SC2482

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 175 OF 2017

BETWEEN
DAVID GUINN t/a GUINN PKF
CHARTERED ACCOUNTANTS
Appellant

AND
THOMAS SEROWA
Respondent

Waigani: Salika CJ, Hartshorn, Dingake JJ
2019: 16th June

SUPREME COURT APPEAL – practice and procedure – application by respondent for dismissal of appeal for want of prosecution – application of this nature involves exercise of discretion by the Court - primary considerations are whether there has been an inordinate delay in prosecuting the appeal, and if there has been, whether the explanation given by the defaulting party is acceptable – applicant consented to directional orders by parties and endorsed by court – whether the applicant waived his right to object to the delay to prosecute the appeal? - applicant’s act of taking the lead to draft consent Directional Orders on which was finally endorsed by the Court was an unequivocal indication that the applicant no longer had any interest in taking issue with the delay – application dismissed

Cases Cited:

Papua New Guinean Cases
Peter Dickson Donigi v PNGBC (2002) SC691
Dan Kakaraya v Sir Michael Somare (2004) SC762

Overseas Cases
Greenwood Reversions Ltd v World Entertainment Foundation Ltd (2008) HLR 31

Counsel:
Mr. R. Raka, for the Appellant
Mr. T. Serowa in person

16th August 2019

1.	BY THE COURT:	This is a ruling on an application brought by the respondent, Mr. Serowa, for dismissal of an appeal filed by the appellant, for want of prosecution.

2.	It is not disputed that the appeal sought to be dismissed which has to date not been heard was filed on the 8th of December, 2018, against the decision of the National Court in Mount Hagen, dated the 31st of October, 2017.

3.	In this application, Mr. Serowa, complains that the appellant for a period of about 14 or 15 months, failed to prosecute the appeal with due diligence since filing the appeal.

4.	The appellant on the other hand avers that his attempt to prosecute the appeal ran into a number of problems including the failure of the Court reporting services to avail the transcripts it sought.

5.	On or about the 14th of March, 2019, the applicant herein, keen to progress the appeal, drafted Consent Orders, which were subsequently agreed to by the appellant, and were by consent, endorsed by the Court in the form of a consent Directions Order on or about the 18th of March, 2019.

6.	It is common cause that the appellant did not comply with the Direction Orders issued by the Court on the 18th of March, 2019, citing as his reasons the difficulty of obtaining the requisite transcripts.

7.	On the 3rd of May, 2019, the applicant filed this current application.

8.	It is trite learning that an application of this nature involves an exercise of discretion by the Court. The primary considerations are whether there has been an inordinate delay in prosecuting the appeal, and if there has been, whether the explanation given by the defaulting party is acceptable (Donigi v PNGBC (2002) SC691; Dan Kakaraya v Sir Michael Somare (2004) SC762).

9.	In this case the fact that there has been an inordinate delay to prosecute the appeal cannot be denied. The explanation for the delay according to the appellant is that it encountered difficulties in obtaining the transcripts. We consider such an explanation in the absence of any evidence to the contrary reasonable.

10.	It is common cause that notwithstanding the delay complained of, the applicant took the lead in drafting consent orders to progress the matter. Such consent orders were endorsed by the Court on the 18th of March, 2019.

11.	Having regard to the above step by the applicant, the question that arose during argument, which now falls for determination, is whether the applicant waived his right to object to the delay to prosecute the appeal?

12.	A waiver may occur where one party to the litigation conducts himself/herself in a manner as to evince an intention to waive his/her right or where his/her conduct is inconsistent with any other intention than to waive it.

13.	Waiver, as we understand it, depends on the law implicated in any dispute, but the principles applicable in the landlord and tenant context are probably of the most relevance.

14.	In the United Kingdom case of Greenwood Reversions Ltd v World Entertainment Foundation Ltd (2008) HLR 31, the court remarked that the test of waiver requires the Court to consider objectively whether in all the circumstances of the case, the act relied upon as constituting waiver is so unequivocal that when considered objectively it could only be regarded as the rights holder having forfeited the exercise of his right, in this case, the right to complain about the delay to prosecute the appeal.

15.	We entertain no doubt in our minds that objectively assessed the applicant’s act of taking the lead to draft consent Directional Orders on or about the 14th of March, 2019, to progress the matter, which was finally endorsed by the Court on the 18th of March, 2019, was an unequivocal indication that the applicant no longer had any interest in taking issue with the delay, and wanted the appeal to proceed to be determined in due course.

16.	In all the circumstances of this case, and for reasons stated above, this application is without merit and should be refused.

17.	Following this ruling, it is now incumbent upon the appellant to take all necessary steps and within reasonable time to progress this matter to finality.

18.	In the premises we make the following formal orders:

18.1	The application to dismiss the appeal for want of prosecution is hereby dismissed with costs.
___________________________________________________________
Posman Kua Aisi Lawyers: Lawyers for the Appellants
Lawyers for the Respondents:   In Person