Rabaul Shipping Limited v Rita Ruru (2000) N2022

• Jurisdiction: Papua New Guinea
• Citation: (2000) N2022
• Date: 08 December 2000
• Court: National Court
• Year: 2000

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

National Court: Kandakasi J

Judgment Delivered: 8 December 2000

1 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 (Ch40), s220, s221, s222, s226 and s227.

2 APPEALS—Practice and 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 Courts Act fatal—District Courts Act (Ch40), s220, s221, s222, s226 and s227.

3 PRACTICE AND PROCEDURE—National Court—Appeals to—Want of prosecution—No reasonable explanation for delay—Appeal dismissed—District Courts Act (Ch40), s222, s226 and s227—National Court Rules 1983, O10 r4 and r5

4 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 endeavours to prosecute appeal within reasonable time—Failing to inform underrepresented party of reasons for delay—Breach of Professional Conduct Rules 1989—Professional Conduct Rules 1989, s9.

5 Peter Dickson Donigi v Base Resources Ltd (1992] PNGLR 110, Moses v Magiten (2000) N2023, The State v The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor (1976] PNGLR 344, Kiau Nikints v Moki Rumints (1990] PNGLR 123, ABCO Transport Pty Ltd v Timothy Sakaip (1997) N1577, General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd (1990] PNGLR 331 and Joe Chan and PNG Arts v Mathias Yambunpe (1997) SC537 referred to

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

This is an application seeking to dismiss the appeal for want of prosecution by notice of motion filed on 9 November 2000. It is supported by an affidavit of the Applicant/Respondent (hereinafter referred to as "Applicant") sworn on the 19 September 2000 and also filed on 9 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 1 May 2000. A Recognizance on Appeal was entered into before a magistrate at the Lae District Court on 28 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 24 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 21 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...