Lange v Madang Cocoa Growers Export Co Ltd [2017] PGSC 52; SC1651 (15 December 2017)

SC1651

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 66 OF 2015

BETWEEN:

BERNARD ALVIN LANGE
Administrator Madang Provincial Government
First Appellant

AND:
MADANG PROVINCIAL GOVERNMENT
Second Appellant

AND:
MADANG COCOA GROWERS EXPORT COMPANY LTD
Respondent

Waigani: Gavara-Nanu, Toliken & Bona JJ

2017: 13 & 15 December

PRACTICE & PROCEDURE – Appeal – Application to dismiss for want of prosecution – Supreme Court Rules, 2012; Order 7 r 48 (a) – Delay – No reasonable explanation – Need for finality of proceeding.

Cases cited

Anderson Agiru v. The Electoral Commission (2002) SC686
Attorney-General, Minister for Justice & The State v. PNG Law Society (1997) SC530
Avia Aihi v. The State (No.1) [1981] PNGLR 81
General Accident Fire & Life Insurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Gulf Provincial Government v. Baimuru Trading Pty Ltd [1998] PNGLR 311
Michael Newell Wilson v. Clement Kuburam (2016) SC 1489
Peter Norr v. Dominic Ikamala (2005) SC815
PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811
SCR No.2 of 1990 [1991] PNGLR 211
Yori Yei v. James Marape (2015) N6339

Counsel

E. Komia, for the Appellant/ Respondent
L. Mamu, for the Respondent/Applicant

15^th December, 2017

1. BY THE COURT; The respondent makes this application pursuant to Order 7 r 48 (2) of the Supreme Court Rules 2012, seeking dismissal of the appeal for want of prosecution.

2. The decision of the primary judge in respect of proceeding WS No. 1138 of 2013, which has been appealed was given on 17 April, 2015. The decision was the refusal by the primary judge to set aside a default judgment entered against the appellant.

3. The Notice of Appeal was filed on 26 May, 215.

4. We note from the endorsements in the Court file that both the default judgment on liability given on 22 April, 2014, and the judgment on quantum of damages given on 15 January, 2016, by the primary judge were stayed on 2 November, 2016 by the Supreme Court pending full determination of the appeal. We also note that an examination of the first appellant in respect of the matters relating to the proceeding was also stayed.

5. We further note from the endorsements in the Court file that on 23 November, 2016, certain Orders were made for the appellants to take immediate steps to expedite the progress of the appeal, with the view to the appeal being heard in the December, 2016, Supreme Court sittings. Costs for the Orders were awarded to the respondent. A Court Order entered on 25 November, 2016 contains those Orders.

6. Again from the endorsements in the Court file we note that on 6 February, 2017, the appellants were ordered to file and serve certified Appeal Books by 10 February, 2017. A Court Order filed on 7 February, 2017, contains those Orders.

7. As at the date of hearing this application viz; 13 December, 2017, still no Appeal Books have been filed. Mr. Komia of counsel for the appellants told the Court that Appeal Books were ready and could be filed any time after the hearing. However, going by the exchanges between the bench and Mr. Komia, we are not convinced that the Appeal Books were even ready for immediate filing and service.

8. Mr. Komia tried to explain from the bar table his reasons for the delay in having the Appeal Books ready but stopped after he agreed that he was effectively giving evidence from the bar table. The end result is that the appellants have not provided any explanation at all for the delay.

9. It is now 2 years 7 months since the filing of the appeal and 1 year 3 weeks from 23 November, 2016, when the appellant was directed to progress the appeal for hearing in the December, 2016 sittings of the Supreme Court. However, since 23 November, 2016, no appropriate actions had been taken by the appellants to comply with those directions.

10. The Court’s power to dismiss an appeal for want of prosecutions is conferred by Order 7 r 48 (a) of the Supreme Court Rules, 2012. This rule appears under Division 19 which is headed – Time and want of prosecution. The Rule is in these terms:

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

11. The critical period of delay the Court has to consider is 1 year 3 months calculated from 23 November, 2016, viz; the date Supreme Court directed the appellants to take all appropriate steps to progress the appeal for hearing in December, 2016 Supreme Court sittings. The Orders issued by the Court on 6 February, 2017, for certified Appeal Books to be filed by 10 February, 2017, in our view aggravates the issue of delay. It is quite plain to us that the Orders were issued due to the lengthy delay in this appeal being prosecuted, as it became obvious to the Court that the delay was long and inordinate.

12. There is no dispute that the respondent has established a lengthy delay. This is in fact conceded by the appellants. The onus therefore had shifted to the appellants to provide explanations for such delay, and the explanations had to be reasonable: PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811. Unfortunately, no explanation at all had been given by the appellants for the long delay. As we pointed out to Mr. Komia during the hearing an affidavit explaining the reasons for not filing certified Appeal Books by 10 February 2017, as well as delay generally should have been filed, but no such affidavit was filed. The appellants have not discharged the onus that had fallen on them to explain why the appeal is still not ready even after 2 years 7 months. See, Attorney-General, Minister for Justice & The State v. PNG Law Society (1997) SC530 and General Accident Fire & Life Insurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331.

13. Mr. Komia submitted that it is still within our discretion to allow the appellants to file the Appeal Books so that the appeal can be heard later. He argued that interest of justice requires such exercise of our discretion. He argued that the appellants can still be penalized with costs against them on full indemnity basis. Here, Mr. Komia essentially is urging us to exercise our discretion under Order 7 r 48 (b) and (c) of Supreme Court Rules 2012. However, we are of the firm view that if we exercised our discretion in that manner, it would not be proper given the circumstances of the case, especially in the face of the long and inordinate delay and the total lack of any explanation by the appellants for the delay, and their failure to file and serve certified Appeal Books by 10 February, 2017.

14. We are required by law to exercise our discretion judicially and do justice according to law: Avia Aihi v. The State (No.1) [1981] PNGLR 81 and SCR No.2 of 1990 [1991] PNGLR 211. It would not be proper for us to exercise our discretion in the way suggested by Mr. Komia because such exercise of our discretion would in the circumstances of the case be contrary to the requirements of Order 7 r 48 (a) of the Supreme Court Rules, 2012, viz; contrary to law. This may amount to abuse of process. The Court has a duty to protect its processes from being abused: Anderson Agiru v. The Electoral Commission (2002) SC686; Michael Newell Wilson v. Clement Kuburam (2016) SC 1489; Gulf Provincial Government v. Baimuru Trading Pty Ltd [1998] PNGLR 311 and Yori Yei v. James Marape (2015) N6339.

15. We accept Mr. Mamu’s submission that the respondent is entitled to the benefits of the judgment of the primary judge. If we accept the submissions by Mr. Komia, it would result in more delays. As a matter of law, the matter should not be delayed any further, certainly not by the Orders of the Court. When a proceeding is issued it becomes subject to the general requirement that it be brought to finality.

16. Litigants who initiate proceedings, including appeals have an onerous responsibility to ensure that they do everything that is required of them by law to expedite the proceedings to finality. If they fail in this responsibility they do so at their own peril, especially when there is unexplained delay in the proceedings been finalized, especially where the delays are continuous and chronic. See also Peter Norr v. Dominic Ikamala (2005) SC815.

17. For the foregoing reasons, we uphold the application and order that appeal be dismissed for want of prosecution with costs.

18. Orders accordingly.
_____________________________________________________________
Public Solicitor : Lawyers for the Appellant
Solicitor General : Lawyers for the Respondent