Burns Philp (New Guinea) Limited v Maxine George [1983] PNGLR 55

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Andrew J
• Judgment Date: 14 March 1983
• Court: Supreme Court
• Judgement Number: SC244

Full Title: Burns Philp (New Guinea) Limited v Maxine George [1983] PNGLR 55

Supreme Court: Kidu CJ, Kapi DCJ, Andrew J

Judgment Delivered: 11 or 14 March 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BURNS PHILP (NEW GUINEA) LIMITED

V

MAXINE GEORGE

Waigani

Kidu CJ Kapi DCJ Andrew J

2 March 1983

14 March 1983

APPEAL — Practice — Supreme Court — Striking out for want of prosecution — Failure to set down — Power discretionary — Considerations relevant — Supreme Court Rules 1977, r. 25.

Under r. 25 of the Supreme Court Rules 1977, if an appellant does not set down his appeal for hearing as prescribed, any respondent may apply to the Court by motion on notice for an order dismissing the appeal for want of prosecution.

Held

(1) Where an appeal has not been set down as prescribed the power to dismiss for want of prosecution remains discretionary.

(2) The discretion is to be exercised having regard to all the circumstances of the case including, inter alia,

(a) the length of and reasons for delay on the appellant's part;

(b) the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;

(c) the availability of a transcript, and

(d) any negotiations between the parties.

Cases Cited

Hewlett v. London County Council (1908) 72 JP. 136.

Tenge Kai Ulo v. Acting Public Prosecutor [1981] P.N.G.L.R. 148.

Notice of Motion

This was an application on notice of motion, pursuant to r. 25 of the Supreme Court Rules 1977, seeking orders dismissing an appeal for want of prosecution.

Counsel

C. Coady, for the applicant/respondent.

R. Thompson, for the respondent/appellant.

Cur. adv. vult.

11 March 1983

KIDU CJ KAPI DCJ ANDREW J: This is an application by notice of motion on behalf of the respondent seeking orders that the appellant's appeal be dismissed for want of prosecution.

Briefly stated, the history of the matter is as follows: On 3 November 1981, the respondent was awarded damages by the National Court for personal injuries sustained when she was struck by flying glass from a soft drink bottle in the appellant's store. Notice of appeal and application for leave to appeal was instituted on 1 December 1981.

It is not in dispute that the appeal was not set down by the appellant for hearing as required by r. 25 of the Supreme Court Rules 1977 and it is on this basis that the respondent applies for an order dismissing the appeal for want of prosecution.

The relevant sections of r. 25 are as follows:

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