Joe Chan and PNG Arts v Matthias Yambunpe

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Los J, Jalina J
• Judgment Date: 16 December 1997
• Citation: (1997) SC537
• Court: Supreme Court
• Year: 1997
• Judgement Number: SC537

Supreme Court: Kapi DCJ, Los J, Jalina J

Judgment Delivered: 16 December 1997

By the Court: This appeal is from the decision of the National Court on 5 October where Justice Woods dismissed an appeal from the District Court for want of prosecution. The substance of the proceedings before the District Court emanated from the complaint by the Respondent on a breach of an agreement. The Respondent complained that he had sent some 89 clay pots from Wewak to Port Moresby to the Appellants but they had failed to pay for them. On the other hand the appellants its their cross–appeal claim that of the 89 claypots 22 had been broken during shipment and so the Respondent was not entitled to claim the costs of all of them. They also claimed from the Respondent the freight costs.

The claim was dismissed by the District Court for want of prosecution. Subsequently the Respondent reinstituted the claim and judgment was entered for the Respondent. The Appellants then lodged an appeal against that decision to the National Court, but that appeal was dismissed for want of prosecution and hence this appeal to the Supreme Court.

The decision of the National Court was very brief:

" . . . this motion was set down for hearing on 23 October but was adjourned till today. The substantive appeal is from an order of the District Court over two years old. The appeal itself was filed in October 1995. There has clearly been undue delay in the prosecution of the Appeal. The Court is not here to be clogged up with files which lie around awaiting the pleasure of the applicants. The Court is entitled to take control. If an applicant before the court does not bother we will."

The Appellants have listed four grounds of appeal. They are:

(1) That His Honour erred in law and in fact in proceeding with the Application of the Respondent by dismissing the...