A shopper injured by an exploding soft drink bottle won damages. The store appealed, missed the deadline to set the appeal down, and spent a year negotiating. The respondent said the appeal must therefore be dismissed. The Court said the rule gave it a choice.
Burns Philp (New Guinea) Ltd v Maxine George [1983] PGSC 9; [1983] PNGLR 55; SC244
Supreme Court, Waigani — Kidu CJ, Kapi DCJ and Andrew J, 14 March 1983.
What happened
On 3 November 1981 the National Court awarded Ms George damages for personal injuries suffered when she was struck by flying glass from a soft drink bottle in the appellant’s store (George v Burns Philp (New Guinea) Ltd [1981] PGNC 49; N324). Notice of appeal was filed on 1 December 1981. Rule 25 of the Supreme Court Rules 1977 required the appellant to set the appeal down for the first sittings held after 28 days. It did not. The trial judge’s notes of evidence were not received until about 15 March 1982, and during 1982 the parties negotiated a settlement, without success. By the time the respondent moved to dismiss, the appeal had been set down and was ready to proceed.
What was argued
The respondent submitted that rule 25 was mandatory: once the appeal was not set down within the prescribed period, the Court had no option but to dismiss it. The appellant relied on the late transcript, the negotiations and the fact that the appeal was now ready.
What the Court decided
1. Where an appeal has not been set down as prescribed, the power to dismiss for want of prosecution remains discretionary. The rules are made by the Judges to regulate practice; the Court has a general power to enforce compliance and to make such order as is just, and an inherent power under section 155(2)(a) of the Constitution. Rule 25 itself allows the Court to dispense with the requirement, and the provision permitting a respondent to move for dismissal hardly suggests the appeal fails automatically.
2. The discretion is exercised having regard to all the circumstances, including (a) the length of and reasons for the delay on the appellant’s part; (b) the extent to which, because of the delay, evidence likely to be adduced may lose its cogency; (c) the availability of a transcript; and (d) any negotiations between the parties.
3. The late notes of evidence, common in a jurisdiction without ready transcripts, and the settlement negotiations were relevant. With the appeal now set down, it would not be just to deny the appellant its appeal. Application dismissed, no order as to costs.
Did it make new law?
Yes, on the construction of the Supreme Court’s own rules; no National Court decision was under review. The rule has since been renumbered, as Order 7 rule 53 and now Order 7 rule 48 of the Supreme Court Rules 2012, but its terms are materially the same and the Court has repeatedly said the Burns Philp principles continue to apply. Later cases, particularly General Accident v Ilimo Farm [1990] PNGLR 331, Donigi v PNGBC (2001) SC691 and Kalinoe v Paraka (2007) SC874, built the detailed catalogue of an appellant’s obligations on this foundation.
Why it matters
Delay is not fatal by itself, but it shifts the burden. An appellant who has missed a step must be ready to explain why, with evidence.
Transcript problems are a recognised excuse, provided the appellant actually requested the transcript promptly and followed it up.
Negotiations count, but only if they were genuinely directed at settling the appeal; they do not stop time running for other purposes.
What it does not decide
Burns Philp does not list an appellant’s duties or say when the onus shifts; those refinements came in Donigi and Kakaraya v Somare. Nor does it decide whether a single judge may dismiss for want of prosecution, a question answered by reference to section 5 of the Supreme Court Act in later cases. It says nothing about the merits of the appeal as a factor, which later benches have treated as relevant but rarely decisive.
Recent cases applying it
- Koringo v National Broadcasting Commission [2019] PGSC 30; SC1803 — the Court described Burns Philp as the first of the cases on the rule, noted that rule 25 of the 1977 Rules is in identical terms to Order 7 rule 48(a), and applied its holding that the power is discretionary.
- The State v National Capital District Commission [2025] PGSC 94; SC2793 — Burns Philp, Ilimo Farm and Kalinoe restated as the governing authorities; application refused because the default had been cured.
- Kavi v Australia and New Zealand Bank Ltd [2020] PGSC 38; SC1951 — appeal dismissed where the explanations for delay were not reasonable; Burns Philp among the authorities applied.
- The State v Kikala [2023] PGSC 15; SC2355 — a criminal appeal and leave application dismissed for want of prosecution on the same principles.
Sources
- Burns Philp (NG) Ltd v George [1983] PGSC 9; [1983] PNGLR 55 (Kidu CJ, Kapi DCJ and Andrew J, 14 March 1983)
- George v Burns Philp (New Guinea) Ltd [1981] PGNC 49; N324
- Supreme Court Rules 2012 — Order 7 r 48; Constitution — s 155(2)(a)
- Donigi v PNGBC [2001] PGSC 1; SC691; Kalinoe v Paraka [2007] PGSC 33; SC874
- Koringo v National Broadcasting Commission [2019] PGSC 30; SC1803; The State v National Capital District Commission [2025] PGSC 94; SC2793; Kavi v Australia and New Zealand Bank Ltd [2020] PGSC 38; SC1951; The State v Kikala [2023] PGSC 15; SC2355
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331 is cited as it appears in the later judgments and was not separately opened for this brief.
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