Kavi v Australia and New Zealand Bank Ltd [2020] PGSC 38; SC1951 (1 June 2020)

SC1951

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 100 OF 2017

BETWEEN:
ELIZABETH KAVI
Appellant

AND:
AUSTRALIA AND NEW ZEALAND
BANK LIMITED
First Respondent

AND:
KAINANTU ELECTRICAL
COMPANY LIMITED
Second Respondent

Waigani: Manuhu J, David J, Hartshorn J,
2019: 19^th December
2020: 1^st June

SUPREME COURT APPEAL– practice and procedure - Application to dismiss the appeal for want of prosecution - explanations given for the delay in prosecuting the appeal not reasonable - appellant may have grounds for an action of professional negligence against her previous lawyers - The explanations given are not such that they should permit this proceeding to continue – appeal 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
ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577
Joshua Kalinoe v. Paul Paraka (2007) SC874
Rangip v. Loko (2009) N3577
Schnaubelt v. Chan (2012) N4791
Inchcape Shipping Services (PNG) Ltd v. TG Holdings Ltd (2010) N4268
National Development Bank Ltd v. Iangalio (2014) N4931
Nelulu Land Group Inc. v. Rimbunan Hijau (PNG) Ltd (2018) N7994

Counsel:

Mr. F. So, for the Appellant
Ms. E. Noki, for the First Respondent
Ms. E. Suelip, for the Second Respondent

1^st June, 2020

1. BY THE COURT: This is a decision on a contested application to dismiss this appeal for want of prosecution. The application is made by the second respondent and supported by the first respondent. Application is made pursuant to Order 7 Rule 48 Supreme Court Rules.

Background

2. This is an appeal against the dismissal of a National Court proceeding. The appellant/plaintiff had owned a property in Lae. The first respondent sold the property to the second respondent by mortgagee sale. The appellant/plaintiff had commenced a National Court proceeding by originating summons and had sought orders in respect of the property. The proceeding was dismissed pursuant to Order 12 Rule 40 National Court Rules for amongst others, disclosing no cause of action and being frivolous, vexatious and an abuse of process.

3. This appeal was filed in July 2017 and a stay of the decision appealed was granted on 18^th October 2017. The application to dismiss for want of prosecution was filed on 28^th March 2018.

Law

4. 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.”

5. 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.

6. 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

7. As to whether there has been any delay in prosecuting the appeal, a period of 1 year 9 months elapsed from when the appeal was filed until the appellant took steps to settle the appeal book. The delay is not disputed by the appellant. The appellant submits however, that the delay was not intentional and was caused by the actions or inactions of the various lawyers that the appellant has retained to act for her in this appeal.

8. The specific instances that comprise the delay are amongst others, over 1 month after filing the appeal to apply for a stay, over six months to prepare the appeal books and 8 months to sign the application book for the dismissal application. Further, it took about 1 year 7 months for the appeal book to be filed by the appellant after the draft index had been settled. The contributing factor for this was that the appellant's lawyers delayed or refused in signing the application book for the dismissal application, which application had been filed in March 2018. We are satisfied that the delay in total in the circumstances, is not just substantial but it is inordinate.

9. Is there any reasonable explanation for the delay in prosecuting the appeal? In essence, as mentioned, the action or inactions of the appellant's various lawyers is given as the explanation.

10. As to a lawyer's conduct, as was said by Hartshorn J. in Nelulu Land Group Inc. v. Rimbunan Hijau (PNG) Ltd (2018) N7994 and Rangip v. Loko (2009) N3577, the negligence of a lawyer is not a good reason to allow a proceeding that should otherwise be dismissed, to continue. Also a lawyer's other commitments are not a reasonable excuse for not attending court on time: National Development Bank Ltd v. Iangalio (2014) N4931. In Inchcape Shipping Services (PNG) Ltd v. TG Holdings Ltd (2010) N4268, it was held that amongst others, that the negligence of a lawyer should not constitute a satisfactory explanation as to why judgment was allowed to be entered by default. See also Schnaubelt v. Chan (2012) N4791 in which Makail J. said:

“Time and again, this Court and the Supreme Court have held that lawyers’ negligence is not a reasonable explanation for allowing a default to occur or a ground to set aside a judgment: Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364 and Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378.”

and ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577 in which Injia J (as he then was) said:

“His client has a right to sue him for professional negligence. His negligent conduct in allowing his client to suffer the judgment or order cannot be a good basis for an application to set aside the judgment or order of the Court: Leo Dugure v Avia Andrew Paru Unreported Supreme Court judgment SC 510 dated 18 October 1996.”
11. In this instance we are not satisfied that the explanations given for the delay in prosecuting the appeal are reasonable. In this regard, the appellant may have grounds for an action of professional negligence against her previous lawyers. The explanations given are not such that they should permit this proceeding to continue.

Orders

12. It is ordered that:

a) This appeal is dismissed for want of prosecution;

b) The appellant shall pay both respondents' costs of and incidental to the appeal.
__________________________________________________________________
Ketan Lawyers: Lawyers for the Appellant
Bradshaw Lawyers: Lawyers for the First Respondent
Mordelai & Associate Lawyers: Lawyers for the Second Respondent