SC1318
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 13 0F 2005

REVIEW PURSUANT TO
SECTIONS 155(2)(c) & 155(4) CONSTITUTION

APPLICATION BY JIMM TRADING LIMITED

Waigani: Sakora J, Lenalia J, Cannings J

2007: 4, 7 May

Application to strike out review for want of prosecution – 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 – decision.

Jimm Trading Ltd applied for leave to seek judicial review of a decision of a single Judge of the Supreme Court. More than two years passed and the application for leave had not been listed. Preliminary steps to get the matter ready for hearing were not completed. The respondent to the application for leave, Bank South Pacific Ltd, then moved the court to dismiss the application for leave for want of prosecution.

Held:

(1)	There had been a substantial delay in prosecuting the application for leave. After more than two years the index of the review book had not been settled.

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

(3)	No satisfactory explanation was given. It is no excuse to say that another party would not agree to the index of the review book.

(4)	It is incumbent on a party invoking the jurisdiction of the Supreme Court by appeal or review or in any other way to be proactive in getting the matter ready to go before the court.

(5)	In particular, the applicant should have made an appointment with the Registrar or his delegate to settle the index of the review book.

(6)	The applicant was guilty of inordinate delay, including allowing five months to pass since the respondent moved the court to dismiss the application for leave for want of prosecution.

(7)	The motion to dismiss the application for leave for want of prosecution was accordingly granted and the entire proceedings dismissed.

Cases cited

The following cases are cited in the judgment:

Dan Kakaraya v Sir Michael Somare (2004) SC762
Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691

MOTION

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

Counsel

S Ketan, for the Applicant
I Shepherd, for the Respondent

7th May, 2007 

1. BY THE COURT: This is a ruling on a motion to dismiss proceedings that were filed in the Supreme Court more than two years ago, for want of prosecution. Those proceedings are Supreme Court Review No 13 of 2005, filed by the applicant, Jimm Trading Ltd, on 15 March 2005. The party moving the motion is Bank South Pacific Ltd (BSP), which is the respondent to the Supreme Court Review. In the review, Jimm Trading seeks to challenge a decision of a single Judge of the Supreme Court (Amet CJ) made on 12 July 2002. 

2. We are calling the present proceedings before us a 'motion', even though it was called by BSP an 'application', to avoid the confusion that might be caused if we referred to BSP as the applicant. Jimm Trading is the applicant in the substantive proceedings and BSP is the respondent to those proceedings. 

THE ISSUES

3. When hearing a motion to dismiss proceedings for want of prosecution, the court must at the outset focus on two sorts of facts. The first is dates and passage of time. Four dates stand out:

•	12 July 2002: date of the decision under review.

•	15 March 2005: date of filing application for leave to seek review.

•	11 December 2006: date of filing of motion for dismissal.

•	4 May 2007: date of hearing the motion.

4. That means:

•	More than 20 months passed between when Jimm Trading filed the application for leave and BSP filed its motion to dismiss;

•	More than four months have passed since BSP filed its motion to dismiss;

•	It is now 25 months since Jimm Trading's application was filed.

5. The second sort of fact we focus on is: what is the status of the case? Here, the index of the review book has not been settled. There has been a lot of correspondence between the parties' lawyers as to what should go in the review book but they have been unable to agree. No appointment has been made to see the Registrar to settle the index.

6. In any motion for dismissal on the ground of want of prosecution, two basic issues have 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, Jimm Trading – have a satisfactory explanation for the delay? (Donigi & Others v Papua New Guinea Banking Corporation (2001) SC691; Dan Kakaraya v Sir Michael Somare (2004) SC762).

7. Mr Ketan, for Jimm Trading, concedes there has been a delay, but argues that there is a satisfactory explanation. That is the only contentious issue we have to determine.

IS THERE A SATISFACTORY EXPLANATION FOR THE DELAY?

8. Mr Ketan submits that this matter has a long and complex history. Even though there appears to be a long delay in filing the application for leave (more than two and a half years after Amet CJ's decision) there are reasons for that. Mr Ketan suggested that the issues Jimm Trading wants to raise in its case are vitally important for the administration of justice. It has allegations of conspiracy and fraud and other impropriety that it wants aired and determined. Jimm Trading has been doing its best to get its application for review listed for hearing but has been thwarted by the tactics of BSP and its lawyers, Blake Dawson Waldron. BSP has made various applications to the court regarding this case, demonstrating that it is interested in the proceedings, but then when he (Mr Ketan) has tried to reach agreement with Blakes about what should go into the review book, they have been difficult to deal with and tried delaying tactics. The cause of the delay is not the conduct of Jimm Trading and its lawyers, Mr Ketan submitted, but BSP and its lawyers.

9. Mr Ketan has not convinced us that that is the case. The correspondence annexed to the affidavit of Derek Wood, the lawyer at Blakes with carriage of this matter in recent times, tells a different story. It seems that Blakes have been the lawyers ready to get the index of the review book settled and that it is Jimm Trading's lawyers who have been the ones reluctant or unable to expedite settlement. That is the impression we gain from considering the copious material that has been put before us to explain the delay.

10. Even if that is the wrong impression the bottom line is that it is incumbent on a party invoking the jurisdiction of the Supreme Court by appeal or review or in any other way to be pro-active in getting the matter ready to go before the court. It is no excuse to say that another party would not agree to the index of the review book. Mr Ketan should have made an appointment with the Registrar or his delegate to settle the index of the review book. That was the correct way to settle the dispute with Blakes as to the contents of the book. That is what the Registrar – or in practice the Deputy Registrar (Supreme Court) – is there for. Jimm Trading could perhaps have repelled this motion if it had done something soon after the motion for dismissal was filed. Mr Ketan submitted that what happens after a motion for dismissal is filed is irrelevant. We disagree. In Kakaraya's case the court said:

The Court must consider the whole of the circumstances in which an application for dismissal on the ground of want of prosecution is brought. In particular the Court must look at all the events that have happened up to the day on which the application is argued, in particular events that have taken place since the application was filed.

11. So the almost five months that has lapsed since December 2006 is relevant. Nothing has been done. The index is still not settled. Jimm Trading made no appointment with the Registrar. The delay has been continuing. In these circumstances we conclude that Jimm Trading has provided no satisfactory explanation for the delay, which is now more than two years, in prosecuting its application. BSP's motion will be granted.

ORDER 

1	The motion for dismissal is granted.

2	The whole of the proceedings in SC Review No 13 of 2005 is dismissed.

3	Jimm Trading Ltd shall pay the costs of these proceedings to Bank South Pacific Ltd on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_____________________________________________________________
Ketan Lawyers: Lawyers for the Applicant 
Blake Dawson Waldron: Lawyers for the Respondent