Malama Enterprises Ltd v Shell Papua New Guinea Ltd [2007] PGSC 17; SC861 (2 March 2007)

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SUPREME COURT - Supreme Court Rules - O 7 r 53 - considerations - application to dismiss for want of prosecution.

The Appellant filed an application for leave to appeal and a notice of appeal on 11 November 2005. By 3 November 2006 the Application for Leave had not been set down for hearing, the index to the appeal book had not been settled and the appeal book had not been prepared. The Respondent filed an application to dismiss the appeal for want of prosecution.

1. BY THE COURT: The respondent has applied to dismiss the appeal and application for leave to appeal for want of prosecution pursuant to the provisions of Order 7 rule 53 of the Supreme Court Rules.

2. The appellant filed its appeal and a Notice of Application for leave to Appeal on 11 November 2005. The respondent's lawyers filed a notice of appearance on 15 December 2005. It is convenient to set out what took place after that in the table below:

Event	Date	Time elapsed from previous event	Time elapsed from filing of appeal
Letter from respondents to appellant's seeking date for hearing in the application for leave	27 January 2006	6 weeks (Court vacation)	2 months 2 weeks
Reply from appellant	20 March 2006	7 weeks	3 months 3 weeks
Letter from respondent to appellant agreeing to11 May 2006 for hearing	20 March 2006	Nil
Letter from appellant to Registrar seeking date for hearing	The 1st of May 2006	6 weeks	4 months 1 week
Letter from Registrar appointing 18th of May 2006 for hearing	15 May 2006	2 weeks	5 months 2 weeks
Letter from appellant to registrar advising 18th of May was short notice requesting 25th of May	17 May 2006	2 days
By agreement application for leave to appeal adjourned to 25th May	17 May 2006
Appellant suggests an appeal book be prepared to use on the application for leave	24 May 2006	7 days	6 months 2 weeks
Respondents agree to the proposal	24 May 2006
The appellant makes part payment to the National Court for the transcript	31 May 2006		6 months 3 weeks
The Transcription Service advises that the transcript is available	21 June 2006	3 weeks	7 months 2 weeks
The appellant sends draft index to appeal book to respondent	3 July 2006	2 weeks	8 months
Respondents sends amended draft index to appellant seeking inclusion of two extra documents	25 July 2006	3 weeks	8 months 3 weeks
Responding asks appellant to provide final draft index	8 September 2006	6 weeks	10 months 1 week
Respondent sends warning letter to appellant's	10 October 2006	4 weeks	11 months 1 week
The respondent filed this application	3 November 2006	3 weeks	12 months
Appellant follows up letter of 3 July 2006	18th January 2007	2 weeks	12 months 2 weeks
Appellant collects transcript	2nd February 2007	2 weeks	1 year 1 month
Appellant submits draft appeal book to respondent	6th February 2007	4 days

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—

(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

5. The law on the application of O7 r53 was summarised by this court in the case of PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811:

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

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

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

(2) Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal, 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. 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. 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.

The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of 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."

6. Order 7 provides in respect of settling the appeal book index and setting an appeal down for hearing as follows:

33. The appellant shall on filing the notice of appeal get from the proper officer in the registry an appointment to settle the appeal book.

34. The appellant shall serve notice of the appointment on each person on whom the appeal is served.

40. A draft index of the papers which are to constitute the appeal book shall be prepared and filed in the registry before the date appointed for settlement.

41. The appellant shall serve the draft index on the respondent a reasonable time before the appointment to settle the appeal book but no later than two clear days before settlement.

(a) An appeal shall be set down for hearing at the first sittings of the Court to be held after the expiration of 28 days from the institution of the appeal; and

7. In breach of Order 7 rule 33, r34, r40 and r41 there has been no appointment to settle the appeal book and the index although agreed by the parties has not been settled. The Respondent sent the draft index to which it would agree to the Appellants on 25 July 2006 in response to the Appellant's draft of 3 July 2006. On 18 January 2007, the Appellant wrote to the Respondents claiming not to have received that response. It took five (5) months and two (2) weeks for the Appellant to check on a response to its letter of 3 July 2006. This was despite the Respondents follow-up letters of 8 September and 10 October 2006 to which the appellant did not respond.

8. The only explanation for this delay is that searches were being made for two (2) additional documents that the Respondents wanted in the appeal book. Those documents were eventually promptly provided by the Respondent on request. No explanation is provided for failing to respond to the respondent’s correspondence.

9. The first action with respect to the hearing date for the Application for Leave was taken by the Respondent on 27 January 2006 by letter prompting the Appellant. It took seven (7) weeks for the Appellant to respond on 20 March 2006 proposing dates in May 2006 for hearing. The 11th of May 2006 was agreed as a suitable date. It then took the Appellant six weeks before it wrote to the Court on 1 May 2006 seeking a hearing date on the 11th. On 15 May 2006, the Registrar appointed 18 May for the hearing. On 17 May, the Appellant said that the 18th was too close. The inference we draw is that the Appellant had taken no steps to prepare for the leave hearing and therefore could not be ready on two days notice, despite having asked for the 11th on the 1st . The Appellant obtained the Respondent's agreement to adjourn 18 May leave hearing to the 25 May. Then on 24 May, the eve of the hearing, the Appellant communicated to the Respondent that it wanted to abandon the hearing for the following day and prepare an appeal book. The Respondent acceded to that request. Once again, however, the inference we draw is that the Appellant took no steps to prepare for the leave hearing until the eve of the hearing, when it was realised there would be a predicament without a transcript. Thus it was just under seven months from institution of the appeal and the application for leave to appeal before the appellant put sufficient work into the matter to appreciate what it would need to demonstrate on the application for leave. No explanation is provided for that delay.

10. The transcript was ordered and a deposit paid on 31 May 2006. The transcript was available on 21 June 2006. The transcript was collected on 2 February 2007. It took six months and 3 weeks from filing of the appeal to order the transcript. The Appellant took seven months to collect the transcript when it was ready. There is no explanation for these delays.

11. Between 18 January 2007 and the day before the hearing of this application, a period of approximately 5 weeks, the appellant has followed up on its correspondence of 3 July 2006 regarding the draft index, compiled the appeal book and had it certified by the respondents. Apart from copying and filing the appeal book, the appellant now says that the Application for Leave to Appeal is ready to proceed to hearing.

12. We consider that the matters that we have referred to demonstrate clearly that the appellant has been dilatory and has not prosecuted its appeal with due diligence. Even the efforts that the appellant has put in to have the appeal book prepared were not commenced until some eight weeks after the Respondent filed its application to dismiss for want of prosecution.

13. Despite reminders, prompting and prompt responses from the respondent nearly every step which the appellant has taken has been accompanied by considerable delay which has either not been explained or has been very unsatisfactorily explained.

14. Order 7 rule 48 contemplates that 28 days after a notice of appeal is filed the appeal will be set down for the next sittings of the court on a date which is at least 21 days into the future. Practitioners might consider that to be extremely optimistic timetable. Nevertheless that is the rule, and where it cannot be met an appellant defending an application to dismiss for want of prosecution should provide a satisfactory explanation for every delay which has caused it not to meet the timetable prescribed by the rule.

15. In other cases this Court has taken the view that an appellant who has used the time between filing and hearing of an application to strike out for want of prosecution, wisely, and has gotten the appeal ready for hearing, might not suffer the dismissal of its appeal. We have given that principle careful consideration in this case. But in this case we do not consider the appellant should be so rewarded when the whole of its conduct of the appeal up until the last five weeks, has been conducted in such a dilatory way.

16. The Court could properly expect an explanation for (1) the two periods of six-month delay in ordering and receiving the transcript, (2) the failure to settle the appeal book index, (3) the failure to reply to the respondents correspondence, (4) and the failure to set the application for leave down for hearing at an early date. That counsel believes that the appellant was looking for two documents for the appeal book, and that the Court file was lost for some unspecified period, are the only rather vague explanations offered. These explanations are not satisfactory.

17. For those reasons we order that the appeal be dismissed for want of prosecution pursuant to Order 7 rule 53.

O'Brien's Lawyers: Lawyers for the respondent
Warner Shand lawyers: Lawyers for the appellant

Supreme Court of Papua New Guinea

Malama Enterprises Ltd v Shell Papua New Guinea Ltd [2007] PGSC 17; SC861 (2 March 2007)