SC1801

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 147 OF 2016

BETWEEN:
PNG POWER LTD
Applicant

AND:
ANTHONY YAKUPA
Respondent

Waigani: Collier, Geita and Liosi JJ
2019: 2 May

PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution – Supreme Court Rules 2012, Order 7, Rule 48(a) – whether there was a delay in prosecuting the appeal – whether appellant had a satisfactory explanation for any delay - distinction between circumstances where a Judge gives an ex tempore judgment and circumstances where the Judge makes orders with a summary of proposed reasons

Cases Cited:
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Norr v Ikamata [2005] SC815

Legislation Cited:
Supreme Court Rules 2012 Order 7, Rule 48  

Counsel:
D Dusava, for the Appellant
E Komia and S Kuldi, for the Respondent
JUDGMENT
2 May, 2019

1	BY THE COURT: On 17 October 2016 the appellant, PNG Power Ltd (PNG Power), filed a notice of appeal against a decision of the National Court of Justice delivered orally on 23 September 2016. In that decision the primary Judge found in favour of the respondent Mr Anthony Yakupa. His Honour found that Mr Yakupa’s employment had been unlawfully terminated by the appellant, and that the appellant be liable for costs with damages to be assessed. 
2	On 28 May 2018 the respondent filed an application pursuant to Order 7, Rule 48(a) of the Supreme Court Rules that the appeal be dismissed in its entirety for want of prosecution, and that the costs of the appeal be borne by the appellant. This application is currently before this Supreme Court.
3	The principles underpinning the exercise of the Court’s power to dismiss an appeal for want of prosecution are well-settled. In General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331 the Supreme Court held that: 
1.	The power to dismiss an appeal for want of prosecution pursuant to r 53 (a) of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation.
2. 	Matters relevant to the want of due diligence include 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.
3. 	The discretionary power under r 53 (a) should not be exercised where no explanation for want of due diligence is made.
4	Further, in Norr v Ikamata [2005] SC815 the Supreme Court adopted the earlier pronouncements of the House of Lords to the effect that: 
… the power of the Court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to service prejudice to the defendant.
5	Relevant issues therefore for our consideration are whether there has been a delay and the nature of the delay on the part of the appellant in prosecuting the appeal, if so whether there has been a satisfactory explanation for that delay by the appellant, and the interests of justice; Magellan Properties Ltd v Steamships Trading Company Ltd [2016] SC1518. 
6	The essential case of the respondent in seeking dismissal of the appeal, is his contention that the appellant has not prosecuted the appeal with due diligence since the delivery of judgment by the primary Judge on 23 September 2016. Mr Komia for the respondent submitted in particular that the reasons for his Honour’s decision could be at any time identified from the transcript of that date, and further that a notice of appeal had been filed by the appellant with formulated grounds of appeal.
7	We note these points, and further note the affidavit of Ms Diana Mewerimbe supporting the application before the Court. However we are satisfied that the appeal should not be dismissed for want of prosecution by the appellant, for the following reasons.
8	First, his Honour had plainly stated to the parties at the delivery of the primary judgment on 23 September 2016 that he intended to publish written reasons for judgment. We note in particular the following oral  statement of his Honour:
And I should warn counsel that my written judgment needs to be attended to. There are a few insertions and exclusions that need to be – so check with my associate by Monday for a completed judgment on this and I think you deserve free published reasons for my decision after all this time.
9	The fact that the parties were given the clear expectation by the primary Judge that written reasons would be delivered within a short period of time could reasonably have led the appellant to form the conclusion that its notice of appeal, and the future conduct of the appeal, could potentially change depending on the contents of those written reasons. While his Honour referred to “a few insertions and exclusions” pending in his written reasons, until the written reasons were delivered the parties could not be certain of all aspects of those reasons, and could labour under a mistaken impression in respect of his Honour’s judgment if the written reasons included changes. In particular the appellant could properly be cautious of incurring costs unnecessarily in taking further steps pursuant to a notice of appeal which could change following review of formal written reasons.
10	There is a distinction between circumstances where a Judge makes it clear that he or she is giving an oral ex tempore judgment, and circumstances where the Judge makes orders with a summary of his or her proposed reasons, for the information of the parties at that time, in anticipation of delivering comprehensive written reasons. In this case the parties were led to believe that the second situation applied – namely that his Honour was making orders with a summary of his views but intended to give written reasons at a later date. As things have eventuated, that summary is, perforce, his Honour’s only reasons for decision. However no blame can be attributed to the appellant for believing that more comprehensive written reasons would be published by his Honour in the form of a subsequent formal judgment.
11	Second, the evidence demonstrates that PNG Power repeatedly and directly contacted the associate to the primary Judge to identify when the written reasons for judgment would be delivered. It is also evident that PNG Power was in regular communication with the respondent, informing him through his lawyers of their endeavours to obtain the written reasons from the primary Judge. It could not be said that the respondent was unaware of the efforts of PNG Power to obtain those written reasons, or be in any doubt of the continuing interest of PNG Power in prosecuting the appeal.
12	Third, we note that PNG Power wrote to the Deputy Registrar of the Supreme Court on 23 October 2017 and asked for the matter to be listed for mention. In this respect it is clear that PNG Power had taken overt steps to have the matter return to Court.
13	Fourth, we note that the primary Judge ultimately resigned in February 2018, after which time there could clearly be no possibility of written reasons being delivered. We note further that shortly after this on 28 May 2018, PNG Power wrote to the lawyers for the respondent attaching the Draft Index to the Appeal Book for them to endorse prior to it being filed. This again demonstrated to the respondent the ongoing interest and activity of PNG Power in respect of the appeal.
14	In our view it could not be said that there had been a delay in prosecuting the appeal, and in any event a satisfactory explanation has been given by PNG Power for the period of time which has elapsed between the filing of the notice of appeal and the application by the respondent to dismiss for want of prosecution.
15	The appropriate orders are to dismiss the respondent’s application, and for each party to bear its own costs. 

16.     The Supreme Court orders that:
1.	The application filed on 28 May 2018 be dismissed.
2.	Each party bear its own costs.
3.	The appeal be listed before the Listing Judge at the next listings.
___________________________________________________________
The Applicant was represented in-house
Jerry Kiwai Lawyers: Lawyers for the Respondent