SC1273

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE)

SCM NO. 13 OF 2012

BETWEEN:

IDUMAVA INVESTMENTS LTD
First Appellant

AND:

ROBERT MAXWELL SENIOR
Second Appellant

AND:

NATIONAL FISHERIES AUTHORITY
Respondent

Waigani: Injia CJ, Gabi & Sawong JJ
2013: 28 June

SUPREME COURT – Appeal – application to dismiss appeal - notice of motion does not state whether appeal lies with or without leave - notice of motion also does not state whether the whole or part of the judgment is being appealed from - certified copy of the National Court Order not annexed to notice of motion or affidavit in support of the appeal – grounds of – application granted - appeal dismissed 

Cases Cited

Yema Gaiapa Developers Pty Ltd v Hardy Lee (1995) SC484
The Public Curator v Bank of South Pacific (2006) SC840
Felix Bakani v Rodney Daipo (2002) SC699
General Accident Fire and Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331.

Counsel

P. Ame, for the Appellants
F. Kuvi, for the Respondent

28 June, 2013

1. BY THE COURT: Introduction: This is an application to dismiss the appeal on the basis of:

1.	For want of prosecution pursuant to Order 7 Rule 53 of the Supreme Court Rules, due to the failure by the Appellants to serve the Notice of Motion after filing on the 31st of October 2012 upon the Respondent without delay as required under Order 7 Rule 12 of the Supreme Court Rules; and

2.	The Notice of Motion fails to comply with Order 10 Rule 3 of the Supreme Court Rules as it fails to state whether the Appeal lies with or without leave of the Court as required under Order 7 Rule 8 of the Supreme Court Rules and that it is not in accordance with Form 15.

2. The chronology of events leading to the application is as follows:

•	21st September 2012 – The decision on the application for judicial review was given;
•	31st October 2012 – The notice of motion to the Supreme Court was filed;
•	29th November 2012 – A copy of the notice of motion was served on the respondent;
•	13th December 2012 – Elemi Lawyers filed their notice of appearance;
•	18th December 2012 – This application was filed.

Preliminary Objection

5. Mr. Ame of counsel raised a preliminary objection to the competency of the application. He argued that the application is incompetent because the respondent has not amended the Rules or the jurisdictional basis to enable the application to commence under the new Rules and relied on Order 1 Rules 5 and 7 of the Supreme Court Rules 2012.

6. This argument is incorrect for a number of reasons. First, the application was filed on 18th December 2012 while the new Rules came into effect on 19th December 2012. Secondly, the Rules have not changed despite changes in reference as a consequence of amendments, additions and omissions. For example, former Order 7 Rule 53 is now Order 7 Rule 48 but the substance is the same. Finally, there is no direction or order by the Court to amend the application.

Ground 1 – Without delay

7. The relevant rules under the new Rules are Order 7 Rules 13 and 48 of the Supreme Court Rules 2012. It is not disputed that the notice of motion was served on the respondent 29 days after it was filed.

8. Mr. Ame argued that Order 7 Rule 13 (a) does not give a time frame when a notice of appeal should be served. All the Rule says is that the notice of appeal "be served without delay". Secondly, the appellants have explained the delay so ground 1 should be dismissed.

9. Where the address for service of the respondent is in the same town as the Registry in which the appeal has been lodged, periods of 7 to 14 days to serve the notice of appeal are a breach of the requirement to serve without delay: Yema Gaiapa Developers Pty Ltd v Hardy Lee (1995) SC484; The Public Curator v Bank of South Pacific (2006) SC840. In Yema Gaiapa Developers Pty Ltd v Hardy Lee (supra), the Court said:

"These are rules of the Court to enable expeditious and diligent preparation and compilation of appeal books for the prosecution of the appeals. It is essential for efficient administration of the jurisdiction for the rules to be diligently complied with by all parties to litigation. All parties involved in appeal litigation as well as the Court have a duty to adhere to these rules with diligence to ensure finality of litigation is obtained expeditiously with minimal costs to all the parties affected as well as for efficient disposition of matters by the court. The court therefore has the general powers to enforce compliance with provisions of the rules, and the court will make such orders as it thinks just in the circumstances of non-compliance including in particular orders that actions be dismissed for want of prosecution: General Accident Fire and Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331.

In our judgement, periods of 7 to 14 days in effecting service in the city or town where the registry is located and where the appeal has been instituted, is unacceptable delay and in default of O 7 r 12. Additionally the failure to attend at the appointed time for the settlement of the appeal book is also in default of the requirement of the rules. Both of these factors are therefore clear indications of lack of diligence in the prosecution of the appeals. These two factors alone are, in our view, sufficient to warrant the orders that the appeals be dismissed for want of prosecution. An additional factor that also demonstrates lack of due diligence in the prosecution of these appeals is the lack of explanation for non attendance at the appointed time to settle the appeal book, as might be professionally expected of the lawyer for the appellant. Fourthly, no further steps had been taken by the appellant to prosecute the appeal inspite of the foregoing factors."

10. We accept the principles set out above. In this case, there was a delay of 29 days. The explanation that the notice of appeal was served erroneously on Rageau Manua and Kikira Lawyers is not a reasonable or an acceptable explanation as the respondent was never represented by that law firm in the National Court. Elemi Lawyers represented the respondent in the National Court and this Court. 

11. There are two additional matters that ought to be considered as well. First, the appellants have not requested the Registrar for an appointment to settle the Index to the Appeal Book. Secondly, the affidavits the appellants filed and rely on have not been served on the respondent.

12. We are of the view that 29 days delay is a breach of Order 7 Rule 13 of the Supreme Court Rules 2012.

Ground 2 – Failure to comply with Order 10 Rule 3 and Form 15 

13. The notice of motion does not state whether it lies with or without leave and that it does not comply with form 15.

14. Mr. Ame submitted that this ground should be dismissed because the respondent has not made reference to the correct rule to invoke the Court's jurisdiction. Secondly, there is substantial compliance with form 15 (Order 1 Rule 8(a)(ii)).

15. Order 10 Rule 3 provides:

"3. The notice of motion shall –

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; and

(b) have annexed –

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and 

(c) be in accordance with form 15; and

(d) be signed by the appellant or his lawyer; and 

(e) be filed in the registry."

16. In Felix Bakani v Rodney Daipo (2002) SC699, the notice of motion did not annex the documents specified in Order 10 rule 3(b) namely, copies of documents filed before the National Court and a certified copy of the National Court Order, because by the time the notice of motion was filed, the appellant had some difficulty in obtaining them. The Court said:

"Unlike ordinary appeals, an appeal under Order 10 is a special category of appeal. It is an appeal from a decision of the National Court under the review jurisdiction in Order 16 of the National Court Rules. This review jurisdiction of the National Court is available to a person aggrieved by the decisions of statutory administrative or quasi-judicial tribunals. The enabling statutes often contain provisions pronouncing the finality of the decision and preclude appeals. Therefore, the procedural requirements for invoking the review jurisdiction are stringent. The review jurisdiction is very discretionary and is available in special or limited cases, upon leave to review being sought and granted. Likewise, the procedural requirements of Order 10, in particular Order 10 r3 are also restrictive and onerous. They are couched in strictly mandatory terms and all those requirements must be complied with by an appellant." 

17. In this case, the notice of motion did not state whether the appeal lies with or without leave nor did it state whether the whole or part of the judgment is being appealed from. In addition, a certified copy of the National Court Order is not annexed to the notice of motion nor annexed to the notice of motion and affidavit in support of the appeal. 

18. For the foregoing reasons, we are satisfied with the application and dismiss the appeal with costs.

_________________________________________________
Ame Lawyers: Lawyers for the Appellants 
Elemi Lawyers: Lawyers for the Respondent