Keimali v Akema [2010] PGSC 9; SC1061 (8 July 2010)

SC1061

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 35 OF 2007 & SCA NO 49 OF 2007

BETWEEN

BEN KEIMALI
Appellant

AND

KOTU AKEMA
First Respondent

AND

NORMAN BA’ABI
Second Respondent

AND

AIR NIUGINI LIMITED
Third Respondent

Waigani: Sakora, David & Makail, JJ
2009: 2nd September &
2010: 8th July

SUPREME COURT - PRACTICE & PROCEDURE - Application to dismiss for want of prosecution - Discretionary power - Inordinate delay - Failure to prosecute application for leave to appeal and appeal with due diligence - Failure to file and serve draft index to appeal book - Failure to obtain transcript of National Court proceeding - Reasons for default unsatisfactory - Application for leave to appeal and appeal dismissed - Supreme Court Rules, 1984 - Order 7, rules 40, 41, 42, 43, 44, & 53(a).

Cases cited:
Papua New Guinea Cases

Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691
General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762
The Public Prosecutor -v- Allan Ebu Marai [1996] PNGLR 81
Richard Naringa -v- Rural Development Bank (2006) SC908
Gabriel Yer & The State -v- Peter Yama (2009) SC990
Nambawan Trophy Limited -v- Dynasty Holdings Limited (2005) SC811

Counsel:

Appellant in person
Mr C Raurela, for Respondents

8th July, 2010

RULING

1. BY THE COURT: Before us are two applications by the respondents to dismiss first, the appellant’s application for leave to appeal filed on 8th May 2007 and secondly, the appellant’s appeal filed on 1st June 2007 for want of prosecution pursuant to Order 7, rule 53(a) of the Supreme Court Rules. The applications were filed on 26th June 2008 and 5th December 2008 respectively.

2. From our perusal of the two affidavits of the appellant sworn and filed on 27th August 2009, affidavit of Rakatani Raka sworn on 3rd November 2008 and filed on 15th December 2008 and affidavit of Benjamin Nahupa sworn on 23rd June 2008 and filed on 30th June 2008, the following facts are not in dispute: The appellant commenced proceeding against the respondents in the National Court reference WS No 50 of 2005 on 20th January 2005 seeking, inter-alia, orders for reinstatement to his former substantive position of Deputy Air Port Manager of the third respondent and damages following his demotion by the respondents. He was demoted because he was found guilty of committing disciplinary offences.

3. The respondents defended the action in the National Court. The matter went for directions hearing and the National Court issued a number of directions for parties to comply with, including filing and service of a Statement of Agreed and Disputed Facts. The respondents failed to comply with the directions and the appellant applied for default judgment. On 13th April 2007, the National Court heard and refused the application for default judgment and further directed the respondents to comply with the directions. Aggrieved by that decision, on 08th May 2007, the appellant filed an application for leave in SCA No 35 of 2007 to appeal that decision. It was fixed for hearing before the late Chief Justice Sir Mari Kapi on 24th May 2007. On 24th May 2007, parties appeared and had it adjourned by consent to 7th June 2007 to allow the appellant time to file an affidavit to support the application. It has not been prosecuted to date.

4. The appellant denied at the hearing before the late Chief Justice on 24th May 2007, his Honour directed him to pursue the appeal in SCA No 49 of 2007 and withdraw the application for leave in SCA No 35 of 2007. This was because the proceeding was dismissed and the challenge to the refusal of the grant of default judgment would serve no purpose if it was pursued. He claimed that application for leave to appeal in SCA No 35 of 2007 was generally adjourned to await the outcome of the appeal in SCA No 49 of 2007. That was the reason he did not prosecute the application for leave to appeal to date.

5. Meanwhile, on 14th May 2007, the respondents applied to dismiss the proceeding for failure to disclose a reasonable cause of action. They moved the application in the absence of the appellant. It was upheld and the proceeding was dismissed. Again, aggrieved by that decision, on 01st June 2007, the appellant filed an appeal to the Supreme Court in SCA No 49 of 2007.

6. He did not prosecute his appeal in SCA No 49 of 2007 because despite his numerous attendances and requests to the National Court Transcript Division for the transcript to be furnished to him, none was provided until 25th August 2009. Further, he did not forward a draft index to the appeal book to the respondents until a day before the hearing of the application for dismissal. By that time, the respondents had obtained a hearing date for these applications and he had no choice but to appear at the hearing and oppose them.

7. The law in relation to application for want of prosecution is settled in this jurisdiction. Under Order 7, rule 53 of the Supreme Court Rules, the Supreme Court is given the ultimate discretion to dismiss an appeal for want of prosecution. Order 7, rule 53 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; or

(b) ...................; or

(c) ..................."

8. The exercise of discretion is exercised judicially, based on proper principles of law. Under Order 7, rule 53(a), the Court may dismiss an appeal if it is established that 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". In a case where a respondent seeks to dismiss an appeal for want of prosecution, the onus is on the respondent to make out a case for the Court to exercise of discretion in its favour. Once the respondent makes out a case for want of prosecution, the onus shifts to the appellant to provide a reasonable explanation as to why the appeal should not be dismissed.

9. In Donigi & Ors -v- Papua New Guinea Banking Corporation Limited (2001) SC691, the Supreme Court after referring to the case of General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331, expressed this principle in this way:

"The case cited and many others say that, once a case of delay or want of prosecution is established, the onus then shifts to a respondent to an application to dismiss (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."

10. This principle was re-affirmed by the Supreme Court in Dan Kakaraya -v- Sir Michael Somare & Ors (2004) SC762. In the present case, counsel for the respondents correctly pointed out that the two issues for our determination are:

1. whether the appellant has taken steps as required under the Supreme Court Rules to prosecute his application for leave to appeal and also the appeal; and

2. whether the appellant has prosecuted his application for leave to appeal and also the appeal with due diligence.

Application for leave to appeal

11. We deal first with the application for leave to appeal. It is important to note that it was filed on 8th May 2007 and the first return date was 24th May 2007. On 24th May 2007, it was adjourned by consent to 7th June 2007 and after that, no further action was taken to have it heard until the filing of the application for dismissal on 26th June 2008. From 8th May 2007 to 26th June 2008 is a period of about 1 year and 1 month. This is the period of delay. Following the filing of the application for dismissal on 26th June 2008 and the hearing of the application for dismissal on 2nd September 2009, a further period of 1 year and 3 months has lapsed. In total, there is a period of 2 years and 4 months of delay.

12. In our view, this is an inordinate delay. The onus then shifts to the appellant to provide an explanation for the delay. As noted above, the appellant argued that the reason for not taking any further action was because it was generally adjourned to await the outcome of the appeal in SCA No 49 of 2007. We disagree with this submission because in an appeal, the onus is on an appellant to prosecute an application for leave to appeal with due diligence and also, must comply with the requirements of the Supreme Court Rules. The need to comply with the Supreme Court Rules was emphasised by the Supreme Court in The Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81. Therefore, we accept the respondents’ submission that, the duty to comply with the Supreme Court Rules includes the duty to obtain a date for the hearing of the application for leave to appeal and to inform the respondent of the hearing date.

13. In the present case, the application for leave to appeal was fixed for hearing on 24th May 2007 before the late Chief Justice. On that date, parties appeared and had it adjourned by consent to 7th June 2007 to allow the appellant to file an affidavit to support the application. In our view, the appellant was duty bound to prosecute it on the next return date of 7th June 2007 but he did not. There is no evidence before us to establish why the application was not heard on 7th June 2007, but whatever the reason was, it was the duty of the appellant to obtain a new hearing date from the Supreme Court Registry if it was not heard on 7th June 2007 and inform the respondents so that they may attend the hearing.

14. He cannot sit back and expect the Supreme Court Registry to give him a new hearing date. Further, we reject his submission that on 24th May 2007, the late Chief Justice directed that the application for leave to appeal was adjourned generally to the Supreme Court Registry pending the determination of the appeal in SCA No 49 of 2007. There is no evidence of any record or order to that effect before us to verify his assertion. There has been a delay of about 1 year and 1 month between the filing of the application for leave to appeal on 08th May 2007 and the filing of the application for dismissal on 26th June 2008, and even though the opportunity was there for him to prosecute it on 24th May 2007 before the late Chief Justice, he did not.

15. In any case, we accept the respondents’ submission that since the proceeding in the National Court was dismissed, there was no utility in pursuing the application for leave to appeal in relation to the refusal of the default judgment in SCA No 35 of 2007. Ideally, he should have withdrawn the application for leave to appeal and concentrated on the appeal but he did not. Given all these events leading up to the hearing of the application for dismissal on 02nd September 2009, a period of about 2 years and 4 months has lapsed since the filing of the application for leave to appeal on 08th May 2007. This is the period of delay and in our view, it is inordinate and inexcusable. It follows we find that, the appellant has not provided a reasonable explanation as to why he did not expeditiously prosecute the application for leave for appeal. He has not been diligent in the circumstances of this case and we dismiss the application for leave to appeal for want of prosecution.

Appeal

16. We turn to the appeal. It was filed on 1st June 2007. From the date of its filing of 1st June 2007 to the date of filing of the application for dismissal for want of prosecution on 5th December 2008 is a period of about 1 year and 6 months. If time is computed from the date of filing of the appeal of 1st June 2007 to date of hearing of application for dismissal of 2nd September 2009, there is a period of 2 years and 3 months of delay. In our view, whichever cut off date one may apply in this case, there is a long delay in prosecuting the appeal. We are satisfied that the delay is inordinate and once again, the onus shifts to the appellant to explain why the appeal should not be dismissed.

17. First, we note the requirements of the Supreme Court Rules in so far as getting the appeal ready for hearing are concerned have not been complied with by the appellant since the filing of the appeal on 01st June 2007. They are:

* No draft index to the appeal book has been filed and forwarded to the respondents’ lawyers until 01st September 2009, (Order 7, rules 40 & 41);

* No settlement of the appeal book took place before the Deputy Registrar of the Supreme Court, (Order 7, rules 41 & 42);

* No certified copy of the record of proceeding in National Court inclusive of the decisions of the judges in the National Court have been provided to the appellant until 01st September 2009, (Order 7, rule 43(6)&(8);

* No certification of the appeal book took place, (Order 7, rule 43(j)&(9); and

* Due to all of the above, no appeal book has been filed and served on the respondents by the appellant, (Order 7, rule 44).

18. We are of the view that the appellant has failed to comply with these requirements of the Supreme Court Rules. The Supreme Court emphasised the importance of the need to comply with the requirements of the Supreme Court Rules, and more particularly in relation to the need to secure an appointment date to settle a draft index in Richard Naringa -v- Rural Development Bank (2006) SC908, in this way:

"The appellant’s failure to secure an appointment date with the Deputy Registrar of Supreme Court to settle the draft Index was also a clear breach of Order 7 r33 to r35 and r40 and r41 of the Supreme Court Rules, which are in mandatory terms. These facts alone are in our view sufficient for us to dismiss the appeal."

19. We would add in this case, the need to prepare, file and serve a draft index on the respondents. This is because it affects the entire preparation and readiness of the appeal. The Supreme Court emphasised the importance of preparation, filing and service of a draft index, in Allan Ebu Marai’s case (supra) in this way,

"Under the Rules it is the responsibility of the appellant to prepare a draft index and serve a copy on the respondent before settlement of the appeal book (O 7 r 40, 41)."

20. Order 7, rule 40 states:

"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."

21. Order 7, rule 41 states:

"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."

22. In our view, the preparation and service of a draft index is a fundamental requirement under Order 7, rules 40 and 41 of the Supreme Court Rules because it starts the whole process of preparation of an appeal book. Further, it impinges on the entire preparation and readiness of the appeal. Without it, parties would not be able to prepare and settle the appeal book, and without an appeal book, there cannot be any hearing. A draft index contains the documents that constitute the appeal book and generally, it would contain all the relevant documents used in the National Court. Some of the documents are those that Order 7, rule 43 speaks of. For example, affidavits, written reasons for decision, orders and so forth.

23. In our view therefore, parties to an appeal are in no position to compile an appeal book and have it ready for certification if there is no draft index filed and served on the respondent. Its preparation, filing and service is so crucial in an appeal that in our view, it is incumbent on an appellant to ensure that it is prepared, filed and served on the respondent before the date appointed for the settlement of the appeal book. That responsibility is never on the respondent and it is inexcusable if an appellant fails to do that. In a case where an appellant fails to prepare, file and serve a draft index on the respondent, we are of the view that it amounts to a fundamental breach of Order 7, rules 40 and 41 of the Supreme Court Rules. The consequence is, the appeal may be dismissed for want of prosecution on this ground alone.

24. In the present case, the appellant did not file and serve on the respondents’ lawyers a draft index in SCA No 49 of 2007 until 01st September 2009. That was, a day before the hearing of the application for dismissal. In our view, this is a belated attempt to rectify his failure to take steps to prepare the appeal for hearing in good time. As we have observed above, it is his duty to prepare, file and serve the draft index before the date appointed for the settlement of the appeal book, but he did not do that. He cannot say he had no time to do that because he had more than sufficient time since 1st June 2007 to prepare, file and serve the draft index on the respondents. Further, we are not satisfied with his explanation that he had been traveling to and from Wewak during that period. As a result, he was unable to file and serve it on the respondents. As we have said above, the duty to prepare, file and serve a draft index is always on an appellant and if he had been diligent, he would have done that before going to Wewak or immediately upon his return from Wewak.

25. In our view, his belated attempt in filing and serving the draft index does not improve his position because as we have said above, the preparation, filing and service of a draft index begins the whole process of preparation of an appeal book and given the delay of 2 years and 3 months, the respondents would be seriously prejudiced if he was given a further opportunity to pursue his appeal.

26. Secondly, with respect, we reject his submission that he was unable to prepare the draft index and prosecute his appeal quickly because he did not receive the transcript of the National Court proceeding in good time. We reject this submission because in our view, there is no evidence in relation to when he attended and requested the staff of the National Court Transcript Division to provide the transcript. We are also not satisfied that his evidence at paragraph 9 of his affidavit that he, "requested for the transcript but it was not given to me until 25th August 2009 [and] I have checked on the transcript since 2007" is sufficient explanation of what he did to obtain the transcript. It is vague and lacks particularity.

27. We expect and are entitled to know when he attended the National Court Transcript Division to request the transcript, how many times he attended and made the requests, to whom he made those requests and why the transcript was not ready in good time for collection to be satisfied that he has done every thing within his power and control to discharge the onus bestowed upon him in the Supreme Court Rules to obtain the transcript. We are, therefore, not satisfied that he has made serious efforts to obtain the transcript of the National Court proceeding from the National Court Transcript Division.

28. Following on from there, in our view, the preparation of a draft index is not dependent on the availability of a transcript of the National Court proceeding. Rather, as we have observed above, it is the appellant’s prime responsibility to prepare, file and serve a draft index on the respondent. The draft index should contain, inter-alia, the transcript of the National Court proceeding. Once the draft index is settled by the parties before the Deputy Registrar of the Supreme Court, copies of the documents including the transcript of the National Court proceeding constituting the appeal book should be compiled and bound in an appeal book.

29. In our view, the request and collection of the transcript of the National Court proceeding may be made to the National Court Transcript Division anytime before or after the draft index is prepared, filed and served on the respondent. There is no hard and fast rule on that so long as the appellant knows that the inclusion of the transcript of the National Court proceeding is the correct one and that, it would not be objected to by the respondent at the time of the certification of the appeal book. The Supreme Court in Donigi & Ors’ case (supra) said:

"In any event, an appellant is required to obtain the relevant transcripts. That means in our view, a request for the transcripts if required, to be made promptly. This should be done at the time of lodging the appeal as there is nothing else to be done to facilitate the making of such a request and that nothing could be done unless the transcript is first obtain if we strictly go by the rules. Nevertheless, in the spirit of expediting an appeal, it is good practice to prepare a draft index subject to change only on the number of the pages of the transcript. Such a draft should be filed and tentative dates for its settlement should be fixed even before the transcripts are actually received." (Emphasis added).

30. In the present case, the appellant has not prepared, filed and served a draft index on the respondent until a day before the hearing of the application for dismissal. As a result, there was no appeal book filed and served on the respondent before the hearing of the application for dismissal. There is, therefore, no basis for us to exercise the discretion in his favour. For these reasons, we are not satisfied that the appellant has complied with the requirements of the Supreme Court Rules, and has been diligent especially in relation to the preparation, filing and service of the draft index on the respondents and would dismiss the appeal.

31. However, the Court may refuse the application for dismissal even if there is a default or failure to observe the requirements of the Supreme Court Rules, because there is always a discretion to refuse it if the appellant has made good the default before the hearing of the application for dismissal. This was the position the Supreme Court took in the case of Gabriel Yer & The State -v- Peter Yama (2009) SC990. In that case, although there were intervening factors that delayed the prosecution of the appeal, the appellants did file an appeal book after the respondent filed an application to dismiss the appeal for want of prosecution. The Supreme Court held that, the appellants had made good their default before the application for want of prosecution was heard and they should be given the opportunity to argue the substantive appeal. It therefore, refused the respondent’s application for want of prosecution.

32. In other words, the Court may look at the whole circumstances of the case, in particular the events that have occurred after the filing of the application for dismissal for want of prosecution, like in the case of Nambawan Trophy Limited -v- Dynasty Holdings Limited (2005) SC811, where the Supreme Court held that:

"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."

33. In the present case, even if we were to take into account the whole circumstances of the case, we remain unconvinced that the appellant has made good his default by the belated filing and service of the draft index for the above stated reasons. We uphold both of the respondents’ applications and dismiss the application for leave to appeal in SCA No 35 of 2007 and appeal in SCA No 49 of 2007 for want of prosecution with costs to be taxed if not agreed.

Ruling and orders accordingly.

__________________________________________
Appellant in person:
Elemi Lawyers: Lawyers for the Respondents