General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Brown J
• Judgment Date: 25 July 1990
• Court: Supreme Court
• Judgement Number: SC394

Supreme Court: Kapi DCJ, Sheehan J, Brown J

Judgment Delivered: 25 July 1990

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION LTD

V

ILIMO FARM PRODUCTS PTY LTD

Waigani

Kapi DCJ Sheehan Brown JJ

25 July 1990

PRACTICE AND PROCEDURE — Dismissal for want of prosecution — Failure to prosecute appeal with "due diligence" — Relevance of finality of proceedings — Failure to make explanation — Discretionary considerations — Supreme Court Rules, r 53.

APPEAL — Practice and procedure — Dismissal for want of prosecution — Failure to prosecute appeal with "due diligence" — Relevance of finality of proceedings — Failure to make explanation — Discretionary considerations — Supreme Court Rules, r 53.

The Supreme Court Rules, r 53 (a), provides:

"53. 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."

Held

(1) The power to dismiss an appeal for want of prosecution pursuant to r 53 (a) of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation.

(2) Matters relevant to the want of due diligence include failure to attend on settlement of the appeal book, failure to explain non attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected.

(3) The discretionary powers under r 53 (a) should not be exercised where no explanation for want of due diligence is made.

Cases Cited

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229.

Birkett v James [1978] AC 297; [1977] 2 All ER 801.

Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55.

Fitzpatrick v Batger & Co Ltd [1967] 1 WLR 706; [1967] 2 All ER 657.

Reggentin v Beecholme Bakeries Ltd (1967) 11 SJ 216.

Application

This was an application made under the Supreme Court Rules, r 53, for an order dismissing the appeal for want of prosecution.

Counsel

J Bray, for the appellant.

J Sleight, for the respondent.

25 July 1990

KAPI DCJ SHEEHAN BROWN JJ: This application by Ilimo Farm Products Pty Ltd (Ilimo Farm) is to dismiss the appeal of General Accident Fire & Life Assurance Corporation Ltd (Fire & Life) for failing to prosecute its appeal with diligence. This application was heard on 25 July 1990 and we granted the application and reserve our reasons to be handed down at a later date. This we now do.

The applicant relied on the actions of Fire & Life subsequent to judgment as sufficient evidence of the appellant's failure to prosecute, seeking to draw inferences from uncontroverted facts placed before this Court by affidavit of both parties.

The affidavit of the applicant was sworn by its lawyer who deposed to a history of the proceedings since verdict and judgment for Ilimo Farm on 1 September 1989. A notice of appeal was filed on 9 October 1989 within the time prescribed by the rules but such notice was not served on this applicant, Ilimo Farm, until 2 March 1990 when it was received by the company's lawyer. This late service (since service on the respondent is envisaged contemporaneously with lodgment by the appellant of his notice) was despite two letters dated respectively 18 December 1989 and 19 December 1989 when...