, inter alia, to appeals. The court always has a general power to regulate and control any proceeding before it and it has an inherent power under s. 155(2)(a) of the Constitution to review all judicial Acts of the National Court. More specifically r. 25 gives power to the court or a judge to dispense with the requirement of setting the appeal down at the first sittings held twenty-eight days immediately after the institution of the appeal and there is no requirement that that application must be made within that period. This would show that the requirement is not a mandatory one and so it does not mean that all appeals must fail if not set down within that time. Furthermore, the provision of r. 25(3), permitting a respondent to move to dismiss the appeal, hardly suggests that the appeal will automatically fail for non-compliance.

None of this is to say that r. 25 will be regarded lightly. It is a rule of court and any appeal which does not meet its requirements is at risk of being dismissed.

The discretion will be exercised having regard to all the circumstances of the case and in particular to the length of and the reasons for the delay on the appellant’s part. The extent to which, having regard to any delay in setting the matter down, the evidence likely to be adduced by the appellant or the respondent is or is likely to be less cogent than if the action had been set down and brought within the time allowed may also be another relevant factor.

In the circumstances of this case, it seems to us that a relevant consideration is that the notes on evidence were not available to the appellant until after the period specified in r. 25. Such an occurrence is not uncommon in our jurisdiction where there is no readily available transcript of evidence and any transcript is usually prepared from the trial judge’s notes of evidence following the lodging of the appeal: See generally Tenge Kai Ulo v. Acting Public Prosecutor and Another [1981] P.N.G.L.R. 148, for this and other considerations relevant to r. 25.

We think also that the period of negotiation is a relevant consideration. In a slightly different context, the mere fact that negotiations have taken place between a claimant and a person against whom a claim is made does not debar the defendant from pleading a statute of limitation, even though the negotiation may have led to delay and caused the claimant not to bring his action until the statutory period has passed. See Hewlett v. L.C.C. (1908) 72 JP. 136. But in this case the negotiations were directed towards a settlement of the appeal proceedings and taking that into account together with all the other circumstances including the fact that the matter is now set down and ready to proceed, it would not be just in our opinion to deny the appellant his right to bring his appeal.

Accordingly, we would dismiss the application but make no order as to costs.

Application dismissed.

No order as to costs.

Lawyer for the applicant/respondent: Kirkes.

Lawyer for the appellant: Young & Williams.