Richard Naringa v Rural Development Bank Limited (2006) SC908

• Jurisdiction: Papua New Guinea
• Judge: Sevua Gavara-Nanu & Batari JJ
• Judgment Date: 04 April 2008
• Court: Supreme Court
• Citation: (2006) SC908
• Docket Number: SCA NO. 119 OF 2004
• Year: 2006
• Judgement Number: SC908

Full Title: SCA NO. 119 OF 2004; Richard Naringa v Rural Development Bank Limited (2006) SC908

Supreme Court: Sevua, Gavara-Nanu & Batari JJ

Judgment Delivered: 4 April 2008

SC 908

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE AT WAIGANI]

SCA NO. 119 OF 2004

BETWEEN:

RICHARD NARINGA

-Appellant-

AND:

RURAL DEVELOPMENT BANK LIMITED

-Respondent-

Waigani: Sevua, Gavara-Nanu & Batari JJ

2006: 27 April

2008: 4 April

PRACTICE AND PROCEDURE – Dismissal for want of prosecution – Supreme Court Rules, O 7 r 53 (a) – Unexplained delays – Delays appear deliberate- Failure to prosecute appeal with due diligence – Discretionary powers in favour of dismissing appeal.

Cases cited:

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

Malama Enterprises Ltd v. Shell Papua New Guinea Ltd (2 March, 2007)

Paga No. 36 Limited v. Jerry Luru & Ors (3 November, 2006)

PNG Namba Wan Trophy Ltd v. Dynasty Holdings & Timothy & Felicia Lim SC811

Yema Gaiapa Developers Pty Ltd v Hardy Lee SC484

The Public Prosecutor v. Allen Ebu Marai [1996] PNGLR 81

Counsel:

J. Poro, for the Appellant

F. Alua, for the Respondent

1. BY THE COURT: This is an application by the respondent by way of a Notice of Motion seeking orders that the appeal by the appellant be dismissed for want of prosecution pursuant to O 7 r 53 (a) of the Supreme Court Rules. The application is supported by an affidavit sworn by Francis Alua, filed on 20 January, 2006. The appeal is against a judgment given by David J, on 14 July, 2004 in which his Honour set aside an interim injunction obtained by the appellant restraining the respondent from parting with a property which was subject of a mortgage and dismissed the appellant’s entire claim against the respondent in the National Court.

2 The appeal was filed on 20 August, 2004, the appellant then obtained a stay of the National Court orders on the same day. Subsequently, upon an application being made by the respondent, the stay order was set aside on 4 November, 2004.

3 On 19 April, 2005, about five months after the stay order was set aside, the appellant’s lawyers forwarded a draft Index to the Appeal Book to the respondent’s lawyers with a covering letter bearing the same date. On the same day, the respondent’s lawyers responded to the appellant’s lawyers’ letter. The respondent’s lawyers’ letter was forwarded to the appellant’s lawyers through a facsimile transmission. In the letter, the respondent’s lawyers advised the appellant’s lawyers to go ahead and secure an appointment with the Deputy Registrar of the Supreme Court to have the draft Index settled. In the same letter, the respondent’s lawyers advised the appellant’s lawyers that they would agree with sixteen (16) of the documents listed in the draft Index.

4 When the respondent’s lawyers did not receive a response to their letter of 19 May, 2005, from the appellant’s lawyers, they sent a follow up letter, which was hand delivered to the appellant’s lawyers on 6 October, 2005, advising them of their duty to expedite the appeal. The respondent’s lawyers in the same letter suggested to the appellant’s lawyers that they should advise their client to consider discontinuing the appeal, given that the property, which was the subject of the appeal, had been transferred to a third party. In the last paragraph of that same letter, the respondent’s lawyers also gave notice that an application would be made to the Supreme Court seeking appropriate orders including an order to dismiss the appeal, if the respondent did not receive a response from them within seven days from the date of the letter.

5 The respondent contends that, since that letter, the appellant’s lawyers have not taken any constructive steps at all to expedite the prosecution of the appeal. The respondent argues that there have been an inordinate delay by the appellant to prosecute his appeal and the delay appears to be deliberate. The respondent says that appellant has not provided any explanation for the delay, thus he has failed to diligently prosecute his appeal.

6 The appellant places reliance on the affidavit sworn by John Poro on 20 April, 2006. It is noted that in paragraph 4 of that affidavit, Mr. Poro deposes that when David J, dismissed the National Court proceedings, he told the parties that, he would publish his “detail reasons” later. In his affidavit, Mr. Poro generally deposes that appellant was awaiting the receipt of the written decision of his Honour to finalise the grounds of appeal. In paragraph 5 of the affidavit, Mr. Poro also deposes that because time was running against them, they had to file the appeal, and further grounds were to be added once they received the written decision from his Honour.

7 On the issue of delay, Mr. Poro deposes that, apart from waiting for the written decision of his Honour, they also experienced difficulties in obtaining transcripts of the trial to prepare the appeal. In paragraph 10 of the affidavit, he deposes that he wrote “numerous letters” to the Associate to his Honour, inquiring when they would receive the written decision from his Honour, but the Associate made no replies to those letters. Mr. Poro says that last time he called to check with the Associate and the Secretary to his Honour was in March, 2006, the second last being in February, 2006. In paragraph 11, Mr. Poro also deposes that between December, 2004 and May, 2005, the appellant took carriage of the appeal himself, thus he had no communication with the appellant on the appeal during that period. Mr. Poro says that appellant contacted him in the latter part of 2005, and instructed him to proceed with the appeal, thus resulting in Mr. Poro writing to the Associate to enquire about a written decision by his Honour.

8 Mr. Poro says, to date, no written decision has been given to the parties, in particular the appellant. He therefore contends that the delay in prosecuting the appeal is not caused by the appellant rather it is due to the written decision of the National Court not being ready. He therefore argues that the appeal should not be dismissed.

9 Mr. Poro has attached four letters to his affidavit. All four letters were written to the Associate, asking about the written decision of the National Court. The letters are dated 10 March, 2005, 15 July, 2005, 18 October, 2005, and 21 January, 2006, respectively.

10 It is to be noted that the first letter of 10 March, 2005 was written five months after the appeal was filed on 20 August, 2004, and about two months after the stay order was set aside on 4 November, 2004. The second letter of 15 July, 2005, was sent to the Associate about eleven months after the appeal was filed and about eight months after the stay order was set aside. The third letter of 18 October, 2005, was sent to the Associate, one year two months after the appeal was filed and eleven months after the stay order was set aside. The fourth and the last letter of 21 January, 2006, was sent to the Associate one year five months after the appeal was filed and one year two months after the stay order was dismissed.

11 Even the periods between these four letters were long, in that, after the first letter of 10 March, 2005, the second letter was not sent to the Associate to his Honour until 15 July, 2005, which was a period of four months. Then there was another delay of three months before the third letter was sent to the Associate on 18 October, 2005. Then there was a further delay of three months before the last and final letter was sent to the Associate on 21 January, 2006.

12 No explanations have been given by the appellant for all these delays and apart from these unexplained delays, there is also no explanation given by the appellant why the respondent’s lawyers’ letters were never replied, i.e. letters dated 19 May, 2005, and the follow up letter of 6 October, 2005. In the last letter, the appellant was put on notice through his lawyers that if they did not receive any response to the letter within seven days from the date of the letter, the respondent would apply for the dismissal of the appeal for want of prosecution. Significantly, that letter was hand delivered to the appellant’s lawyers. The appellant has hitherto not responded to that letter.

13 The appellant’s failure to secure an appointment date with the Deputy Registrar of Supreme Court to settle the draft Index was also a clear breach of Order 7 r33 to r35 and 4r0 and r41 of the Supreme Court Rules, which are in mandatory terms. These facts alone are in our view sufficient for us to dismiss the appeal.

14 The need to comply with these rules was emphasized by the Supreme Court in The Public Prosecutor v. Allen Ebu Marai [1996] PNGLR 81. The Supreme Court at 82 said:

“Lawyers for the respondent filed this application on 17 February 1995. Counsel for the respondent contended that the appellant has not taken steps required to be taken and has not prosecuted it’s appeal with due diligence under O 7 r 53 of the Rules.

In considering the application of O 7 r 53 in General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm...