Attorney-General v Papua New Guinea Law Society [1997] PGSC 13; SC530 (25 November 1997)

Unreported Supreme Court Decisions

SC530

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO 48 OF 1996
ATTORNEY-GENERAL, MINISTER FOR JUSTICE & THE STATE - APPELLANTS
V
PAPUA NEW GUINEA LAW SOCIETY - RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
15 July 1997
25 November 1997

PRACTICE AND PROCEDURE - Dismissal for want of prosecution - Failure to prosecute appeal with “due diligence” - Failure to give reasonable explanation - Discretion - Supreme Court Rules, Order 7 rule 53.

Counsel

J Kawi with C Makail for the appellants

J Yagi for the respondent

25 November 1997

AMET CJ KAPI DCJ LOS J: In two separate proceedings the respondent sought declaratory orders in the National Court. In OS 564 of 1996, the respondent sought a declaration that the Papua New Guinea Law Society Practising Certificate Fees (Exemptions) Rules 1995 made by the Minister for Justice as Statutory Instrument No 2 of 1995 and published in the National Gazette No G8 of 1995 issued on 23 January, 1995 is void.

In OS 565 of 1995 the respondent sought declarations: (a) that the appellants or any of them are by law responsible for the provision of staff, funds and facilities for the services and operations of the Lawyers Statutory Committee; and (b) that monetary penalties imposed against lawyers by the Lawyers Statutory Committee are to be paid into the Consolidated Revenue Fund administered by the State.

The National Court heard both matters together and gave judgment on 28 June 1996.

The appellants filed appeals against both decisions. Both appeals have been given the same number SCA No 48 of 1996 by the Supreme Court Registry.

Subsequently, lawyers for the respondent filed applications to strike out both appeals for want of prosecution pursuant to O 7 r 53 of the Supreme Court Rules. These applications have come before us for determination.

The terms of O 7 r 53 (a) are as follows:

“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:

(a) order that the appeal be dismissed for want of prosecution;

(b) ...”

This rule gives discretion to the Court to dismiss an appeal for want of prosecution if the appellant fails to do an act that is required by the rules or has not prosecuted the appeal with due diligence. The failure to do an act that is required by the Rules is clear enough and needs no further clarification. The failure to attend an appointment by the Deputy Registrar for settlement of the index; failure to respond to letters seeking a clarification of the progress of the appeal are relevant considerations for determining whether the appellant has been diligent in prosecuting the appeal: see General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331. Where the respondent has established a prima facie case that there is a failure on the part of the appellant to do an act, the appellant has the onus to give an explanation for the delay or the reason for not doing the act: see Tenge Kal Ulo & Others v Acting Public Prosecutor [1981] PNGLR 148.

In the present case the respondent has submitted that the appellants have failed to prosecute the appeal with due diligence. He relies on the following factors:

· failure to attend the appointment for the settlement of the index to the appeal book.

· failure to make a genuine effort to obtain the transcript of the trial in order to prepare the appeal book.

· failure to respond to correspondence by the lawyer for the respondent regarding the readiness of the appeal.

· the delay from the time of filing to the hearing of these application is about 8 months.

Counsel for the appellants sought to explain that the delay has been caused by two main factors: (1) that when the appellants lost their papers, the Deputy Registrar failed to make another copy of the transcript available to the appellants; and (2) that the lawyer who had the carriage of this matter was simply too busy with other matters.

We are not impressed by the explanation that the real delay in the provision of extra copy of the transcript is attributed to the Deputy Registrar. We understand that the lawyer for the respondent obtained a copy from the Registry without any difficulty. Even if there was any delay in the Registry, the lawyers for the appellant should have made an appropriate application to the Court or an informal approach to the Chief Justice or the Deputy Chief Justice and that would have resolved any delay in the Registry. Had the lawyers for the appellants been more diligent, a copy of the transcript would have been obtained a long time ago. We have concluded that the lawyers for the appellants have not done enough to obtain the transcript from the Registry or from the lawyers for the respondent.

Regarding the explanation that the lawyer handling this matter for the appellants was very busy, we simply cannot accept this as a reasonable explanation.

In the result we have concluded from all the matters we have discussed, the appellants have failed to prosecute their appeals with due diligence. We would dismiss both appeals for want of prosecution. We further order that the appellants pay the costs of these applications.

Lawyer for the Appellants: Solicitor-General

Lawyer for the Respondent: Joseph M Yagi