Norr v Ikamata [2005] PGSC 13; SC815 (15 November 2005)

SC815

PAPUA NEW GUINEA
[Supreme Court of Justice]

SCA 8 of 2004

BETWEEN

PETER NORR
Appellant

AND

DOMINIC IKAMATA
First Respondent

AND

THE STATE
Second Respondent

AND

SCA 9 of 2004

BETWEEN

MAYAME EPEA
Appellant

AND

THE STATE
Respondent

Mt Hagen: Sevua, Sawong & Lay, JJ
2005: 29 June & 15 November

APPEAL - Appeal to Supreme Court – Application for leave and notice of appeal - Practice and procedure - Dismissal for want of prosecution – Application for – Failure to prosecute with due diligence – Failure to explain – Power of Supreme Court - Power is discretionary.

APPEAL – Practice and procedure – Dismissal for want of prosecution – Failure to prosecute appeal with due diligence – Failure by appellant to explain – Delay unexplained – Application for leave to appeal and appeal dismissed.

Supreme Court Rules, Order 7 Rule 53

PNG cases cited in judgment
Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331.
Ronald Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133

Other cases
Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Birkett v. James [1978] AC 297 at 298

Mr. S. Kunai for Appellants
Mr. K. Sino for Respondent

15 November, 2005

BY THE COURT: These are two separate appeals in respect of two separate proceedings in the National Court, WS 352 of 1994 and WS 891 of 1996, the decisions of which were given on 12 December 2003 in Mt. Hagen. SCA 8 of 2004 relates to WS 891 of 1996 and SCA 9 of 2004 relates to WS 352 of 1994. Both appeals were heard together.

Before the Court on 29 June 2005 were two separate applications by the respondent seeking orders that the appeals be dismissed for want of prosecution pursuant to Order 7 Rule 53, Supreme Court Rules.

It appears that the relevant dates pertaining to the events that occurred in the Supreme Court following the dismissal of both writs on 12 December 2003 are the same so we set them out here to give some chronological sequence of those events in order to appreciate the significance of these two applications.

18 September 1996	Writ in WS 891 of 1996 filed Writ in WS 352 of 1994 filed
12 December 2003	Proceedings dismissed – 6 yrs +
21 January 2004	Notices of Appeal & Applications for Leave filed
4 March 2004	Served on respondent
5 April 2004	Notice of Appeal filed by respondent
20 July 2004	Application by respondent to dismiss appeal for want of prosecution made.
30 September 2004	Supreme Court (Los, Lenalia & Mogish, JJ) heard application.
1 October 2004	Supreme Court refused application.
21October 2004	Application for leave listed for hearing.
.......October 2004	Index to Appeal books settled.
22 October 2004	Hearing fixed for 3rd December 2004
3 December 2004	Adjournment at request of appellants – Appeal books yet to be completed. Oral application by respondent to dismiss appeal heard but Court declined application for leave and directed it be heard next sittings.
24 February 2005	Hearing date of application for leave. No appearance by appellant, but respondent appeared. Court directed leave application to be heard on 10th March 2005.
10 March 2005	Hearing listed before Chief Justice – Appellants failed to appear but sent letter requesting adjournment.
29 June 2005	Application by respondent to dismiss appeal for want of prosecution.

This Court notes that the index to the appeal books in each appeal had been settled in October 2004. However, at the hearing of these applications, there were no appeal books. Perhaps the absence of the appeal books is indicative of none being compiled since settlement of the index back in October last year.

There is no need for us to labour on this appeal. The law on this issue is clear. We start with the premise that the Supreme Court has discretion under Order 7 Rule 53 (a) of the Supreme Court Rules (SCR) to dismiss an appeal for want of prosecution. We reiterate one important principle in this kind of application, and that is, failure by the appellant to do an act required to be done in relation to his appeal or failure to prosecute his appeal with due diligence does not amount to the automatic remedy of dismissal. The Court’s power under this rule remains discretionary. There are several decisions of the Supreme Court on this issue and we shall refer to them to re-emphasise the law. But first, Order 7 Rule 53 (a) is in the following terms:-

53. When an appellant has not done any act required to be done by or under the rules or otherwise has not prosecuted his appeal with due diligence, the Court may -

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

The first of such cases is the Supreme Court decision in Burns Philp (New Guinea) Ltd v. Maxine George [1983] PNGLR 55. In that case, the application was made pursuant to Rule 25 of the old Supreme Court Rules 1977, which is in identical terms with Order 7 Rule 48 (a) of the present Rules. The principles enunciated in that case are very important and have been applied in subsequent cases. The Court held inter alia that the power to dismiss for want of prosecution remains discretionary. This was applied in General Accident Fire & Life Assurance Corporation Ltd. v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331; another Supreme Court decision. In the second case, the Supreme Court held that:-

1. The power to dismiss an appeal for want of prosecution pursuant to Rule 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 finalizing litigation.
   
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.
   
3. The discretionary power under Rule 53 (a) should not be exercised where no explanation for want of due diligence is made.
   

As we look at the chronologically of the transactions that have taken place in both cases, we are satisfied that there has been undue delay by the appellants and their lawyers. It has taken a little over 6 years since the filing of the writ in WS 891 of 1996 and 9 years in WS 352 of 1994, to the date the proceedings were dismissed. From the date the Notice of Appeal and Application for Leave to Appeal were filed to the date these applications were heard by the Court, it has taken a little over 1 year and 6 months.

The appellants and their lawyers have not only delayed in prosecuting their leave applications and appeals, but have offered no explanation or reason for their delay. It is trite law that litigants who file legal proceedings are under an obligation to see that such proceedings reach finality. If they fail to bring their suits to finality, they do so at their own peril. Even when the applications for leave were fixed for hearing twice, the appellants and their lawyers failed to appear to prosecute their applications. On one occasion, they merely sent a letter requesting an adjournment without having the common courtesy to appear to seek such an adjournment. Such is the lack lustre attitude of the appellants and their lawyers which clearly demonstrated a contumelious path they were treading.

Even at the time of hearing these applications on 29th June 2005, Mr. Kunai, counsel for the appellants appeared, but informed the Court he was not ready to proceed with the appeals however he would make oral submissions in response to the appellants’ submissions.

We find this kind of conduct by the appellants’ lawyers quite unsatisfactory and unacceptable, especially when the relevant applications and supporting affidavits had been served on 4th April 2005, some 2 months 3 weeks and 5 days prior to the respondents’ application being prosecuted. In our opinion, it is this kind of delay which the National Court allude to as "intentional and contumelious" in Ronald Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133.

Although that was a National Court decision, we are of the view that the principles in it are quite persuasive as they relate to the issue of delay even though under different Rules of Court. The Court adopted and applied the common law principles in two English cases – Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v. James [1978] AC 297 at 298. The relevant principles adopted was this:

That the power of the Court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to service prejudice to the defendant.

On the respondent’s evidence before us, which the appellants have not disputed or refuted, the appellants are clearly guilty of default and this Court is entitled to find, and we so find, that the appellants default in both cases is clearly intentional and contumelious. We also find that the delay by the appellants and their lawyers was inordinate and inexcusable.

Should the Court grant the respondent’s application to dismiss for want of prosecution? The appellants have done very little in both appeals. It had taken them 10 months from the filing of their appeals and application for leave to appeal to settle the index to the appeal books. Despite that, they have not taken any reasonable steps to prosecute their applications for leave. In other words, they have decided to, "let the sleeping dog lie", to adopt the phrase used by Woods, J in Ronald Nicholas’s case (supra).

There is really nothing before the Court to dissuade it from refusing the respondent’s applications. As we alluded to earlier, the appellants have offered no explanation. They have not disputed the facts consequently leading to these applications. And at the material time, they were not ready. So what is there to prevent this Court from granting the application? Nothing. The appellants, with due respect, do not deserve to be given any further favourable treatment by refusing these applications.

In the end, we are of the opinion that the respondent has done all it could in the exercise of its right to protect its rights and interest in both appeals. However, it had been quite unfortunate that its previous application was declined even though the Court had found that there was delay. It cannot continue to make such applications because of the default of the appellants only to be declined. In our view, nothing can stand in the way of justice in these appeals.

For these reasons, we therefore grant the respondent’s applications and order that both applications for leave to appeal and appeals be dismissed with costs.

Lawyer for Appellant : Kunai & Co. Lawyers
Lawyer for Respondent : Paul Paraka Lawyers