PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd trading as Pacer Computers [2005] PGSC 7; SC811 (29 April 2005)

SC811

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 33 OF 2004

BETWEEN

PNG NAMBAWAN TROPHY LTD
Appellant

AND

DYNASTY HOLDINGS LTD trading as PACER COMPUTERS
First Respondent

AND

TIMOTHY & FELICIA LIM trading as SAMUEL CARRIS & CO
Second Respondents

WAIGANI : LOS, SALIKA AND LAY JJ

2005: 26^TH AND 29^TH April

Application to strike out appeal and application for leave to appeal for want of prosecution—Supreme Court Rules, O7, r53— relevant considerations to exercise of discretion—whether appellant has not done things required by the Act or the Rules—whether application has been prosecuted with due diligence—whether appellant has provided adequate explanation.

Cases Cited:
Burns Philp (New Guinea) Limited v George [1983] PNGLR 55;
SC484 Yema Gaiapa Developes Limited v Hardy Lee;
SC530 Attorney-General, Minister for Justice and the State v Papua New Guinea Law Society;
SC691 Donigi v PNGBC [1990] PNGLR 331;
SC667 Bernard Juali v The State;
SC537 Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe;
SC762 Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa;
SC766 State v David Nelson; General Accident Fire & Life Assurance Corporation Limited v Ilimo Farm Products Pty. Limited [1990] PNGLR 331;
Public Prosecutor v Allen Abu Marai [1996] PNGLR 81;
The State v Colbert [1988] PNGLR 138,
SC751 Joseph Kupo v Steven Raphael.

Facts:

The Appellant filed a Notice of Appeal and an Application for Leave to appeal on 8^th April 2004. On 5^th August 2004 the Respondents filed an application to dismiss the appeal for want of prosecution. On the hearing of the application 8 months later the only steps which the Appellant had taken in the appeal were to file two affidavits one in December 2004 and the other in January 2005 explaining that the lawyers workload was high and there had been difficulties in recruiting a new lawyer. At the date of hearing the application of leave had not been set down for argument, no draft index to the appeal book had been prepared or settled, the transcript had not been requested and the appeal book had not been prepared.

Held:

The explanation that workload and shortage of lawyers offered 8 months after the application to dismiss was filed amounted to no explanation at all. Default or negligence of the lawyers was not an excuse for not complying with the rules in civil cases. Had the Appellant used the delay in moving the application to dismiss to remedy its default, the delay in moving the application would have been a strong point in favour of refusing it. In the circumstances the appeal is dismissed.

Counsel:
Mr A. Kwimberi for the Applicant Respondents
Mr. P. Feareka for the Respondent Appellants

BY THE COURT: This is the Respondents application filed 5^th August 2004 to strike out the Appeal and Application for Leave to Appeal filed 8^th April 2004, for want of prosecution, alternatively that the Appellant be ordered to pay security for costs. We did not hear the parties on the alternative relief.

The background to the matter is that on 7^th June 2004 the Respondents reminded the Appellants they would need to seek leave in respect of some grounds. Nothing happened and the Respondents sent another latter on 21^st June 2004. There was still no action by the Appellant so this application was filed and together with supporting affidavits served on the Appellant son 19^th August 2004. The appellant filed affidavits explaining that the lawyer who had carriage of the matter had been appointed a judge, that there was difficulty in recruiting a replacement and the workload was difficult for one lawyer. The lawyer now having the carriage of the matter joined the firm on 21^st August 2004. The steps taken by the Appellant since the filing of this application to dismiss are that it has filed two affidavits, one in December 2004 and another in January 2005 explaining the difficulty of handling the work load and stressing the merits of the appeal. The Appellants are yet to file a draft index, have it settled, obtain a transcript and compile the appeal book.

The Law

Division 19 of the Supreme Court Rules O7 r53 provides:

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) 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.

54. The respondent may make application for an order under Rule 53 and the court may, after notice has been given to the appellant by the Registrar, make orders on reference from the Registrar.
    

55. An application for an order under Rule 53 shall—

(a) be in accordance with form 11; and

(b) be supported by affidavit.

56. An order under Rule 53 sub-rule (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.
    

A number of Supreme Court decisions have considered the rule and we state the general propositions from those cases as follows:

An appeal might be struck out if it is not set down as required by the rules.

(1) Where an appeal has not been set down as prescribed the power to dismiss for want of prosecution remains discretionary.

(2) The discretion is to be exercised having regard to all the circumstances of the case including, inter alia,

(a) the length of and reasons for delay on the appellant’s part;

(b) the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;

(c) the availability of a transcript, and

(d) any negotiations between the parties.^[1]

(2) Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal¹⁰, failure to attend on settlement of the appeal book, failure to explain non attendance^[2], failure to respond to correspondence^[3] and failure to provide any explanation for dilatory conduct where an explanation could properly be expected^[4]. The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.

(3) The discretionary powers under O7 r 53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made. That a lawyer cannot be present because he is appearing before another judge may be an adequate explanation.^[5] 7 months delay in applying for the transcript of evidence to be prepared requires a proper explanation and the absence of one may result in the appeal being dismissed.^[6]

The Court must consider the whole of the circumstances in which an application for dismissal on the grounds on want of prosecution is brought, in particular events that have taken place since the application was filed. The application to dismiss itself should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful.^[7]

An application pursuant to O7 r53 should be made in form 11 and not in an Objection to Competency.^[8]

The general rules that the power of the Court to dismiss an action for want of prosecution should be exercised only where (a) the plaintiff’s default had been intentional and contumelious or (b) 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 serious prejudice to the defendant, apply principally before a trial. Once a judgement has been obtained public interest requires finality to the litigation.^[9] The risk to a fair trial is only relevant where evidence is to be called.^[10]

This Case

In this case the Appellant has not:

1. Sought to have the application for leave set down for hearing;
2. Filed a draft index of the appeal book;
3. Sought a date to settle the index;
4. obtained a transcript of proceedings in the Court below;
5. prepared an appeal book.
   

In Dan Kakaraya v Sir Michael Somare & Ors^[11] this Court said:

“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).

...

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.”

Had this application been heard shortly after it was filed, there may have been some merit in the explanation for delay given in the affidavits of the Appellant. Although even those affidavits do not explain why no steps were taken in the matter between filing of the appeal and June 2004. But 12 months after the appeal was filed and 8 months after the application to dismiss was filed, to put forward staffing issues as the only explanation for not taking any of the steps required to be taken, is just completely inadequate and wholly unacceptable. If a lawyer finds himself in the position of not being able to discharge his client’s instructions in a timely and diligent matter for what ever reason, he has a duty to his client to advise the client that it is in the clients interests to take the instructions to another lawyer.

We note that this application has also not been pursued with particular diligence. Had the Appellant made good its defaults before the hearing of this application, the delay in hearing it would have been a strong factor in favour of dismissing the application. However the Appellant has not taken any advantage of the 8 months delay to remedy its defaults.

It is generally accepted by this Court that in a civil case the delay or negligence of a lawyer is not an adequate excuse for the defaulting party to avoid time constrains, because the client has another remedy available.^[12]

Given the considerable lapse of time which has occurred, the explanation of the Appellant amounts to no explanation at all.

We adopt the words of this Court in General Accident Fire & Life Assurance Corporation Limited v Ilimo Farm Products Pty. Limited^[13]:

“We consider that to do otherwise than to dismiss in the absence of an explanation would result in a failure to pay sufficient regard to the clear mandate in r53(a) to dismiss for want of prosecution.”

The order of the Court is that the Appeal and Application for Leave to Appeal are dismissed. The Appellant is to pay the Respondent’s costs of and incidental to the Appeal.

Lawyers for the Appellant : Namaliu & Company
Lawyer for the Respondent : Kwimberi Lawyers

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^[1] Burns Philp (New Guinea) Limited v George [1983] PNGLR 55 Kidu CJ Kapi DCJ and Andrew J considering r25 of the Supreme Court Rules 1977.Now see O7 r48.
^[2] SC484 Yema Gaiapa Developes Limitedv Hardy Lee, Amet CJ Kapi DCJ Los J
^[3] SC530 Attorney-General, Minister for Justice and the State v Papua New Guinea Law Society, Amet CJ Kapi DCJ and Los J and also SC691 Donigi v PNGBC, , Salika, Kandakasi and Batari JJ
^[4] SC667 Bernard Juali v The State, Los, Sevua and Kandakasi JJ
^[5] SC537 Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe; Kapi DCJ Los and Jalina JJ.
^[6] SC691 Donigi v PNGBC supra
^[7] SC762 Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa, Los Sawong & Cannings JJ
^[8] SC766 State v David Nelson, Salika, Kirrowom and Lay JJ
^[9] General Accident Fire & Life Assurance Corporation Limited v Ilimo Farm Products Pty. Limited [1990] PNGLR 331 Kapi DCJ Sheehan and Brown JJ and Public Prosecutor v Allen Abu Marai [1996] PNGLR 81 Amet CJ Kapi DCJ and Los J
^[10]SC537 Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe; Kapi DCJ Los and Jalina JJ.
^[11] supra
^[12] The State v Colbert [1988] PNGLR 138, Kap DCJ, Bredmeyer J and Amet J; SC751 Joseph Kupo v Steven Raphael, Salika, Sawong and Gavera-Nanu JJ
^[13] Supra