SC1213
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 114 of 2005

BETWEEN

NATIONAL HOUSING CORPORATION
Appellant

AND

MOUNT HAGEN URBAN LOCAL LEVEL GOVERNMENT
Respondent

Waigani: Batari, Lay and Hartshorn JJ
2009: 1st and 8th May

SUPREME COURT - APPEAL - Supreme Court Rules O7 r56 - application to vary self executing order to dismiss proceedings made pursuant to O7 r53 - application heard after proceedings dismissed - whether "special circumstances" had to be demonstrated - whether "special circumstances" demonstrated.

Facts:

On 31st October 2008, the Court ordered that the Appellant have its appeal ready for hearing at the first sittings of the Court in 2009, otherwise the Appeal would stand dismissed. At the call over for the February 2009 sittings held on 23rd January 2009, at the commencement of the sittings and throughout the February sittings, the appeal was not ready, the index to the appeal book not having been settled. The Appellant had sought various appointments by letter to the Registrar to settle the Index. The Respondent applied for the Court to declare that the appeal stood dismissed and the Appellant cross applied to dispense with the orders of 31st October 2008.

Held:

1.	The Appellant had to show special circumstances to obtain an order under O7 r56 because when the appeal was not ready by the first day of the February sittings, it was not ready for those sittings and therefore pursuant to the terms of the order the appeal already stood dismissed;

2.	When an appeal is to be ready for a particular sittings, it should be ready for the call over to be held the month prior to that sittings;

3.	Where the Appellant is facing tight time constraints followed by a self executing order to strike out the appeal, it is inappropriate to write to the Registrar for appointments, there should be personal attendance;

4.	The reasons for delay demonstrated by the Appellant were the usual delays expected in litigation, there was nothing special.

5.	The appeal stands dismissed. The Appellant shall pay the Respondent's costs of and incidental to the appeal.

 Case Cited:

Doctor Alan Kulunga v Western Highlands Provincial Government (2006) SC 859

References
Supreme Court Rules

Counsel

K. Makeu, for the Appellant
P. Kak, for the Respondent 

8th May, 2009

1. BY THE COURT: On 31st October 2008 the Court refused the Respondent's application to strike out this appeal for want of prosecution. It also made a self executing order within the terms of O7 r53 to the effect that the Appellant was to have the appeal ready for hearing at the first sitting of the court in 2009 otherwise the appeal would stand dismissed.

2. At the hearing of these applications the Index to the Appeal book has not yet settled, the appeal book has not been prepared and the substantive appeal has not been set down for hearing.

3. The Respondent now applies for the Court to confirm that the Appeal is dismissed. The Appellant cross applies for a variation to the orders of 31st October 2009.

4. Order 7 rule 56 provides that:

"An order under Rule 53 sub rule (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time".

5. In the case of Doctor Alan Kulunga v Western Highlands Provincial Government (2006) SC 859 the Court held that to come within the term "special circumstances" the appellant should show:

a)	a reasonable explanation for allowing the time period to expire without complying with the Court Order;

b)	that the event which prevented the Appellant from complying with the Court Order occurred prior to the expiry of the time, and was an event out of the ordinary delays experienced in litigation. "That must be attributable to something beyond the appellant's control such as, the sudden death of his lawyer or destruction of his file or something he or she relied on to assist with a meeting of the conditions or duties and obligations imposed on him or her by the Court order".

c)	the Appellant should also show that the application for the variation is made promptly or that there is a reasonable explanation for any delay.

d)	the Appellant should show that he or she is now prepared to take the remaining steps and that the appeal will definitely be prosecuted without further unnecessary delay.

6. After the order of 31st October 2008 the following occurred:

(a)	the Appellant wrote to the Registry on 14th November 2008 seeking a date for the settlement of the Index to the appeal book;

(b)	the Registry appointed 11th December 2008;

(c)	on 2nd December 2008 the Appellant advised the Respondent of the appointment;

(d)	on 9th December 2008 the Respondent replied that the date was not convenient and requested 23rd December 2008;

(e)	on 11th December 2008 the Appellant wrote to the Registry seeking a date in January 2009;

(f)	receiving no response the Appellant wrote to the Registry again on 18th December 2008;

(g)	the Appellant's lawyers offices closed for Christmas on 19th December 2008;

(h)	the Appellant's lawyers offices reopened on 19th January 2009;

(i)	the Appellant's lawyers wrote to the Registry on 21st January 2009 again seeking a date for the settlement of the appeal book index, and the Registry allocated 29th January 2009;

(j)	on 29th January 2009 the Respondent's lawyers objected to settlement of the index because the transcript of the oral judgement in the National Court had not been certified by the judge in accordance with O7 r43(6)(i);

(k)	 on 5th February 2009 the Appellant wrote to the trial judge to certify the transcript of his reasons;

(l)	on 11th February 2009 the Appellant filed its application to vary the order of 31st October 2008.

7. The appellant argued that:

(a)	because the application was filed during February it should not have to show "special circumstances" because the time limit set by the Court had not yet expired;

(b)	if it did have to show "special circumstances" then those special circumstances had been demonstrated by the delays which had occurred and the conduct of the Respondent.

8. So the issues to be decided are (a) whether special circumstances had to be shown and (b) whether special circumstances have been shown.

Whether special circumstances had to be shown

9. The Order of the court was in effect that the appeal be ready to be heard in the February 2009 sittings. The call over to list matters for the February 2009 sittings was held on 23rd January 2009. At that time, at the commencement of the February sittings and at the time these applications were heard, the index to the appeal book had not been settled. So at 1st February clearly the appeal was not ready to be heard in the February sittings. If a matter is to be ready for a sittings it should be ready to be set down at the call over to be held prior to the sittings. On the 1st February 2009, the time stipulated by the court for getting the appeal ready, had expired. An application filed on 11th February 2009 was therefore filed after that time and the Appellant was required to show special circumstances. It is not necessary to decide for the purpose of these applications whether the relevant facts are those applying at the date the application is made or at the date the application is heard because they are the same in this instance.

Have Special Circumstances Been Disclosed?

10. In our view it was obvious that if the appeal was to be ready for the February sittings, the Index to the Appeal Book and the Appeal book had to be prepared and certified before Christmas 2008. Or at least the Appeal book prepared and served on the Respondents by that time. The tight timeframe within which the Appellant had to work called for a much more aggressive approach on the part of the appellant's lawyers.

11. To begin with, 14 days was lost, let slip by, before any action was taken to obtain a date to settle the appeal book. The proper course would have been to attend personally on the Deputy Registrar Supreme Court on Monday 4th November 2008 with a form of appointment to settle the index, only requiring the Registry to insert the date and time. Writing letters to obtain appointments is not appropriate when there a tight time constraint. Tight time constraints, where the appellant is faced with a self executing order striking out the appeal, call for personal attendance on the Registry.

12. Having obtained the appointment on 4th November 2008 the notice of appointment and the draft index should have been immediately sent to the Respondent. The convenience of a particular lawyer in the office of the lawyers for the Respondent's should not have been allowed to cause deferral of the appointment. The lawyer for the Appellant should have pointed out to the Respondent's lawyers:

(a) the tight time constraint;

(b) the fact that the Respondent's lawyers had other lawyers who could attend.

13. The lawyer for the Appellant should not have contemplated going on vacation when the first step in getting the appeal ready had not been achieved. The appeal might still have been made ready in time if the appellant's lawyer had acceded to the Respondent's lawyer's suggestion and obtained an appointment for 23rd December 2008, deferring his leave by only 4 days.

14. Lastly, the fact that the transcript of the oral judgement in the National Court had not been certified should not have been allowed to interfere with settlement of the index. We consider this is clear from the fact that the requirement to have the oral judgment transcript certified is part of the Rule dealing with preparing the appeal book (O7 r43) which appears after the Rules dealing with preparing and settling the Index to the Appeal Book (O7 r40-42). Certification of the oral reasons was not required to settle the Index; it was required to prepare the Appeal Book.

15. While the Respondent's conduct did not make the Appellant's task easier, the appeal was not ready in February 2009 because the Appellant's lawyers failed to apply themselves with diligence, expedition and determination to ensure compliance with the orders of the Court.

16. The delays which occurred are those commonly associated with litigation, especially towards the end and at the beginning of the year. There was nothing special in them.

17. Finally, the Appellant's application simply seeks an order from the Court waving the orders of 31st October 2008, it suggests no alternative timetable and no steps it proposes to take to get its appeal ready for hearing; and we have no confidence that if we acceded to that request, the Appellant's appeal would be prosecuted without further unnecessary delay.

18. The Appellant's application is refused. The Respondent's application is granted.

ORDERS

19. The formal Orders of the Court are:

(a) the Appellant's application to vary the Court's orders of 31st October 2008 is refused;

(b) the Appeal stands dismissed;

(c) the Appellant shall pay the Respondent's costs of and incidental to the appeal.
___________________________________________
Paul Paraka Lawyers: Lawyers for the Appellant
Paulus M. Dowa Lawyers: Lawyers for the Respondent