General Accident Fire & Life v Farm [1990] PGSC 13; [1990] PNGLR 331 (25 July 1990)

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PRACTICE AND PROCEDURE - Dismissal for want of prosecution - Failure to prosecute appeal with “due diligence” - Relevance of finality of proceedings - Failure to make explanation - Discretionary considerations - Supreme Court Rules, r 53.

APPEAL - Practice and procedure - Dismissal for want of prosecution - Failure to prosecute appeal with “due diligence” - Relevance of finality of proceedings - Failure to make explanation - Discretionary considerations - Supreme Court Rules, r 53.

N2>“53. 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:

(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

N1>(1) The power to dismiss an appeal for want of prosecution pursuant to r 53(a) of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation.

N1>(2) Matters relevant to the want of due diligence include failure to attend on settlement of the appeal book, failure to explain non attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected.

N1>(3) The discretionary powers under r 53(a) should not be exercised where no explanation for want of due diligence is made.

This was an application made under the Supreme Court Rules, r 53, for an order dismissing the appeal for want of prosecution.

KAPI DCJ SHEEHAN BROWN JJ: This application by Ilimo Farm Products Pty Ltd (Ilimo Farm) is to dismiss the appeal of General Accident Fire & Life Assurance Corporation Ltd (Fire & Life) for failing to prosecute its appeal with diligence. This application was heard on 25 July 1990 and we granted the application and reserve our reasons to be handed down at a later date. This we now do.

The applicant relied on the actions of Fire & Life subsequent to judgment as sufficient evidence of the appellant’s failure to prosecute, seeking to draw inferences from uncontroverted facts placed before this Court by affidavit of both parties.

The affidavit of the applicant was sworn by its lawyer who deposed to a history of the proceedings since verdict and judgment for Ilimo Farm on 1 September 1989. A notice of appeal was filed on 9 October 1989 within the time prescribed by the rules but such notice was not served on this applicant, Ilimo Farm, until 2 March 1990 when it was received by the company’s lawyer. This late service (since service on the respondent is envisaged contemporaneously with lodgment by the appellant of his notice) was despite two letters dated respectively 18 December 1989 and 19 December 1989 when the respondent’s lawyers sought such notice of the appeal. Further, they suggested to the appellant a course of action which would have had the effect of staying proceedings on the judgment to abide the event of this Court’s deliberations on the appeal. No reply to the material parts of those letters had been received by Ilimo Farm or its lawyers.

An appointment to settle the appeal book before the Deputy Registrar at 10 am on 19 April 1990 was made to the knowledge of both parties yet the appellant, Fire & Life, failed to attend. The appeal book has not yet been settled although we were informed that the appellant has now taken steps to arrange that.

In answer, Fire & Life by its lawyer, deposed that such notice of appeal set 19 April 1990 as the date for settling the appeal book. Its affidavit further stated in answer to material of Ilimo Farm, at par 11 — “From paragraph 7 of Mr Payne’s affidavit (of the respondent) We understand Kirkes did not attend on that date to settle the Appeal Book”. Kirkes are the lawyers for Fire & Life the appellant in these proceedings.

No explanation has been offered for Kirkes’ failure to attend before the Deputy Registrar. That affidavit merely reiterated the fact of non-attendance before the Deputy Registrar, already pleaded by the applicant Ilimo Farm.

Counsel for the respondent to this application (Fire & Life) sought to mount an argument against dismissal principally on the basis of points touched on in obiter by Lord Diplock in Birkett v James [1977] 2 All ER 801 at 804:

“To remedy this, High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made, if the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible.”

This exercise of the inherent jurisdiction of the court first came before the Court of Appeal in Reggentin v Beecholme Bakeries Ltd (1967) 111 SJ 216 (reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229) and Fitzpatrick v Batger & Co Ltd [1967] 1 WLR 706.

The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity, we shall refer to as Allen v McAlpine, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in our view accurately, in the note to the Rules of the Supreme Court 1965 (Eng) O 25, r 1, of the current White Book, The Supreme Court Practice 1988 (1987), Vol 1, J I H Jacob (ed), at 438. The power should be exercised only where the court is satisfied either: (1) that the default has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give “rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between them and a third party”.

Counsel drew the Court’s attention to the absence of any substantial risk of a fair trial of the issues as touched on in (2)(b) of the passage quoted above. Fire & Life says that Ilimo Farm does not run this risk.

The appeal proceedings based as they are on findings of fact and the law applied by the court of first instance are not likely to give rise to that substantial risk envisaged by the passage quoted. For instance this is not a case where witnesses may be lost before trial for the facts on which the appeal is based have been found by the trial judge. Knowledge of those facts is in both parties to the appeal.

We were invited to make peremptory orders for the further prosecution of the appeal (Supreme Court Rules, r 53(b)) for otherwise to dismiss would work great unfairness to the appellant. Counsel further addressed (2)(a) and attempted to show that there had been no inordinate delay. Rule 53 provides as follows:

N2>“53. 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:

We consider his argument in relation to the principles enunciated in the passage quoted is not particularly relevant to the considerations required of this Court of matters involving want of prosecution of appeals.

Birkett’s case appertains to matters before trial. Mr Sleight for the respondent, Ilimo Farm, pointed out that the case is categorised in the Supreme Court Practice 1988 (the White Book) in the “summons for directions” division. It is of some strength in the argument that a court should be wary of extinguishing a plaintiff’s right of action, but, having found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict (with due diligence). The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice to the respondent are peripheral to the real issue. Has the appellant prosecuted his appeal with due diligence?

Mr Sleight points to the failure to attend on the Deputy Registrar; to serve the notice of appeal contemporaneously; to respond to letters endeavouring to reach a consensus on the right to pursue recovery pending appeal; as indicative of the want of due diligence. We must agree. We have no explanation given by the appellant whatsoever for the non-attendance before the Deputy Registrar and those other matters all relate to the issue of due diligence.

We consider, that though an exercise of discretion is available to a court, (the rule provides three alternate courses), its exercise should not avail an appellant in circumstances where there is absence of excuse.

Some relevant considerations when exercising this discretion are dealt with by this Court in Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55, where the court said, at 56:

“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 matters to which the Court had regard in that case were different to those dealt with here, for primarily the absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.

We consider that to do otherwise than to dismiss in the absence of explanation would result in a failure to pay sufficient regard to the clear mandate in r 53(a) to dismiss for want of prosecution.

The appeal shall be dismissed for want of prosecution. The respondent to this application shall pay the applicant’s costs of the application.

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Supreme Court of Papua New Guinea

General Accident Fire & Life v Farm [1990] PGSC 13; [1990] PNGLR 331 (25 July 1990)

Papua New Guinea Law Reports - 1990