Magellan Properties Ltd v Steamships Trading Company Ltd [2016] PGSC 36; SC1518 (29 June 2016)

SC1518

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 129 OF 2015

MAGELLAN PROPERTIES LIMITED
First Appellant

BISMARK MARITIME LIMITED
Second Appellant

V

STEAMSHIPS TRADING COMPANY LIMITED
First Respondent

HARBOURS DEVELOPMENT LIMITED
Second Respondent

Waigani: Cannings J, Collier J, Ipang J

2016: 27, 29 June

PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution – Supreme Court Rules 2012, Order 7, Rule 48– failure of appellants to get date for settling appeal book – Supreme Court Rules, Order 7, Rule 33 – difference between seeking a date and getting a date.

The appellants appealed against a final decision of the National Court in civil proceedings. Six months after the appeal was filed the appellants had not got a date to settle the appeal book and had taken no other substantive action to prosecute the appeal. The respondents 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, which was eight months after the appeal was filed, the only other step taken by the appellants was the filing of a draft index to the appeal book.

Held:

(1) There was an inordinate delay in prosecuting the appeal.

(2) There was no reasonable explanation for the delay.

(3) The application was upheld and the appeal was dismissed.

Cases cited:

The following cases are cited in the judgment:

Mann v Alpar Trading Ltd (2014) SC1382
National Fisheries Authority v New Britain Resource Development Ltd (2011) SC1131
Thompson v Karingu (2008) SC932

APPLICATION

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

Counsel:

M N Wilson, for the Appellants
T M Goodwin, for the Respondents

29^th June, 2016

1. BY THE COURT: In the substantive proceedings the appellants appeal, pursuant to a notice of appeal filed on 21 October 2015, against the whole of the judgment of the National Court given on 12 August 2015.
   

APPLICATION

2. The matter currently before the Court is an application by the respondents pursuant to Order 7,Rule 48 of the Supreme Court Rules in which they seek dismissal of the appeal for failure of the appellants to:
   

• comply with Order 7 Rules 33, 34, 35, 40 and 41 of the Supreme Court Rules; and
  
• prosecute the appeal with due diligence.
  

RESPONDENTS’ SUBMISSIONS

3. The respondents rely on the following grounds:
   
   1. The appellants failed to comply with the Supreme Court Rules 2012 in particular:
      
      • (a) failing to obtain from the Registry and serve on the respondents a date of settlement of the appeal book as required under Order 7, Rules 33, 34 and 35;
        
      • (b) failing to file and serve on the respondents a draft Index to the appeal book as required under Order 7, Rules 40 and 41;
        
      • (c) failing to diligently prosecute the appeal for six months being from the time of filing the notice of appeal on 21 October 2015 to the time of filing of this application in April 2016.
        
   2. The appellants have failed to give a reasonable explanation on their delay in prosecuting the appeal.
      

4. The respondents submitted:

• The National Court found in their favour in respect of their claim against the appellants, which claim concerned the existence or otherwise of an implied easement giving the appellants a right of way over harbour-side property of the respondents. His Honour at first instance found against the existence of an implied easement in the appellant’s favour, and further that the appellants had brought their problems upon themselves by their own illegal or unapproved actions which caused them to encroach on the respondents’ property.
  
• In respect of the actions of the appellants in prosecuting their appeal, the key questions were whether there had been an inordinate delay, and if there had been, whether there was an acceptable explanation for the delay.
  
• The appellants were required by Order 7, Rule 33 of the Supreme Court Rules to obtain a date of appointment for settlement upon filing of the notice of appeal. The appellants had not done so as at 25 April 2016 (the date on which the respondents’ application was filed).
  
• Order 7, Rules 40 and 41 of the Supreme Court Rules require the draft index of the appeal book to be filed and served on the respondents before the date of the appointment for settlement and no later than two days before that date. No date of appointment had been obtained as at 25 April 2016, and the appellants had taken no active steps to agree on an appointment date for settlement and progress matters.
  
• While, after being served with the respondents’ application, the appellants served a draft index to the appeal book dated 10 May 2016 on the respondents, that action was insufficient to overcome earlier non-compliance, being too late and simply responsive to action taken by the respondents. Further, the draft index filed on 10 May 2016 by the appellants was simply a “cut and paste” of court documents filed in the National Court with no attempt to remove documents not necessary for the appeal.
  
• There had been an inordinate delay in prosecuting the appeal, for which no explanation had been given as at the date of the respondents’ filing their affidavit. Further, the appellants had filed no evidence explaining the delay.
  

APPELLANTS’ SUBMISSIONS

5. The appellants submitted:

• Following the service of the notice of appeal on the respondents’ lawyers, the appellants endeavoured – by way of letter and verbal communication – to get a date from the Supreme Court Registry for settlement of the index to the appeal book.
  
• The appellants’ lawyers wrote to the Registry on 5 November 2015 for a date to settle the appeal book but there was no reply from the Registry to confirm a date.
  
• The respondents’ lawyers wrote to the appellants’ lawyers on 3 February 2016 and 20 April 2016, stating that the appeal was not progressing and a draft index to the appeal book had not been prepared.
  
• On 9 May 2016 the appellants’ lawyers wrote to the respondents’ lawyers stating that they had prepared a draft index to the appeal book. The index was filed on 10 May 2016, and served on 12 May 2016. An appointment date was set for 1 June 2016, however no lawyers for either appellants or respondents attended.
  
• It is primarily the duty of the Registrar to set an appointment date for settling the index to the appeal book.
  
• The interests of justice support an order dismissing the respondents’ application.
  
• Activity on the part of the appellants since April 2016 shows every intention to prosecute the appeal.
  

PRINCIPLES

6. The application for dismissal of the appeal is made pursuant to Order 7, Rule 48 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; 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.

7. In discussing the precursor to the current Order 7, Rule 48 of the Supreme Court Rules, the Supreme Court in National Fisheries Authority v New Britain Resource Development Ltd (2011) SC1131 observed pertinently as follows:

The relevant principles concerning the application of this Rule are found in many Supreme Court case authorities in this jurisdiction starting with Burns Philip (NG) Ltd v Maxine George [1983] PNGLR 55 which has since been approved and followed in many cases including Joshua Kalinoe v Paul Paraka(2007) SC874 where the Supreme Court discussed the requirements of the rule in this way:

“This rule relates to the diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya v Somare (2004) SC672. See also PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811. 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 a delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances.”

8. The respondents point to the failure of the appellants to comply with Order 7 Rules 33, 34, 35, 40 and 41 of the Supreme Court Rules, which provide:

33. The appellant shall on filing the notice of appeal get from the proper officer in the Registry an appointment to settle the appeal book.

34. The appellant shall serve notice of the appointment on each person on whom the appeal is served.

35. The notice of appointment may be subscribed to the notice of appeal.

...

40. 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.

41. 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.

9. Timely compliance with these rules, in particular 33 and 40, is crucial to the proper prosecution of an appeal.

10. It is not in dispute that the appellants had not complied with these Rules at the time the respondents filed the application currently before the Court. Principles relevant to the exercise of the Court’s discretion to dismiss proceedings for want of prosecution are well-settled. As the respondents correctly submit, the primary issues are:

1. Has there been an apparent delay in prosecuting the matter?
   
2. If yes, does the person apparently guilty of the delay have a satisfactory explanation for the delay?
   

More recently a third principle has been considered relevant, namely:

3. Does the justice of the case favour such dismissal?(Mann v Alpar Trading Ltd(2014) SC1382.)
   

THIS CASE

11. There appears to have been inordinate delay in prosecuting the matter. The only action taken by the lawyers for the appellants between the time the notice of appeal was filed and the date of filing of the respondents’ application (a period of 6 months) was a letter written to the Registrar on 5 November 2015 seeking a date to settle the appeal index. Indeed the letter itself was minimal:

Dear Sir/Madam

SCA No 129 OF 2015

MAGELLAN PROPERTIES & ANOR V STEAMSHIPS TRADING COMPANY LIMITED

We refer to above matter and request a date for the settlement of the appeal book. Since the appeal being filed in 21^st October 2015, we have never been given a date to settle the appeal book.

Please confirm a date and liaise with us.

12. The only explanation provided by the appellants for the absence of activity in respect of the appeal was the apparent lack of response by the Registry of the Supreme Court to that letter written. Counsel for the appellants also urged the Court to take into account the intentions of the appellants to prosecute the appeal as evinced by their actions to prepare a draft index for settlement by the Registrar, and the arrangement of a date to settle the index.

13. We note that an order dismissing the appeal for want of prosecution by the appellants, where the fault may have been that of the lawyers for the appellants rather than the appellants themselves, could in some circumstances be unfair. In this case, however, we consider the proper order is to uphold the application for dismissal of the appeal for want of prosecution. We have formed this view for the following reasons.

14. First, Order 7,Rule 33 of the Supreme Court Rules requires an appellant on filing the notice of appeal to “get” from the registry an appointment to settle the appeal book. Actions mandated by Rules 34, 35, 40 and 41 are referable to the date of that appointment. No time limit by when the appointment must be ‘got’ is stipulated – the rule requires that the appointment be ‘got’ on filing the notice of appeal. “Get” clearly entails more than requesting an appointment – it means that the appointment must be obtained. Order 7 Rule 33 contemplates the appointment must be ‘got’ contemporaneously with the filing of the notice of appeal. The terms of the rule clearly indicate the importance, in terms of prosecuting an appeal, of the appellant immediately making arrangements to settle the appeal book and index. There is a significant difference between seeking an appointment to settle the index and getting such a date. An appellant must not only seek a date, but get a date (Thompson v Karingu (2008) SC954).

15. In this case not only did the appellants fail to “get” an appointment from the Registry on filing the notice of appeal, they waited more than two weeks after filing the notice of appeal and then wrote to the Registrar to request a date for settlement of the appeal book. And then did nothing more.

16. Secondly, in submissions to this Court the appellants complain about the lack of response from the Registry to their letter of 5 November 2015, and try to shift blame to the Registry for their failure to comply with Order 7,Rule 33. If the Registry was unresponsive to correspondence from legal representatives, such lack of response is of concern to the Court. However of more concern in the context of this appeal is the apparent lack of interest of the appellants in following up their letter of 5 November 2015 and endeavouring to “get” an appointment to settle the appeal book from the proper officer in the Registry. Even in the face of warning letters from the lawyers from the respondents on 3 February 2016 and 20 April 2016 the appellants took no steps to attempt to comply with their obligation under Order 7, Rule 33.

17. The fact remains that until the respondents filed this application no action of any substance was taken by the appellants to discharge the obligations imposed on them by the Supreme Court Rules in prosecuting this appeal.

18. Thirdly, we consider that a period of six months of inaction by the appellants after filing the notice of appeal constitutes an inordinate delay and failure to prosecute the appeal with due diligence for the purposes of Order 7 Rule 48 of the Supreme Court Rules and within the meaning of principles discussed in relevant authorities. No real explanation– much less satisfactory explanation – has been provided by the appellants for this inaction.

19. Fourthly, while counsel for the appellants made submissions as to the good intentions of the appellants to properly prosecute the appeal, we note that:

• a draft index to the appeal book was not filed until more than two weeks after the respondents filed the current application;
  
• the appeal book has still not been settled; and
  
• although an appointment was made at the Registry for 1 June 2016 for settlement of the appeal book, counsel for the appellants conceded that no representative of the appellants attended the Registry on that date.
  

20. This latter failure possibly speaks more to the standard of legal representation offered by the lawyers for the appellants in this case than the intentions of the appellants themselves. However on the material before the Court we are not in a position to draw any firm conclusions. We can simply note that such conduct is consistent with the lack of interest exhibited by the appellants (and their legal representatives) in respect of this appeal until faced with the respondents’ application currently before the Court and the very real prospect of dismissal of the appeal.

21. We also note that, despite the submission of the appellants that no legal representative of the respondents attended the Registry on 1 June 2016, objection to that submission was taken by counsel for the respondents. Indeed from the bar table counsel for the respondents submitted that his records indicated that a member of his firm had attended the appointment at the Registry on 1 June 2016.

CONCLUSION

22. The proper order in these circumstances is to uphold the respondents’ application and dismiss the appeal for want of prosecution. Costs will follow the event.

ORDER

1. The respondent’s application filed on 25 April 2016, for dismissal of the appeal, is granted.
   
2. The appeal is dismissed.
   
3. The appellants shall pay the respondents’ costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
   

Judgment accordingly,

___________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellants
O’Brien’s Lawyers: Lawyers for the Respondents