SC908
PAPUA NEW GUINEA
[SUPREME Court of Justice at Waigani]

SCA NO. 119 OF 2004

BETWEEN:

RICHARD NARINGA
-Appellant-

AND:

RURAL DEVELOPMENT BANK LIMITED
-Respondent-

Waigani: Sevua, Gavara-Nanu & Batari JJ
2006: 27 April
2008: 4 April

PRACTICE AND PROCEDURE – Dismissal for want of prosecution – Supreme Court Rules, O 7 r 53 (a) – Unexplained delays – Delays appear deliberate- Failure to prosecute appeal with due diligence – Discretionary powers in favour of dismissing appeal.

Cases cited:
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Malama Enterprises Ltd v. Shell Papua New Guinea Ltd (2 March, 2007)
Paga No. 36 Limited v. Jerry Luru & Ors (3 November, 2006) 
PNG Namba Wan Trophy Ltd v. Dynasty Holdings & Timothy & Felicia Lim SC811
Yema Gaiapa Developers Pty Ltd v Hardy Lee SC484
The Public Prosecutor v. Allen Ebu Marai [1996] PNGLR 81

Counsel: 
J. Poro, for the Appellant
F. Alua, for the Respondent

1. BY THE COURT: This is an application by the respondent by way of a Notice of Motion seeking orders that the appeal by the appellant be dismissed for want of prosecution pursuant to O 7 r 53 (a) of the Supreme Court Rules. The application is supported by an affidavit sworn by Francis Alua, filed on 20 January, 2006. The appeal is against a judgment given by David J, on 14 July, 2004 in which his Honour set aside an interim injunction obtained by the appellant restraining the respondent from parting with a property which was subject of a mortgage and dismissed the appellant’s entire claim against the respondent in the National Court. 

2	The appeal was filed on 20 August, 2004, the appellant then obtained a stay of the National Court orders on the same day. Subsequently, upon an application being made by the respondent, the stay order was set aside on 4 November, 2004.

3	On 19 April, 2005, about five months after the stay order was set aside, the appellant’s lawyers forwarded a draft Index to the Appeal Book to the respondent’s lawyers with a covering letter bearing the same date. On the same day, the respondent’s lawyers responded to the appellant’s lawyers’ letter. The respondent’s lawyers’ letter was forwarded to the appellant’s lawyers through a facsimile transmission. In the letter, the respondent’s lawyers advised the appellant’s lawyers to go ahead and secure an appointment with the Deputy Registrar of the Supreme Court to have the draft Index settled. In the same letter, the respondent’s lawyers advised the appellant’s lawyers that they would agree with sixteen (16) of the documents listed in the draft Index.

4	When the respondent’s lawyers did not receive a response to their letter of 19 May, 2005, from the appellant’s lawyers, they sent a follow up letter, which was hand delivered to the appellant’s lawyers on 6 October, 2005, advising them of their duty to expedite the appeal. The respondent’s lawyers in the same letter suggested to the appellant’s lawyers that they should advise their client to consider discontinuing the appeal, given that the property, which was the subject of the appeal, had been transferred to a third party. In the last paragraph of that same letter, the respondent’s lawyers also gave notice that an application would be made to the Supreme Court seeking appropriate orders including an order to dismiss the appeal, if the respondent did not receive a response from them within seven days from the date of the letter. 

5	The respondent contends that, since that letter, the appellant’s lawyers have not taken any constructive steps at all to expedite the prosecution of the appeal. The respondent argues that there have been an inordinate delay by the appellant to prosecute his appeal and the delay appears to be deliberate. The respondent says that appellant has not provided any explanation for the delay, thus he has failed to diligently prosecute his appeal. 

6	The appellant places reliance on the affidavit sworn by John Poro on 20 April, 2006. It is noted that in paragraph 4 of that affidavit, Mr. Poro deposes that when David J, dismissed the National Court proceedings, he told the parties that, he would publish his "detail reasons" later. In his affidavit, Mr. Poro generally deposes that appellant was awaiting the receipt of the written decision of his Honour to finalise the grounds of appeal. In paragraph 5 of the affidavit, Mr. Poro also deposes that because time was running against them, they had to file the appeal, and further grounds were to be added once they received the written decision from his Honour.

7	On the issue of delay, Mr. Poro deposes that, apart from waiting for the written decision of his Honour, they also experienced difficulties in obtaining transcripts of the trial to prepare the appeal. In paragraph 10 of the affidavit, he deposes that he wrote "numerous letters" to the Associate to his Honour, inquiring when they would receive the written decision from his Honour, but the Associate made no replies to those letters. Mr. Poro says that last time he called to check with the Associate and the Secretary to his Honour was in March, 2006, the second last being in February, 2006. In paragraph 11, Mr. Poro also deposes that between December, 2004 and May, 2005, the appellant took carriage of the appeal himself, thus he had no communication with the appellant on the appeal during that period. Mr. Poro says that appellant contacted him in the latter part of 2005, and instructed him to proceed with the appeal, thus resulting in Mr. Poro writing to the Associate to enquire about a written decision by his Honour. 

8	Mr. Poro says, to date, no written decision has been given to the parties, in particular the appellant. He therefore contends that the delay in prosecuting the appeal is not caused by the appellant rather it is due to the written decision of the National Court not being ready. He therefore argues that the appeal should not be dismissed. 

9	Mr. Poro has attached four letters to his affidavit. All four letters were written to the Associate, asking about the written decision of the National Court. The letters are dated 10 March, 2005, 15 July, 2005, 18 October, 2005, and 21 January, 2006, respectively.

10	It is to be noted that the first letter of 10 March, 2005 was written five months after the appeal was filed on 20 August, 2004, and about two months after the stay order was set aside on 4 November, 2004. The second letter of 15 July, 2005, was sent to the Associate about eleven months after the appeal was filed and about eight months after the stay order was set aside. The third letter of 18 October, 2005, was sent to the Associate, one year two months after the appeal was filed and eleven months after the stay order was set aside. The fourth and the last letter of 21 January, 2006, was sent to the Associate one year five months after the appeal was filed and one year two months after the stay order was dismissed. 

11	Even the periods between these four letters were long, in that, after the first letter of 10 March, 2005, the second letter was not sent to the Associate to his Honour until 15 July, 2005, which was a period of four months. Then there was another delay of three months before the third letter was sent to the Associate on 18 October, 2005. Then there was a further delay of three months before the last and final letter was sent to the Associate on 21 January, 2006. 

12	No explanations have been given by the appellant for all these delays and apart from these unexplained delays, there is also no explanation given by the appellant why the respondent’s lawyers’ letters were never replied, i.e. letters dated 19 May, 2005, and the follow up letter of 6 October, 2005. In the last letter, the appellant was put on notice through his lawyers that if they did not receive any response to the letter within seven days from the date of the letter, the respondent would apply for the dismissal of the appeal for want of prosecution. Significantly, that letter was hand delivered to the appellant’s lawyers. The appellant has hitherto not responded to that letter. 

13	The appellant’s failure to secure an appointment date with the Deputy Registrar of Supreme Court to settle the draft Index was also a clear breach of Order 7 r33 to r35 and 4r0 and r41 of the Supreme Court Rules, which are in mandatory terms. These facts alone are in our view sufficient for us to dismiss the appeal. 

14	The need to comply with these rules was emphasized by the Supreme Court in The Public Prosecutor v. Allen Ebu Marai [1996] PNGLR 81. The Supreme Court at 82 said:

"Lawyers for the respondent filed this application on 17 February 1995. Counsel for the respondent contended that the appellant has not taken steps required to be taken and has not prosecuted it’s appeal with due diligence under O 7 r 53 of the Rules.

In considering the application of O 7 r 53 in General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331 at page 334 the Court said:

‘Has the appellant prosecuted his appeal with due diligence?

Mr Sleigh points to the failure to attend on the Deputy Registrar; to serve the notice of appeal contemporaneously; to respond to letters endeavouring to reach a consensus on the right to pursue recovery pending appeal; as indicative of the want of due diligence. We must agree. We have no explanation given by the appellant whatsoever for the non-attendance before the Deputy Registrar and those other matters all relate to the issue of due diligence.

We consider, that though an exercise of discretion is available to a court, (the rule provides three alternative courses), it’s exercise should not avail an appellant in circumstances where there is an absence of excuse.

Some relevant considerations when exercising this discretion are dealt with by this Court in Burns Philip (New Guinea) Ltd v. George [1993] 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 it’s 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 application could quite properly be expected.’

In the present case, the appellant took no action to further prosecute the appeal. Under the Rules it is the responsibility of the appellant to prepare a draft index and serve a copy on the respondent before settlement of the appeal book (O 7 r 40, 41). It is also the responsibility of the appellant to obtain transcript of trial and reasons for decision for correction if necessary and get it ready for settlement of the Appeal Book (O 7 r 36 – 39)."

15	In Yema Gaiapa Developers Pty Ltd v. Hardy Lee SC484, the Supreme Court said the rules provide for the expeditious and diligent preparation and compilation of appeal books for prosecution of the appeals and failure to comply with these requirements may result in an appeal being dismissed for want of prosecution. The Court in that case adopted the views expressed by the Court in General Accident Fire and Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd (supra). See also, Dan Kakaraya v. Michael Somare & Ors SC762 and Malama Enterprises Ltd v. Shell Papua New Guinea (2 March, 2007).

16	There are other factors as canvassed below which are also fatal to the appellant. These factors relate more to the issue of unexplained and inordinate delays by the appellant. 

17	The appellant’s main contention before us has been that appeal could not be prepared because there was no written decision by the National Court. It was argued that this was the real reason for the delay in preparing and prosecuting the appeal. We find this argument unconvincing and lacking in merit because in our view, the appeal could have been prepared without a written decision by the National Court. This is not a case where the National Court did not give its decision at all, because in paragraph 4 of John Poro’s affidavit, he says, the trial judge advised the parties that he would publish "detail reasons" of his decision later. From this, it is clear that the trial judge did give a decision with brief reasons to set aside the interim injunction and to dismiss the entire proceedings against the respondent. It is our view that appellant could have, if he felt that the trial judge was delaying his written reasons, used the brief reasons given verbally by his Honour to prepare the Appeal Book. Alternatively, the appellant should have applied for extension of time to file the notice of appeal pending trial judge’s written reasons. The appellant failed to do these.

18	There is also evidence from Mr. Poro’s affidavit that the appellant had personal carriage of the appeal from December, 2004 to May, 2005, in our view, this clearly was another main reason for the delay. The appellant must therefore take full responsibility for the delays. As to the transcript of the proceedings, we do not see any reason why the appellant could not proceed and file his appeal based on the brief reasons given by trial judge then ask for the transcripts. 

19	In the circumstances, we find the long periods of delay as highlighted above for which no explanations at all have been given by the appellant is fatal to the appellant. The long delays indicate to us clearly the failure by the appellant to prosecute his appeal diligently. Any unexplained delay by an appellant is always fatal, especially where such delays are inordinate and appear deliberate. This was stressed by the Supreme Court when discussing the application of O 7 r 53 (a) of the Supreme Court Rules in PNG Namba Wan Trophy Ltd v. Dynasty Holdings Ltd trading as Pacer Computers and Timothy & Felicia Lim trading as Samuel Carris & Co. SC811. The Supreme Court said:

"A number of Supreme Court decisions have considered the rule and we state the general proposition from those cases as follows:

An appeal might be struck out if it is not set down as required by the rules.

(1)	Where an appeal has not been set down as prescribed the power to dismiss for want of prosecution remains discretionary.

(2)	The discretion is to be exercised having regard to all the circumstances of the case including, inter alia,

(a)	the length of and reasons for delay on the appellant’s part;
(b)	the extent to which, having reagard to any delay, evidence likely to be adduced may lose its cogency;
(c)	the availability of a transcript, and
(d)	any negotiations between the parties. 

(3)	Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal, failure to attend on 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. The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.

(4)	The discretionary power under O 7 r 53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made" 

20	These observations were subsequently adopted by the Court in Malama Enterprises Ltd v. Shell Papua New Guinea Ltd (supra). In Dan Kakaraya v. Michael Somare & Ors (supra), the Court said: 

"Once a case of delay is established, the onus then shifts to the respondent to the application (ie the appellant) to satisfactorily explain the delay. If there is a failure in that obligation or there is no reasonable explanation provided, an application to dismiss may be granted." 

21	See also Paga No. 36 Limited v. Jerry Luru & Ors (3 November, 2006) and PNG Namba Wan Trophy Ltd v. Dynasty Holdings Ltd tradind as Pacer Computers & Timothy & Felicia Lim trading as Samuel Carris & Co. (supra). 

22	Having regard to these principles, in the present case, there are no explanations given at all by the appellant for the delays in prosecuting the appeal and for his failure to respond to the correspondences by the respondent. Even if we were to accept Mr. Poro’s argument that appellant was waiting for a written decision by the trial judge in the circumstances, we do not consider such explanation reasonable. 

23	For these reasons we would dismiss the appeal for want of prosecution.

24	The appellant to pay the respondent’s costs.

Blake Dawson Waldron Lawyers: Lawyers for the Appellant
Rageau Manua & Kikira Lawyers: Lawyer for the Respondent