N4567

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APP. CIA NO. 74 OF 2007

BETWEEN

ALPHONSE PALANG
First Appellant

AND

MOMASE GENERAL WORKERS UNION V PELGENS LTD
Second Appellant

AND

PELGENS LIMITED
Respondent

Lae: Gabi, J
2010: 1st October

APPEAL – District Courts decision to refuse to set aside restraining order obtained by respondent – application by respondent to dismiss proceedings for inordinate delay in prosecuting appeal and for abuse of process – inordinate delay by appellant – no meaningful steps to progress appeal – appeal dismissed

Facts:

This is an application by the respondent to dismiss the entire proceeding for want of prosecution. In the alternative, the respondent seeks to dismiss it for being an abuse of process. The appellant opposes the application.

Held:

1. There had been an inordinate and inexcusable delay in prosecuting the appeal.
2. The question of whether the entry of appeal was genuine or an abuse of process depends on the steps taken by the appellant to progress the matter to a hearing within the forty (40) day period (Patrick Haino vs. Resena Sai & Others (2006) N3063).
3. No meaningful steps were taken to progress the appeal to hearing. Accordingly, the filing of the entry of appeal in this case is an abuse of process.

Cases Cited

General Accident Fire & Life Assurance Corp Ltd vs. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Joe Chan and PNG Arts vs. Matthias Yambunpe (1997) SC537
Patrick Haino vs. Resena Sai & Others (2006) N3063
Rabaul Shipping Ltd vs. Rita Ruru (2000) N2022
William Moses vs.Otto Benal Magiten (2000) N2023

Counsel:

S. Toggo, for the Appellants
E. Jansen, for the Respondent

RULING

1st October, 2010

1. GABI, J: Introduction: This is an application by the respondent to dismiss the entire proceeding for want of prosecution. In the alternative, the respondent seeks to dismiss it for being an abuse of process. The appellant opposes the application.

The Evidence

2.	The parties filed the following affidavits: (i) affidavit of Joseph Kais dated 24th March 2009; (ii) affidavit of Alphonse Palang dated 27th March 2009; (iii) 2 affidavits of Sosthen Toggo dated 30th July 2009 and 19th August 2010 respectively; and (iv) 2 affidavits of Emma Janson dated 26th March and
4th August 2010 respectively.

Facts

3.	On 17th May 2007, the appellant filed a notice of appeal, a recognizance on appeal and an entry of appeal in the National Court. The appeal arose as a result of the refusal by the District Court on 12th April 2007 to set aside a restraining order obtained by the respondent on 30th October 2006. The restraining order was to restrain the appellants, particularly the first appellant, from entering the respondent's nine (9) mile Piggery to harass and/or to intimidate its staff. On 19th June 2007, the respondent filed notice of appearance. On 26th July, 12th October and 2nd November 2007, the lawyers for the appellant wrote to the Clerk of District Court requesting the court depositions. On 14th January and  15th September 2008, the appellants again wrote to the Clerk of District Court requesting court depositions. On 25th March 2009, the respondent filed a notice of motion and a supporting affidavit to dismiss the entire proceeding for want of prosecution. On 24th September 2009, the appellant filed a notice of motion and an affidavit seeking orders for the Clerk of District Court to provide depositions pursuant to section 224(1) of the District Court Act. The motion was mentioned on 16th October, 22nd October, 6th November and 15th December 2009. On 10th August 2010, the appellant's lawyers wrote to the lawyers for the respondent enclosing the Appeal Book in triplicate and requesting that the Certificate of Correctness be signed if in order and returned to them for filing and that the notice of motion for dismissal of the proceedings for want of prosecution be adjourned or withdrawn. 

The Law

4.	In Joe Chan and PNG Arts v. Matthias Yambunpe (1997) SC537, the Supreme Court (Kapi DCJ, Los J and Jalina J) said "The jurisdiction and authority to hear and determine appeals from the District Court is given to the National Court under Part XI of the District Courts Act. But this part does not include any specific provision relating to dismissal for want of prosecution such as is given in O7 r53 of the Supreme Court Rules relating to dismissal of an appeal from the National Court for want of prosecution. In our view however, the principles discussed by the Supreme Court in applying O7 r53 are just as relevant and authoritative in their application to an appeal from the District Court. Matters relevant to want of prosecution have been held to include failure to attend a settlement of the appeal book, failure to explain non–attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected."

5.	General Accident Fire & Life Assurance Corp Ltd vs. Ilimo Farm Products Pty Ltd [1990] PNGLR 331 suggests that the Court's discretionary power be exercised in favour of dismissing an appeal for want of prosecution if there has been (1) intentional or malicious or (2) inordinate and inexcusable delay and (3) if such delay may give rise to a substantial risk that it may not be possible to have a fair hearing. 

6.	At the hearing counsel for the appellant submitted that an Appeal Book has been compiled and sent to the respondent for endorsement. As such, the application to dismiss for want of prosecution should not be entertained. I do not accept that argument. I have perused the documents in the Appeal Book and find that all those documents have always been with the parties since the institution of the notice of appeal. However, the court depositions of the proceedings DCPP No. 549 of 2006 are not included or part of the documents in the Appeal Book. I note that in order to obtain the depositions the appellant filed a motion on notice on 24th September 2009 to compel the Clerk of District Court to provide them. The motion was not prosecuted and no explanation has been provided to the Court. 

7.	The respondent relies on four grounds to dismiss the appeal: (i) long and undue delay; (ii) prejudice; (iii) abuse of process in that the entry of appeal was filed when the appeal was not ready; and (iv) failure to prosecute the notice of motion filed on 24th September 2009.

Delay

8.	The notice of appeal, recognizance on appeal and the entry of appeal were filed on 17th May 2007. In addition, the appellant wrote three (3) letters to the Clerk of District Court requesting court depositions. In 2008, the appellant wrote two (2) more letters to the Clerk requesting depositions. In 2009, the appellant filed the notice of motion and an affidavit of Alphonse Palang seeking orders to compel the Clerk to provide depositions. These years no attempt has been made to prosecute the appeal. 

9.	In his affidavit dated 27th March 2009, Alphonse Palang deposes that his lawyers have written five (5) letters to the Clerk of Court requesting depositions. The application to compel the Clerk to provide the depositions has not been made and no explanation has been given for that state of affairs. It is well over three (3) years since the appeal was instituted and no reasonable explanation has been forthcoming. Accordingly, I agree with counsel for the respondent that there had been an inordinate and inexcusable delay in prosecuting the appeal.

Prejudice

10.	Counsel for the respondent submits that the lengthy delay has been stressful and costly to the respondent on the basis that the matter continues to hang over its head with no reasonable explanation. It may well be costly but certainly not stressful to the company.

Abuse of Process

11.	Counsel for the respondent argues that the filing of the entry of appeal when the appellant is not ready to prosecute the appeal is an abuse of process: Rabaul Shipping Ltd vs. Rita Ruru (2000) N2022; William Moses vs.Otto Benal Magiten (2000) N2023; Patrick Haino vs. Resena Sai & Others (2006) N3063. I agree with Kandakasi J and Injia DCJ (as he then was) that section 227 of the District Court Act gives the National Court an implied power to dismiss an appeal for failure to comply with section 226 in not filing a genuine entry of appeal. I also endorse the view expressed by Injia DCJ (as he then was) in Patrick Haino case that the question of whether the entry of appeal was genuine or an abuse of process depends on the steps taken by the appellant to progress the matter to a hearing within the forty (40) day period. If the appellant simply files an entry of appeal and does not take any "meaningful steps at all to prepare the appeal for hearing on the date to be appointed by the Court, then it is only proper that the appeal be dismissed for that reason. The critical factor here is not the timing of the filing of the entry of appeal within the forty (40) days but meaningful steps taken within the 40 days to prepare the appeal for hearing before or after filing the entry of appeal. In order to decide this question fairly and properly, the question should be considered after the expiry of the forty (40) day period." 

12.	In this case, the appellant filed the entry of appeal and wrote five (5) letters to the Clerk of District Court requesting the depositions in three (3) years. No attempt was made to apply to the National Court either to compel the Clerk to provide the depositions or for a waiver or extension of time to compile the Appeal Book under section 230 of the District Court Act. No meaningful steps were taken to progress the appeal to hearing. Accordingly, I am of the view that the filing of the entry of appeal in this case is an abuse of process.

Failure to prosecute the application 

13.	In this case, the application to compel the Clerk was not made and no explanation has been given for the failure to make the application.

14.	For all the above reasons, I dismiss the appeal with costs. 

______________________________________________

Daniels & Associates Lawyers: Lawyer for the Appellant
Huon Lawyers: Lawyer for the Respondent