SC2305
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 52 OF 2018

BETWEEN:
JIMM TRADING LIMITED
Appellant

AND:
TST 4 MILE LIMITED
previously PATU No. 27 LIMITED
(Company No. 1-22484)
First Respondent

AND:
ELEANA TJANDRANEGARA
Second Respondent

AND:
PATU No. 27 LIMITED
(Company No. 1-46910)
Third Respondent

AND:
NAIMA INVESTMENTS LIMITED
Fourth Respondent

Waigani: Salika CJ, Manuhu J and Hartshorn J
2019: 18th & 20th September

SUPREME COURT – PRACTICE AND PROCEDURE - Application to dismiss Appeal for failure to comply with Order 7 Rule 13 Supreme Court Rules and for want of prosecution

Cases Cited:

Yema Gaiapa Developers Pty Ltd v. Hardy Lee (1995) SC484
Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273

Counsel:

Mr. B. Lomai, for the Appellant
Mr. I.R. Shepherd, for the First Respondent
Mr. W. Donald, for the Second, Third and Fourth Respondents

20th September, 2019

1. BY THE COURT: This is a decision on a contested application by the first respondent to dismiss this appeal for want of prosecution and for failure to serve the notice of appeal without delay.  

2. The other respondents do not take any position on this application. Order 7 Rule 48 and Order 13 Rule 16 Supreme Court Rules are relied upon.

Background

3. The appellant Jimm Trading Limited (JTL), appeals against the decision of the National Court to dismiss JTL’s cross claim against the first respondent TST 4 Mile Ltd (TST). The appeal was filed on 2nd May 2018.

This application

4. TST submits that this appeal should be dismissed pursuant to Order 13 Rule 16 Supreme Court Rules for failure to serve the notice of appeal without delay as it was only received by the lawyers for TST five months or about 150 days after it was filed. This is in default of Order 7 Rule 13 Supreme Court Rules. Secondly, the appeal should be dismissed for want of prosecution pursuant to Order 7 Rule 48 Supreme Court Rules as no appointment has been made to settle the appeal book index, no draft index has been submitted to TST and the other respondents and there is no evidence that JTL has applied for a transcript.

5. JTL submits that the appeal should not be dismissed as amongst others:

a)	Only the lawyer for TST has given evidence concerning service of the notice of appeal;

b)	The Managing Director and major shareholder of JTL, Mr. Wesley Hui, has 	had financial difficulty and family issues that have precluded his prosecution of the appeal;

c)	JTL’s previous lawyers filed a notice of ceasing to act in August 2018.

Consideration

6. As to the delay in serving a copy of the notice of appeal, Order 7 Rule 13 Supreme Court Rules relevantly provides:
“A copy of the notice of appeal shall be served without delay by or on behalf of the appellant….”
7. The Supreme Court in Yema Gaiapa Developers Pty Ltd v. Hardy Lee (1995) SC484 (Amet CJ, Kapi DCJ, Los J.), said as to Order 7 Rule 13 as the Rule was then:
“… 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.”
8. We respectfully agree with this statement. In this instance, there is no dispute that at the relevant time JTL was represented by lawyers with an office in Port Moresby, that this appeal is filed in the Supreme Court registry, Waigani, and that TST’s lawyers in the National Court proceeding have offices in Port Moresby.
9. Further, in Idumava Investments Ltd v. National Fisheries Authority (2013) SC1273, this Court considered, “without delay” under the new Rules being Order 7 Rules 13 and 47 and found that a 29 day delay was in breach of Order 7 Rule 13. 

10. As to the submission that TST has not given evidence as to service upon it of the notice of appeal, as distinct from the lawyer for TST who has, in this instance as the lawyers for TST received the notice of appeal, it is appropriate for one of those lawyers to give evidence of that fact. There is no evidence in rebuttal and no evidence or explanation at all is given on behalf of JTL as to service or non-service of the notice of appeal. 

11. Order 7 Rule 13 Supreme Court Rules is in mandatory terms and in this instance we are satisfied that it has not been complied with. Consequently, pursuant to Order 13 Rule 16 Supreme Court Rules and following the decisions of this Court in Yema Gaiapa (supra) and Idumava (supra), this appeal is dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

12. The Court orders that:

a) 	This appeal is dismissed;

b)	The appellant shall pay the costs of the first respondent of and incidental to this appeal.
__________________________________________________________________
Lomai & Lomai: Lawyers for the Appellant                                                           
Ashurst: Lawyers for the First Respondent                                               
Donald & Company: Lawyers for the Second, Third and Fourth Respondents