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Gogol Reforestation Pty Ltd v Maiak [1999] PGNC 105; N1935 (7 December 1999)

Unreported National Court Decisions

N1935

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AP NO.41 OF 1997
GOGOL REFORESTATION PTY LIMITED
APPELLANT
V
DAMOL MAIAK
RESPONDENT

Madang

Sawong J
7 December 1999

APPLICATION

This was an application seeking to dismiss an appeal from the District Court for want of prosecution.

Counsel

Applicant/Respondent, in person

Mr I Umbu, for the respondent/ Appellant

7 December, 1999

SAWONG J: This is an application by the respondent that the appeal be dismissed for want of prosecution.

According to the appellant’s lawyer the main problem has been that since the filing of the Notice of Appeal they had difficulty in serving the Notice of Appeal and other relevant documents relating to the Appeal on the respondent because the respondent had no address for service.

According to Mr Umbu’s affidavit the notice of Appeal and other relevant documents were filed in February 1997. On 5 March 1997 these were sent to the Appellant’s employees to serve on the respondent. There after, (there is no evidence as to what occurred), that is whether any attempts were made to serve the respondent or not. according to the affidavit, nothing further happened until 25 October 1999, when both parties were present, when the Court the requirements of service were dispensed with as the Appellant was present.

The depositions of the District Court proceedings were received at the National Court at Waigani on 16 February 1998. Thereafter nothing was done by the Appellant. On or about 2 August 199, I ordered that file be brought from Waigani to Madang as in my view the Appeal was from was from a District Court Madang and both parties lived in Madang.

The appellant has not prepared an appeal book, nor has it caused such to be served on the respondent. From the National Court file, I find that there has been no correspondents from the lawyers for the appellant in regard to the depositions. It is the appellant’s lawyers responsibility to make inquiries with the Registrar and his staff and to check the court file . There is no evidence from Mr Umbu if this was ever done.

There is no express provision in the District Court Act for the National Court to dismiss an appeal, for want of prosecution. In Credit Corporatiion (PNG) Pty Ltd v Tabua [1990 PNGLR] PNGLR 17, Hinchliffe J applied the principles set by the Supreme Court in Tenge Kai Ulo v Acting Prosecutor, Burns Philip (New Guinea ) Ltd v Maxine Genge [1983] PNGLR 55. The principles set down by the Supreme Court are:

1. ټ T60; The power to dismiss from want of prosecution remains discretionary

2. ;㼠 The dihe discreticretion is to be exercised having regard to all the circumstances including ding inter alia:

a) ҈ & the h he h of and reason for delay or the past of the appe appellanellant

b) ҈ t60; the extent evi ence b to bised oose cogency

c) &#160 thelability lity of trof trof transcript

d) &ـ Anotiations between the parties.

In then the Cred Credit Coit Corporation, Hinchliffe J found that the appellant had made out case to dismiss the cause because of delat he ot dismiss it because, there was no evio evidencedence from from the appellants lawyers that they had difficulties in obtaining the transcript of the proceedings from the clerk of the District Court concerned, even after the repeated requests.

I accept and would apply the principles set out above the facts of this case.

In present case the facts are quiet different. Essentially the appellant and its lawyers have not served the Notice of Appeal nor the transcript of the District Court proceedings since the Appeal was filed.

I am satisfied that the applicant had made out a case that the appeal be dismissed for want of prosecution on the basis of undue delay.

The onus now shifts to the appellant to explain, satisfactorily the reasons for the delay in setting down the appeal for hearing, that is, a hearing which in fact could proceed. If the appellant’s lawyers had been alert the appeal could have been heard last year. But as it is, the depositions have not been put together. Some parts of the transcript would need to be typed. Then these will have to be served on the respondent. All these going to further delay the hearing of the appeal.

I am not satisfied that the explanation offered by the lawyers of the appellant is or are satisfactory. The appellant is or are satisfactory. The appellant has not discharged the onus placed on it.

In these circumstances, I would uphold the application. I dismiss the appeal for want of prosecution due undue to delay.

Costs must follow the event.

Applicant/Respondent: In Person

Respondent/Appellant: I. Umbu