The appellant failed three times to turn up to settle the appeal book index. By the time the application to dismiss his appeal was argued a year later, the appeal book had been served for four months. That timing decided the case.
Dan Kakaraya v Sir Michael Somare, Koiari Tarata and Francis Kaupa [2004] PGSC 11; SC762
Supreme Court, Waigani — Los, Sawong and Cannings JJ, 1 October 2004. SCA 81 of 2003.
What happened
Mr Kakaraya, suspended as managing director of Mineral Resources Development Company, had lost proceedings in the National Court and been ordered to pay costs, taxed at K23,137.40. When his application to review the taxation stalled, Sevua J on 14 July 2003 dismissed it for want of prosecution. He appealed on 6 August 2003 and obtained a stay from Kapi CJ in September. Settlement of the appeal book index was fixed and vacated in August, October and November 2003 because he did not attend. On 14 November 2003 Sir Michael Somare applied under Order 7 rule 53 to dismiss the appeal. The index was settled six days later, the transcript obtained in December, and a draft appeal book served on 31 May 2004. The application was argued on 29 September 2004.
What was argued
The applicant said the repeated failures to attend settlement and the passage of more than a year since filing showed want of due diligence. Mr Kakaraya, appearing in person, pointed to the negotiations over costs, the stay application he had pursued, and the fact that the appeal book had been ready and served for four months.
What the Court decided
1. The principles in Donigi v PNGBC (2001) SC691 are adopted: the appellant’s obligations after filing, the examples of conduct justifying dismissal, and the rule that once delay is established the onus shifts to the appellant to explain it. An appellant is responsible for obtaining transcripts and should file a draft index early. The power to dismiss is discretionary.
2. Two principles are added. The Court must consider the whole of the circumstances, looking at all events up to the day the application is argued, in particular events since the application was filed. And the Court must ensure that the application to dismiss has itself been prosecuted with due diligence.
3. Mr Kakaraya had not done what was required in a timely way; his repeated non-attendance called for explanation. But the explanation was adequate: the stay application complicated matters, the index was settled, and the appeal book had been prepared and served. The applicant had not pursued his own application diligently; once served with the appeal book he should have withdrawn it. Application dismissed with costs, and directions given to certify the appeal book and list the appeal.
Did it make new law?
The two additional principles were new and have been consistently followed. The case did not review any National Court decision; it concerned the conduct of the appeal. Together Donigi and Kakaraya supply the test that Kalinoe v Paraka (2007) SC874 later distilled into the question whether there is a reasonable explanation for the delay.
Why it matters
Cure the default at once. An appellant served with an application to dismiss should complete the outstanding steps before the hearing; a cured default weighs heavily against dismissal.
Respondents must move promptly and keep moving. An application filed and then left for months, particularly after the appeal book arrives, is likely to fail with costs.
Unrepresented appellants are held to the same obligations, but the Court looks at the substance of what has been achieved rather than the missed appointments alone.
What it does not decide
Kakaraya does not mean that late compliance always saves an appeal. Where the delay is long, unexplained or prejudicial, appeals have been dismissed despite eventual readiness, as in Gumaim v Abari (2021) SC2167, where the underlying events dated from 2001. Nor does it deal with dismissal for failure to comply with a peremptory order fixed under Order 7 rule 48(b), where the consequence is automatic on non-compliance.
Recent cases applying it
- The State v National Capital District Commission [2025] PGSC 94; SC2793 — the Court endorsed Kakaraya: an application under Order 7 rule 48(1) may be refused if the default relied on has been corrected since the application was filed; refused with costs.
- Gumaim v Abari [2020] PGSC 97; SC2008 — Kakaraya applied for the propositions that later events are relevant and that the application to dismiss must be diligently prosecuted; application refused.
- The State v Kikala [2023] PGSC 15; SC2355 — Kakaraya cited through Kalinoe on the shifting onus; appeal dismissed on its facts.
- Tia v Smith [2019] PGSC 89; SC1864 — Donigi and Kakaraya the governing authorities on an Order 7 rule 48(a) application.
Sources
- Kakaraya v Somare [2004] PGSC 11; SC762 (Los, Sawong and Cannings JJ, 1 October 2004)
- Supreme Court Rules 2012 — Order 7 r 48
- Donigi v PNGBC [2001] PGSC 1; SC691; Kalinoe v Paraka [2007] PGSC 33; SC874; Gumaim v Abari [2021] PGSC 94; SC2167
- The State v National Capital District Commission [2025] PGSC 94; SC2793; Gumaim v Abari [2020] PGSC 97; SC2008; The State v Kikala [2023] PGSC 15; SC2355; Tia v Smith [2019] PGSC 89; SC1864
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