SC832

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

Sca No. 17 of 2003

Between

The Public Curator
as administrator of the state of the late Geno Iari
First Appellant

Paul Wagun
Second Appellant

David Mea
Third Appellant 

Lcb Holdings Limited
Fourth Appellant

Bank of South Pacific limited
Respondent

Los J, Sevua J and Lay J
Port Moresby
3 November 2005

PRACTICE AND PROCEDURE ─ estate of deceased represented by administrator ─ effect on representation of estate in appeal by change of administrator ─ Wills Probate and Administration Act s36,44 & 45─appellant dilatory in prosecution of appeal ─ no explanation for delay ─ appeal dismissed ─ Supreme Court Rules O7 r12 & O7 r53(a)─orders for costs ─ Supreme Court Act s8(e), Supreme Court Rules O7 r19-22.

Facts:

The Appellants filed a Notice of Appeal and Application for Leave to Appeal on 27th February 2003 which were served on the Respondent on 14th March 2003. On 12th August 2004 the National Court ordered that the administration of the estate of the late Geno Iari by the Public Curator be terminated and John Beattie was appointed administrator. On 19th October 2004 the Appellants served the Respondent with a draft index to the appeal book which was filed in the Registry on 22 November 2004. On 5th April 2005 the First Appellant represented by John Beattie abandoned the appeal. On 12th August 2005 the Third and Fourth Appellants abandoned the appeal.

The Second appellant applied for an order that the discontinuance abandoning the appeal filed by John Beattie be struck out on the basis that he was not the First Appellant. The Respondent applied to have the appeal dismissed for want of prosecution.

Held:

1. The First Appellant was the Estate of the late Geno Iari, not the Public Curator. The removal of the Public Curator and appointment of John Beattie as administrator by order of the National Court and pursuant to Wills Probate and Administration Act s45, had the effect of terminating the Public Curator’s power to represent the estate in the appeal. John Beattie then represented the estate and had power to abandon the appeal on behalf of the estate. Therefore, although it would have been desirable for John Beatie to have applied to be substituted, for the record, the appeal was abandoned by the estate when John Beattie filed the Notice of Discontinuance, which would therefore not be struck out. Since the Third and Fourth Appellants abandoned the appeal on 12th August 2005 the Second Appellant was the only appellant prosecuting the appeal.

2. The delay of 14 days in serving the Notice of Appeal and Application for Leave to Appeal was inordinate when the Respondent’s lawyers were well known and located in the same town as the Registry and the Appellants. The delay of 18 months between filing the appeal and the draft index was inordinate. There was no explanation for either delay. The appeal was struck out pursuant to O7 r53(a).

3. Costs follow the event. The Respondent is entitled pursuant to Supreme Court Rules O7 r21 to costs, from the Appellants who abandoned the appeal. An Appellant is not liable for costs incurred after the day his notice of discontinuance was served on the Respondent’s lawyers. 

4. The Court has power to order taxed costs pursuant to Supreme Court Act s8(e) and National Court Rules O22. The Appellants are to pay the taxed costs of the Respondent, an Appellant shall not be liable for costs incurred after notice of abandonment of the appeal by that Appellant was served on the Respondent’s lawyers.

Cases Cited:
Burns Philp (New Guinea) Limited v George [1983] PNGLR 55;  SC484
Yema Gaiapa Developes Limited v Hardy Lee; SC530
Attorney-General, Minister for Justice and the State v Papua New Guinea Law Society; SC691
Donigi v PNGBC;  SC667
Bernard Juali v The State; SC537
Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe; SC762
Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa; General Accident Fire and Life Assurance v Ilimo Farm [1990] PNGLR 331;
Don Polye v Jimson Sauk Papaka & Anor SC651 

Appearances:
K.Kokiva for the Second Appellant
D. Wood for the Respondent

BY the court: There are two applications before the Court.  The Appellant seeks the following orders:

1)	that the Notice of Discontinuance filed by John Beattie on 5th April 2005 be struck out as John Beattie is not the First Appellant  and it is an abuse of the court process under O7 r19 of the Supreme Court Rules;

2)	that the Respondent file and serve on the Appellants within 14 days a sealed copy of the court order of 20 January 2003 in the proceedings O.S. No. 705 of 2002;

3)	the First and Second Appellants’ file and serve the appeal book on the Respondent within seven days after service of the National Court order of 20 January 2003;

The Respondent seeks the following orders:

1)	that the Appellants’ Notice of Appeal filed on 27 February 2003 be dismissed for want of prosecution pursuant to O7 r53(a) of the Supreme Court Rules;

2)	the Appellants and the Estate of the late Geno Iari pay the Respondent's costs of the proceedings.

The respondent filed an Originating Summons on 22nd November 2002  in the National Court for a writ of possession. 

On the 20th January 2003 the National Court ordered that the writ of possession issue to the Respondent in respect of the land described as Section 8 Lot 4 Matirogo (“the land”) and for consequential orders for mesne profits, exemplary damages and costs.  The writ of possession issued on the 27th February 2003.  

The Appellants filed an Application for Leave to Appeal and a Notice of Appeal on the 27th February 2003 in respect of questions of law and fact arising from the decision of the National Court.

The sealed Notice of Appeal and Application for Leave were served on the Respondent on 14th March 2003.

On the 8th of May 2003 the Application for Leave to Appeal came before a single judge of the Supreme Court.  There was an appearance for the Public Curator and the application for leave was withdrawn.

On the 6th of May 2004 the Respondent sold the land, there being no stay or restraining order in place.

On the 12th August 2004 the National Court ordered that the estate of the late Geno Iari be vested in John Beattie.

On the 19th of October 2004 Saulep lawyers served a draft index to the appeal book on the Respondent.  

Between 6th October and 18th December 2004 the Appellant's lawyers unsuccessfully checked at the Registry for the National Court file to obtain the order of 20th January 2003.

On the 23 March 2005 the Respondent’s lawyers advised the Appellant's lawyers that they had instructions to make application to dismiss the appeal for want of prosecution. 

On the 5th of April 2005 John Beattie on behalf of the Estate of the Late Geno Iari discontinued the Supreme Court appeal.

By a letter of the 13 April 2005 Saulep Lawyers, lawyers for the Second Appellant, advised the Respondent that the appeal book had not been filed because the Order made in the National Court on 20th January 2003 could not be located.

On 29th of April 2005 the lawyer for the Respondent put the lawyers for the Second Appellants on notice that it was their responsibility to ensure the appeal was expedited.

On 19th May 2005 the Second Appellant lawyers delivered a copy of the transcript of the National Court proceedings of 20th January 2003 to the Registrar together with a draft order and request that the order be sealed. The Registrar replied that the order could not be sealed without the file. That was the position at the end of the first week of June 2005.

The Respondent's lawyers could not find the National Court proceedings file in the National Court Registry between April and early June 2005.

The National Court order of 20th January 2003 obtained by the Respondent was taken out by the Appellant on 3rd August 2005.

The Third and Fourth Appellants filed a notice to withdraw as parties on 10th August 2005. This may not have been served on the Respondent.

Discontinuance by the First Appellant

The Public Curator submits that John Beattie is not the First Appellant and that the Public Curator has never appointed him to act for the Public Curator. It is also submitted that John Beattie was never the Administrator of the land and the appeal arises out of alleged acts or omissions of the Public Curator in his capacity as Administrator of the Estate of the Late Geno Iari in relation to the land, which was not part of the Estate when administration was granted to John Beattie.

Until Grant of probate or Letters of Administration the property of a deceased person vests in the Public Curator.  See:  Wills Probate and Administration Act, s44. However he may not administer the estate unless he is granted representation rights. The deceased’s property vests for the purpose of administration in the person appointed by the National Court to have representation rights (Probate or Letters of Administration) (s45(2)). Property includes a thing in action and an interest in property (s36(1)). Therefore property includes an interest in any action at law.  If representation rights (Probate or Letters of Administration) are granted to a person other than the Public Curator, all of the property of the estate transfers from the Public Curator to that person.

The First Appellant in these proceedings was the Estate of the Late Geno Iari, not the Public Curator. The Public Curator appeared in these proceedings in his representative capacity as Administrator for the Estate of the Late Geno Iari. He could do so because the National Court granted to him Letters of Administration.   On 12th August 2004 the National Court revoked the Public Curator’s representative capacity and replaced him with John Beattie as Administrator of the Estate. In the absence of a stay, that order took affect and remains in effect until it is amended or discharged by a further order of the National Court or this Court. After 12th August 2004 the Public Curator could no longer appear as representative of the First Appellant in these proceedings as the National Court order took away his authority to do so. 

The Second Appellant’s submissions mistake the identity of the First Appellant and confuse the representative capacities of the office of Public Curator and Administrator of the Estate. The Public Curator is not the First Appellant; the Estate is the First Appellant. Paul Wagun can participate in the appeal as a party in his official capacity as Public Curator whilst he holds that office and if the description of the Second Appellant is amended to show the official capacity. The Public Curator can only appear as Administrator of the Estate while he holds that office. He lost that office on 12th August 2004. 

After 12th August 2004 John Beattie was the only person then authorized to represent the Estate. It would have been desirable, for the record, for John Beattie to make application pursuant to Supreme Court Rules O11 r9 for directions to substitute his name as representative of the Estate. The Notice of Discontinuance should have spelled out that it was filed by John Beattie as Administrator of the Estate and not John Beattie for Pacific Legal Group. Pacific Legal Group had no standing in the appeal. Nevertheless, we are satisfied that John Beattie was Administrator of the Estate at the time the Notice of Discontinuance was filed and that the filing signed by him purported to and did effectively abandon the Estate’s participation as First Appellant in the appeal.

The Appellant’s application to strike out the Notice of Discontinuance in respect of the First Appellant is therefore refused.

After the Third and Fourth Defendants abandoned the appeal on 12th August 2005, that then left only the Second Appellant still interested in pursuing this Appeal.
It now appears from the National Court file in proceedings OS705 of 2002 that the Appellant took out the order of 20th January 2003 on 3rd August 2005. It is therefore unnecessary to make the second order sought by the Appellant that the Respondent deliver a copy of the National Court order.

Application to Dismiss for Want of Prosecution

From the chronology and the background above it can be seen that the following delays occurred:

From filing of appeal to service			14 days
From appeal to draft index				18 months

The Respondent submits that nothing was happening on this appeal from November 2004 until it filed its motion in March 2005.

The Second Appellant submits that the delay has not been inordinate and inexcusable and that part of the delay is attributed to the failure of the Respondent to take out the order of 20th January 2003 in the National Court, which was required for the Appeal Book. Therefore it is a case of both parties not being diligent and not having clean hands and the Appellant relies on Panga Coffee Factory Pty. Ltd, Highlands Coffee Export Pty. Limited and Kum Farming and Trading Pty. Limited, Coffee Industry Corporation Limited, SCA 22 of 2001 delivered 26.4.01 (Los Injia and Davani JJ).

Ruling

O7 r12  provides:

“A copy of the Notice of Appeal shall be served without delay by or on behalf of the appellant on each party─…”

O7 r53 provides:

53.	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 may—

(a)	order that the appeal be dismissed for want of prosecution;

(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.

A number of Supreme Court decisions have considered O7 r53 and we state the general propositions from those cases as follows:

(1)	An appeal might be struck out if it is not set down as required by the rules. Where an appeal has not been set down as prescribed, the power to dismiss for want of prosecution remains discretionary.

(2)	The discretion is to be exercised having regard to all the circumstances of the case including, inter alia,

(a)	the length of and reasons for delay on the appellant’s part;
(b)	the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;
(c)	the availability of a transcript, and
(d)	any negotiations between the parties.

(2)	Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal, 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. The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected4.

(3)	The discretionary powers under O7 r 53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made 4. That a lawyer cannot be present because he is appearing before another judge may be an adequate explanation. 7 months delay in applying for the transcript of evidence to be prepared requires a proper explanation and the absence of one may result in the appeal being dismissed.

The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of want of prosecution is brought, in particular events that have taken place since the application was filed. The application to dismiss itself should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful.

During argument we sought from counsel for the Appellant any explanation for the delay from filing of the appeal up to November 2004 and we were advised that counsel held no instructions in relation to that period.

The Appellant relies upon two affidavits, the affidavit of Paul Wagun sworn 30th June 2005 and the affidavit of Donna Teringi sworn 30th June 2005. Neither affidavit offers any explanation for the 2 week delay in serving the Notice of Appeal and Application for Leave to Appeal, or the 18 month delay in filing and serving the draft index to the appeal book. 

Where a rule directs that a document shall be served without delay and the party on whom it is to be served is a well known firm of lawyers with accessible offices in the same town as the Registry and the appellant, 14 days for service seems to us to be an inordinate delay and a default in observing the requirements of 07 r12.

18 months delay in filing and serving the draft index to the Appeal Book is an inordinate delay, the Appellant has been dilatory in the prosecution of the appeal and the delay calls for an explanation. No explanation is offered for that delay down to October 2004 when the Appellants first initiated some enquiries at the Registry about the National Court order of 20th January 2003.

The Second Appellant points to the missing order of 20th January 2003 in the National Court proceedings as a cause of delay. It was not until mid April 2005 that the Appellants raised that point with the Respondent. The order became available on 3 August 2005, a period of a little less than 4 months from when the issue was first raised with the Respondent. If the Appellants had been diligent and noted the missing order in March 2003 the Appellants complaint about the order not being available would have some relevance. But the 4 months delay caused by the absence of the sealed order has no relevance in the face of a period of 17 or 18 months prior delay, which is completely unexplained.

The Rules place the responsibility of prosecuting the appeal diligently squarely on the Appellant. We endorse the views expressed in General Accident Fire and Life Assurance v Ilimo Farm(supra). Where a substantial delay on the part of the Appellant is unexplained, the Court should not exercise discretion in favour of the Appellant.

The Appeal is struck out pursuant to Supreme Court Rules O7 r53(a). This disposes of the appeal. There is therefore no need to deal with counsels other submissions.

Costs

Costs follow the event, but the order which should be made is complicated by the abandonment of the appeal at different times by the Appellants during the conduct of the appeal. The Respondent has a right to costs against the Estate of Geno Iari deceased up to 5th April 2005 and against the 3rd and 4th Appellants up to 12th August 2005, pursuant to O7 Division 6 of the Supreme Court Rules. Those costs may be taxed pursuant to the provisions of O7 r22. 

A question arises as to whether or not the 3rd and 4th Appellants should bear costs after 12th August 2005 because, the Respondent submitted, the Notice of Discontinuance was not served on the Respondent. There is no evidence before us one way or the other to support the submission, and so we cannot find as a fact that the Third and Fourth Appellants notice was or was not served on the Respondent. However we have taken the view that this is an issue which can be safely left to the taxing officer.

O7 r21 provides:

A party filing a notice under Rule 19 shall except in criminal appeals, be liable to pay the costs of the other party or parties occasioned by his appeal.

In our view, the costs “occasioned by the appeal” include all costs incurred by the other party or parties down to the time when the notice is served, notwithstanding that pursuant to Rule 19 the appeal is abandoned when the notice is filed. Until notice that the appeal is abandoned is served, the other parties will continue to prepare for the appeal on the proper assumption that the party who has abandoned the appeal has not done so.

There is no general provision in the Supreme Court Rules for taxation of costs ordered by the Court. However the Court does have power to:

“exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the National Court on appeals or applications”: Supreme Court Act s8(1)(e)

and these powers include the National Court’s powers in relation to costs pursuant to O22 of the National Court Rules: Don Polye v Jimson Sauk Papaka & Anor SC651 (Sheehan, Jalina & Sawong JJ).

The orders we therefore make are:

(1)	The Second Appellant’s application is refused;

(2)	The appeal is dismissed for want of prosecution pursuant to O7 r53(a);

(3)	The Appellants shall pay the Respondent’s  costs of the appeal, to be taxed if not agreed;

(4)	An Appellant shall not be liable for any costs incurred after the date that the Appellant served notice on the Respondent that the Appellant had abandoned the appeal pursuant to r19.

LAWYERS FOR THE 2ND APPELLANT	:	SAULEP LAWYERS
LAWYERS FOR THE RESPONDENT	:	BLAKE DAWSON WALDRON