Rabaul Shipping Limited v Rita Ruru (2000) N2022

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 08 December 2000
• Court: National Court
• Citation: (2000) N2022
• Year: 2000
• Judgement Number: N2022

Full Title: Rabaul Shipping Limited v Rita Ruru (2000) N2022

National Court: Kandakasi J

Judgment Delivered: 8 December 2000

N2022

PAPUA NEW GUINEA

[In the National Court Justice]

APP CIA NO 97 of 2000

BETWEEN:

RABAUL SHIPPING LIMITED

Appellant

AND:

RITA RURU

Respondent

LAE: KANDAKASI, J.

2000: December 8

INFERIOR COURTS — Appeals — District Courts — Appeal from — Lodgment of Appeal with National Court — Failure to serve within time — Filing Notice of Entry of Appeal when appeal not ready — Abuse of process — Failure to comply with District Courts Act fatal — District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227.

APPEALS — Practice & Procedure — Appeal to National Court — Appeal from District Court — Lodgment of Appeal with National Court — Failure to serve within time — Filing Notice of Entry of Appeal when appeal not ready — Abuse of process — Failure to comply with District Court Act fatal — District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227.

PRACTICE & PROCEDURE — National Court — Appeals to — Want of prosecution — No reasonable explanation for delay — Appeal dismissed — District Courts Act (Ch. No. 40), ss. 222, 226 & 227 — National Court Rules 1983, Order 10 Rule 4 & 5

LAWYERS — Professional conduct — Failing to file and serve notice of appeal and recognizance on appeal in accordance with District Courts Act — Failing to use best endeavors to prosecute appeal within reasonable time — Failing to inform underrepresented party of reasons for delay — Breach of Professional Conduct Rules — Professional Conduct Rules — s. 9.

Cases cited:

Peter Dickson Donigi v. Base Resource Ltd [1992] PNGLR 110

William Moses v. Otto Benal Magiten (unreported and unnumbered judgement delivered on 1st December 2000)

The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349 Kiau Nekints v. Moki Rumints [1990] PNGLR 123

ABCO Transport Pty Ltd v. Timothy Sakaip ( unreported but numbered judgement of Injia J) N1577

General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331

Joe Chan & PNG Arts v. Mathias Yambunpe (unreported but number judgement delivered on 16th December 1997) SC537.

Counsels

M. Mumure for the Applicant/Respondent.

J. Unido for the Respondent/Appellant

8 December 2000

KANDAKASI,J: On the 8th of December 200, I read out my judgement in this matter in draft and I promised Counsels and the parties that I will publish my judgement and make the copies available for the parties. This is the final text of my judgement and meets that promise.

This is an application seeking to dismiss the appeal for want of prosecution by notice of motion filed on 9th of November 2000. It is supported by an affidavit of the Applicant/Respondent (hereinafter referred to as "Applicant") sworn on the 19th of September 2000 and also filed on the 9th of November 2000.

Until the day of the hearing of the motion, the Applicant was acting on her own. On the date of the hearing, Mr. Mumure informed the court that, the Applicant just instructed his firm, Gamoga & Company Lawyers to appear and argue for the application on behalf of the Applicant. On the other hand, Warner Shand Lawyers lodged the appeal on behalf of their client the Respondent/ Appellant (hereinafter referred to as " the Respondent"). That law firm was therefore, involved from the very out set of the appeal.

It seems the Notice of Appeal was lodged with the National Court in Lae on the 1st of May 2000. A Recognizance on Appeal was entered into before a magistrate at the Lae District Court on the 28th of April 2000. These are apparent from the respective National and District Courts' seals affixed to the relevant documents. Also on the same day of the filing of the Notice of Appeal, an Entry of Appeal to the National Court was filed.

On the 24th May 2000, Warner Shand Lawyers wrote to the Clerk of the District Court at Kimbe, being the court which made the decision the subject of the appeal in these terms and I quote in full, excluding the address and closing parts:

We advise our client has lodged an Appeal in the National Court of Justice at Lae. Copy of the Notice of Appeal is enclosed.

Would you please forward to the Registrar of the National Court, copy of the Court Depositions and the Magistrate's reasons for decision.

The letter was copied to the Assistant Registrar of the National Court only and not the Applicant. The Registrar of the National Court sent a letter to the Clerk of the District Court at Kimbe reiterating the request for the District Court depositions and reasons for the decision appealed against. A letter dated 21st July 2000, from the Assistant Registrar subsequently followed up that letter. In the meantime, the Respondent did nothing at all either by way of following up on their request for the depositions and reasons for decision to be furnished and or keep the Applicant informed of the delay in getting its appeal heard promptly.

It is not clear if the Notice of Appeal and the other appeal documents were served on the Applicant. There is neither an affidavit of service of those documents on file, nor does Mr. Unido in his affidavit in reply to that of the Applicant sworn and filed on the 16th of November 2000, allude to when those documents were served, if they were served at all on the Applicant.

In his arguments Mr. Unido says the Notice of Appeal and the other documents were served but was unable to confirm when that was done. He also argued that his client was waiting for the court system through the Assistant Registrar of the National Court to tell them when the District Court depositions and reasons for decision were received. He went on to argue that once they received such an advice they were then to get the appeal book prepared and filed. Yet he was unable to show to the courts satisfaction that, that was the prescribed system and or such understanding or arrangement existed between his firm and the Assistant Registrar. Even if such a system or arrangement existed, there was nothing to show that the agreement or arrangement was communicated to the Applicant and that the Applicant accepted it. Additionally, Mr. Unido argued that, if the Applicant raised concerns over the delay with them, they would have taken further steps but because she did not do that, they did not take any other step and chose only to wait for the Assistant Registrar to inform them when he received the depositions and reasons for decision.

The Professional Conduct Rules s. 8 (4) provides that:

A lawyer shall at all times use his best endeavors to complete any work on behalf of his client as soon as is reasonably possible.

Explicit in that rule, is the duty to act promptly to enable resolution of a matter "as soon as is reasonably possible." There is always the duty on an appellant to prosecute his appeal with due diligence, at the threat of a dismissal if there is a failure to so act. If a lawyer represents an appellant then the duty is on the lawyer to take all the steps that need to be taken appropriately and promptly to protect his client's interest. If he fails to do that, it is a breach of the professional conduct rules and the duty he owes his client. It is now well settled law that, the failures and or negligence of a lawyer can not be a good excuse. See Peter Dickson Donigi v. Base Resource Ltd [1992] PNGLR 110 for an example.

In the present case, I find the following facts are disclosed from the affidavits and the other material on the Court file and I find them critical:

1. The Kimbe District Court made the decision the subject of the appeal;

2. The decision was delivered on the 18th of April 2000;

3. On 1st May 2000, the Notice of Appeal, Recognizance on Appeal and Entry of Appeal to the National Court were filed;

4. The Appeal was lodged at Lae National Court and not with the Kimbe District Court;

5. On the 28th of April 2000, a Recognizance on Appeal was entered into with a Magistrate of the District Court at Lae but a copy of that was not served on the Kimbe District Court;

6. On the 24th of May 2000, Warner Shand Lawyers wrote to the Kimbe District Court informing it of the Appeal and asked for the depositions and reasons for decision to be forwarded;

7. There is no proof of the Notice of Appeal and the other appeal documents being served on the Applicant;

8. No further and other meaningful steps were taken to prosecute the Appeal after its lodgment; and

9. On the 9th November 2000, Notice of Motion and Affidavit...