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Independent State of Papua New Guinea v National Capital District Commission [2025] PGSC 94; SC2793 (31 October 2025)

SC2793

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 154 OF 2022

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

HON. JOHN ROSSO
Second Appellant

-V-

NATIONAL CAPITAL DISTRICT COMMISSION
First Respondent

MOBIL WORKS LIMITED
Second Respondent

DESH BESH ENTERPRISES LIMITED
Third Respondent

WAIGANI: KARIKO J, POLUME-KIELE J, CROWLEY J
27, 31 OCTOBER 2025

PRACTICE & PROCEDURE – application for summary dismissal – want of prosecution – undue delay in service of the appeal book on one respondent – exercise of discretion

Upon the hearing of a notice of motion filed by the plaintiff seeking interlocutory relief, the National Court issued final orders that effectively determined liability. The motion was heard and decided in the absence of the defendants against whom the final orders were directed. Those defendants appealed the decision and orders of the National Court.

Held

1. The power of the Supreme Court under Order 7 Rule 48(1) is a discretionary one to be exercised according to established principles.
   
2. The Court may refuse application to dismiss under Order 7 Rule 48(1) if the default of the appellant under the Rules upon which the application is based has been corrected since the filing of the application.
   
3. As the appeal is ready to proceed with the hearing and the appeal raises arguable issues relevant to the law on practice and procedure in the National Court, the application was refused with costs awarded against the appellants.
   

Cases cited
Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55
Dan Kakaraya v Somare & Others (2004) SC762
Donigi v Papua New Guinea Banking Corporation (2001) SC691
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 33
Joshua Kalinoe v Paul Paraka (2007) SC874

Counsel
V Balio, for the appellants
J Sunungu, for the second respondent
T Tape, for the third respondent

1. BY THE COURT: The third respondent applies pursuant to Order 7 Rule 48(1)(a) of the Supreme Court Rules for summary dismissal of this appeal for want of prosecution.
   

BACKGROUND

2. These relevant background facts as disclosed in the Application Book and the affidavits filed in respect of the application do not appear to be in controversy.
   
3. The appeal is against the decision of the National Court given on 20 September 2022 in proceedings WS No. 24 of 2022 in which the third respondent Desh Besh Enterprises Limited (then the plaintiff) alleged that the purported compulsory acquisition of land it owned at 11 Mile, N.C.D. by the State for public roadworks was unlawful.
   
4. The learned primary judge ordered, among others, that State (then the fourth defendant) and the Minister for Lands & Physical Planning (then the second defendant) direct the Valuer-General to conduct a valuation of the land for the State to pay reasonable compensation for the damage caused by the roadworks.
   
5. The other parties to the National Court proceedings were:
   
   • The second respondent, Mobile Works Limited (then the first defendant), who was contracted for the roadworks; and
   • The first respondent, National Capital District Commission (then the third defendant) who commissioned the roadworks.
     
6. These appellants lodged this appeal on 4 October 2022, followed by a supplementary notice of appeal filed on12 October 2022.
   
7. Summarized, the grounds of appeal allege that the primary judge erred in ordering a substantive relief upon hearing a motion by the third respondent seeking only interlocutory relief, and despite the substantive relief not being sought in the notice of motion, and that the orders were made in the absence of the appellants.
   
8. The appellants successfully sought a stay of the relevant orders of the National Court which was granted by the Supreme Court (Hartshorn J) on 4 November 2022.
   
9. By then, the second and third respondents had filed their notices of appearance.
   
10. The Appeal Book, which was certified correct by the appellants and the third respondent, was filed on 30 November 2022 and served on the then lawyers for the third respondent on 1 December 2022.
    
11. An objection to competency of the appeal was filed on 19 October 2022 but this was eventually withdrawn on 26 September 2023.
    
12. The Appeal Book was again served on the third respondent on 17 July 2024 through its new lawyers who requested for it by letter dated 13 June 2024 following the death of its initial lawyer.
    
13. The evidence is that no active steps were taken by the appellants thereafter to have the appeal set for hearing.
    
14. Upon request by the third respondent, the matter was listed for directions hearing on 12 March 2025. The appellants failed to appear that day, and while the third respondent urged the Court to have the appeal listed for hearing, Hartshorn J adjourned to 14 April 2025 to verify if the second respondent had been properly served the Appeal Book.
15. On 14 April 2025, counsel for the appellants appeared and upon his advice that the State had encountered difficulties in serving the second respondent, the case was adjourned to the Registry apparently to allow the State to apply for substituted service, and for the matter to be brought on by giving 7 days written notice.
    
16. Subsequently, the third respondent conducted searches with the Court Registry which revealed that no meaningful steps had been taken to advance the appeal and after forewarning the State, the third respondent filed this application to summarily dismiss on 9 July 2025 and had it served on the appellants on 15 July 2025.
    
17. The State eventually managed to serve the second respondent with the Appeal Book on 21 October 2025.
    
18. On 23 October 2025, the application for summary dismissal was listed for hearing.
    

SUBMISSIONS

19. The application to dismiss is based on the ground that without reasonable excuse, the appellants have not taken any active steps to progress the appeal since the Appeal Book was filed some 3 years ago.
    
20. In reply, the appellants acknowledge the delay but attribute it to changes in lawyers in the Office of the Solicitor General handling the case. They urge the Court however to note that the second respondent has now been duly served the Appeal Book, and the case is ready to be listed for hearing. The Court is therefore requested to exercise its discretion against the application.
    
21. The third respondent, supported by the second respondent, argues that the office administration issues of the Solicitor General are not a reasonable excuse for the delay, and the difficulties in serving the second respondent could have been overcome by applying for substituted service or effecting service in accordance with the Companies Act. It was stressed that there was a lack of diligence in prosecuting the appeal.
    

CONSIDERATION

22. The Court's power to summarily dismiss an appeal for want of prosecution is set out in Order 7 Rule 48(1) of the Supreme Court Rules which states:
    

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; 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.

(Emphasis added)

23. The relevant principles governing this rule are well established in this jurisdiction and these principles 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.
    
24. In Joshua Kalinoe v Paul Paraka (supra), the Supreme Court discussed the rule (then Order 7 Rule 53) in this way:
    

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.
(Emphasis added)

25. In respect of the requirements of the Rule, the Court noted the following as the relevant question to answer:
    

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?
(Emphasis added)

26. We note that while O7 r44(b) of the Supreme Court Rules provides for service of the Appeal Book, no time period is prescribed for the service. However, we consider that service must be done within a reasonable time as the scheme of the Rules is to achieve expedited hearings.
27. While we accept that there has been inordinate delay and want of diligence in prosecuting this appeal, it is to the appellants’ credit that they filed the Appeal Book within two months after the appealed decision was delivered. They then promptly served it on the third respondent, the key respondent in this appeal. Furthermore, about 10 months of the delay was due to the pending objection to competency.
    
28. It appears that the hold-up to the appeal being expedited to a hearing has been the inability of the appellants to serve the Appeal Book on the second respondent. However, the appellants could have addressed that issue in several ways including the use of one of the different modes of service listed under s 431(1) of the Companies Act, which states:
    

(1) Notwithstanding the provisions of any other Act, a document, including a writ, summons, notice, or order in any legal proceedings may be served on a company as follows:–

(a) by delivery to a person named as a director or the secretary of the company on the register;

(b) by delivery to an employee of the company at the company’s head office or principal place of business;

(c) by leaving it at the company’s registered office or address for service;

(d) by posting it to the company’s registered office, or address for service, or postal address;

(e) by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings;

(f) in accordance with an agreement made with the company.

29. Nevertheless, the evidence is that the Appeal Book has now been duly served on the second respondent, and the parties agree the appeal may be listed for hearing.
    
30. The power of the Supreme Court under Order 7 Rule 48(1) is a discretionary one to be exercised according to established principles: Donigi v Papua New Guinea Banking Corporation (2001) SC691. One such principle is that the Court may refuse application to dismiss under this provision if the default of the appellant under the Rules upon which the application is based has been corrected since the filing of the application to dismiss the appeal: Dan Kakaraya v Somare & Others (2004) SC762. The Supreme Court stated in that case:
    

The Court must consider the whole of the circumstances in which an application for dismissal on the ground of want of prosecution is brought. In particular, the Court must look at all the events that have happened up to the day on which the application is argued, in particular events that have taken place since the application was filed.

31. We endorse the statement and note that the appeal is now ready to proceed with the hearing. In fact, the main parties to this appeal, the appellants and the third respondent, have had the Appeal Book since end of 2022. Moreover, we consider the appeal raises arguable issues relevant to the law on practice and procedure in the National Court, namely whether the National Court may issue final orders (which determine liability) pursuant to a notice of motion that:
    
    • seeks only interlocutory relief; and
    • is moved in the absence of the parties against whom the final orders are made.
      
32. In the circumstances, we believe it is in the interest of justice that those issues are properly argued and determined.
    
33. We therefore exercise our discretion in favour of the appellants and refuse the application to summarily dismiss this appeal.
    
34. However, as the application resulted from the appellants’ default, we would order costs against them.
    

ORDER

35. The Court orders that:
    
    • (1) The third respondent’s application for summary dismissal filed 9 July 2025 is refused.
    • (2) The matter is adjourned to the Registry to be referred to the Listings Judge to set a hearing date.
    • (3) The appellants shall pay the third respondent’s cost of and incidental to the application, to be taxed if not agreed.
    • (4) Time for entry of these orders is abridged to the time for settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Lawyer for the appellants: Solicitor General
Lawyers for the second respondent: Eagle Lawyers
Lawyers for the third respondent: Kandawalyn Lawyers