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National Court of Papua New Guinea |
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 endeavours 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.
Counsel:
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 endeavours 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:
On the 1st of December 2000, in the case of William Moses v. Otto Benal Magiten, (not yet reported and unnumbered judgement) I said at page 6 and I quote:
It is now settled law that District Courts are not courts of record and are creatures of statute. Therefore their powers, functions and anything to do with them are governed by their enabling legislation, the District Courts Act (Ch.40) (hereinafter "the Act"). Consequently, all things done not in accordance with the Act have been held to be null and void and of no effect: see The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577.
Then at pages 6 to 7 of that judgement, I quoted in full the provisions of sections 220, 221, 226 and 227 of the District Courts Act (Ch. 40) and said these:
The word "shall" is used in these sections. The words used in these provisions are so plain and clear that there is no room for any argument as to when and where an appeal can be lodged and when it should be prosecuted before the National Court. The words of section 220(2) make it clear that an appeal against a decision of a District Court should be lodged "with the Clerk of the District Court by which the conviction, order or adjudication was made". That must be done within a period of one month from the date of the decision appealed against. Then by virtue of section 221(2), sealed copies of the Notice of Appeal should be served on the respondent or respondents if more than one, also within a period of one month from the date of the decision appealed against.
Once an appeal has been lodged and served in the above manner, an appellant is obliged by section 226 to enter the appeal for hearing by the National Court within a period of 40 days from the date of the lodgment of his appeal. A failure to do so attracts the application of section 227, which renders the appeal non-existent. The combined effects of sections 226 and 227 in my humble view, is that, an appeal should be ready for hearing before the National Court within 40 days from the date of its filing. There would of course, be exceptions to that. If the delay in having an appeal heard within such a period can be excused by reason of say, the District Court depositions and or transcripts not being made available despite requests and follows on such requests by an appellant, or that the magistrates reasons for decision are not available, or that there is no judge to hear the appeal, or that the appellant is seriously ill and or such other factors exist which prevent an appellant from promptly prosecuting his appeal, the effect of non compliance of section 226 could be avoided. The onus is always on an appellant to show such factors exist if there is an application to dismiss for want of prosecution or non compliance of section 226 of the Act. If an appellant fails to prove by appropriate evidence, the existence of such factors, the appeal should be dismissed for want of prosecution.
I then referred to and adopted and applied the principles enunciated in the case of General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331 although in the context of the Order 7 Rule 53 of the Supreme Court Rules. Thereafter I expressed the view that, those principles apply in relation to appeals to the National Court from the District Courts and quoted the following passage from page 334 of the Supreme Court judgement:
It is of some strength in the argument that a court should be wary of extinguishing a plaintiff’s right of action, but, having
found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict
(with due diligence). The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice
to the respondent are peripheral to the real issue. Has the appellant prosecuted his appeal with due diligence?
...
We consider, that though an exercise of discretion is available to a court, (the rule provides three alternate courses), its exercise should not avail an appellant in circumstances where there is absence of excuse.
Some relevant considerations when exercising this discretion are dealt with by this Court in Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55, where the court said, at 56:
"None of this is to say that r 25 will be regarded lightly. It is a rule of court and any appeal which does not meet its requirements is at risk of being dismissed."
The matters to which the Court had regard in that case were different to those dealt with here, for primarily the absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.
We consider that to do otherwise than to dismiss in the absence of explanation would result in a failure to pay sufficient regard to the clear mandate in r 53(a) to dismiss for want of prosecution.
Then on my own part said these at page of the judgement:
Thus, if a case of want of prosecution is made out in an application to dismiss for want of prosecution and a respondent to such an application fails to provide a reasonable explanation, the appeal should be dismissed. To do so is to achieve the main objective of reaching finalities in litigation once a decision as been made, subjected only to any appeal that gets prosecuted with due diligence.
As already mentioned, the National Court has not hesitated to dismiss appeals from the District Courts that have not complied with provisions of the Act. In the ABCO Transport Pty Ltd v. Timothy Sakaip (supra) case, the court decided to dismiss the appeal on the basis inter alia that the appeal was not instituted in accordance with the provisions of section 220 and an extension of time to file and serve the appeal out of time in accordance with the provisions of section 231 of the Act was not first sought and obtained.
In that case I found that the Notice of Appeal was not lodged with the Clerk of Bialla District Court which was the Court that made the decision the subject of the appeal. I also found that the Notice of Appeal and the other appeal documents were not served within one month in accordance with section 221 (2) of the Act. Further I found that the Appellant in that case, filed an Entry of Appeal to the National Court at the same time as the appeal. In respect of that I said at page 9 of the judgement:
There is a further reason to dismiss the appeal. The Appellant filed an entry of his appeal to the National Court on the same day of the lodgment of the appeal. That meant that as of the 15th of July 2000 the appeal was ready for hearing. However, the matter was not in fact ready for hearing at that time or at the time of the hearing of the motion seeking to dismiss the appeal for want of prosecution. To my simple mind, the filing of the entry of appeal to the National Court was an abuse of process. This is because, I consider the requirement to file and serve an entry of appeal to the National Court is to tell the court and all concerned that an appeal is ready for hearing. That in my view is obvious from the words "for hearing on a date to be fixed by the registrar of the National Court" used in section 226(1) of the Act. I consider the situation is similar to filing and serving a notice to set down for trial of a writ of summons matter before the National Court pursuant to Order 10 rule 4 of the National Court Rules 1983. A failure to set a matter down for trial in accordance with that rule, attracts the application of Order 10 rule 5, which is the provision that allows for the dismissal of a case for want of prosecution. The equivalent of that rule in the case of appeals from the District Court to the National Court, in my view, is section 227 of the Act which renders an appeal non existent if an entry of an appeal to the National Court is not filed in accordance with section 226 of the Act. Clearly in my view, there is legislative intent to have all appeals from District Courts heard after the lapse of 40 days from the date of the lodgment of an appeal. Any delay in that therefore, has to be satisfactorily explained if a dismissal and or an enforcement of the decision appealed against is to be avoided. A failure to provide such an explanation is fatal to an appeal.
Finally, I found in the William Moses v. Otto Benal Magiten case that, neither an affidavit in reply to the affidavit in support of the motion to dismiss the appeal was filed, nor did the Appellant or his lawyer turned up in court to oppose the application after being served with the application on the 24th of November 2000. A period of one (1) year five (5) months passed since the lodgment of the appeal and the matter was still not ready to be heard at the time of the hearing of the motion or in the immediate future. The appellant did not offer any reasonable explanation for the delay of one (1) year five (5) months. There was even no indication that the appeal will be prosecuted in the immediate future notwithstanding the delay.
Considering and on the basis of all of the above factors, I decided to dismiss the appeal in that case. I did so after having reminded myself of what the Supreme Court said in General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd (supra),
...a court should be wary of extinguishing a plaintiff’s right of action, but, having found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict (with due diligence). The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice to the respondent are peripheral to the real issue. Has the appellant prosecuted his appeal with due diligence
In William Moses v. Otto Benal Magiten case, I inadvertently omitted to comment on the importance of entering into a recognizance on appeal. I take the opportunity to do so in this case. The whole intent and purpose of entering into such a recognizance is to promise to the court and all concerned that the appeal for which the recognizance is given will be prosecuted without delay. Such recognizance typically end, as in the present case, with the words:
If therefore Rabaul Shipping Limited shall duly prosecute without delay such appeal and abide the order of the National Court on the appeal, and pay such costs as may be awarded by the National Court, then the recognizance to be void, or else to stand full force and virtue.
Apparent from such words is the fact that, an appellant obligates himself/herself of a duty to "prosecute the appeal without delay". That is in addition, in my view, to the general position at law that, an appellant is obliged to prosecute his appeal without delay at the risk of the appeal being dismissed for want of prosecution. There is no corresponding duty on a respondent to an appeal save to sign appeal books and agree to a date for hearing when an appeal is ready. Otherwise, they have no other obligation but do always have the right to apply for a dismissal of the appeal if there is no reasonable explanation for any delay in the prosecution of an appeal.
The comments and observations I made in William Moses v. Otto Benal Magiten case equally applies to the present case. The present case is one in which, the Respondent (appellant) did not have his appeal filed with the Kimbe District Court as is required by section 220(2) of the Act. There is also, no prove of the Notice of Appeal and the other documents being served on the Applicant (Respondent) in accordance with the requirements of section 221(2) of the Act. Further the Recognizance on Appeal was not served on the Clerk of the Kimbe District Court in accordance with section 222(2) of the Act though the entering into and filing of the same was in accordance with the provisions of section 222 of the Act. Furthermore, the filing of the Entry of Appeal to the National Court was not in accordance with the intent and or spirit of section 226(1) of the Act as elaborated and discussed and applied in the William Moses v. Otto Benal Magiten case. These on their own or collectively, provide the basis to dismiss the appeal.
There is however, an additional reason to dismiss the appeal. That is the fact that the Respondent (appellant) has failed to prosecute the appeal promptly despite its own undertaking as per the Recognizance on Appeal entered into on the 28th of April 2000 and generally in line with the duty to prosecute the appeal promptly. That duty in my view also emanates from section 226 of the Act, which speaks of getting an appeal ready for hearing within 40 days from the date of the lodgment of the appeal. Despite the indication by virtue of filing the Entry of the Appeal to the National Court on the 1st of May 2000, that the appeal was ready for hearing as at that time, they have not in fact gotten the appeal ready for hearing. All that the Respondent through its lawyers did was write a single letter to the Clerk of the Kimbe District Court on the 24th May 2000. They did not follow up on that at any stage expressing concern over the delay. They now argue that if the Applicant raised with them concerns over the delay they would have done something about it. I have not been pointed to any authority to support that argument. They did not apply to the National Court for say orders compelling the District Court Clerk and the magistrate concerned to furnish the depositions and reasons for decision without delay and or within a specific period. They then argued that, they relied on the court system to get the depositions and reasons and hence the appeal ready for them. Again I am not aware of such a system and I have not been referred to any authority to support that position.
After the delivery of the decision in the William Moses v. Otto Benal Magiten (supra) and the draft of my judgment in this matter, my brother, Justice Injia, provided me with a copy of the Supreme Court decision in Joe Chan & PNG Arts v. Mathias Yambunpe (unreported but number judgement delivered on 16th December 1997) SC537. I am very much obliged to His Honour for drawing that case to my attention. The case confirms that the principles governing want of prosecution and the case law built around Order 7 Rule 53 of the Supreme Court Rules applies to Appeals from the District Courts to the National Courts. Hence, it confirms my view that those principles do apply to appeals from District Courts to the National Court.
Getting back to the case at hand, I reminded myself of what the Supreme Court said in General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd (supra):
...a court should be wary of extinguishing a plaintiff’s right of action, but, having found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict (with due diligence). The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice to the respondent are peripheral to the real issue. Has the appellant prosecuted his appeal with due diligence
The Respondent (appellant) has not prosecuted its appeal with due diligence in addition to failing to lodge the appeal in accordance
with the provisions of section 220(2), serve the recognizance in accordance with section 222(2) and the notice of appeal in accordance
with section 221(1), and filing the entry of appeal not in accordance with the spirit and intend of section 226 (1) of the Act. These
are clear indications of professional negligence on the part of the Respondent’s lawyers for which their client could have
recourse as opposed to the Applicant who has to simply wait endlessly and be kept out of the benefits of the fruits of the judgment
in her favour. On the basis of all of these factors, I decided to dismiss the appeal with costs against the Appellant.
_______________________________________
Lawyers for the Applicant/Respondent: Gamoga & Company Lawyers
Lawyers for the Respondent/Appellant: Warner Shand
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