The Independent State of Papua New Guinea v Raymond Turu and John Maku, Representatives of Clan Leaders, Forestry Agents and Landowners of Vanimo Block 6 Timber Rights Purchase Area (2008) SC904

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ, Gavara–Nanu & Cannings JJ
• Judgment Date: 29 February 2008
• Court: Supreme Court
• Citation: (2008) SC904
• Docket Number: SCA NO 24 0F 2006
• Year: 2008
• Judgement Number: SC904

Full Title: SCA NO 24 0F 2006; The Independent State of Papua New Guinea v Raymond Turu and John Maku, Representatives of Clan Leaders, Forestry Agents and Landowners of Vanimo Block 6 Timber Rights Purchase Area (2008) SC904

Supreme Court: Kapi CJ, Gavara-Nanu & Cannings JJ

Judgment Delivered: 29 February 2008

SC904

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 24 0F 2006

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Appellant

V

RAYMOND TURU AND JOHN MAKU,

REPRESENTATIVES OF

CLAN LEADERS, FORESTRY AGENTS AND LANDOWNERS OF

VANIMO BLOCK 6 TIMBER RIGHTS PURCHASE AREA

Respondents

Waigani: Kapi CJ, Gavara-Nanu & Cannings JJ

2008: 27, 29 February

APPEALS - motion to dismiss appeal for want of prosecution – Supreme Court Rules, Order 7, Rule 53 - relevant considerations to exercise of discretion – whether there has been apparent delay in prosecuting application – whether application has been prosecuted with due diligence – whether applicant has provided adequate explanation.

The State appealed against an interlocutory decision of the National Court. More than 12 months passed and the appeal had not been listed. Preliminary steps to get the matter ready for hearing were not completed. The respondents to the appeal then moved the court to dismiss the appeal for want of prosecution.

Held:

(1) There has been a substantial delay in prosecuting the appeal. After more than 20 months the index of the review book has not been settled.

(2) The onus therefore was on the appellant to give a satisfactory explanation for the delay.

(3) It is no excuse for the State’s lawyer, the Solicitor-General, to say that another lawyer had possession of the file.

(4) The Court must look at all the events that have happened up to the day on which the motion is argued, in particular events that have taken place since the motion was filed.

(5) The appellant allowed four months to pass since the respondent moved the court to dismiss the appeal and did not do anything to progress the appeal.

(6) In deciding whether to exercise its discretion to dismiss an appeal for want of prosecution the court may also consider the consequences of dismissal of the appeal.

(7) Here, dismissal of the appeal will not finally determine the interests of the parties, so this makes the case unexceptional and favours dismissal.

(8) The motion to dismiss the appeal was accordingly granted.

Cases cited:

Dan Kakaraya v Sir Michael Somare (2004) SC762

Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691

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

MOTION

This was a motion for dismissal of an appeal on the ground of want of prosecution.

Counsel

L Kandi, for the appellant

N Amoiha, for the respondent

1. BY THE COURT.: This is a ruling on a motion to dismiss an appeal for want of prosecution. The appellant is the State and it is appealing against an interlocutory order of Salika J in the National Court.

2. His Honour’s order was to refuse the State’s application to dismiss National Court proceedings, WS No 1203 of 2004, brought against it by the respondents, Raymond Turu and John Maku, on the ground that there was no reasonable cause of action. The respondents (the plaintiffs in the National Court) claim that the State negligently paid a judgment debt of more than K500,000.00 arising from earlier proceedings, to the wrong person. They say that money should have been paid to them. His Honour ruled that the respondents have an arguable case in negligence against the State.

3. The matter has not progressed to trial, however, as the State has been granted leave to appeal against Salika J’s order and a notice of appeal has been filed.

4. The respondents have since then brought a motion to have the appeal dismissed on the ground of want of prosecution. That is the motion we are ruling on. The question we have to decide is whether the appeal should be dismissed. We are not hearing the merits of the appeal, ie we are not deciding whether Salika J made the right decision. We are simply deciding whether the respondents’ motion should be upheld. If it is, WS No 1203 of 2004 will revert to the National Court for trial. If we dismiss the motion, the appeal against Salika J’s order will go ahead.

THE FACTS

5. When hearing a motion to dismiss an appeal for want of prosecution, the court must at the outset focus on two sorts of facts.

Dates

6. The first is dates and passage of time. Four dates stand out here:

· 23 February 2006: date of the National Court decision under appeal.

· 1 June 2006: date of filing the notice of appeal (it was filed in time, in accordance with the leave of the court).

· 4 October 2007: date of filing of motion for dismissal.

· 27 February 2008: date of hearing the motion.

That means:

· More than 16 months passed between when the State filed its appeal and the respondents filed the motion to dismiss.

· More than four months have passed since the respondents filed the motion to dismiss.

· It is now more than 20 months since the appeal was filed.

Status

7. The second fact we must focus on is: what is the status of the case?

8. Here, the draft index of the appeal book was filed on 24 August 2006. That represents the first formal step in getting an appeal set down for hearing. The next step, which is getting an appointment with the Registrar to settle the appeal book (Supreme Court Rules, Order 7, Rules 33 and 42), has been completed, in that a number of appointments have been made. But the appointments have not come to fruition.

9. As a result, the index has not been settled. The other matters covered by Rule 42 (documents and matters to be included in the appeal book, number of copies required and other matters determined by the Registrar) have also not been resolved.

THE LAW

10. The respondents’ motion is brought under Order 7, Rule 53 of the Supreme Court Rules, which states:

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.

11. The Supreme Court’s interpretation of this rule in a number of cases means that there are two issues to be addressed:

First, has there been an apparent delay in prosecuting the matter?

Secondly, if yes, does the person apparently guilty of the delay – in this case, the State – have a satisfactory explanation for the delay?

(See General Accident Fire & Life Assurances Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331; Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691; Dan Kakaraya v Sir Michael Somare (2004) SC762.)

HAS THERE BEEN A DELAY?

12. Clearly, there has been a substantial delay. After 20 months (June 2006 to February 2008) all that has happened is that a draft index has been filed and a number of appointments to settle the appeal book have been made. But the index and the appeal book remain unsettled.

IS THERE A SATISFACTORY EXPLANATION FOR THE DELAY?

13. Mr Kandi, for the State, submits that there is. He points out that soon after the appeal was filed an appointment was made with the Registrar to settle the appeal book, on 13 July 2006. But the appointment did not come to fruition because the respondents’ lawyers did not turn up. Subsequent appointments were made for 20 July, 7, 12 and 15 September 2006. They too did not come to fruition – though it is not clear why.

14. Another problem the State has faced is that its original lawyers, Paul Paraka Lawyers, ceased to act for it in December 2006 but did not hand over the appeal file to the new lawyer, the Solicitor-General. Upon receiving notice, on 18 September 2007, from the respondents’ lawyers, Henaos, that they intended to file a motion for dismissal, the Solicitor-General acted promptly in getting a copy of the court file made. That was not made available, however, until 10 October 2007, by which time the respondents’ motion had been filed.

15. The Solicitor-General has not done anything about prosecuting the appeal since October 2007 because of the pending motion for dismissal.

16. Mr Kandi submits that Henaos have not acted in good faith. They have been aware of the State’s difficulties in prosecuting the appeal but have not been co-operative.

17. We agree with Mr Kandi that the respondents’ lawyers were to blame for the first appointment to settle the appeal book coming to nought. But that was on 13 July 2006. There is no evidence that they were responsible for the four subsequent appointments suffering a similar fate. The last of them was on 15 September 2006. There is no explanation for what has happened since then.

18. As for the State’s change of lawyers, that is, it seems, the real cause of the delay. There has been a lack of communication and perhaps a lack of co-operation. That is a real problem. But we consider that it is the State’s problem. It should have been sorted out a long time ago and it cannot be used as an...