SC2342

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 87 OF 2020

BETWEEN:
THE GIRL GUIDES ASSOCIATION OF PAPUA NEW GUINEA
First Appellant

AND:
HEKURE FRANK, RACHEL GWARE, KAIA NOU and members of the interim committee of the PAPUA NEW GUINEA GIRL GUIDES ASSOCIATION
Second Appellants

AND:
MARY KAMANG
First Respondent

AND:
EMILY DAVID
Second Respondent

AND:
LUCY DANIEL
Third Respondent

AND:
BAIA FOILI
Fourth Respondent

Waigani: Hartshorn J,
2022: 1st and 12th December
                 
SUPREME COURT – PRACTICE AND PROCEDURE - Application to dismiss the appeal for want of prosecution

Cases Cited:

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
Donigi v. PNGBC [1990] PNGLR 331; SC691
Joshua Kalinoe v. Paul Paraka (2007) SC874
Peter Yama v. PNGBC Ltd (2008) SC922

Counsel:

Mr. S. Malaga, for the Respondents

Oral decision delivered on
12th December 2022

1. HARTSHORN J: This is a decision on an application to dismiss this appeal for want of prosecution.
2. I permitted the application to proceed in the absence of representation on behalf of the appellants as I was satisfied that the appellants by their counsel, were aware that the application was to be heard at 1:30 pm 1st December 2022. This was because the application was adjourned on 17th November 2022 for hearing at this date and time when counsel for the appellants was present and was appearing for the appellants in this appeal.
Background
3. The appellants commenced proceedings in the National Court in which they made certain allegations of mismanagement of the Girl Guides Association against the respondents. Declaratory and restraining orders were sought. On 3rd August 2020 the primary judge dismissed the National Court proceeding for want of prosecution and non-compliance of court orders. The appellants appealed the 3rd August 2020 orders.
4. The respondents sought to dismiss this appeal for want of prosecution. The full Supreme Court refused the application for dismissal and amongst others, made further orders for the progression of the appeal.

Consideration

5. The respondents make application pursuant to Order 7 Rule 48(a) and Order 13 Rule 16(1) (a), (b) and (c) Supreme Court Rules.
6. Order 7 Rule 48(a) 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; …”

7. 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.
8. 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?”  

9. 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.

10. In Donigi v. PNGBC [1990] PNGLR 331; SC691, the Court held that, once an appeal has been instituted, certain obligations are imposed on an appellant, for example an appointment to settle the appeal book must be obtained and the appointment must be communicated to the other parties; reasons for the judgment and copies of notes of evidence have to be produced to the registrar; an appeal book must be filed and served and the appeal must be set down for hearing at the first sittings of the Supreme Court after the expiration of 28 days from the institution of the appeal. Examples of conduct which may cause the Court to dismiss an appeal include: failure to attend on settlement of an index for the appeal book, failure to explain non-attendance, failure to respond to correspondence and failure to provide an explanation for dilatory conduct where an explanation could properly be expected.

11. The respondents submit that the appellant has failed to prosecute this appeal with due diligence as: the appeal was filed over two years and one and a half months ago, the appellants did not file an appeal book by 31st August 2022 as ordered by the Supreme Court on 1st July 2022 and no explanation has been given by the appellants for not complying with the Court Order of 1st July 2022.

12. As mentioned, the application to dismiss for want of prosecution is the second in this appeal - the first application being refused by the full Supreme Court. In this context, it is appropriate to refer to the opinion of the Supreme Court in Peter Yama v. PNGBC Ltd (2008) SC922. That Court was considering, amongst others, a second application to dismiss for want of prosecution and stated as follows at [32]:

“32.  We mention further that it is our view that in order for this court to correctly consider an application to dismiss for want of prosecution it is necessary that the total period of the appeal be given consideration and not merely a part.  The application before this court is not the same as the first application to dismiss as further evidence has been given on behalf of the parties.  This further evidence, which relates to the period commencing after the hearing of the first application to dismiss, should not be considered in isolation as to do so, in our view, would not allow this court to properly consider whether the appeal has been prosecuted with due diligence.”

13. In this instance, the respondents submit that the appellants have not prosecuted the appeal diligently because of the length of time that has elapsed since the appeal was filed and especially since the refusal of the first dismissal application as they have not complied with a court order which was made for the progression of the appeal. That order was for the appellants to file an appeal book by 31st August 2022, with which order the appellants have not complied.

14. The evidence relied upon by the respondents is amongst others, to the above effect and supports their submission. I am satisfied therefore, that the onus is now upon the appellants to provide a reasonable explanation as to why the appeal should not be dismissed as the respondents have made out a case for want of prosecution.

15. As mentioned, there was no appearance on behalf of the appellants and no evidence relied upon on behalf of the appellants. There was therefore no evidence relied upon on behalf of the appellants which contained a reasonable explanation as to why the appeal should not be dismissed.

16. In the absence of such evidence, and from a consideration of the evidence relied upon for the respondents, particularly the non-compliance with an order of the Supreme Court, I am satisfied that the respondents have sufficiently made out that they are entitled to the orders that they seek apart from as to costs. I also take into account in this regard, that there was no appearance on behalf of the appellants at the hearing of this application. 

17. Costs are sought on a solicitor client basis. I am not satisfied however, that the necessary requirements for such a costs order have been satisfied in this instance. Given this, it is not necessary to consider the other submissions of counsel.

Orders

18. The Court orders that:

a)	This appeal is dismissed for want of prosecution pursuant to Order 7 Rule 48(a) Supreme Court Rules.

b)	The appellants shall pay the costs of and incidental to this appeal of the respondents not the subject of previous cost orders, on a party-party basis.
__________________________________________________________________
Koisen Lawyers:  Lawyers for the Appellants                                                    
Sanol Malaga Lawyers: Lawyers for the Respondents