Motor Vehicles Insurance Ltd v Api [2015] PGSC 4; SC1406 (24 February 2015)

SC1406

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 96 0F 2013

MOTOR VEHICLES INSURANCE LIMITED
Appellant

V

EVELYN API
Respondent

Waigani: Cannings J, Logan J, Toliken J
2015: 24 February

PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution – Supreme Court Rules 2012, Order 7, Division 19, Rules 48-51 – failure of appellant to prepare appeal book 18 months after filing notice of appeal.

The appellant appealed against the decision of the National Court to allow the respondent a further period within which to give notice to the appellant of her intention to make an insurance claim for personal injuries she allegedly received in a motor vehicle accident. A year after the appeal was filed the respondent filed an application to dismiss the appeal for want of prosecution on the ground that the appellant had not prosecuted the appeal with due diligence. At the hearing of this application, 18 months after the appeal was filed, the appellant had not produced an appeal book.

Held:

(1) There was an inordinate delay in prosecuting the appeal in that 18 months after filing the appeal and despite the respondent being fully cooperative, the appellant had not prepared the appeal book for certification.

(2) There was no explanation for the inordinate delay, let alone a reasonable explanation. These were sufficient reasons for the Court to exercise its discretion under Order 7, Rule 48(a) of the Supreme Court Rules 2012 and dismiss the appeal.

(3) Other considerations of note that weigh in favour of exercising the Court's discretion to dismiss the appeal were: the respondent's claim is a modest one; the grounds of appeal are based on alleged errors in the exercise of discretion and do not disclose any obvious jurisdictional error by the National Court; the appellant is a well-resourced litigant compared to what is presumed to be the limited financial circumstances of the respondent, giving rise to the appearance that by unnecessarily prolonging the appeal, the appellant could be engaging in oppressive conduct.

(4) Thus the application was upheld and the 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

APPLICATION

This was an application to dismiss an appeal for want of prosecution.

Counsel

P C Kopunye, for the appellant
R Mann-Rai, for the respondent

24th February, 2015

1. BY THE COURT: This is a ruling on an application for dismissal of an appeal for want of prosecution. The judgment under appeal is a judgment of the National Court at Mt Hagen on 18 July 2013 under which the respondent, Evelyn Api, was given an extension of time within which to give notice of a personal injury claim to the appellant, Motor Vehicles Insurance Ltd. The respondent then issued proceedings in the Wabag District Court in respect of a claim for personal injuries allegedly sustained by her in a motor vehicle accident on 24 January 2008. The amount of her claim is less than K10,000.00, that being the jurisdictional limit of the District Court.

2. We observe that since the notice of appeal was filed on 22 August 2013 the respondent has cooperated fully with the appellant in relation to the various steps necessary for progressing the appeal towards hearing. It is now 18 months after the filing of the notice of appeal. The appellant has still not produced an appeal book. It has not even provided a draft appeal book to the respondent's lawyers to certify as correct. As a consequence, the appeal has not been able to be set down for hearing. There is no explanation for this delay.

SUPREME COURT RULES, ORDER 7, DIVISION 19

3. The application for dismissal of the appeal is made (by virtue of an amendment to the application made with the leave of the Court) under Order 7, Division 19 (time, and want of prosecution) of the Supreme Court Rules 2012. That Division, comprising Rules 48 to 51, provides:

48. 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) 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.

49. The respondent may make application for an order under Rule 48 and the court may, after notice has been given to the appellant by the Registrar, make orders on reference from the Registrar.

50. An application for an order under Rule 48 shall—

(a) be in accordance with form 11; and

(b) be supported by affidavit.

51. An order under Rule 48 sub-rule (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

DISCRETION

4. Determination of an application of this nature involves an exercise of discretion, having regard to the circumstances of the particular case. The primary considerations are whether there has been an inordinate delay in prosecuting the appeal and, if there has been, whether there is an explanation for the delay and if yes, whether the explanation is acceptable (Donigi v PNGBC (2002) SC691, Dan Kakaraya v Sir Michael Somare (2004) SC762).

5. Here, there has been an inordinate delay in prosecuting the appeal. It is therefore incumbent on the appellant to provide a satisfactory explanation. However, no explanation at all has been provided. Against the background of the 18-month delay, this is a completely unsatisfactory state of affairs, which is a sufficient reason to uphold the application for dismissal under Order 7, Rule 48(a) of the Supreme Court Rules.

OTHER FACTORS

6. There are other aspects of this case that warrant remark. First we note that the respondent's claim, without disrespect to her, is a modest one, causing us to wonder why the appellant would go to such lengths to avoid meeting the merits of her claim. Secondly, the grounds of appeal in the notice of appeal are based on alleged errors in the exercise of discretion and do not disclose any obvious jurisdictional error by the National Court.

7. Thirdly, the appellant is a well-resourced litigant compared to the respondent, who appears to be a village woman of limited means. This gives rise to the appearance that by unnecessarily prolonging the appeal, the appellant could be engaging in oppressive conduct. We make no finding against the appellant in that regard. However, we caution against the spectre of oppressive conduct by parties in as dominant a position as the appellant in this case viz-a-viz a single person of limited means. We consider that there is a special obligation on an institutional litigant to prosecute appeals with due diligence. All these factors reinforce our conclusion that the we should uphold the application for dismissal and dismiss the appeal.

ORDER

1. The application filed on 3 September 2014 for dismissal of the appeal is upheld.
   
2. The appeal is dismissed.
   
3. Costs of this application and the appeal shall be paid by the appellant to the respondent on a party-party basis which shall if not agreed be taxed.
   

Judgment accordingly.

____________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant
Kopunye Lawyers: Lawyers for the Respondent