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Poiye, trading as Bonge Kama Trading Co Pty Ltd v Fu Pty Ltd [1995] PGNC 35; N1407 (5 October 1995)

Unreported National Court Decisions

N1407

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP 4 OF 1995
CLEMENT POIYE TRADING AS BONGE KAMA TRADING CO PTY LTD - APPELLANT
V
FU PTY LTD - RESPONDENT

Kundiawa

Akuram AJ
5 October 1995

APPEAL - Appeal from District Court - Practice and procedure - conduct of Appeal - Duty of Appellant to have appeal papers provided.

APPEAL - Practice and procedure - Striking out for want of prosecution - undue delay in prosecuting appeal - considerations.

Application by Respondent to strike out the Appeal for want of prosecution on the grounds of delay in preparation of Appeal Book.

Held

1. It is up to the Appellant and the duty of the Counsel to prod the Clerk of District Court to prepare the papers needed for the appeal.

2. A period of 8 months and 13 days in the circumstances is a long and unreasonable delay in prosecution of the appeal.

3. Appeal strike out for want of prosecution.

Cases Cited

Arthur Ageva v Gaigo (1987) PNGLR 12

Tenge Kai Ulo and Ors v Acting Public Prosecutor (1981) PNGLR 148

Counsel

A Yer for Applicant/Respondent

D Umba for Respondent/Appellant

INTERLOCUTORY JUDGMENT

5 October 1995

AKURAM AJ: This is an application by the Respondent’s Counsel to strike out the appeal for want of prosecution on the grounds of delay in preparation of Appeal Book.

The Appellant argued that the delay was caused due to the Clerk of Court not providing the transcripts of the District Court depositions, i.e. the evidence taken by the magistrate.

The Notice of Appeal was filed in the Kundiawa District Court but dated at Goroka on the 2nd of December 1994. However, the facing sheet on the Notice of Appeal documents states that the Notice of Appeal was filed on 5th December 1994 at National Court. The Recognisance on Appeal is also filed in Kundiawa but the facing sheet is dated 5th December 1994 and stamped with a National Court stamp. Similarly to the Entry of Appeal to the National Court dated 7th December 1994 and the Entry of Appeal dated 9th December 1994. The Notice of Entry of Appeal is dated 9th December 1994. The Notice of Hearing of Appeal is dated 9th December 1994.

This Appeal is against a decision of the District Court dated 15/11/94 whereby the Court ordered Appellant to pay to the Respondent the sum of K6896.61 plus 8% interest and costs and dismissed the counter-claim against the Appellant.

The Registrar then wrote to the Appellant’s lawyer on 10/1/95 saying:

“I have located the appeal documents re the above from my secretary’s table but my secretary, has failed to note down when it was filed, so could you or your servants give me a statutory declaration stating the date of filing.”

A Statutory Declaration was deposed by one Precilla Jackson, Secretary to Appellant’s lawyer saying that on the 2/12/94 she typed the following documents:

(a) Entry of Appeal.

(b) Notice of Entry of Appeal.

(c) Notice of Hearing of Appeal.

On the 5/12/94 she filed the above documents together with the Notice of Appeal and Recognizance on Appeal at the National Court Registry in Goroka.

Then on the 8/2/95, the Asst. Registrar Goroka wrote to Asst. Registrar Mount Hagen transferring the Appeal to Mount Hagen as it is a Simbu matter.

The Appellant or his lawyer than from the 9th December 1994 or 12th December 1994 did not do anything until on the 23/6/95, a period of over six months (6 months & 11 days), when Counsel for both parties appeared in court where the court set down the matter tentatively for hearing on the 25/8/95, a period of 2 months and 2 days. This is a total of 8 months and 13 days. Then on the 25/8/95, there is still no appeal documents such as the Appeal book ready. So the court directed that:

“Prepare Appeal documents ready and prosecute on the 2/10/95.”

On the 27/9/95 Counsel for the appellant wrote to the Associate to Justice Injia requesting this and another appeal to be dealt with on the 24th, 25th or 26th October 1995. The reason being that he will be attending the National Court Call-Over on the 2/10/95. There are no copies of the letter sent to the Respondent nor his lawyer.

During the call-over on the 2/10/95, Respondent’s lawyer advised that he’ll apply to strike out for want of prosecution on the 5/10/95 (today).

There is ample authority on the question of delays in preparing the appeal papers. In Arthur Ageva v Gaigo (1987) PNGLR 12 at 14-15, the Supreme Court said, when commenting on Land Title’s Commission Appeals but also commented on Local and District Court appeals, that:

“As we see it, the problems Mr Narokobi had in getting instructions are between him and his clients, they are not an excuse for the delay in the conduct of litigation between the appellant and the respondent. The appellant has a duty vis-à-vis the respondent, in whose favour the decision in the Land Titles Commission was made, to take all steps as are reasonably practicable to prosecute the appeal within a reasonable time.

The appellant cannot justify the delay in this case on the failure of the Land Title’s Commission to prepare the appeal papers. The Commission does, in practice, prepare the papers necessary for the hearing of an appeal from it to the National Court. It had not prepared the appeal papers in this case. We note that the District Court and Local Court also prepare the appeal papers but it is our experience that those courts often need to be prodded and reminded to provide the appeal papers and in practice the appellant has to do this. We think the same practice should apply to appeals from the Land Titles Commission. It is the duty of the appellant, we consider, to prod the Commission to prepare the papers needed for the appeal. In this case the Commission did nothing perhaps because the service upon it was a little odd. Mr Narokobi’s client, Rei Geita, deposed that he served “a Hanuabada man” at the Commission’s office. Commissioner Oliver advised that no copy of the appeal notice ever reached the Commission’s file. The trial Judge accepted both statements as true. This possible loss, or misfiling, of the appeal notice by the Commission reinforces the wisdom of our view that it is the duty of the appellant to prod or remind the Commission to prepare the appeal papers. The appellant did not do that in this case. His lawyer wrote no letters and made no phone calls to the Commission to prepare the appeal books. Such inaction for one year was unreasonable. We consider that the appellant’s failure to enter the appeal for hearing is of lesser importance because, without the appeal books, any such entry would have been premature.

We agree with the learned trial Judge that the appellant made no real and genuine attempt over a period of one year to get the appeal ready for hearing, and has provided no satisfactory explanation for the delay.

We dismiss the appeal with costs against the appellant.”

The Supreme Court in Tenge Kai Ulo and Ors v Acting Public Prosecutor (1981) PNGLR 148 had to address the question of undue delay and said:

“First on the mechanism of producing appeal papers and as preparation of Appeals, typing of Appeal books, shortage of staff, etc... Secondly the availability of resources and transcript of evidence. Thirdly, the total period from the date the convicted person is arrested to the time of the Application for striking out for want of prosecution. In case of these matters the delay was more than 28 days.

In the case of the appeal of the acting Public Prosecutor, it is four months since the date of notice of the Appeal and in the other two matters the delay is six months from the filing of the notice of Appeal.”

In that case the Court by majority did not strike out appeal because both parties were at fault and that they were cross-appeals.

In the present case I am of the view that Appellant/Lawyer has not established good reasons. The Respondent has however established a prima facie case and it is up to the Appellant to give reasonable explanation for the delay. I am of the view and also accept the Supreme Court views expressed in Arthar Ageva v Gaigo (above) that it is up to the appellant and the duty of the counsel to prod (push) the Clerk of Court to prepare the papers needed for the appeal. It has not done so until very recently. The appeal was set for 2/10/95 for hearing. He has not served the appeal book. His letter of 27/8/95 has not been served on the Respondent/Lawyer - requesting adjournment from 2/10/95 to 24, 25 or 26th October.

There has been a total of 8 months and 13 days since the last action taken on the Appeal on 12/1/95. The only other action taken after 12/1/95 is Council’s appearance on the 25/6/95. Even since 25/6/95, a period of over 3 months, to 2/10/95, Appellant’s Counsel has not prepared and served on Respondent the necessary appeal papers to prepare their response to the Appeal.

I am therefore satisfied that, there is a long and unreasonable delay in prosecution of the appeal. I am aware that to strike out for want of prosecution is a discretionary matter and I exercise that in favour of the Appellant/Respondent to strike out.

I therefore Strike out the Appeal for want of prosecution.

Lawyer for the Applicant/Respondent: Alphonse Yer Lawyers

Lawyer for the Respondent/Appellant: Umba Lawyers