Ilai v Yasma [2019] PGSC 98; SC1857 (30 October 2019)

SC1857

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 68 OF 2014

BETWEEN:

BENNY ILAI
on his own behalf and as Customary Representative
of the Estate of Rex Waiagi
First Appellant

AND:
KOU WAIAGI, REBECCA WAIAGI and
PETER WAIAGI all infants by their
next friend BOB WAIAGI
Second Appellants

AND:
MARGARET SUA
Third Appellant

AND:
MICHAEL YASMA,
Vice Station Commander Six Mile Police
Station, National Capital District
First Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Gavara-Nanu J, Hartshorn J, Anis J
2019: 28^th & 30^th October

SUPREME COURT – PRACTICE AND PROCEDURE - Appeal referred for Summary Determination hearing - Whether Appeal should be dismissed for want of prosecution

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
Joshua Kalinoe v. Paul Paraka (2007) SC874

Counsel:

Mr. F. Unages, for the Appellants
Ms. R. Gelu, for the Second Defendant

30^th October, 2019

1. BY THE COURT: This is a decision on whether this appeal should be dismissed for want of prosecution after it had been referred for a summary determination hearing.

Background

2. The appellants appeal against a decision of the National Court that had granted leave for the proceeding before it to be withdrawn. In that proceeding, amongst others, damages had been sought in respect of the death of Mr. Rex Waiagi on or about 21^st July 2005. This appeal was filed on 12^th May 2014. A supplementary notice of appeal was purportedly filed on 16^th October 2015.

3. The appeal was initially set down for a summary determination hearing before the full court on 31^st August 2018 but the hearing was vacated. The appeal was then referred by a single judge of this court for a summary determination hearing on 5^th November 2018. Such a referral is made pursuant to Order 13 Rule 16(1)(b) Supreme Court Rules.

Submissions

4. The appellants submit that the appeal should not be summarily determined or dismissed for want of prosecution as amongst others:

1. all parties have contributed to the delay in prosecuting this appeal;
   
2. the appellants have taken steps to prosecute the appeal and there are reasons given for the delay;
   

100. it is in the interests of justice that the appeal proceeds to a substantive hearing.
     

5. The second respondent submits that the appeal should be summarily determined or dismissed for want of prosecution as amongst others:

a) the appeal was filed over five years ago;

b) there has been inordinate delay in its prosecution without a reasonable explanation for that delay;

c) the appellants have not complied with numerous acts required to be done by or under the Supreme Court Rules and have not prosecuted the appeal with due diligence.

Law

6. Order 7 Rule 48 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.”

7. The relevant principles governing this rule and its predecessor Order 7 Rule 53, are well established and are found in many case authorities 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 and Joshua Kalinoe v. Paul Paraka (2007) SC874.

8. In Joshua Kalinoe v. Paul Paraka (supra), the Supreme Court discussed the rule in this way [17] and [20]:

“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?”
Consideration

9. That the appeal was filed over five years ago and has not been heard is prima facie evidence that there has been delay in its prosecution. Further, after the appellants filed an index to the appeal book on 28^thJuly 2014 there was a delay of 15 months before they purportedly filed a supplementary notice of appeal on 16^th October 2015. There was then another delay of 19 months before an amended index to appeal book was filed on 12^th April 2017. Since then, no documents were filed that progressed the appeal until the appeal book was filed on 21^st February 2019. This was after the appeal had been referred for summary determination on 5^th November 2018. Clearly, there have been delays in prosecuting this appeal.

10. Is there any reasonable explanation for the delay? The first appellant deposes in essence as to unanswered letters written by his lawyer to the lawyers for the second respondent requesting dates for the settlement of the index to the appeal book, inaction by the lawyers for the second respondent, inaction by staff of the Supreme Court Registry and difficulty encountered by their lawyer in obtaining his practicing certificate.

11. The onus is upon the appellants to prosecute their appeal. If a respondent does not cooperate or staff at the Registry are perceived to be dilatory in the performance of their functions, the appellants should file an application to the Supreme Court seeking appropriate orders. Their remedy is not to continue writing letters that remain unanswered. As to their lawyer having difficulty in obtaining his practicing certificate, this is not a reasonable or adequate explanation for delay in prosecuting an appeal. The appellants should have obtained the services of another lawyer. As an aside, we mention that from a perusal of the transcript, given the reason for this appeal and given the apparent inaction of their lawyers in prosecuting the appeal, the appellants may have grounds for an action of professional negligence against their previous lawyers.

12. We are not satisfied that the explanations given for the delays in prosecuting this appeal are reasonable. We are further satisfied that in total the delay in prosecuting the appeal is inordinate.

13. In regard to non-compliance with Supreme Court Rules, one instance is that concerning the filing of the supplementary notice of appeal on 16^th October 2015. Pursuant to Order 7 Rule 25 Supreme Court Rules, the notice of appeal may, before the date of the appointment to settle the appeal book under Rule 42 be amended without leave by filing a supplementary notice. The date for the appointment to settle the appeal book in the notice of appeal is 3^rd June 2014. To file a supplementary notice of appeal after that date, which is what occurred here, about 16 months later, required leave to be obtained. There is no evidence that leave was obtained for the appellants to file their supplementary notice of appeal. This issue was not addressed at all in evidence or submissions by the appellants.

14. Consequently, as leave was not obtained as required to file their supplementary notice of appeal and as mentioned, we are satisfied that there has been inordinate delay in the prosecution of the appeal with no adequate or reasonable explanation for the delay proffered, we are of the view that the appropriate exercise of this court’s discretion is to dismiss the appeal for want of prosecution pursuant to Order 7 Rule 48(a) Supreme Court Rules. Given this it is not necessary to consider the other submissions of counsel.

Orders

15. The Court orders that:

a) This appeal is dismissed for want of prosecution pursuant to Order 7 Rule 48(a) Supreme Court Rules;

b) The appellants’ shall pay the costs of the second respondent of and incidental to this appeal on a party/party basis to be taxed if not otherwise agreed.
__________________________________________________________________
Unages Lawyers: Lawyers for the Appellants
Office of the Solicitor General: Lawyers for the Second Respondent