Yema Gaiapa Pty Ltd v Lee [1995] PGSC 5; SC484 (17 August 1995)

Unreported Supreme Court Decisions

SC484

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. NO. 24 & 28 OF 1995
YEMA GAIAPA DEVELOPERS PTY LTD
APPELLANT
V
HARDY LEE
RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
17 August 1995
4 August 1995

APPEAL - Practice - Supreme Court Rules - Application To Dismiss Appeal for Want of Prosecution - O 7 r 53(a).

Where notices of appeal were served between 7 to 14 days in the city where registry is located, the appellants lawyer failed to attend the appointment to settle the index to the appeal book, failed to offer explanation to respondent for non-attendance and no further step is taken to prosecute the appeal.

HELD:

1. It is essential for efficient administration by the Court for the rules to be diligently complied with by all parties to litigation.

2. All parties have a duty to adhere to the rules to ensure expeditious and efficient disposition of cases by the Court.

3. The Court has general powers to enforce compliance with rules: General Accident Fire and Life Assurance. Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331.

4. The following factual circumstances are indicative of lack of diligence in the prosecution of the appeals:

(i) Delay in effecting service of notice of appeal.

(ii) Failure to attend at appointment for settlement of appeal book.

(iii) Failure to offer explanation for non-attendance to settle index.

(iv) Takining no further steps to prosecute the appeal.

5. The Appeals be dismissed for want of prosecution.

Counsel

G.J. Sheppard for the Applicant

No appearance for the Respondent

AMET, CJ, KAPI, DCJ, LOS J: These are applications by the respondent pursuant to O 7 r 53(a) of the Supreme Court Rules for orders dismissing the appeals for want of prosecution.

The respondent had obtained Summary Judgement pursuant to O 12 r 38 of the National Court Rules on 31 March 1995. The respondent had agreed with the appellant’s lawyer not to enter the order for Summary Judgement until the appellant had made an application to set aside or vary the Order. The application was subsequently made but dismissed by the court on 12 April 1995.

The appellant then instituted two concurrent appeals. The first SCA 24 of 1995 is against the summary judgement, which is wrongly pleaded to be a default judgement obtained against it. The second is SCA 28 of 1995, against the order refusing to set aside the summary judgement.

SCA 24 of 1995 was filed on 20 April 1995. The appointment for settlement of the index to the appeal book, before the Registrar, was scheduled for 2.00 pm on 28 April 1995 and noted on the Notice of Appeal. The Notice of Appeal was not served on the respondent until 27 April 1995. The lawyer for the appellant did not attend at the appointment. No explanation has been offered to the lawyer for the respondent and since that time the appellant has taken no other steps whatsoever to prosecute this appeal.

SCA 28 of 1995 was filed on 10 May 1995. The appointment for the settlement of the index to the appeal book was scheduled for 2.00 pm on 29 May 1995. The Notice of Appeal was not served on the respondent until 24 May 1995. Again, lawyer for the appellant did not attend at the appointment and no explanation for that non-attendance was offered to the lawyer for the respondent. Similarly, no other steps had been taken to prosecute this appeal either.

It was submitted by the respondent that on the basis of these incontrovertable facts the appellant has failed to prosecute these appeals with due diligence and so the court should dismiss them for want of prosecution. It was submitted that the following factors demonstrate a lack of diligence in the prosecution of the appeals. They are:

1. Not serving a copy of the Notice of Appeal without delay;

2. Failure to attend the appointment to settle the index to the appeal book;

3. Lack of explanation for the non-attendance to settle the index; and

4. No further steps being taken to prosecute the appeal.

Order 7 r 12 of the Supreme Court Rules requires that a copy of the Notice of Appeal shall be served without delay on each party affected by the Notice of Appeal. Order 7 rules 33 to 35 provide for appointment to settle the appeal book. They provide that the appellant shall, on filing the Notice of Appeal, get from the proper officer in the registry an appointment to settle the appeal book and shall serve notice of the appointment on each person on whom the appeal is served.

These are rules of the Court to enable expeditious and diligent preparation and compilation of appeal books for the prosecution of the appeals. It is essential for efficient administration of the jurisdiction for the rules to be diligently complied with by all parties to litigation. All parties involved in appeal litigation as well as the Court have a duty to adhere to these rules with diligence to ensure finality of litigation is obtained expeditiously with minimal costs to all the parties affected as well as for efficient disposition of matters by the court. The court therefore has the general powers to enforce compliance with provisions of the rules, and the court will make such orders as it thinks just in the circumstances of non-compliance including in particular orders that actions be dismissed for want of prosecution: General Accident Fire and Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331.

In our judgement, periods of 7 to 14 days in effecting service in the city or town where the registry is located and where the appeal has been instituted, is unacceptable delay and in default of O 7 r 12. Additionally the failure to attend at the appointed time for the settlement of the appeal book is also in default of the requirement of the rules. Both of these factors are therefore clear indications of lack of diligence in the prosecution of the appeals. These two factors alone are, in our view, sufficient to warrant the orders that the appeals be dismissed for want of prosecution. An additional factor that also demonstrates lack of due diligence in the prosecution of these appeals is the lack of explanation for non attendance at the appointed time to settle the appeal book, as might be professionally expected of the lawyer for the appellant. Fourthly, no further steps had been taken by the appellant to prosecute the appeal inspite of the foregoing factors.

For these reasons the appeals are therefore dismissed for want of prosecution.

In the alternative the respondent had advanced Objection to the Competency of SCA 28 of 1995, but in the circumstances of our ruling in dismissing the appeals for want of prosecution it is not necessary to consider those additional objections.

Lawyer for the Applicant: Maladinas Lawyers

Counsel: Greg J. Sheppard

Lawyer for Respondent: Godfrey Langtry Lawyers