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Tia v Smith [2019] PGSC 89; SC1864 (1 November 2019)

SC1864

PAPUA NEW GUINEA
[IN THE SUPREMECOURT OF JUSTICE]

SCA NO. 185 OF 2017

BETWEEN
JENNY TIA
Appellant

AND
ROBERT SMITH
First Respondent

AND
AUSTRALIAN FIRST REALITY
Second Respondent

Waigani: Manuhu, Polume-Kiele and Berrigan JJ
2019: 30^th October and 1^st November

SUPREME COURT – Application for dismissal for want of prosecution

Cases Cited:

Donigi v PNGBC (2002) SC691
Dan Kakaraya v Sir Michael Somare (2004) SC762
Keimali v Akema (2010) SC1061
Motor Vehicles Insurance Ltd v Api (2015) SC1406

References cited

Order 7, Rule 48(a) of the Supreme Court Rules

Counsel

Mr. R. Yanson, for the Appellant
Ms. B. Kumo, for the Respondent

DECISION ON APPLICATION

1^st November, 2019

1. BY THE COURT: This is an application to have the appeal in SCA No. 185 of 2017 dismissed for want of prosecution pursuant to Order 7, Rule 48(a) of the Supreme Court Rules.
   
2. The judgement under appeal is that of the National Court made on 22 November 2017 dismissing the entire proceedings in WS 1492 of 2014 on the ground that the appellant failed to give discovery.
   
3. On 28 December 2017 the appellant filed a notice of appeal against the decision. By the time this application was filed on 8 March 2019, a period of almost 14 months had lapsed since the filing of that notice at which time not even an index to the appeal book had been settled.
   
4. It is well settled that the determination of an application of this nature involves an exercise of discretion, having regard to the circumstances of the particular case. Under Order 7, Rule 48 the Court may dismiss an appeal if it is established that 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”.
   
5. The primary considerations are whether there has been an inordinate delay in prosecuting the appeal and, if there has been, whether there is an explanation for the delay, and if yes, whether the explanation is acceptable: Donigi v PNGBC (2002) SC691; Dan Kakaraya v Sir Michael Somare (2004) SC762; Keimali v Akema (2010) SC1061; and Motor Vehicles Insurance Ltd v Api (2015) SC1406.
   
6. Here there has been an inordinate delay in prosecuting the appeal. It is therefore incumbent on the appellant to provide a satisfactory explanation.
   
7. No such explanation is forthcoming. The appellant filed no evidence on this application and relies on that of the respondent.
   
8. We have taken into consideration the appellant’s submission that the Supreme Court declined to enter summary judgement when the matter was listed by the Registry in December 2018 and that we should confine ourselves to considering whether there had been any delay since then and the filing of this application in March 2019.
   
9. We do not accept that submission. On the contrary, in determining this matter we are obliged to take into account the entire history of the appeal. This shows that the appellant took more than 8 months to file a draft index to the appeal book. Furthermore, that the respondent has taken active steps to have the appellant progress the matter, and issued no less than three letters of forewarning, on 14 May 2018, 26 November 2018 and most recently on 4 March 2019.
   
10. Moreover, it does not assist the appellant’s case that following the Supreme Court decision on summary determination in December 2018, the draft appeal book is still yet to be settled. Here the evidence shows that the appellant’s lawyer failed to attend settlement meetings on 12 February and 4 March 2019. He attended the registry on 18 February 2019 but was unable to participate in a scheduled settlement meeting as he did not have a practising certificate.
    
11. Against the background of the 14-month delay, the appellant’s explanations are completely unsatisfactory. We are satisfied that the appellant has failed to prosecute the appeal with due diligence.
    
12. We uphold the application for dismissal under Order 7, Rule 48(a) of the Supreme Court Rules and make the following orders:
    
    • (i) The application filed on 8March 2019 for dismissal of the appeal is upheld.
    • (ii) The appeal is dismissed.
      • (iii) Costs of this application and the appeal shall be paid by the appellant to the respondent on a party-party basis which shall if not agreed be taxed.

________________________________________________________________
Yansion Lawyers: Lawyer for the Appellant
Jema Lawyers: Lawyer for the Respondents