N2666

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

APP 64 OF 2000

BETWEEN:

PAPUA NEW GUINEA ELECTRICITY COMMISSION
(Appellant)

AND:

JOSEPH AMBAN
(First Respondent)

&

ALEX BOBOLA
(Second Respondent)

MADANG : SAWONG, J.
2004 : 18th & 31st AUGUST

APPEAL – Practice & Procedure – Dismissal for Want of Prosecution – Power to dismiss discretionary – Lack of due diligence to Prosecute Appeal – Undue delay – Relevant Considerations – What constitutes undue delay depends on individual facts of each case – No satisfactory explanation from Appellant – Appeal dismissed for Want of Prosecution.

CASES CITED:
Credit Corporation (PNG) Pty Limited v Tabua [1990] PNGLR 166.
Tenge Kaiulo v Acting Public Prosecutor; 
Joe Koveia Malai v Acting Public Prosecutor;
Acting Public Prosecutor v Andrew Lalaiva & Angelo Ume [1981] PNGLR 148
Lucas Fisenki v Paul Lomo (Un-reported Judgement of National Court by Sawong J, 15th June, 2001.

COUNSEL:
B. WAIPEK, for Applicants
Z. DAVIDI, for Respondents

DECISION

31st August, 2004

SAWONG, J: This is an application to dismiss the appeal of the appellant for want of prosecution.

The application is opposed by counsel for the appellant.

The application is supported by the affidavit of Mr Waipek. Mr Waipek in his affidavit deposes that soon after they took carriage of the matter in June 2004, he wrote to the appellant’s lawyers informing them of the change of lawyers acting for the first respondent. Then on the 18th of June 2004, the lawyers for the appellant acknowledged receipt of his letter and advised that they have yet to obtained copies of the court depositions from the Madang District Court. On 21st of June 2004, Mr Waipek wrote to the lawyers for the appellant and putting them on notice that as four (4) years had lapsed since the appeal had been filed, he would be filing an application in the National Court to dismiss the appeal for want of prosecution if they fail to file the appeal book within fourteen (14) days upon receipt of his letter. The next day the appellant’s lawyers enclosed a draft copy of the index to the appeal book. They also informed him that the copies of the court deposition had yet to be obtained. On 8th July 2004, he conducted a search of the National Court file and noted that the appellant had not filed an appeal book. 

In response, counsel for the appellant has filed an answering affidavit. The essence of Mr Kassman’s affidavit was that the appeal was not prosecuted with due diligence because of a number of factors. First is that, in December 2001, the first defendant’s then lawyers were attempting to execute the judgment in its favour by attempting to enforce a Garnishee Order Absolute. During December they made attempts to stay the enforcement of the judgment debt. They were not able to obtain any stay order until 8th of January, 2002 when a stay order was granted for the stay of the execution of the Garnishee Order. In January 2002, they wrote to the Assistant Registrar to release to their agent Messrs Young Wadau the depositions from the District Court. Towards the end of January their branch manger of their client attended at the Registry where he was informed that the depositions were most probably with Messrs Young Wadau, Lawyers. Then he makes a general comment that for the next two years they wrote and telephoned time and time again to Young Wadau, Lawyers, requesting for the court depositions without any response. There is no evidence of these "numerous correspondences".

He confirms receiving the correspondences from the applicant’s lawyers and forwarding the draft index. He also confirms that given the ultimatum by the first respondent’s lawyers, they proceeded to produce and prepare an appeal book based on copies they had. They conceded that the appeal book is incomplete in that there were pages missing from the appeal book.

The law relating to dismissal of appeals from District Court to the National Court for want of prosecution are now fairly settled. There have been numerous decisions of the National Court on this issue. See Credit Corporation (PNG) Pty. Limited v Tabua [1990] PNGLR 166, Tenge Kaiulo v Acting Public Prosecutor; Joe Koveia Mailai v Acting Public Prosecutor; Acting Public Prosecutor v Andrew Lalaiva & Angelo Ume [1981] PNGLR 148; Lucas Fisenki v Paul Lomo (Unreported Judgment of the National Court by Sawong J, 15th June, 2001).

The principles emanating from those authorities are inter alia that the court has discretion to dismiss for want of prosecution where there is undue delay. What constitutes undue delay depends on the circumstances of each case, and the onus is on the applicant to dismiss, to establish the prima facie case of delay. The onus then shifts to the respondent, to the application to give a satisfactory explanation for the delay.

In the present case in my view, the evidence is quite clear. The appeal was filed on the 21st of March, 2000. The reason for the decision was filed with the National Court on the 12th of April, 2000.

The Notice of Appeal was filed with the National Court registry on the 21st of March, 2000. In the body of the Notice of Appeal it reads:

"2: The Registrar of the National Court, Madang.
The Clerk of the District Court, Madang.

The lawyer for the appellant hereby gives notice of their intention to appeal .."

I raise this point (though it was not argued or raised by either of the counsels) nevertheless, it appears to me that the appeal itself may be incompetent because it was filed with the National Court and not with the Clerk of the District Court as required by the District Court’s Act. Further, the form of the Notice of Appeal as I have quoted above points to the form being irregular. 

This may be the reason why the Clerk of the District Court may not have forwarded the depositions although I do note from the file that by a inter office memorandum dated 26th of March, 2000 from the National Court clerk to the District Court clerk advising him to send the transcript and the trial magistrate’s reasons. 

As this point was not fully argued, I say nothing further on it. I now turn to consider the arguments raised by the parties.

Mr Waipek submits that there has been an undue delay on the part of the appellant. He further submits that even at the hearing of the Motion the appeal book is incomplete in that some pages are missing and it is unlikely that the appeal would ever be ready for hearing.

Ms Davidi for the appellants submitted that they had done everything possible to have the appeal set down for hearing. She submitted that they had tried their best, including instructing agents to obtain the depositions from the National Court registry and that despite all their efforts the depositions have not been forwarded to them to compile and file a complete appeal book. She conceded that the draft appeal book which has been filed is not even complete and that the appeal would not really be ready to be heard in the near future.

Considering all the evidence I am satisfied that there has been a prima facie case of undue delay on the part of the appellant. More than four (4) years has lapsed since the appeal was filed. Furthermore, the Notice of Appeal was wrongly filed in the National Court. That was probably one of the reasons why the depositions had not been forwarded. 

Further, after 2001 there seem to be no or very little activity on the part of the appellant to prosecute the appeal diligently. Whilst I accept that counsel for the appellant had sought the assistance of, even the manager, of its client to obtain the depositions, I note also that they believed that their previous agent had taken possession of the depositions. After 2001 there just seem to be no activity at all until the present Motion was filed. 

I can understand and accept the explanations given by the appellant’s counsel in relation to the activities up to 2001. But there has been no explanation for the delay from 2002 to the date of the filing and hearing of the Motion. Mr Kassman refers to "numerous correspondences" but there is no evidence of any "numerous correspondences" that support his contention. 

In the circumstances there has been a long and protracted delay. A successful litigant is entitled to the fruits of his litigation. If an appellant wishes to challenge the verdict against it, then having done so, it has a duty to prosecute its appeal diligently so that litigation is brought to a finality. In the present case counsel for the appellant concedes that as the Appeal Book is incomplete, the appeal might not be heard in the near future.

For those reasons, I uphold the Application. I order that the Appeal be dismissed for want of prosecution. The Appellant shall pay the Respondent’s Costs.
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LAWYERS FOR THE APPLICANTS : KUNAI LAWYERS
LAWYERS FOR THE RESPONDENTS : KASSMAN LAWYERS