SC989

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 126 0F 2006

JEFFREY TURIA
First Appellant

MICHAEL MCKAY
Second Appellant

V

GABRIEL NELSON
First Respondent

NATIONAL HOUSING CORPORATION
Second Respondent

Waigani: Injia CJ, Cannings J, Kariko J
2009: 4, 18 September

APPEALS – motion to dismiss application for leave to appeal for want of prosecution – whether Supreme Court Rules, Order 7, Rule 53 is the appropriate rule to rely on – delay in prosecuting application for leave to appeal – whether adequate explanation for delay.

The appellants applied for leave to appeal against an interlocutory judgment of the National Court. The first respondent objected to the competency of the application but the objection was refused by the Supreme Court. Three months later the respondent's lawyer wrote to the appellants' lawyers and requested that they expedite the application, failing which a motion would be moved to dismiss it for want of prosecution. Nothing was done and a notice of motion for dismissal was filed. Still nothing had been done when the motion to dismiss was heard, more than nine months after refusal of the objection to competency. The appellants' explanation for the delay was that they had been having difficulty arranging legal representation. 

Held:

(1)	A motion for dismissal of an application for leave to appeal may be made under Order 7, Rule 53 of the Supreme Court Rules.

(2)	Here, the date to focus on for determining whether there had been a delay in prosecuting the application was the date on which the objection to competency was refused.

(3)	There was a delay of more than nine months between that date and the date of hearing the motion to dismiss the application. The onus therefore was on the appellants to give a satisfactory explanation.

(4)	No satisfactory explanation was given, so in the exercise of the Court's discretion the application for leave to appeal was dismissed. 

Cases cited

The following cases are cited in the judgment:

Dan Kakaraya v Sir Michael Somare (2004) SC762
Donigi v PNGBC (2002) SC691
Jeffrey Turia and Michael McKay v Gabriel Nelson and National Housing Corporation (2008) SC949
Lawyers Statutory Committee v Canisius Karingu (2008) SC932
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811
The State v Turu and Maku (2008) SC905

NOTICE OF MOTION

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

Counsel

T Waisi, for the appellants
G Misina, for the first respondent

18 September, 2009 

1. BY THE COURT: This is a ruling on a motion to dismiss an application for leave to appeal for want of prosecution. The person moving the motion for dismissal is Gabriel Nelson (the first respondent). The persons who filed the application for leave to appeal are Jeffrey Turia (first appellant) and Michael McKay (second appellant). 

2. Messrs Turia and McKay are aggrieved by orders made in the National Court by Justice Salika, as he then was, in a case about ownership and possession of a property at Gerehu in the National Capital District. His Honour ordered amongst other things that Mr McKay give up vacant possession to Mr Nelson within 14 days and that Mr McKay be removed as a party to the proceedings. It was an interlocutory judgment, ie the orders were made subject to a pending trial.

3. No trial has yet been conducted as Messrs Turia and McKay filed an application for leave to appeal against the National Court's orders on 22 November 2006. Mr Nelson responded by filing an objection to competency of the application for leave to appeal. The objection was heard by the Supreme Court on 28 October 2008 and refused on 6 November 2008 (Jeffrey Turia and Michael McKay v Gabriel Nelson and National Housing Corporation (2008) SC949). 

4. In February 2009 Mr Nelson's lawyer, the Public Solicitor, wrote on two occasions to the lawyers for Messrs Turia and Nelson, Kubak Lawyers, and requested that they expedite the application, failing which a motion would be moved to dismiss it for want of prosecution. Nothing was done and a notice of motion for dismissal was filed on 30 March 2009. 

5. There was then a change of lawyers. Kubak Lawyers (who had not been paid) ceased to act for the appellants and Waisi Lawyers took over their matter. However, still nothing was done about prosecuting the application for leave to appeal by the time the motion for dismissal came before the Court on 4 September 2009. 

6. There are three issues we have to determine:

1.	Is the motion for dismissal properly before the Court?

2.	Has there been an apparent delay in prosecuting the matter?

3.	Is there a satisfactory explanation for the delay?

1 IS THE MOTION FOR DISMISSAL PROPERLY BEFORE THE COURT?

7. We pose this question as the motion has been brought under Order 7, Rule 53 of the Supreme Court Rules, which refers to dismissal of an appeal, not dismissal of an application for leave to appeal. It 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.

8. There is no express provision in the Rules for dismissing an application for leave to appeal, as distinct from an appeal, so has the respondent, Mr Nelson, relied on the correct rule? 

9. We consider that he has, for three reasons. First, when an application for leave to appeal is filed under Divisions 7.1 and 7.2 of the Rules the person making the application is referred to as an "appellant", even though there is at that stage no appeal before the Court (see Order 7, Rule 2(a), which would appear to override form 7, which refers to the person making the application as "applicant"). Secondly, the term "appeal" is used in a generic sense and covers not only an appeal proper but also an application for leave to appeal. Thirdly, there have been many previous cases in which Order 7, Rule 53 has been relied on to dismiss an application for leave to appeal and it has become an accepted part of Supreme Court practice and procedure (eg Donigi v PNGBC (2002) SC691; PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811). 

10. The motion for dismissal is therefore properly before the Court. 

2 HAS THERE BEEN AN APPARENT DELAY IN PROSECUTING THE MATTER?

11. The methodology for deciding whether to uphold a motion for dismissal of an application for leave to appeal for want of prosecution is the same as for a motion to dismiss an appeal. There are two questions to address: Has there been a delay? Is there an adequate explanation for it?

12. Here, the date to focus on for determining whether there had been a delay is the date on which the objection to competency was refused, 6 November 2008. The delay of almost two years after the filing of the application for leave to appeal is irrelevant as that was due to the respondent's objection to competency (Lawyers Statutory Committee v Canisius Karingu (2008) SC932). 

13. The motion for dismissal was heard on 4 September 2009. As nothing had been done about prosecuting the application for leave to appeal by that date, the delay involved is more than nine months. That is a considerable delay so it is incumbent on the appellants to provide a satisfactory explanation for it. 

3 IS THERE A SATISFACTORY EXPLANATION FOR THE DELAY?

14. The background of this case was set out in considerable detail in the affidavits sworn by the appellants. Their explanation for the inaction since November 2008 is the difficulties they faced in arranging legal representation. Waisi Lawyers have recently been engaged and they are the fourth firm to act for the appellants since commencement of proceedings in the National Court. The appellants say that they have faced financial difficulties too. 

15. None of this amounts to a satisfactory explanation. The respondent's lawyer acted reasonably by putting them on notice that they had to act quickly to avoid a motion for dismissal. Even after the motion for dismissal was filed nothing was done to prosecute the application for leave to appeal. It is relevant to consider what steps have been taken by an appellant after the filing of a motion for dismissal and before it is heard (Dan Kakaraya v Sir Michael Somare (2004) SC762; The State v Turu and Maku (2008) SC905).

16. We note that nothing much had to be done by the appellants. All they had to do was request the Supreme Court Registry to list the application for hearing before a single Judge of the Supreme Court. This was not an onerous requirement. However, nothing at all was done. 

17. The explanation provided is unsatisfactory. The application for leave to appeal has not been prosecuted with due diligence and we will exercise our discretion to dismiss it. 

ORDER

18. We will make the following order:

1	the motion for dismissal of the application for leave to appeal on the ground of want of prosecution is granted;

2	the application for leave to appeal is dismissed;

3	the appellants shall pay the costs of the hearing of the motion for dismissal to the first respondent on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_____________________
Waisi Lawyers: Lawyers for the Appellants 
Public Solicitor: Lawyer for the first Respondent