SC2863

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 152 OF 2023

BETWEEN:
KULE LAYO
in his capacity as a landowner and member of the Pulumani
Ambo Wangai Clan of the Porgera Special Mining Lease Area
First Appellant

AND:
KIMALAYE ONDALANE
in her capacity as landowner and member of the Tieni-Yangua
Clan of the Porgera Special Mining Lease Area
Second Appellant

AND:
RUBEN LOLI NALEPE
in his capacity as a landowner and member of the Pulumani
Enoleme Clan of the Porgera Special Mining Lease Area
Third Appellant

AND:
HON. ANO PALA
in his capacity as the Minister for Mining
First Respondent

AND:
MINERAL RESOURCES AUTHORITY
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
NEW PORGERA LIMITED
Fourth Respondent

WAIGANI: HARTSHORN J
13 NOVEMBER 2025; 11 FEBRUARY 2026

SUPREME COURT APPEAL – practice and procedure - application to dismiss for want of prosecution

Cases cited

M.V. Yorke Motors v. Edwards [1982] 1 WLR 444
Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33 
Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845
Joshua Kalinoe v. Paul Paraka (2007) SC874 
Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2013) SC1297 Mann v. Alpar Trading Ltd (2014) SC1382
Magellan Properties Limited v. Steamships Trading Company Limited (2016) SC1518

Counsel

R. Saulep for the first and third appellants
L. Evore for the fourth respondent

1. HARTSHORN J: This is a decision on an application by the fourth respondent to dismiss this appeal for want of prosecution.

Background

2. The appellants appeal decisions of the National Court in OS 39 of 2023, one of which was to dismiss proceeding OS 39 of 2023 in its entirety. Their notice of appeal was filed on 9th October 2023.

3. The fourth respondent filed an application to dismiss this appeal for want of prosecution on 29th August 2025. 

This application

4. The fourth respondent submits that there has been inordinate delay in prosecuting the appeal, that there is no reasonable explanation for the delay and that the appeal should be dismissed for want of prosecution.

5. The first and third appellants (appellants) submit that the delay has not been intentional, is not contumelious and may be explained. The appeal grounds are arguable and therefore it is in the interest of justice that the appeal proceed to hearing, it is submitted. As the appellants have taken steps prior to the hearing of this application, this Court should issue directions for the settlement of the draft index for the appeal book and for the appeal pursuant to Order 7 Rule 48(b) and (c) Supreme Court Rules.

Consideration

6. The respondents make application pursuant to Order 7 Rule 48(a) and Order 13 Rule 16(1) (a), (b) and (c) Supreme Court Rules.
7. Order 7 Rule 48 is as follows:
“48.	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 or a Judge may –
(a)	order that the appeal be dismissed for want of prosecution; or
(b)     fix a time peremptorily for the doing of the act and at the same time order that 
upon non-compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non-compliance, order that it be so dismissed; or
(c)      make any other order that may seem just.”

8. The relevant principles governing this Rule and its predecessor Order 7 Rule 53, are well established and are found in many case authorities including Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55; General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Ltd [1990] PNGLR 33 and Joshua Kalinoe v. Paul Paraka (2007) SC874.
9. In Joshua Kalinoe v. Paul Paraka (supra), the Supreme Court discussed the rule in this way [17] and [20]:

“This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence.  See Dan Kakaraya v Somare & Others (2004) SC 762.  See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811.  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 delay.  Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances. ……
Turning to the requirements of Order 7 r 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?”  

10. The case authorities confirm that where a respondent seeks to dismiss an appeal for want of prosecution, the onus is on him to make a case for the Court to exercise its discretion in his favour. Once the respondent has made a case for want of prosecution, the onus then shifts to the appellant to provide a reasonable explanation as to why the appeal should not be dismissed.

11. The power to dismiss pursuant to Order 7 Rule 48(a) Supreme Court Rules is discretionary even when an appellant has not done any act required or has not prosecuted the appeal with due diligence. The discretion is to be exercised judicially having regard to all of the circumstances of the case.

12. In exercising this Court’s discretion under Order 7 Rule 48 Supreme Court Rules, the Court may either order summary dismissal of the appeal or dismissal of the appeal upon non-compliance with conditions which may be imposed pursuant to Order 7 Rule 48 (b) Supreme Court Rules.

13. The fourth respondent submits that there has been an inordinate delay in prosecuting the appeal, particularly since the Supreme Court delivered its decision on the fourth respondent’s objection to competency on 27th June 2024. Since then, the appellants have not taken any steps to prosecute the appeal, it is submitted. That is a period of at least 16 months without any action being taken to prosecute the appeal or over 14 months up to the filing of the application to dismiss for want of prosecution. 

14. The evidence in support of the fourth respondent’s application is contained in the affidavit of Ms Ethel Heagi, a lawyer assisting with the carriage of the appeal on behalf of the fourth respondent.

15. Further, up to the filing of the application to dismiss for want of prosecution, the appellants had not taken the following steps to prosecute the appeal: no date had been obtained for settlement of the index to the appeal book, no appeal book had been prepared and served and no date had been obtained for the appeal to be listed for a directions hearing to progress the appeal to a substantive hearing, as ordered on 27th June 2024.

16. The fourth respondent relies upon the judgment of Magellan Properties Limited v. Steamships Trading Company Limited (2016) SC1518 in which at [18] the Court (Cannings, Collier, Ipang JJ) stated:
“We consider that a period of six months of inaction by the appellants after filing the notice of appeal constitutes an inordinate delay and failure to prosecute the appeal with due diligence for the purposes of Order 7 Rule 48 of the Supreme Court Rules and within the meaning of principles discussed in relevant authorities.”

17. The appellants submit that the evidence of Ms Heagi is insufficient to discharge the burden of proving failure to prosecute, as the period of non prosecution is incorrect. Further, the evidence does not take into account the time taken by the Court in delivering its decision on the objection to competency.

18. As to the evidence not being sufficient, the evidence may still be considered and is relevant as to the delay that has occurred, although the period of delay stated may be considered not to be correct. Further, there is no evidence in rebuttal specifically in respect of the period since the decision on the objection to competency was delivered. Moreover, in the submissions of the appellants, the only matter raised which it is contended, occurred during that period is the payment and obtaining of transcripts.

19. Given the submissions, the evidence given on behalf of the fourth respondent and the lack of rebuttal evidence, particularly as to the time since the decision of the Supreme Court on the objection to competency, I am satisfied that it has been established that there has been inordinate delay in prosecuting the appeal since the said decision on the objection to competency. In this regard, I take into account the judgment in Magellan Properties Ltd v. Steamships Trading Company Limited (supra) concerning the period of time which may constitute inordinate delay. Consequently, the burden of proof shifts to the appellants to provide a reasonable explanation for the delay.

20. The appellants submit that the issue of costs is and was the critical issue in the period between August 2024 and August 2025 which affected the appellants. The evidence is to the effect that the appellants lawyers’ costs were not paid and that the lawyers refused to progress the appeal further until their costs were paid. Some of the lawyers’ costs have been paid and the lawyers are now prepared to progress the appeal on behalf of the appellants.

21. Further, it is submitted that steps have been taken since 9th September 2025 to progress the appeal.

22. I consider whether the non payment of fees to their lawyers resulting in the lawyers not progressing the appeal is a reasonable explanation on behalf of the appellants for the delay in prosecuting the appeal in this instance.

23. Mr Ruben Nalape, the third appellant, in his affidavit deposes that amongst others, that the appellants lawyers are owed substantial sums of money for legal fees that “we the landowners owe them”. As a result of numerous proceedings which have been commenced through the Porgera Justice Foundation and which the first and second appellants have commenced together with related proceedings, the lawyers are owed in excess of K1 million in legal fees. Further, Mr. Nalape deposes that amongst others, that “Our landowner monies/funds” held by the State, have not been released and that the appellants need to procure funds to fund the engagement of legal counsel.

24. The evidence of Mr. Nalape fails to establish that he or the other appellants did not or do not have sufficient funds to pay their legal fees. There is no verifiable, independent or any evidence of the financial position of Mr. Nalape personally or in the capacity in which he sues or of the financial position of the other appellants. For instance, there are no bank statements or financial reports disclosing the appellants’ financial position. There is also no evidence of any attempts to obtain or raise funds such as from friends, relatives, banks or other financial institutions. In this regard, I refer to the House of Lords opinion in M.V. Yorke Motors v. Edwards [1982] 1 WLR 444 in which Lord Diplock at 449H approved the following statement by Lord Brandon in the Court of Appeal:

“The fact that the man has no capital of his own does not mean that he cannot raise any capital; he may have friends, he may have business associates, he may have relatives, all of whom can help in his hour of need.”
(approved in Goldtrail Travel Ltd (In liquidation) v. Onur Air Tasimacilik [2017] UKSC at [17]).

25. Even if the evidence did establish that Mr. Nalape and the other appellants did not and do not have sufficient funds to pay legal fees, does that constitute a reasonable explanation for the delay in prosecuting the appeal? To permit an appeal commenced by an appellant to continue without being progressed and to be delayed in its prosecution until the appellant obtains sufficient funds to pay his lawyers is contrary to and against the intent of Order 7 Rule 48(a) Supreme Court Rules. Further, it is against the public interest in the finality of litigation. It also has the propensity to cause prejudice to a respondent, as the respondent has to continue to defend and fund its costs of the proceeding. In this regard I refer to the judgment of Cannings J in Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845 in which His Honour stated:

“I must, however, recognise that it is not in any companies interest to have unresolved litigation hanging over his head.”

26. As to Mr. Nalape’s lawyers not progressing the appeal because of non payment of legal fees, there is no evidence of Mr. Nalape or the other appellants attempting to obtain the services of other lawyers, including the Public Solicitor when this appeal was not progressed by the current lawyers for the appellants. Further, there is no evidence concerning the possibility or otherwise of Mr. Nalape and or the other appellants representing themselves in this appeal. I refer in this regard, to the passage by Makail J. in Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2013) SC1297 at [17].

27. Given the lack of evidence on the above matters, I am not satisfied that it has been established that the non payment of legal costs/fees to their lawyers as referred to is a reasonable explanation for the delay in prosecuting the appeal. 

28. As to other submissions of the appellants, it is submitted that the merits of the case are such that the interests of justice require the case not to be dismissed for want of prosecution.
29. On an application to dismiss for want of prosecution, arguments as to the merits of the appeal are for “another day”: Mann v. Alpar Trading Ltd (2014) SC1382 at [23]. This court proceeds on the basis that the appeal is arguable. The defence to the appeal is therefore arguable and the interests of justice favour both the appellants and respondents.

30. As to the delay having to be intentional or contumelious, in Magellan Properties Limited v. Steamships Trading Company Limited (supra), the Court was satisfied that a period of six months inaction as referred to at [18] of that judgment was sufficient to constitute inordinate delay and failure to prosecute the appeal with due diligence for the purposes of Order 7 Rule 48 Supreme Court Rules and was within the meaning of principles discussed in relevant authorities. Further, Order 7 Rule 48 Supreme Court Rules does not require that it be established that delay in prosecuting an appeal be intentional or contumelious before an appeal is dismissed for want of prosecution.

31. The appellants submit that steps have been taken to progress the appeal since 9th September 2025. These steps were taken after the application to dismiss for want of prosecution was filed and served and should be and are considered in that context.

32. The appellants submit that this Court should consider exercising its discretion and issue orders pursuant to Order 7 Rule 48(b) and (c) Supreme Court Rules. The two criteria most relevant to the exercise of such discretion, it is submitted, are that the appellants have an arguable case and that it is in the interests of justice. 

33. It is acknowledged that this Court has the power on its own volition to exercise its discretion and make orders pursuant to Order 7 Rule 48(b) and (c) Supreme Court Rules. In this instance, as indicated, this Court proceeds on the basis that the appellants have an arguable case. The corollary of this is that the respondents also have an arguable case on their defence to the appeal. All parties are entitled to have the interests of justice considered in respect of their individual cases.

34. From a consideration of the evidence and submissions of the appellants, this Court is not satisfied that the appellants have provided and established a reasonable explanation for the delay in prosecuting this appeal. That delay is about 16 months since the decision on the fourth respondent’s objection to competency. Counsel for the appellants conceded that there had been a delay of about 15 months. There was only an explanation given for the delay of twelve months between August 2024 and August 2025 and the Court has found that explanation not to be reasonable. Further, a reasonable explanation has not been established for not taking the steps to prosecute the appeal as referred to in [15] hereof.

35. Consequently, in accordance with judicial authority, including Magellan Properties Limited v. Steamships Trading Company Limited (supra), this appeal is dismissed for want of prosecution. Given this, it is not necessary to consider the other submissions of counsel.

Orders

a)	This appeal is dismissed for want of prosecution.
b) 	The appellants shall pay the costs of the fourth respondent of and incidental to this appeal on a party party basis to be taxed if not otherwise agreed.
________________________________________________________________
Lawyers for the first and third appellants: Saulep Lawyers
Lawyers for the fourth respondent: Ashurst Lawyers