Kakaraya v Somare [2004] PGSC 11; SC762 (1 October 2004)

SC762

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC APPEAL NO 81 OF 2003

DAN KAKARAYA
Appellant

AND

SIR MICHAEL SOMARE
1st Respondent

AND

KOIARI TARATA
2nd Respondent

AND

FRANCIS KAUPA
3rd Respondent

WAIGANI: LOS, SAWONG, CANNINGS, JJ
29 SEPTEMBER, 1 OCTOBER 2004

APPLICATION TO STRIKE OUT APPEAL FOR WANT OF PROSECUTION – Supreme Court Rules, Order 7, Rule 53 – relevant considerations to exercise of discretion – whether appellant has not done things required by the Act or the Rules – whether appeal has been prosecuted with due diligence – whether appellant has provided adequate explanation – decision.

Case cited:
Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691

Counsel:
Mr J Kil for the applicant
Mr D Kakaraya for the respondent

BY THE COURT:

INTRODUCTION

This is an application by Sir Michael Somare, hereafter referred to as "the applicant", to strike out an appeal for want of prosecution. The application is made under Order 7, Rule 53 of the Supreme Court Rules.

Order 7, Rule 53 states:

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) 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

(c) make any other order that may seem just.

BACKGROUND

The appellant in the substantive appeal is Mr Dan Kakaraya. He is referred to in this judgment as "the respondent". He is responding to the application by the applicant to strike out his appeal for want of prosecution.

The respondent was the plaintiff in proceedings in the National Court, known as OS No 621 of 2002. He commenced those proceedings on 11 October 2002. At the time, he was the Managing Director of the Mineral Resources Development Company Ltd. He was suspended from that office. He was aggrieved by his suspension and brought proceedings seeking various remedies against the applicant and various other parties.

On 18 October 2002 the matter came before Kandakasi J in the National Court. His Honour dismissed the proceedings and ordered the plaintiff to pay the defendants’ costs.

On 18 February 2003 the defendants’ lawyers, John Kilburn Kil Lawyers (JKK), filed a bill of costs.

On 25 March 2003 Assistant Registrar Kiso taxed the costs at K23,137.40.

On 9 April 2003 Mr Kakaraya filed an application for review of taxation and a notice of objection to the certified taxed costs.

On 21 May 2003 the application for review came before Kandakasi J, who directed that the parties should attempt to settle the matter.

On 29 May 2003 O’Briens Lawyers, acting on Mr Kakaraya’s behalf, wrote to JKK and made an offer of K10,000.00.

On 10 June 2003 JKK rejected that offer.

On 24 June 2003 O’Briens again wrote to JKK, maintaining the offer of K10,000.00.

On 26 June 2003 JKK again rejected that offer.

On 8 July 2003 O’Briens again offered K10,000.00.

On the same day, 8 July 2003, JKK filed a motion in the National Court, seeking to be joined as a party to the proceedings in OS No 621 of 2002 and to dismiss Mr Kakaraya’s application for review of taxed costs.

On 14 July 2003 the motion came before Sevua J in the National Court. His Honour upheld the motion and ordered that JKK be added as a party and that Mr Kakaraya’s application for review of taxed costs be dismissed for want of prosecution. It is those orders that are the subject of the substantive appeal.

On 6 August 2003 Mr Kakaraya filed his appeal against the judgment of Sevua J of 14 July 2004. He appealed against the whole of the judgment, citing four grounds of appeal.

On the same day, 6 August 2003, Mr Kakaraya filed an application in the Supreme Court, seeking a stay of the National Court orders of 14 July 2003, pending the determination of his appeal.

On 11 August 2003 the applicant (together with the other respondents to the substantive appeal) filed an application in the Supreme Court, seeking orders that Mr Kakaraya pay into Court a sum representing security for costs and that no stay order be granted in regard to the orders of the National Court of 14 July 2003.

On 13 August 2003 Deputy Registrar Daingo set down 20 August 2003 at 3.00 pm as the date and time for settlement of the index for the appeal book for the substantive appeal.

On 20 August 2003 the settlement of the appeal book did not take place.

On 5 September 2003 Kapi CJ, sitting as a single Judge of the Supreme Court, dealt with the two interlocutory applications (Mr Kakaraya’s of 6 August 2003 and the applicant’s of 11 August 2003). His Honour ordered that the National Court orders of 14 July 2003 and the certificate of taxation of 25 March 2003 and any other enforcement proceedings in OS No 621 of 2002, be stayed, pending the hearing of the substantive appeal.

On 10 September 2003 Mr Kakaraya filed a draft index of the appeal book.

On 18 September 2003 the settlement of the index was scheduled to take place. However, Mr Kakaraya failed to attend and settlement did not take place.

On 25 September 2003 Mr Kakaraya filed a taxable bill of costs in relation to the proceedings of 5 September 2003.

On 16 October 2003 the settlement of the index was scheduled to take place. However, Mr Kakaraya failed to attend and settlement did not take place.

On 10 November 2003 the settlement of the index was scheduled to take place. However, Mr Kakaraya failed to attend and settlement did not take place.

On 14 November 2003 the applicant filed an application in the Supreme Court, seeking an order that the substantive appeal be dismissed for want of prosecution. It is that application which is being dealt with in the present proceedings.

On 17 November 2003 the settlement of the index was scheduled to take place. However, JKK failed to attend and settlement did not take place.

On 20 November 2003 the index for the appeal book was settled.

On 25 November 2003 Mr Kakaraya requested a transcript of the proceedings in the National Court of 14 July 2003.

On 17 December 2003 a transcript was made available.

On 8 April 2004 JKK wrote to Deputy Registrar Daingo, requesting that the application filed on 14 November 2003 be listed for hearing.

On 31 May 2004 Mr Kakaraya served a draft appeal book on JKK.

On 7 June 2004 Deputy Registrar Daingo taxed Mr Kakaraya’s costs in relation to the proceedings of 5 September 2003, at K2,800.23.

RELEVANT CONSIDERATIONS

The principles governing applications brought under Order 7, Rule 53 of the Supreme Court Rules were set out clearly in Donigi and Others v Papua New Guinea Banking Corporation (2001) SC691 (Salika J, Kandakasi J and Batari J). Thus:

• The task of the Court is to determine whether the appellant has not done any act required to be done under or by the Supreme Court Act or the Rules or whether the appellant has otherwise not prosecuted the appeal with due diligence.
  
• Once an appeal has been instituted, certain obligations are imposed on an appellant: an appointment to settle the appeal book must be obtained (Order 7, Rules 33 to 35); the appointment must be communicated to the other parties; reasons for the judgment and copies of notes of evidence have to be produced to the Registrar; an appeal book must be filed and served (Order 7, Rule 44); the appeal must be set down for hearing at the first sittings of the Supreme Court after the expiration of 28 days from the institution of the appeal (Order 7, Rule 48).
  
• Examples of conduct which may cause the Court to dismiss an appeal include: failure to attend on settlement of an index for the appeal book; failure to explain non-attendance; failure to respond to correspondence; failure to provide an explanation for dilatory conduct where an explanation could properly be expected.
  
• Once a case of delay is established, the onus then shifts to the respondent to the application (ie the appellant) to satisfactorily explain the delay. If there is a failure in that obligation or there is no reasonable explanation provided, an application to dismiss may be granted.
  
• An appellant who does all the acts required to be done by the Act or the Rules but does not take further steps to prosecute the appeal is nonetheless susceptible to having their appeal dismissed.
  
• It is an appellant’s responsibility to obtain transcripts. Requests for transcripts should be made promptly. A draft index should be filed and tentative dates should be fixed for its settlement, even before transcripts are actually received.
  
• The power to dismiss is discretionary.
  

We adopt the above statements of principle for the purposes of the present case and add the following:

• The Court must consider the whole of the circumstances in which an application for dismissal on the ground of want of prosecution is brought. In particular the Court must look at all the events that have happened up to the day on which the application is argued, in particular events that have taken place since the application was filed.
  
• The Court must ensure that the application to dismiss has itself been prosecuted with due diligence.
  

SUBMISSIONS

It was argued by Mr Kil, for the applicant, that the main factor the Court should consider is that the appellant repeatedly failed to turn up when the draft index for the appeal book was scheduled to be settled. Further it is now more than a year since the appeal was filed (on 6 August 2003).

In response Mr Kakaraya pointed to the continuing negotiations that were taking place after the appeal was filed. He points to the successful application made in September 2003 to obtain a stay on execution of the judgment of 14 July 2003 that he is appealing against. He also emphasises that the appeal book is ready and has been for the last four months. It was served on the applicant on 31 May 2004.

HAS THE APPELLANT NOT DONE THINGS REQUIRED TO BE DONE OR OTHERWISE NOT PROSECUTED THE APPEAL WITH DUE DILIGENCE?

Yes. We consider that the respondent to the present application, Mr Kakaraya, – who is the appellant in the substantive appeal – has not done all the things required to be done by an appellant, in a timely fashion. His repeated failure to turn up to scheduled settlement of the appeal book meant that it was incumbent on him to provide an adequate explanation.

ADEQUATE EXPLANATION?

Mr Kakaraya has in our assessment provided an adequate explanation. The preparations for the appeal were complicated by the stay application which he sought and obtained. The index was eventually settled in November 2003. Then he proceeded to prepare an appeal book. When we look at all the circumstances of the case – in particular the fact that Mr Kakaraya has prepared an appeal book and served it on the applicant’s lawyer on 31 May 2004 – it becomes apparent that it would not be appropriate, at this stage, to dismiss the proceedings.

We have also taken into account that the application to dismiss the proceedings was filed on 14 November 2003. The applicant has not prosecuted the application with due diligence. Once he was served with the appeal book, that should have put a stop to the present application. It should then have been withdrawn.

For these reasons the Court declines to dismiss the proceedings.

ORDERS

The Court makes the following orders:

1. The application under Order 7, Rule 53 of the Supreme Court Rules is dismissed.
   
2. The applicant shall pay the respondent’s costs of this application, to be taxed if not agreed.
   
3. Within 14 days after the handing down of this decision, the parties shall, at a date and time to be fixed by the Registrar, attend upon the Registrar and settle and certify the correctness of the appeal book.
   
4. The appeal shall be set down for hearing at the next available sittings of the Supreme Court.

____________________________________________________________________
Lawyers for the applicant : John Kilburn Kil Lawyers
Lawyers for the respondent : Party appearing in person