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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 104 OF 2021
BETWEEN:
CATHERINE GRAHAM
First Appellant
AND
DARRYL JEE
Second Appellant
AND
MICHAEL KARL KLATT AS ADMINISTRATOR OF THE ESTATE OF FOOK NENG JEE (DECEASED)
Respondent
Waigani: Makail, J, Anis, J & Numapo, J
2022: 30th March & 2nd September
SUPREME COURT – PRACTICE & PROCEDURE – Application to summarily dismiss appeal – Application premised on failure to serve notice of appeal without delay – Whether requirement for service without delay mandatory – Notice of appeal served 48 days after date of filing– Question of reasonable time to serve notice of appeal – Reasonable explanation for delay – Evidence admitting to deliberate acts of withholding notice of appeal to await legal opinion on whether the appeal or a related proceeding may constitute multiplicity of proceedings – Supreme Court Rules – Order 13, Rule 16(1)(a)
SUPREME COURT – PRACTICE & PROCEDURE – Preliminary objection – Use of correct form – Whether application premised on form 4 or form 11 – Applications of the forms and their purposes – Whether variation may be permitted – Supreme Court Rules – Order 7, Rule 48 & Order 13, Rule 16 – Form 4 & Form 11
SUPREME COURT – PRACTICE & PROCEDURE – Application for want of prosecution – Application for summary dismissal – Failure to service notice of appeal without delay – Requirement to serve notice of appeal form part of the appeal process – Failure to serve notice of appeal without delay constitute a ground for appeal to be dismissed for want of prosecution – Application for summary dismissal treated as application for want of prosecution – Supreme Court Rules – Order 7, Rule 13, Order 7, Rule 48 & Order 13, Rule 16
Cases Cited:
Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273
Jimm Trading Limited v. TST 4 Mile Limited and Ors (2019) SCA 52 of 2018 (Unreported SC judgment of Salika CJ, Manuhu J and Hartshorn J delivered on 20 September 2019)
Yema Gaiapa Developers Pty Ltd v Hardy Lee (1995) SC484
PNG Aviation Services Pty Ltd v. Michael Thomas Somare & State (2017) SC1590
Marape v. O’Neill (2015) SC1458
John Midan & Anor v. Oscar Lisio (2010) SC1086
Counsel:
Mr. D. Kipa, for the Appellants
Mr. I. Shepherd, for the Respondent
RULING
2nd September, 2022
1. MAKAIL J: This is a contested application to summarily dismiss an appeal for failure to serve a notice of appeal without delay pursuant to Order 7, rule 13 and Order 13, rule 16 of the Supreme Court Rules (“SCR”).
2. From the affidavits filed by the parties and contained in the application book, the following are accepted as facts not in dispute:
2.1 The deceased Late Fook Neng Jee died on 8th August 1998. She left behind a Will dated 29th June 1995.
2.2. The first appellant is the daughter of the deceased. The second appellant is the grandson of the deceased.
2.3. The respondent is the duly appointed executor of the estate of the deceased. He was appointed on 30th July 2012 and replaced Thomas (Meng Chow) Jee. Thomas is the brother of the first appellant.
2.4. The respondent served a Notice to Enforce or Establish a Claim of the estate of the deceased under Section 60 of the Wills, Probate and Administration Act.
2.5. On 3rd March 2020, the appellants commenced proceeding in the National Court referenced WS No 172 of 2020. They sought several orders, one of which was a declaration that they retain one of the properties of the estate of the deceased.
2.6. This property is described as Business Lease, Allotment 8, Section 3, Kavieng, New Ireland Province.
2.7. On 22nd July 2021, Thompson J upheld an application by the respondent and dismissed the proceeding on the grounds that it was ambiguous and amounted to an abuse of process and being time-barred.
2.8. On 31st August 2021 the appellant filed a notice of appeal. The lawyers for the appellants did not serve it on the respondent until 18th October 2021. They served it on the respondent’s lawyers in Port Moresby. This was 48 days after the date of its filing.
2.9. Both parties’ lawyers are based in Port Moresby.
2.10. Around the same time, the appellants also filed a fresh proceeding in the National Court referenced WS No 429 of 2021.
2.11. On 1st November 2021 the respondent’s lawyers filed the application to summarily dismiss the appeal. On 30th March 2022 we heard the application and reserved our decision to a date for parties to be advised.
3. The application is based on the appellant's failure to serve the notice of appeal without delay. Order 7, rule 13 states:
“A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party –
(a) affected by the relief sought by the notice of appeal; or
(b) interested in maintaining so much of the judgment as is appealed from;
and upon the associate to the primary judge”.
4. The respondent contended that Order 7, rule 13 imposes an obligation on the appellants to serve the notice of appeal without delay. He also contended that generally, a failure to comply with the SCR will result in dismissal of the appeal.
5. In this case the period of 48 days constituted delay and a breach of Order 7, rule 13. The appeal is liable to be summarily dismissed.
6. In opposing the application, the appellants objected to the competency of the application on the ground that an incorrect form was adopted by the respondent to bring the application. The incorrect form is Form 4. The correct one is Form 11. Both forms are found in the first schedule to the SRC.
7. In countering the objection, the respondent contended that as the SCR does not provide for a prescribed form for application for summary dismissal, he has modified Form 4 by adopting one or two aspects of Form 11 in Form 4. This was done to include the grounds for dismissal and the particulars of the orders sought to give clarity and avoid ambiguity in the application.
8. The disagreement between the parties as to the correct form to adopt for this application is pivotal to the success of the application. The application has the hallmarks of an application to dismiss for want of prosecution of an appeal. Indeed, the application is worded as an application to summarily dismiss for want of prosecution under Order 7, rule 48 or alternatively under Order 13, rule 16 for failing to comply with Order 7, rule 13.
9. At the hearing the respondent elected to abandon the application for want of prosecution and pursue the present application.
10. An application to dismiss for want of prosecution of an appeal under Order 7, rule 48 is an all-encompassing one because it may apply to failure or breach of the SCR or failure to prosecute an appeal with due diligence.
11. According to Order 7, rule 50(a), the application for an order for dismissal for want of prosecution shall be in accordance with Form 11.
12. It is instructive to note that the appeal process in the Supreme Court is set out in the SCR. The requirement to serve a notice of appeal on a respondent, or party effected by the relief sought in the notice of appeal or interested in the appeal without delay under Order 7, rule 13 is part and partial of the appeal process. Indeed, it is the first step for an appellant to take after filing of a notice of appeal.
13. Where there has been a failure or breach of the requirement to serve the notice of appeal under Order 7, rule 13, it constitutes a ground for a respondent to invoke the Court’s power under Order 7, rule 48 to seek dismissal of the appeal for want of prosecution.
14. Given this, the prescribed form for a respondent to adopt is Form 11. The additional information such as those which the respondent in this case has included in Form 4 are unnecessary and could have been avoided had the respondent focused on an application to dismiss for want of prosecution.
15. The parties’ disagreement over the correct form should be resolved by treating the application as an application to dismiss for want of prosecution. Reinforcing the principles for want of prosecution, unlike an originating process, be it a writ of summons or originating summons under Order 4, rule 13 of the National Court Rules (NCR) where 2 years is the cut-off time to serve an originating process, Order 7, rule 13 does not fix a time for an appellant to serve a notice of appeal.
16. In the absence of an expressed time-limitation, the question as to a reasonable time-period to serve a notice of appeal is open to debate. Some say service of a notice of appeal 29 days after it was filed constituted delay as was the case in Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273.
17. Others say 7 to 14 days is a reasonable time-period to serve a notice of appeal in a case where the registry is located and of easy access to as was the case Jimm Trading Limited v. TST 4 Mile Limited & Ors (2019) SCA No 52 of 2018 (Unreported Judgment of Salika CJ, Manuhu J and Hartshorn J of 20th September 2019) which adopted and endorsed the decision of the Supreme Court in Yema Gaiapa Developers Pty Ltd v. Hardy Lee (1995) SC484.
18. I am concerned that without a time fixed for service of a notice of appeal in Order 7, rule 13, the Court would be re-writing the SCR by prescribing a time-limit for service and deny a legitimate appeal from being considered by the Court. This is the reason why I consider it important to consider the reasons for the appellants’ failure to serve the notice of appeal without delay.
19. If 48 days was adopted as the period of delay, the next consideration is whether the appellants have provided a reasonable explanation for the delay. The appellants explained that it was important for them to settle which proceedings they will maintain given that they have two proceedings running concurrently. There is a risk that maintaining two proceedings concurrently may amount to duplicity of proceedings and abuse of process.
20. For this reason, they held back the notice of appeal from being served and sought legal advice from overseas counsel. They did not receive the advice and when they did, they served the notice of appeal. What the appellants did is not unreasonable given that there were two proceedings running concurrently, one in this Court and the other in the National Court. It is important that appropriate advice is given to ensure that maintaining these two proceedings concurrently does not amount to an abuse of process.
21. The question of whether maintaining concurrent proceedings at different levels of the Court amounts to an abuse of process is not before us nor is it necessary for us to determine. It will be a matter for another day. For now, the appellants have provided a reasonable explanation for the delay in serving the notice of appeal on the respondent.
22. The application for summary dismissal is refused with costs, to be taxed, if not agreed.
23. ANIS J: The respondent filed an application to summarily dismiss the appeal. We heard arguments from the parties on 30 March 2022 and reserved our ruling thereafter to a date to be advised.
BRIEF BACKGROUND
24. The appeal stems from a proceeding that was commenced under relevant provisions of the Wills Probate and Administration Act (WPA Act). The proceeding was WS No. 172 of 2020, and it was commenced by the appellants on 3 March 2020. The first appellant is a daughter of Late Fook Neng Jee (deceased) whilst the second appellant is a grandson (i.e., of the deceased). The deceased died on 8 August 1998 leaving behind her Will which is dated 29 June 1995 (the Will). The respondent is the duly appointed Executor of the Estate of the deceased. He was appointed as such on 30 July 2012 replacing one Thomas (Meng Chow) Jee who is the brother of the first appellant.
25. The appellants commenced WS 172 of 2020, after they were served by the respondent with a Notice to Enforce or Establish a Claim of the estate of the deceased under s. 60 of WPA Act. The appellants had sought various orders including declaratory orders to retain one of the properties of the Estate of the deceased described as Business Lease, Allotment 8, Section 3, Kavieng, New Ireland Province. However, on 22 July 2021, Thompson J dismissed the proceeding from an application filed by the respondent. The National Court found the cause of action to be, amongst others, ambiguous and possibly time barred.
26. The appellants were aggrieved and, by their Notice of Appeal filed on 31 August 2021 (Notice of Appeal/appeal), challenge the said decision of the National Court.
APPLICATION
27. Meanwhile, the respondent has applied to summarily dismiss the appeal. The application was filed on 1 November 2021 (the Application). At the start of the hearing, counsel for the respondent Mr. Shepherd informed the Court that the respondent will only pursue 1 out of the 2 main relief sought in the Application. For clarity, I will include all the relief but cross out the second relief to indicate its abandonment:
(a) An Order pursuant to Order 13 Rule 16 of the Supreme Court Rules that the Notice of Appeal (NOA) filed 31 August 2021 be summarily dismissed for failure to comply with the provisions of Order 7 Rule 13; and/or
(b) An Order pursuant to Order 7 Rule 48 of the Supreme Court Rules that the NOA be dismissed for want of prosecution;
(c) An Order that the appellants pay the respondent’s costs.
PRELIMINARY
28. The appellants raised a preliminary matter which was contested. The appellants submit that the Application is incompetent because it was filed using a wrong form. They submit that the correct form to use is form 11 but instead, the respondent used form 4 to file his application. As such, the appellants submit, the application is incompetent for want of form and therefore must be dismissed.
29. The respondent submits otherwise. He says that the form used is a proper form but that regardless, applications such as this are straight forward and that the forms may be used interchangeably or with slight variations where required. He submits that the argument is without basis and that the Court should proceed to hear the Application.
30. For clarity, I set out forms 4 and 11 (the 2 forms) in parts as follows:
..........................................................................................
Form 4
O 4 Rule 22(d), O 7 Rule 1(a)
GENERAL FORM OF APPLICATION
(Heading as Applicable)
Application will be made to a Judge of the Supreme Court, Waigani at . . . am on the . . . day of . . . 20 . . .
Dated:
Sgd _____________
(Applicant or his
Lawyer)
FILED BY: (Form 17)
..........................................................................................
Form 11
O 7 Rule 50(a)
GENERAL FORM APPLICATION FOR ORDER UNDER
ORDER 7 RULE 50(a)
(HEADINGS AS IN FORM 8)
APPLICATION
APPLICATION will be made to the Supreme Court, Waigani at ... a.m. at the... day of . . . 20
(herein state order sought)
(a)
(b) or such other order as the Court may make.
Dated:
Sgd _______________
(Respondent or
his Lawyer)
A.B. (Appellant) TAKE NOTICE:
If you or your lawyer do not appear to show cause why such orders should not be made, the Court may make orders in your absence.
31. I note the submissions and arguments of both counsel. I make the following observations. Form 11 relates to applications that seek substantive relief such as to dismiss an appeal for want of prosecution. Form 4, on the other hand, is a general form for applications that seek interlocutory relief only. This distinction, I note, was not disputed by both counsel. The respondent was initially seeking the 2 main relief where technically speaking, perhaps 2 applications could have been filed, that is, as for the first relief, he could have used form 4, and as for the second relief, he could have used form 11. I posed this question to counsel for the appellant. Counsel suggested that that should have been the course the respondent should have taken, that is, by filing separate applications. But counsel maintains his argument that because both relief were pleaded under one form which is form 4, the form is defective and therefore must be dismissed.
32. I, however, note firstly that the argument appears inconsequential given that the respondent has abandoned relief 2. But despite the perception of possibly filing separate applications, I note that the only main relief being pursued by the respondent in the Application is relief 1. And relief 1 is seeking a substantive relief, that is, to summarily dismiss the proceeding. That being the case, the form that is used appears to meet or relate to form 11 with a slight variation. The variation was effected to include paragraph 2 of form 4, and thus include the grounds of the Application. I can only rationally conclude that that was included to make the Application clear (to avoid surprises) with particularity for the benefit of appellants and as well as the Court.
33. As for the 2 forms, I notice that they are almost identical save for these 3 noticeable distinctions,
(i) form 4 refers to a Judge whilst form 11 refers the Supreme Court;
(ii) form 4 has a further paragraph where it requires an applicant to particularise his or her grounds of the relief that is being sought whereas form 11 does not;
(iii) form 4, although labelled as a general application form, is expressly stated as applicable for (a), an application to intervene (i.e., in regard to an application or reference that is made under ss 18 and 19 of the Constitution) under Order 4 Rule 22(d) of the SCR, and (b), an application seeking extension of time to file a notice of appeal or an application for leave to appeal, out of time under Order 7 Rule 1(a) of the SCR. On the other hand, form 11 is expressly stated as applicable for applications for dismissal that are based on want of prosecution under Order 7 Rule 50(a)(1) of the SCR.
34. Given the associations of the 2 forms to these specific rules, and given the absence of other forms that may cater for other interlocutory or substantive relief that may be sought under the SCR, it means or indicates that they could also be used as precedents, that is, to provide basic or fundamental prerequisites that an applicant may adopt when intending to make an application to the Supreme Court, whether it be interlocutory or substantive in nature. See case: PNG Aviation Services Pty Ltd v. Michael Thomas Somare & State (2017) SC1590. I also note that that has been the practice adopted by this Court over the years, for example applications for stay or applications for leave to file a slip rule application, to name a few.
35. In the present matter before us, I note that there is no form in the SCR for an applicant that intends to seek various relief like in this case as initially intended by the respondent. And the respondent, in my view, cannot strictly have used the 2 forms given their expressed or stated purposes as I have stated above. There is also no express form that is provided in the SCR for seeking summary dismissal of an appeal based solely on breach or want of compliance of Order 7 Rule 13 of the SCR. So, if we are going to be very technical or strict with following the 2 forms, none of them, in my view, would have strictly suited the respondent’s case. This is where I find the argument by counsel for the respondent, who submitted that the forms can be used interchangeable or like precedents that may be varied to suit the intended purpose of a party, to be a valid one.
36. So, in my view, certain terms or variations may be adopted or permitted interchangeably in the 2 forms to suit the jurisdiction or basis of the relief that an applicant may intend to seek, that is, whether it be before the full Court or a single Judge of the Supreme Court. The standard requirements of the 2 forms are that (i), it must be an application and not a notice of motion, (ii) the application must plead the jurisdiction of the Court, (iii) the application must state the relief and or particulars (grounds) sought, and (iv) the application must make reference to a supportive affidavit. As this is a discretionary matter or consideration, I would add that the Court should also be satisfied, in a case where there is evidence of variation made in the form that is used, that the parties are fully appraised of the issues involved in the Application, and secondly, that there are no real prejudices caused to the parties affected by the Application. I say in view of what this Court has stated in Marape v. O’Neill (2015) SC1458 which we concur. By the majority (Makail and Sawong JJ, Hartshorn J dissenting), Court stated:
49. We are satisfied that in so far as the question of proper form is concerned, the application or amended application was in the prescribed form, that is, Form 4 and was competent. The application was, therefore, properly before his Honour and his Honour was properly seized of the application for joinder.
50. The real issue, however, was whether the appellant was prejudiced in his defence by the lack of grounds in the application. The grounds set the basis of the application and put the opposing party on notice of the basis of the application. The purpose of stating the grounds is to give the other side reasonable notice of the kind of case it is expected to meet at the hearing. On the last point, we refer to John Midan & Anor v. Oscar Lisio (2010) SC1086 which was decided in the context of a preliminary objection to the competency of an application for want of prosecution in Form 11 of the Supreme Court Rules.
37. In the present case, I find that the Application or the form used is in order and is properly before us. The Application does not seek interlocutory but rather substantive relief, that is, to summary dismissal the appeal based on breach of Order 7 Rule 13 of the SCR. The respondent has invoked the powers not of a single Judge but of the Supreme Court in the Application. It may therefore be related or likened to a form 11 type application rather than form 4. I also note and find that the parties, and particularly appellants, are not caught off by surprise. They know what the application is and have come prepared to argue it. They have also filed affidavit materials to support their arguments. I also find no prejudice caused by the variation made to form 11 which was adopted in the Application. The inclusion of grounds for the relief sought is beneficial to the appellants as well as to this Court.
38. Apart from these reasonings I give, I also note and find that there was substantial compliance by the respondent to form 11 in relation to the application. Substantial compliance with the forms has been accepted by this Court in various decisions including Marape v. O’Neill (supra) and John Midan & Anor v. Oscar Lisio (2010) SC1086.
39. I therefore dismiss the preliminary argument by the appellants.
SERVICE OF NOTICE OF APPEAL
40. The Application is premised on Order 7 Rule 13 of the SCR. The rule reads:
13. A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party –
(a) affected by the relief sought by the notice of appeal; or
(b) interested in maintaining so much of the judgment as is appealed from;
...... [Underlining mine]
41. It is not denied, as revealed in the evidence of both parties, that there was delay in serving the Notice of Appeal. I refer to the following affidavits, (i), the affidavit of Mr Shepherd filed on 1 November 2021, the affidavit of the first appellant filed on 26 November 2021, and the affidavit of Mr Kipa filed on 26 November 2021. These affidavits are included in the Application Book (filed on 2 December 2021).
42. So, I ask myself these questions. When did the appellants serve the Notice of Appeal? And whether the period, from the date of filing the Notice of Appeal to the date of receipt of a sealed copy of the Notice of Appeal by the respondent through his lawyers, may be regarded as service without delay. And if not, whether it warrants a dismissal of the appeal.
43. The Notice of Appeal was filed on 31 August 2021. It was served on the respondent though his lawyers, as adduced in evidence, on 18 October 2021. The date of receipt of the Notice of Appeal is contained at Annexure D to Mr Shepherd’s affidavit [page 49 of the Application Book]. I am satisfied for this purpose that 18 October 2021 was the date of service of the Notice of Appeal. If I compute time, I note that a period of 48 days had passed before the appellants effected service on the respondent.
44. If we go back to read Order 7 Rule 13, which says that a notice of appeal shall be served without day, 48 days would ordinarily, without looking at anything for assistance including case authorities, constitute a delay. With that, I make these observations. Order 7 Rule 13 is mandatory and demands prompt service of a notice of appeal from the date of its filing. A notice of appeal and its circumstances once filed, is not the same as an originating process, whether it be a writ of summons and statement of claim or an originating summons. Under Order 4 Rule 13 of the National Court Rules, an originating process shall remain valid for 2 years from the date of its filing during which time it may be served upon a defendant(s). The judicial process that is underway from the date of filing an originating process, is based on mere allegations where it primarily rests upon a plaintiff to plead and prove. Sometimes the process can take many months or years before the matter is heard including service of the originating process.
45. The situation in an appeal process, in my view, is totally different. Time is of essence. The administration of justice requires or demands full attention to the appeal process, that is, from the date when an appeal is filed, to the date of its final outcome. A fundamental reason for that is this. There is already judgment or decision made, that is, whether it be in favour or against the party that is appealing. The matter is settled or concluded save for the right of an aggrieved party that is appealing. Under law, a successful applicant is entitled to enjoy or benefits from the fruits of his or her success, which is the National Court judgment or order that has been entered in his or her favour. As such, the SCR and in particular Order 7 Rule 13, is prepared in a manner to ensure that appeals that are filed are immediately served so that the process is heard and completed without delay.
46. I also observe that the test to apply for compliance with Order 7 Rule 13 should be no different to those provisions under law or the SCR that set mandatory time limitations for compliance or attending to a task. I make this point or comparison to illustrate the point that the requirements of Order 7 Rule 13 cannot be compared or assessed applying considerations such as whether a reasonable explanation has been provided, or whether the period filed may be regarded as reasonable despite a delay being established. Such considerations should have less or no value for this purpose except perhaps in exceptional circumstances, for example in a case where a respondent may be deliberately avoiding service or for other practical reasons. The main consideration, however, in my view, remains which is that it must be confined to the question of whether the Notice of Appeal was served without delay which in other words means that it must be served immediately. However, the main dilemma I see in Order 7 Rule 13 is that it does not expressly point to a time frame within which an applicant shall comply. In other words, what period or number of days may or shall considered as without delay?
47. So, with that, I turn our attention now to the case law. I have considered the case authorities that have been provided to us by both counsel. The relevant cases, in my view, are Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273 and Jimm Trading Limited v. TST 4 Mile Limited and Ors (2019) SCA 52 of 2018 (Unreported SC judgment of Salika CJ, Manuhu J and Hartshorn J delivered on 20 September 2019).
48. Indumava Investments Ltd was an appeal against a judicial review proceeding. The notice of motion filed under Order 10 of the SCR was served 29 days after its date of filing. A main ground for dismissal argued by the respondent was for want of compliance with the requirements of Order 7 Rule 13 of the SCR. This Court, in considering the issue therein referred to case authorities including its earlier decision in Yema Gaiapa Developers Pty Ltd v Hardy Lee (1995) SC484 where it was decided that a notice of appeal that is served between 7 to 14 days, after the date of its filing and where the address for service of the respondent is in the same town as the Registry, would constitute a breach of Order 7 Rule 13. The Supreme Court Court in Indumava Investments Ltd ruled that the delay of 29 days was in breach of Order 7 Rule 13 of the SCR. But as it was an application to dismiss for want of prosecution, other matters were taken into account such as want of request to the Registrar to settle the Index to Appeal Book and service of affidavit materials that had been filed in support of the appeal.
49. The next case is this Court’s unreported decision of Jimm Trading. In that case, the applicant sought dismissal of the appeal. It argued want of prosecution generally and also breach of Order 7 Rule 13. On point, this Court therein endorsed the decision in Yema Gaiapa Developers that and we quote, periods of 7 to 14 days in effecting service in the city or town where the registry is located and where the appeal has been instituted, is unacceptable delay and in default of O.7 r. 12 (equivalent of r.13). This Court in Jimm Trading stated at paragraph 11
Order 7 Rule 13 of the Supreme Court Rules is in mandatory terms and in this instance I am (sic) satisfied that it has not been complied with. Consequently, pursuant to Order 13 Rule 16 Supreme Court Rules and following the decisions of this Court in Yema Gaiapa (supra) and Idumava (supra), this appeal is dismissed. Given this, it is not necessary to consider the other submissions on counsel.
50. In my view, I see no reason to depart from the reasonings of these various Supreme Court decisions. I restate the point as held Jimm Trading that the requirement for service without delay under Order 7 Rule 13 of the SCR is in mandatory terms and must be complied with.
51. When I consider the present case, the delay is 48 days which is about about 7 weeks. This is a delay of more than 7 to 14 days. And also crucial as a fact is that the address for service of the respondent is the office of Ashurst Lawyers which is located in Port Moresby, that is, within the area or town where the Notice of Appeal was filed.
52. It is worth referring to the appellants’ stated reasons for the delay deposed to by the first appellant and counsel. With respect, the reasons given appear adverse or self-incriminating. The appellants said the delay was caused because they had to seek advice from their overseas lawyers on whether the appeal would amount to duplicity of proceedings, that is, given that the appellants had also in the National Court sought leave and have filed a fresh similar proceeding namely WS 429 of 2021, Catherine Graham v Michael Karl Klatt as Administrator of the Estate of Fook Neng Jee (Deceased).
53. To me and for this purpose, the stated reasons are in themselves express proof or admissions by the appellants and their counsel, that they had deliberately delayed service of the Notice of Appeal thus have deliberately committed acts that constitute breach of Order 7 Rule 13 of the SCR. Such deliberate actions of the appellants, in my view, should not be tolerated or condoned by this Court. Whilst the appellants may be considering their reasons, options etc regarding their appeal, which was of course within their rights to do so, they are inconsequential to the mandatory requirement that is stipulated under Order 7 Rule 13, which is that they must serve the Notice of Appeal without delay.
54. Court process and its rules must be observed by the parties generally. In this case, compliance with Order 7 Rule 13 is mandatory as expressed in the rule itself as well as in the case authorities that I have referred to where I also stand by them.
SUMMARY
55. In summary, I find that the appellants breached Order 7 Rule 13 of the SCR when they served their Notice of Appeal almost 7 weeks or 48 days after filing it. The requirement to comply with Order 7 Rule 13 is mandatory.
56. The appellants and their counsel have also admitted to these deliberate delayed acts, that is, by keeping or holding back the Notice of Appeal after it was filed, to await further legal advice on the appeal and related matters. Whilst it is within their absolute right to seek advice to consider their options, which was always open to them, once they filed the Notice of Appeal, Order 7 Rule 13 requires them to serve the Notice of Appeal immediately or without delay. In this case, they have expressly demonstrated that they have deliberately failed to do so.
ORDER
57. My decision will be in the minority. For completeness, I exercise my power and summarily dismiss the appeal in its entirety for breaching Order 7 Rule 13 of the SCR. I order cost to follow the event, that is, cost of the appeal is awarded to the respondent on a party/party basis to be taxed if not agreed.
58. NUMAPO J: I have read the draft judgments of Makail J and Anis J. This is my decision. The Respondent filed an application to summarily dismiss the appeal. The application was heard, and decision reserved to a date to be advised. Central to the arguments raised by both parties is the use of the correct form (Form 4 and Form 11) for such application under the Supreme Court Rules (SCR) (an issue that relates to the competency of the application), and the application to dismiss for want of prosecution of the appeal using the right form pursuant to Order 7, rule 48 of the SCR and to dismiss the appeal for the Appellant’s failure in serving the Notice of Appeal (NOA) on the Respondent without delay as required under Order 7, rule 13 of the SCR. At the hearing however, the Respondent decided to abandon the application for want of prosecution and pursue only one relief sought and that is to have the matter summarily dismissed for failing to comply with the requirements of Order 7, rule 13.
59. According to the Respondent, there was a delay of 48 days in the Appellants serving the NOA on him and therefore, a breach has occurred. On closer reading of Order 7, rule 13 there is no time stipulation or time frame within which the NOA must be served after the appeal is lodged. The words used in the Rules is without delay, which in my view, becomes a discretionary matter for the court.
60. The courts have in the past varied in their decisions on the meaning of without delay. They often applied the test of ‘reasonable period of time’ to determine if the process was served without delay. As to what they considered to be a reasonable time-period will depend on number of factors and the circumstances of each case prevailing at the time. No two cases are the same. The court would consider all the relevant considerations that are peculiar to the case before deciding what may be considered a reasonable period of time to effect service. If service is effected outside of that determined time period, then it amounts to a delay.
61. It is for this reason, in my view, that the courts in the past have given different time limitations for service of the NOA. For example, in Idumava Investments Ltd v. National Fisheries Authority (2013) SC 1273, the court held that, the service of NOA 29 days after the appeal was filed constituted a delay. In others such as Jimm Trading Limited v TST 4 Mile Limited & Ors (2019) SCA No. 52 of 2018 which was later adopted and applied in Yema Gaiapa Developers Pty Ltd v Hardy Lee (1995) SC484, the court considered between 7 – 10 days as reasonable time to serve the NOA after the appeal has been lodged.
62. It became apparent that time limitation on service of NOA differs from case to case. There is no clear authority on the prescribed time limit to serve a NOA. In this regard, neither the Rules nor the case laws provided any assistance. In the end, it is left to the court in the exercise of its discretion to decide what it considers to be a reasonable period of time to effect service.
63. In my respectful view the SCR does not to take away the unfettered discretion of the court in deciding what may be considered a reasonable time-period to serve a NOA. Furthermore, the court has jurisdiction to enlarge any time-period in the Rules and this can be done retrospectively; that is, even if the NOA is served after the relevant time has expired even if a time limitation is specified. This is a matter of discretion for the court. In addition, the non-compliance with the Rules does not render the appeal void, unless the court so directs. In other words, a general failure to comply with time stipulation in the Rules will not automatically nullify the appeal. Again, this is a matter for discretion.
64. The second part of my comments relates to the delay. The court must inquire and find out the reasons for the delay and if indeed there was a delay, then as a matter of course, the Appellants will be expected to provide an explanation for the delay. In explaining the delay, the First Appellant stated that she currently maintained two separate proceedings relating to the same matter. She filed a fresh proceeding on the same matter that is currently before the National Court styled; WS 429 of 2021; Catherine Graham v Michael Karl Klatt as Administrator of the Estate of Fook Neng Jee (Deceased) and the other proceeding is this appeal.
65. The First Appellant was concerned that by maintaining two separate proceedings on the same matter, she runs the risk of having both matters thrown out for duplicity of proceedings and an abuse of court process. This to me is a genuine concern. She explained that she had to seek proper legal advice regarding the two matters before proceeding any further. She communicated with her lawyer who lives overseas but unfortunately, she had not received any response from her lawyer in good time hence, the delay. It would, therefore, be unfair to penalize the Appellants for something that is not of her own doing. I would have taken a different view had the Appellants’ lawyer was based in-country. Like in everything else, there is always two-sides to a story. I accepted the explanation provided by the Appellants and considered it reasonable.
66. Having said all that, I refused the application for summary dismissal with costs, to be taxed, if not agreed.
FINAL ORDER
67. The final decision and orders of the Court (By Majority) are:
1. The application to summarily dismiss the appeal is refused.
___________________________________________________________________________
Wang Dee Lawyers: Lawyer for the Appellants
Ashurst Lawyers: Lawyer for the Respondent
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