SC1131

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 119 OF 2009

BETWEEN:

NATIONAL FISHERIES AUTHORITY
Appellant

AND:

NEW BRITAIN RESOURCE DEVELOPMENT LTD
First Respondent

AND:

EAST NEW BRITAIN PROVINCIAL GOVERNEMNT
Second Respondent

Waigani: Gavara-Nanu, Kariko, and Kawi, JJ
2011: 29th July & 31st October

SUPREME COURT - PRACTICE AND PROCEDURE – Order 7 Rule 53 Supreme Court Rules – Application to dismiss appeal for want of prosecution – Delay in settling index – failure to take further steps after settlement of index.

The Respondents filed an application to have the appeal dismissed for want of prosecution claiming that there has been undue delay and the lack of due diligence in the prosecution of the appeal. 

In response, the Appellant filed a cross-application seeking to dismiss the Respondent's application while asking for court directions to progress the appeal.

Held: 

(1) 	Any amendment to the settled index of the appeal book must be settled by the Registrar.

(2) 	The Supreme Court Rules require that after the index to the appeal book is settled with the Registrar, the appeal book must be compiled in accordance with the index and if in order after being examined, certified as correct before the appeal is set down for hearing. 

(3)	The application to dismiss the appeal is upheld for:

(a)	Failure by the Appellant to take the relevant steps under the Supreme Court Rules in relation to preparing an appeal for hearing; and 

(b)	There being no reasonable explanation by the Appellant for the inordinate delay in prosecuting the appeal. 

Cases cited:
Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55 
Joshua Kalinoe v Paul Paraka (2007) SC 874
Vele v Henao & ors (2011) SC 1110
Donigi v PNGBC (2002) SC691

Counsels:
Mr A Jerewai, for the Appellant
Mr I Molloy & Mr H Leahy, for the Respondents

DECISION

31st October, 2011

1.	BY THE COURT: New Britain Resources Development Limited and the East New Britain Provincial Government ("the Respondents") have applied to have this appeal by the National Fisheries Authority ("the Appellant") dismissed for want of prosecution.

2.	The Appellant has cross-applied opposing the Respondents' application and seeking court directions to progress the appeal. 

Background 

3.	The main and relevant events by way of background are:

(a)	On the 25th September 2009 the Appellant filed this appeal SCA 119 of 2009 in the Supreme Court.

(b)	On filing the relevant notice of appeal, the Registrar endorsed 13th October 2009 as the appointment date to settle the index to the appeal book. 

(c)	For various reasons the index was not settled until 15th July 2010. 

(d)	On settling the index, the Deputy Registrar directed that the appellant confirm and correct a few of the items on the index. 

(e)	In response to these directions, the Appellant amended the index and forwarded this to the Respondents on 5th August 2011. 

(f)	The respondents considered the 9 months it took to settle the index and then another 3 weeks to attend to the directions as amounting to undue delay in the prosecution of the appeal.

(g)	On19th August 2010, the respondents filed their present application.

(h)	On the 22nd March 2011, the Appellants filed its present cross-application.

The Law

4.	Order 7 Rule 53(a) of the Supreme Court Rules reads:

"Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may-

(a)	Order that the appeal be dismissed for want of prosecution.."

5.	 The relevant principles concerning the application of this Rule are found in many Supreme Court case authorities in this jurisdiction starting with Burns Philip (NG) Ltd v. Maxine George [1983] PNGLR 55 which has since been approved and followed in many cases including Joshua Kalinoe v. Paul Paraka [2002] SC 874 where the Supreme Court discussed the requirements of the rule in this way:

"This rule relates to the diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya v. Somare & Ors [2004] SC 672. See also PNG Nambawan Trophy Ltd v. Dynasty Holding Ltd (2005) SC811. Thus if an appellant has delayed in prosecuting his appeal, the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such a delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances.

Turning to the requirements of Order 7 Rule 53(a) the question is: Did the appellants fail to do any act required to be done, under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence, which would warrant this Court to dismiss the appeal for want of prosecution?"

The Appellant's Arguments

6.	The Appellant submits that it has done everything required of it in accordance with the Supreme Court Rules.

7.	It denies being guilty of undue delay, and submits that any delay in progressing the appeal can be explained by a couple of reasons. The Appellant says that from 13th October 2009 (the initial appointment date to settle the index) to 15th July 2010 (the date the index was finally settled), the draft index to the appeal book was being sent back and forth between the Appellant and the Respondents to be agreed upon; and there were a number of adjournments of the appointment to settle the index for various reasons including the non- availability of counsel (from both or either of the parties) and the Deputy Registrar. 

8.	The Court also takes notice that after the last adjournment on 18th November 2009, the traditional court vacation would have followed. 

Decision

9.	When the index to the appeal book was finally settled on 15th July 2010, some 9 months had lapsed since the appeal was filed. For this duration, we are prepared to accept that there is reasonable explanation for the delay even though there were some short periods of inactivity. 

10.	Upon settling the index, the Deputy Registrar directed the Appellant review the relevance of including a number of motions filed in the National Court proceedings, in the Appeal Book. We believe this task should have taken no more than a day to finalise. It took the Appellant nearly 3 weeks to 5th August 2010 which we view as unnecessarily long. There has been no reasonable explanation why the review took the 3 weeks. 

11.	The Appellant has since then sat on its appeal explaining that it has been waiting for the respondents to reply to the further amended index prepared following the directions of the Deputy Registrar. But there was absolutely no need for the Appellant to prepare an amended index and obtain the Respondents' endorsement after the index was settled. If indeed the appellant felt it necessary to amend the settled index it should have taken the matter back to the Registrar. As this Court said in Vele v Henao & ors (2011) SC 1110: 

"It is also our opinion that any amendment to the settled index must itself be settled with the Registrar. To let parties chop and change a settled index as they please would render as meaningless the Registrar's role in settling the index and for that matter undermine his duty to ensure that the courts operate efficiently which includes expedited hearings of appeals."

12.	The provisions of the Supreme Court Rules covering the compilation of an appeal book are found in Order 7 Rules 33-43. The Rules require that after the index to the appeal book is settled with the Registrar, the appeal book shall be compiled in accordance with the index and if in order after being examined, the parties certify the book as to its correctness before the appeal is set down for hearing. 

13.	Since the settlement of the index on 15th July 2010 to the hearing of this application, a further 11 months lapsed. In that time and despite:

(a)	the letter by the respondents dated 19th August 2010 warning of their intention to dismiss the appeal for want of prosecution; and 

(b)	the filing of the present application by the respondents on the same day, 
the Appellant did not compile the appeal book, and have it examined and certified. Neither was there a request for the appeal to be set down for hearing. The Appellant has not offered any reasonable explanation why it did not take these relevant steps. Non-compliance with the Supreme Court Rules or failure to duly prosecute an appeal may warrant dismissal of the appeal; Joshua Kalinoe v. Paul Paraka (supra); Donigi v PNGBC (2002) SC691.

14.	Not only do we find that the Appellant failed to comply with the Supreme Court Rules, we are of the opinion that the Appellant failed to duly prosecute its appeal and has not offered any reasonable explanation for the inordinate delay in progressing the appeal. 

Cross-Application

15.	In view of our ruling on the application of the Respondents, we do not consider it necessary to consider the cross-application which in any case we would have dismissed for the following brief reasons. 

16.	The first part of the Appellant's cross-application is unnecessary as it merely amounts to a response to the respondents' application. The relevant arguments were advanced and have been considered in the application by the Respondents.

17.	In the second part of the cross-application, the Appellant seeks directional orders pursuant to Section 5(1)(a) and (b) of the Supreme Court Act and Rule 52 of the Supreme Court Rules to progress the appeal. This application comes far too late and seems to be a belated effort to save face for the lack of diligence in prosecuting the appeal. 

Conclusion

18.	The orders of this court then are:

1.	The application by the Respondents is upheld and this appeal is dismissed for want of prosecution pursuant to Order 7 rule 53(a) of the Supreme Court Rules. 

2.	The cross-application of the appellant is dismissed. 

3.	The appellant pays the respondents' costs of and incidental to this appeal to be taxed if not agreed.
____________________________________________________
Jerewai Lawyers: Lawyers for the Appellant	
Pacific Legal Group: Lawyers for the Respondents