State v Turu [2008] PGSC 1; SC904 (29 February 2008)

SC904

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 24 0F 2006

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Appellant

v

RAYMOND TURU AND JOHN MAKU,
REPRESENTATIVES OF CLAN LEADERS,
FORESTRY AGENTS
AND LANDOWNERS OF
VANIMO BLOCK 6 TIMBER
RIGHTS PURCHASE AREA
Respondents

Waigani: Kapi CJ, Gavara-Nanu &,Cannings JJ
2008: 27, 29 February

APPEALS - motion to dismiss appeal for want of prosecution – Supreme Court Rules, Order 7, Rule 53 - relevant considerations to exercise of discretion – whether there has been apparent delay in prosecuting application – whether application has been prosecuted with due diligence – whether applicant has provided adequate explanation.

The State appealed against an interlocutory decision of the National Court. More than 12 months passed and the appeal had not been listed. Preliminary steps to get the matter ready for hearing were not completed. The respondents to the appeal then moved the court to dismiss the appeal for want of prosecution.

Held:

(1) There has been a substantial delay in prosecuting the appeal. After more than 20 months the index of the review book has not been settled.

(2) The onus therefore was on the appellant to give a satisfactory explanation for the delay.

(3) It is no excuse for the State’s lawyer, the Solicitor-General, to say that another lawyer had possession of the file.

(4) The Court must look at all the events that have happened up to the day on which the motion is argued, in particular events that have taken place since the motion was filed.

(5) The appellant allowed four months to pass since the respondent moved the court to dismiss the appeal and did not do anything to progress the appeal.

(6) In deciding whether to exercise its discretion to dismiss an appeal for want of prosecution the court may also consider the consequences of dismissal of the appeal.

(7) Here, dismissal of the appeal will not finally determine the interests of the parties, so this makes the case unexceptional and favours dismissal.

(8) The motion to dismiss the appeal was accordingly granted.

Cases cited:

Dan Kakaraya v Sir Michael Somare (2004) SC762
Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691
General Accident Fire & Life Assurances Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331

MOTION

This was a motion for dismissal of an appeal on the ground of want of prosecution.

Counsel

L Kandi, for the appellant
N Amoiha, for the respondent

1. BY THE COURT.: This is a ruling on a motion to dismiss an appeal for want of prosecution. The appellant is the State and it is appealing against an interlocutory order of Salika J in the National Court.

2. His Honour’s order was to refuse the State’s application to dismiss National Court proceedings, WS No 1203 of 2004, brought against it by the respondents, Raymond Turu and John Maku, on the ground that there was no reasonable cause of action. The respondents (the plaintiffs in the National Court) claim that the State negligently paid a judgment debt of more than K500,000.00 arising from earlier proceedings, to the wrong person. They say that money should have been paid to them. His Honour ruled that the respondents have an arguable case in negligence against the State.

3. The matter has not progressed to trial, however, as the State has been granted leave to appeal against Salika J’s order and a notice of appeal has been filed.

4. The respondents have since then brought a motion to have the appeal dismissed on the ground of want of prosecution. That is the motion we are ruling on. The question we have to decide is whether the appeal should be dismissed. We are not hearing the merits of the appeal, ie we are not deciding whether Salika J made the right decision. We are simply deciding whether the respondents’ motion should be upheld. If it is, WS No 1203 of 2004 will revert to the National Court for trial. If we dismiss the motion, the appeal against Salika J’s order will go ahead.

THE FACTS

5. When hearing a motion to dismiss an appeal for want of prosecution, the court must at the outset focus on two sorts of facts.

Dates

6. The first is dates and passage of time. Four dates stand out here:

• 23 February 2006: date of the National Court decision under appeal.
  
• 1 June 2006: date of filing the notice of appeal (it was filed in time, in accordance with the leave of the court).
  
• 4 October 2007: date of filing of motion for dismissal.
  
• 27 February 2008: date of hearing the motion.
  

That means:

• More than 16 months passed between when the State filed its appeal and the respondents filed the motion to dismiss.
  
• More than four months have passed since the respondents filed the motion to dismiss.
  
• It is now more than 20 months since the appeal was filed.
  

Status

7. The second fact we must focus on is: what is the status of the case?

8. Here, the draft index of the appeal book was filed on 24 August 2006. That represents the first formal step in getting an appeal set down for hearing. The next step, which is getting an appointment with the Registrar to settle the appeal book (Supreme Court Rules, Order 7, Rules 33 and 42), has been completed, in that a number of appointments have been made. But the appointments have not come to fruition.

9. As a result, the index has not been settled. The other matters covered by Rule 42 (documents and matters to be included in the appeal book, number of copies required and other matters determined by the Registrar) have also not been resolved.

THE LAW

10. The respondents’ motion is brought under Order 7, Rule 53 of the Supreme Court Rules, which 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.

11. The Supreme Court’s interpretation of this rule in a number of cases means that there are two issues to be addressed:

First, has there been an apparent delay in prosecuting the matter?

Secondly, if yes, does the person apparently guilty of the delay – in this case, the State – have a satisfactory explanation for the delay?

(See General Accident Fire & Life Assurances Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331; Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691; Dan Kakaraya v Sir Michael Somare (2004) SC762.)

HAS THERE BEEN A DELAY?

12. Clearly, there has been a substantial delay. After 20 months (June 2006 to February 2008) all that has happened is that a draft index has been filed and a number of appointments to settle the appeal book have been made. But the index and the appeal book remain unsettled.

IS THERE A SATISFACTORY EXPLANATION FOR THE DELAY?

13. Mr Kandi, for the State, submits that there is. He points out that soon after the appeal was filed an appointment was made with the Registrar to settle the appeal book, on 13 July 2006. But the appointment did not come to fruition because the respondents’ lawyers did not turn up. Subsequent appointments were made for 20 July, 7, 12 and 15 September 2006. They too did not come to fruition – though it is not clear why.

14. Another problem the State has faced is that its original lawyers, Paul Paraka Lawyers, ceased to act for it in December 2006 but did not hand over the appeal file to the new lawyer, the Solicitor-General. Upon receiving notice, on 18 September 2007, from the respondents’ lawyers, Henaos, that they intended to file a motion for dismissal, the Solicitor-General acted promptly in getting a copy of the court file made. That was not made available, however, until 10 October 2007, by which time the respondents’ motion had been filed.

15. The Solicitor-General has not done anything about prosecuting the appeal since October 2007 because of the pending motion for dismissal.

16. Mr Kandi submits that Henaos have not acted in good faith. They have been aware of the State’s difficulties in prosecuting the appeal but have not been co-operative.

17. We agree with Mr Kandi that the respondents’ lawyers were to blame for the first appointment to settle the appeal book coming to nought. But that was on 13 July 2006. There is no evidence that they were responsible for the four subsequent appointments suffering a similar fate. The last of them was on 15 September 2006. There is no explanation for what has happened since then.

18. As for the State’s change of lawyers, that is, it seems, the real cause of the delay. There has been a lack of communication and perhaps a lack of co-operation. That is a real problem. But we consider that it is the State’s problem. It should have been sorted out a long time ago and it cannot be used as an excuse for the delay in prosecuting the appeal.

19. The State could perhaps have repelled this motion if it had done something soon after the motion for dismissal was filed. Mr Kandi suggested nothing could be done as the motion was pending and that what happens after a motion for dismissal is filed is irrelevant. We disagree. In Kakaraya’s case the court said:

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.

20. The four months that has lapsed since October 2007 is relevant. But nothing has been done. The index is still not settled. The Solicitor-General made no appointment with the Registrar. The delay has been continuing.

21. The fact that the motion was set for hearing on 28 November 2007 but adjourned is not a good reason for doing nothing. The fact that there was a court vacation from 20 December 2007 to 31 January 2008 is also not a good reason for doing nothing. The Registry was open during most of the vacation. The State should have at least asked for an appointment to settle the appeal book.

22. We cannot agree that the respondents’ lawyers have acted in bad faith. They gave notice to the State of the intention to file a motion for dismissal, then waited for longer than the seven days they gave in their notice, before filing the motion.

23. In these circumstances we conclude that the State has provided no satisfactory explanation for the delay, which is now more than 20 months, in prosecuting its appeal. That means that there would need to be very good reasons provided by the State to convince us not to dismiss it.

DISCRETION

24. The power to dismiss an appeal under Order 7, Rule 53 is discretionary. It is conceivable that even though, as in this case, there is no satisfactory explanation for a substantial delay, for some exceptional reason it would not be in the interests of justice to dismiss the appeal.

25. In deciding how to exercise its discretion we consider that it would be appropriate for the court to consider the consequences of dismissal.

26. In this case, dismissal of the appeal will not finally determine the interests of the parties, including the State’s interests. The State will still be arguing against the respondents’ claim in the National Court. This helps tip the scales in favour of dismissal of the appeal. This is an unexceptional case.

27. We will therefore exercise our discretion by dismissing the appeal.

ORDER

28. We will make the following order:

1. the motion for dismissal on the ground of want of prosecution is granted;
   
2. the whole of the proceedings in SCA No 24 of 2006 are dismissed;
   
3. the appellant shall pay the costs of these proceedings to the respondents on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.

_____________________

Solicitor-General: Lawyer for the Appellant
Henao’s Lawyers: Lawyers for the Respondents