SC1155

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NOs. 65 & 66 OF 2010

Between

NELSON INUGU
for and on behalf of WARI NELSON (Injured Infant)
Appellant

And

MOTOR VEHICLE INSURANCE LIMITED
Respondent

Between

NELSON INUGU
for and on behalf of JACKSON NELSON (Injured Infant)
Appellant

And

MOTOR VEHICLE INSURANCE LIMITED
Respondent

Waigani: Gabi, Sawong & Murray, JJ.
2011: 2nd September

SUPREME COURT APPEAL– practice and procedure - respondent applies to dismiss appeal for want of prosecution – appellant's delay caused by court transcription services not providing transcripts on time –court must have regard to all the circumstances of the case including the length of and reasons for delay on the appellant's part - appellant should have made an appropriate application to Court seeking order for their inclusion in the Appeal Book if the transcripts were necessary or relevant – undue delay showed by appellants – appeal dismissed for want of prosecution

Cases Cited:

Attorney General, Minister for Justice and the State v Papua New Guinea Law Society (1997) SC530
PNG Nambawan Trophy Ltd vs. Dynasty Holdings Ltd (2005) SC811

Counsel:

C. Nidue, for the Applicant
D. Bidar, for the Respondent

DECISION

2nd September, 2011

1. BY THE COURT: Introduction: Two (2) separate proceedings were commenced in the National Court by Nelson Inugu on behalf of Wari Nelson and Jackson Nelson against Motor Vehicle Insurance Limited, the respondent. Both proceedings were dismissed on 5th May 2010 for failure to comply with directions and orders. Following the dismissal, Nelson Inugu, acting for and on behalf of Wari Nelson (SCA No. 65 of 2010) and Jackson Nelson (SCA No. 66 of 2010) appealed the dismissal orders of 5th May 2010. On 25th February 2011, the respondent applied to dismiss both appeals for want of prosecution pursuant to Order 7 Rule 53 (a) of the Supreme Court Rules. An alternative order initially sought was dismissal of the appeals for being filed out of time. However, this order was abandoned and not pursued at the hearing.

2. The parties filed the following affidavits: (i) affidavit in support of Daniel N. Bidar sworn and filed on 25th February 2011; (ii) affidavit of Search of James Dibela sworn on 24th February and filed on 25th February 2011; and (iii) affidavit of Canute Nidue sworn and filed on 27th April 2011.

Facts 

3. The brief facts in chronological order were that on 5th May 2010 the National Court dismissed the proceedings for failure to comply with Directions or Orders of 12th March 2009, 10th March 2010 and 9th April 2010 respectively. 

4. On 15th June 2010, the appellant filed the Notices of Appeal, which were served on the respondent on 23rd June 2010. On 29th June 2010, Mirupasi Lawyers advised Nidue & Associate Lawyers to withdraw the Notices of Appeal. On the same day, the draft Indices to the Appeal Books were served on Mirupasi Lawyers. On 2nd July 2010, Mirupasi Lawyers returned the draft Indices to Nidue & Associate Lawyers without comments. On 9th July 2010, Nidue & Associate Lawyers wrote to Mirupasi Lawyers urging them to file their Notices of Appearance and to make comments on the draft Indices so that the appeals could be progressed to a hearing. On the same day, Nidue & Associate Lawyers wrote to the Deputy Registrar of the Supreme Court seeking a date for the settlement of the draft Indices. The date given for settlement of the draft Indices was 22nd July 2010 at 11 am. On 21st July 2010, Mirupasi Lawyers were advised of the settlement date. On 22nd July 2010, Mirupasi Lawyers filed their Notices of Appearance and wrote to Nidue & Associate Lawyers asking them to discontinue the appeals. 

5. On 5th August 2010, the draft Indices to the Appeal Book was settled in the presence of both Messrs Bidar and Nidue. The notation on the draft Indices shows that the Indices were settled "subject to few minor amendments." The minor amendments were indicated on the draft Indices. On 10th August 2010, Mirupasi Lawyers wrote to Nidue & Associate Lawyers requesting a copy of their letter dated 15th June 2010 to the Supreme Court Registry. On 16th August 2010, Nidue & Associate Lawyers wrote to Mirupasi Lawyers enclosing a copy of their letter dated 15th June 2010 to the Supreme Court Registry. On 17th November 2010, Nidue & Associate Lawyers wrote to the Director of the Court Reporting Service requesting transcripts for the following fifteen dates: 5th February 2008; 15th April 2008; 11th September 2008; 9th October 2008; 14th October 2008; 20th November 2008; 4th December 2008; 10th February 2009; 12th March 2009; 7th April 2009; 7th May 2009; 5th March 2010; 10th March 2010; 9th April 2010; and 5th May 2010. 

6. On 23rd December 2010, Nidue & Associate Lawyers wrote a second letter to the Director of the Court Reporting Service requesting the transcripts. On 22nd February 2011, Mirupasi Lawyers wrote to Nidue & Associate Lawyers warning them that unless they took steps to prosecute the appeals, they (Mirupasi Lawyers) would apply to dismiss them for want of prosecution. On 24th February 2011, Mirupasi Lawyers again wrote to Nidue & Associate Lawyers notifying them that since they have not been advised of the steps taken to prosecute the appeals, they (Mirupasi Lawyers) were preparing applications to dismiss the appeals. On 25th February 2011, these application were filed.

7. On 4th March 2011, Nidue & Associate Lawyers wrote to Mirupasi Lawyers in response to their letters of 22nd and 24th February 2011 and advised them that the delay was caused by the Court Reporting Service. On 9th March 2011, Mirupasi Lawyers wrote to Nidue & Associate Lawyers advising them that their explanation for the delay was pathetic. On 24th March 2011, the Court Reporting Service made available to Nidue & Associate Lawyers transcripts of the following six dates: 5th February 2008; 14th February 2008; 15th April 2008; 7th May 2009; 5th March 2010; and 14th May 2010. 

8. On 5th April 2011, Nidue & Associate Lawyers wrote to the Director of the Court Reporting Service advising her that they still require transcripts for the following eleven dates: 11th September 2008; 9th October 2008; 14th October 2008; 20th November 2008; 4th December 2008; 10th February 2009; 12th March 2009; 7th April 2009; 10th March 2010; 9th April 2010; and 5th May 2010. On 11th April 2011, Nidue & Associate Lawyers again wrote to the Director of the Court Reporting Service asking her to provide them the transcripts they requested. 

Transcripts

9. Mr. Nidue submitted that looking at the chronology of events as set out in his affidavit; there was no deliberate act to delay the prosecution of the appeals. As such, he asked for the respondent's applications to be dismissed. 

10. The affidavit evidence clearly shows that the lawyers for the appellants requested and were waiting for transcripts of hearing of the following dates: 5th February 2008; 15th April 2008; 11th September 2008; 9th October 2008; 14th October 2008; 20th November 2008; 4th December 2008; 10th February 2009; 12th March 2009; 7th April 2009; 7th May 2009; 5th March 2010; 10th March 2010; 9th April 2010; and 5th May 2010. On 24th March 2011, the transcripts for 5th February 2008, 7th May 2009 and 5th March 2010 were provided to Nidue & Associate Lawyers. This meant that transcripts for twelve days were still outstanding in March 2011.

11. In his affidavit, Mr. Nidue deposed that at the settlement of the draft Indices on 5th August 2010, he and Mr. Bidar agreed to include the transcripts of hearing on the above dates in the Appeal Books. Mr. Bidar has not responded to this piece of evidence. We note two things about this matter. First, Mr. Bidar's affidavit was sworn and filed on 25th February 2011, while Mr. Nidue's affidavit was sworn and filed on 27th April 2011. These applications were heard on 28th April 2011. Mr. Bidar was not given sufficient time to respond. Second, the letters written to the Director of the Court Reporting Service requesting transcripts were never copied to Mirupasi Lawyers or the Deputy Registrar of the Supreme Court. Mr. Bidar of Mirupasi Lawyers may not have been aware of the transcripts that were requested by Nidue & Associate Lawyers.

12. The notation on the draft Indices read "Index settled subject to few minor amendments. Appeal Book to be filed in due course." The minor amendments are to documents nos. 26, 29 and 33 of the Indices. The Indices show that the Directions of the following dates were to be included in the Appeal Book: 11th September 2008 (2 pages); 14th October 2008 (2 pages); 4th December 2008 (2 pages); 10th February 2009 (2 pages); and 12th March 2009 (2 pages). The Indices clearly show that Directions or Orders were to be included, not transcript of hearing on those dates. Item no. 33 of the Indices is "certified transcript of proceedings in WS." That is the only reference to transcript in the Indices.

13. We believe that the Directions of 11th September, 14th October and 4th December 2008, 10th February and 12th March 2009 could have been included in the Appeal Book without the need for transcripts. In fact, we believe that what was required were the Orders or Directions given on those five (5) days not transcripts of hearing.

14. It appears that transcripts of hearing on 12th March 2009, 10th March 2010, 9th April 2010 and 5th May 2010 may have been relevant; however, they were not included in the Indices. The only item included in the Indices is the Direction of 12th March 2009. 

15. We hold the view that there was no agreement to include in the Appeal Book the transcripts of hearing on the following eleven dates: 5th February 2008; 15th April 2008; 11th September 2008; 9th October 2008; 14th October 2008; 20th November 2008; 4th December 2008; 10th February 2009; 7th April 2009; 7th May 2009; and 5th March 2010. 

16. There appears to be no justification for the delay in preparing and filing the Appeal Books. Lawyers for the appellants used unavailability of transcripts as an excuse to delay the filing of the Appeal Book. If the lawyers for the appellants felt strongly that the transcripts were necessary or relevant they should have made an appropriate application to the Court seeking an order for their inclusion in the Appeal Book (see Attorney General, Minister for Justice and the State v Papua New Guinea Law Society (1997) SC530). That would have been the most prudent and appropriate step to take; however, it was never done. Lawyers for the appellants continued to use unavailability of transcripts as an excuse to delay the filing of the Appeal Books.

17. These applications were filed eight months after the filing of the appeals and six months after the settlement of the draft Indices. The period from the filing of the appeals to the hearing of these applications was ten (10) months. In all that time the lawyers for the appellants had not made any progress in the matter as they were waiting for documents, which we believe were never agreed to be included in the Indices. 

18. In exercising its discretion, the court must have regards to all the circumstances of the case including the length of and reasons for delay on the appellant's part (see PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811). Six (6) months after settlement of the draft Indices, the appellants were still not ready to file the appeal book and the reason was the unavailability of the transcripts. In this case, the parties agreed to include the Directions of three dates in 2008 and two dates in 2009; not transcripts of fifteen dates going back to February 2008.

19. For all the reasons in the judgment, we dismiss the appeals for want of prosecution with costs. 

_______________________________________________
Nidue & Associates Lawyers: Lawyers for the Appellants
Mirupasi Lawyers: Lawyers for the Respondent