Vele v Henao [2011] PGSC 18; SC1110 (5 July 2011)

SC1110

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 117 OF 2008

BETWEEN:

WARI VELE
Appellant

AND:

LOANI HENAO
First Respondent

AND:

JOHN EGGINS
Second Respondent

AND:

PACIFIC STAR LIMITED trading as THE NATIONAL
Third Respondent

AND:

JULIA DAIA BORE
Fourth Respondent

AND:

POST COURIER LIMITED
Fifth Respondent

AND:

MEDIA NIUGINI LIMITED trading as EMTV a division of FIJI TV LIMITED
Sixth Respondent

Waigani: Gavara-Nanu, Kariko and Kawi, JJ.
2011: 27 June & 5 July

SUPREME COURT - PRACTICE AND PROCEDURE – Order 7 Rule 53Supreme Court Rules – Application to dismiss appeal for want of prosecution – Delay in obtaining transcript.

SUPREME COURT - PRACTICE AND PROCEDURE – Order 7 Rules 33-43 Supreme Court Rules – Settlement of index to appeal book – Preparation of appeal book.

The first and second respondents filed an application to have the appeal dismissed for want of prosecution pursuant to Order 7 Rule 53(a) Supreme Court Rules. The appellant did not obtain a transcript in relation to the proceedings below which transcript was part of the settled index to the appeal book. Over a period of 2 years and 5 months from the filing of his appeal, the appellant made only one attempt at obtaining the transcript and that was a letter to the National Court Reporting Services.

Held:

1. An appeal may be dismissed for want of prosecution where there has been undue delay in prosecuting the appeal, unless there are reasonable explanations by the appellant for such delay; Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55; General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 33; Dan Kakaraya v Sir Michael Somare & Ors (2004) SC762; PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811; Joshua Kalinoe v Paul Paraka (2007) SC 874 and Peter Yama & Ors v PNGBC Limited (2008) SC 922 applied.
   
2. An appeal book must be compiled in accordance with Order 7 Rules 33-43 Supreme Court Rules.
   
3. An appeal book should not be certified as correct if it is not in accordance with the settled index.
   
4. Any amendment to the settled index must also be settled by the Registrar.
   
5. Delay in obtaining a transcript without reasonable explanation may warrant dismissal of an appeal for want of prosecution; Donigi v PNGBC (2002) SC691 followed.
   
6. There being no reasonable explanation for the inordinate delay in prosecuting the appeal, the application was upheld.
   

Cases cited:

Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 33
Dan Kakaraya v Sir Michael Somare & Ors (2004) SC762
PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC811
Joshua Kalinoe v Paul Paraka (2007) SC874
Peter Yama & Ors v PNGBC Limited (2008) SC922
Donigi v PNGBC (2002) SC691

Counsels:
Mr S Malaga, for the applicants/first and second respondents
Mr B Lai, for the respondent/appellant
Mr M Henao, for the fifth respondent
Mr M Muga, for the sixth respondent
No appearance for the third respondent

5 July, 2011

1. BY THE COURT: An application has been filed by the first and second respondents in this appeal ("the applicants") to have the appeal dismissed for want of prosecution pursuant to Order 7 Rule 53(a) of the Supreme Court Rules. In this ruling, we will refer to the respondent to the application as "the appellant".
   

Background

2. The appellant filed proceedings WS No. 1140 of 2006 in the National Court ("WS 1140/06") claiming damages for defamation against the respondents, which action was dismissed by the National Court on 16 October 2008. Aggrieved by the decision, the appellant filed the present appeal on 28 October 2008.
   
3. Relevant activities since the filing of the appeal are as follows:
   
   • 9 December 2008 – the parties attended to settlement of the Index to the Appeal Book with the Deputy Registrar Supreme Court.
     
   • 17 December 2008 – an amended index to the appeal book was forwarded to the respondents for endorsement. The amended Index incorporated amendments that were proposed at the settlement.
     
   • 18 March 2009 – the index to the appeal book was filed after further amendment following responses from the third, fourth, fifth and sixth respondents.
     
   • 6 April 2009 – the index to the appeal book was served on all respondents.
     
   • 2 June 2009 – by letter, the appellant requested the Court Reporting Services of the National Court for the transcript of 16 October 2008 in respect of WS 1140/06.
     
   • 28 August 2009 – by letter, the appellant wrote to the Court Reporting Services of the National Court advising that while he had received the transcript for 16 October 2008 in respect of WS 1140/06, he also required the transcript for 13 October 2008 in relation to the same matter ("the Missing Transcript").
     
   • 28 August 2009 – by letter, the appellant advised the respondents of the situation concerning the transcripts and suggested the appeal book be compiled and certified without the Missing Transcript which when obtained could be later included as a supplementary attachment to the appeal book ("the Alternative Course").
     
   • 23 September 2009 – a further amended index to the appeal book was filed which left out the Missing Transcript from the list of documents comprising the appeal book. This followed the only response to the appellant's letter of 28 August 2009 which came from the fifth respondent who did not object to the Alternative Course.
     
   • 7 October 2009 – the appeal book (without the Missing Transcript) was served on the respondents for their certification as to its correctness.
     
   • 12 October 2009 – the applicants raised their objection to the appeal book for lack of the Missing Transcript and refused to certify the appeal book.
     
   • 2 December 2009 – by letter, the applicants insisted on the Missing Transcript and forewarned that they would apply to have the appeal dismissed for want of prosecution should the appellant not obtain the Missing Transcript by the end of year 2009.
     
   • 18 January 2010 – with the Missing Transcript yet to be obtained and consistent with the forewarning, the applicants notified the appellant that it would seek dismissal of the appeal for want of prosecution without further notice.
     
   • 11 March 2010 – the applicants filed the present application and it was subsequently fixed for hearing on 26 April 2011.
     
   • 26 April 2011 – the application came on for hearing but was adjourned.
     
   • 28 April 2011 – the Missing Transcript was obtained.
     

The Law

4. Order 7 Rule 53 of the Supreme Court Rules provides:
   

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.

5. The relevant principles concerning this rule are found in many case authorities in this jurisdiction including Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55; General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 33; Dan Kakaraya v Sir Michael Somare & Ors (2004) SC762; PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811; Joshua Kalinoe v Paul Paraka (2007) SC 874 and Peter Yama & Ors v PNGBC Limited (2008) SC 922.
   
6. In Joshua Kalinoe v Paul Paraka (supra), the Supreme Court discussed the rule in this way:
   

"This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya v Somare & Others (2004) SC 762. See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811. Thus if an appellant has delayed in prosecuting his appeal the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances.

Turning to the requirements of Order 7 r 53 (a), the question is: Did the appellants fail to do any act required to be done under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence which would warrant, this Court to dismiss the appeal for want of prosecution?"

Applicants' arguments

7. The applicants submit that the appellant has not prosecuted its appeal with due diligence, more particularly he has failed to obtain the Missing Transcript to properly complete the appeal book and he has not offered any reasonable explanation for the failure.
   
8. The applicants say that not only did the appellant take a long time after filing the appeal to request for the relevant transcript but he did not pursue the matter with any zeal to demonstrate a keenness to prosecute the appeal. For this submission the applicants relied on the fact that apart from the letters of 2 June 2009 and 28 August 2009 by the appellant to the Court Reporting Services, there is no other evidence of the appellant following up on the request for the Missing Transcript particularly after the applicants had objected to the Alternative Course.
   
9. The applicants further argue that the lack of diligence is clear from the fact that despite the warning letters of 2 December 2009 and 18 January 2010 and notice of the current application, the appellant did not take any steps to obtain the Missing Transcript.
   

Appellant's arguments

10. The appellant submits that except for the Missing Transcript, the appeal book was complete and he was eager to progress the appeal and therefore proposed the Alternative Course on 28 August 2009 as a way forward to prosecuting his appeal. He further contends that in any case, the Missing Transcript has now been received so the appeal book can be properly finalised and this appeal set down and heard.
    
11. The appellant has therefore urged this Court to dismiss the application but make orders pursuant to Order 7 Rule 53(b) Supreme Court Rules for the appeal book to be completed and the appeal set down for hearing.
    

Settlement of Index

12. While we are willing to accept that as at the time of proposing the Alternative Course the appellant showed a genuine intention to progress the appeal, we are of the view that the applicants were correct in refusing to certify the appeal book as proposed.
    
13. The appeal book must be compiled in accordance with the Supreme Court Rules and in particular Order 7 Rules 33-43. The scheme of these rules is that the parties and the Registrar (which the Rules define as including any deputy, assistant or acting Registrar) settle the index to the appeal book, that is, they agree which documents are to be included in the appeal book and the order of these documents. The appeal book is then compiled in accordance with the index and if in order, the parties then certify its correctness before the appeal is set down for hearing.
    
14. In our view an appeal book cannot and should not be certified correct if it is not in accordance with the settled index. In the present case, the index that was settled with the Deputy Registrar listed the Missing Transcript as one of the documents to be included in the appeal book. It is also our opinion that any amendment to the settled index must itself be settled with the Registrar. To let parties chop and change a settled index as they please would render as meaningless the Registrar's role in settling the index and for that matter undermine his duty to ensure that the courts operate efficiently which includes expedited hearings of appeals. The Registrar is obliged to settle with parties the contents of the appeal book. If it were left to parties to settle the index, the process could go on forever if parties were not able to agree on the contents of an appeal book (for good reasons or otherwise) and this certainly would frustrate expediting the hearing of appeals, reaching finality to proceedings and the early dispensation of justice, which the rules aim to achieve.
    

Transcript of proceedings

15. For obvious reasons the transcript of the proceedings from which an appeal arises must necessarily be part of an appeal book. In order to properly consider the appeal, the appellate court must have before it the record of what transpired in the proceedings below. Order 7 Rules 37-39 Supreme Court Rules places an obligation on the appellant to obtain the transcript and have it corrected if necessary before settlement of the appeal book.
    
16. While we have stated that the appellant demonstrated a desire to progress the appeal as at 28 August 2009, we are not convinced that he has prosecuted his appeal with due diligence. The application before us is primarily based on the failure to obtain the Missing Transcript and we are of the view that the appellant has not satisfactorily explained why he was not able to obtain this document. On the evidence before this court, he requested the Court Reporting Services just the one time (in the letter of 28 August 2009) for this particular transcript. The request was made 10 months after filing of the Notice of Appeal and was the appellant's only attempt at obtaining the Missing Transcript during a period of 2 years 5 months before it was finally obtained on 28 April 2011.
    
17. We note that the appellant could have easily made application under section 5 Supreme Court Act for an order directing the Court Reporting Services to provide the relevant transcript if he considered the Services were unreasonable in not providing the transcript, but this option was not even considered.
    
18. Where an appellant fails to comply with the Supreme Court Act or the Supreme Court Rules or fails to duly prosecute his appeal, the respondent is entitled under Order 7 Rule 53 Supreme Court Rules to apply for a dismissal of the appeal; Donigi v PNGBC (2002) SC691 where the court noted that:
    
    • (a) an appellant has the obligation to obtain transcripts;
      
    • (b) the appellant should promptly request for the transcripts; and
      

held that 7 months delay in applying for the transcript of evidence without a satisfactory explanation for the delay may warrant the dismissal of an appeal.

Conclusion

19. In the end we find that the appellant did not take all the necessary steps required of him to diligently prosecute this appeal SCA No. 117 of 2008 and has not given reasonable explanation for the inordinate delay of 2 years 5 months before he was in a position to complete the appeal book.
    
20. Accordingly, we uphold the application and dismiss the appeal for want of prosecution.
    
21. Costs of the appeal are to be paid by the appellant to the respondents, to be taxed if not agreed.
    

___________________________________________________
Henaos Lawyers: Lawyers for the applicants/first and second respondents
Jerewai Lawyers: Lawyers for the respondent/ appellant
Blake Dawson Lawyers: Lawyers for the fifth respondent
Allens Arthur Robinson: Lawyers for the sixth respondent