PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd Trading as Pacer Computers and Timothy and Felicia Lim Trading as Samuel Carris & Co (2005) SC811

• Jurisdiction: Papua New Guinea
• Judge: Los J, Salika J, Lay J
• Judgment Date: 29 April 2005
• Court: Supreme Court
• Citation: (2005) SC811
• Docket Number: SCA No 33 of 2004
• Year: 2005
• Judgement Number: SC811

Full Title: SCA No 33 of 2004; PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd Trading as Pacer Computers and Timothy and Felicia Lim Trading as Samuel Carris & Co (2005) SC811

Supreme Court: Los J, Salika J, Lay J

Judgment Delivered: 29 April 2005

SC811

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 33 OF 2004

BETWEEN

PNG NAMBAWAN TROPHY LTD

Appellant

AND

DYNASTY HOLDINGS LTD trading as PACER COMPUTERS

First Respondent

AND

TIMOTHY & FELICIA LIM trading as SAMUEL CARRIS & CO

Second Respondents

WAIGANI : LOS, SALIKA AND LAY JJ

2005: 26TH AND 29TH April

Application to strike out appeal and application for leave to appeal for want of prosecution—Supreme Court Rules, O7, r53— relevant considerations to exercise of discretion—whether appellant has not done things required by the Act or the Rules—whether application has been prosecuted with due diligence—whether appellant has provided adequate explanation.

Cases Cited

1. Burns Philp (New Guinea) Limited v George [1983] PNGLR 55;

2. SC484 Yema Gaiapa Developes Limitedv Hardy Lee;

3. SC530 Attorney-General, Minister for Justice and the State v Papua New Guinea Law Society;

4. SC691 Donigi v PNGBC [1990] PNGLR 331;

5. SC667 Bernard Juali v The State;

6. SC537 Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe;

7. SC762 Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa;

8. SC766 State v David Nelson; General Accident Fire & Life Assurance Corporation Limited v Ilimo Farm Products Pty. Limited [1990] PNGLR 331;

9. Public Prosecutor v Allen Abu Marai [1996] PNGLR 81;

10. The State v Colbert [1988] PNGLR 138,

11. SC751 Joseph Kupo v Steven Raphael.

Facts

The Appellant filed a Notice of Appeal and an Application for Leave to appeal on 8th April 2004. On 5th August 2004 the Respondents filed an application to dismiss the appeal for want of prosecution. On the hearing of the application 8 months later the only steps which the Appellant had taken in the appeal were to file two affidavits one in December 2004 and the other in January 2005 explaining that the lawyers workload was high and there had been difficulties in recruiting a new lawyer. At the date of hearing the application of leave had not been set down for argument, no draft index to the appeal book had been prepared or settled, the transcript had not been requested and the appeal book had not been prepared.

Held

The explanation that workload and shortage of lawyers offered 8 months after the application to dismiss was filed amounted to no explanation at all. Default or negligence of the lawyers was not an excuse for not complying with the rules in civil cases. Had the Appellant used the delay in moving the application to dismiss to remedy its default, the delay in moving the application would have been a strong point in favour of refusing it. In the circumstances the appeal is dismissed.

Counsel

Mr A. Kwimberi for the Applicant Respondents

Mr. P. Feareka for the Respondent Appellants

BY THE COURT: This is the Respondents application filed 5th August 2004 to strike out the Appeal and Application for Leave to Appeal filed 8th April 2004, for want of prosecution, alternatively that the Appellant be ordered to pay security for costs. We did not hear the parties on the alternative relief.

The background to the matter is that on 7th June 2004 the Respondents reminded the Appellants they would need to seek leave in respect of some grounds. Nothing happened and the Respondents sent another latter on 21st June 2004. There was still no action by the Appellant so this application was filed and together with supporting affidavits served on the Appellant son 19th August 2004. The appellant filed affidavits explaining that the lawyer who had carriage of the matter had been appointed a judge, that there was difficulty in recruiting a replacement and the workload was difficult for one lawyer. The lawyer now having the carriage of the matter joined the firm on 21st August 2004. The steps taken by the Appellant since the filing of this application to dismiss are that it has filed two affidavits, one in December 2004 and another in January 2005 explaining the difficulty of handling the work load and stressing the merits of the appeal. The Appellants are yet to file a draft index, have it settled, obtain a transcript and compile the appeal book.

The Law

Division 19 of the Supreme Court Rules O7 r53 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.

54. The respondent may make application for an order under Rule 53 and the court may, after notice has been given to the appellant by the Registrar, make orders on reference from the Registrar.

55. An application for an order under Rule 53 shall—

(a) be in accordance with form 11; and

(b) be supported by affidavit.

56. An order under Rule 53 sub-rule (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

A number of Supreme Court decisions have considered the rule and we state the general propositions from those cases as follows:

An appeal might be struck out if it is not set down as required by the rules. (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.

1 Burns Philp (New Guinea) Limited v George [1983] PNGLR 55 Kidu CJ Kapi DCJ and Andrew J considering r25 of the Supreme Court Rules 1977.Now see O7 r48.

1

(2) Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal10, failure to attend on settlement of the appeal book, failure to explain non attendance

02 SC484 Yema Gaiapa Developes Limitedv Hardy Lee, Amet CJ Kapi DCJ Los J

2, failure to respond to correspondence

3 SC530 Attorney-General, Minister for Justice and the State v Papua New Guinea Law Society, Amet CJ Kapi DCJ and Los J and also SC691 Donigi v PNGBC, , Salika, Kandakasi and Batari JJ

3 and failure to provide any explanation for dilatory conduct where an explanation could properly be expected

4 SC667 Bernard Juali v The State, Los, Sevua and Kandakasi JJ

4. The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected

(3) The discretionary powers under O7 r 53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made. That a lawyer cannot be present because he is appearing before another judge may be an adequate explanation.

5 SC537 Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe; Kapi DCJ Los and Jalina JJ.

5 7 months delay in applying for the transcript of evidence to be prepared requires a proper explanation and the absence of one may result in the appeal being dismissed.

6 SC691 Donigi v PNGBC supra

6

The Court must consider the whole of the circumstances in which an application for dismissal on the grounds on want of prosecution is brought, in particular events that have taken place since the application was filed. The application to dismiss itself should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful.

7 SC762 Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa, Los Sawong & Cannings JJ

7

An application pursuant to O7 r53 should be made in form 11 and not in an Objection to Competency.

8 SC766 State v David Nelson, Salika, Kirrowom and Lay JJ

8

The general rules that the power of the Court to dismiss an action for want of prosecution should be exercised only where (a) the plaintiff’s default had been intentional and contumelious or (b) where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a...