Two applications to kill the State's appeals against a law firm's judgment failed. The reasons have become the standard statement of what "want of prosecution" means in the Supreme Court.
Joshua Kalinoe, Chief Secretary to Government, Gabriel Yer, Simon Tosali and the State v Paul Paraka trading as Paul Paraka Lawyers [2007] PGSC 13; SC874
Supreme Court, Waigani — Jalina, Gavara-Nanu and Batari JJ, 27 September 2007. SCA 15 and 17 of 2006.
What happened
The State and three senior officials appealed against National Court decisions in favour of Paul Paraka Lawyers. Mr Paraka moved to have one appeal struck out on an objection to competency and the other dismissed for want of prosecution. His grounds ranged widely: that the appeal lacked the Attorney-General’s instructions, that it did not comply with Order 10 of the Rules, that the appellants had taken no active steps for five months, and that they had ignored three letters asking them to set the appeal down.
What was argued
Mr Paraka argued that the appeals were both defective at birth and neglected thereafter. The appellants said that most of the grounds had nothing to do with prosecution of the appeal, and that they had in fact done what the Rules required, including ordering and paying for the transcripts.
What the Court decided
Objection to competency. The Rules confine an objection to specified matters. Grounds such as a want of instructions from the Attorney-General or non-compliance with Order 10 Division 1 fall outside them and are incompetent as grounds of objection.
Want of prosecution. Under the rule (then Order 7 rule 53(a)) the applicant must show that the appellant has not done an act required by the Rules or has not prosecuted the appeal with due diligence. The rule relates to diligent prosecution, so the time taken is of the essence. Delay may lead to dismissal unless reasonably explained. Any other ground not envisaged by the rule cannot constitute a valid ground for dismissal.
Result. On the evidence the appellants had taken all necessary steps diligently, including obtaining transcripts, and had reasonably explained any delay. Both applications were dismissed with costs.
Did it make new law?
The Court applied a line of Supreme Court authority including Burns Philp (NG) Ltd v George [1983] PNGLR 55, General Accident Fire & Life v Ilimo Farm Products [1990] PNGLR 33 and Kakaraya v Somare (2004) SC762. Its contribution was to state, in paragraphs 17 and 20, a two-part question that later benches quote verbatim, and to insist that want-of-prosecution applications and objections to competency each stay within their own rule. No National Court decision was involved.
Why it matters
Appellants must keep moving: order the transcript, prepare the draft index, attend directions, and answer correspondence. A documented record of steps taken is the best defence to a dismissal application.
Respondents should tie each ground to a specific default under the Rules. Complaints about the merits, authority or form of the appeal belong elsewhere, if anywhere.
What it does not decide
Kalinoe does not say how long a delay is too long. That depends on the stage the appeal has reached, the steps outstanding and the explanation offered; delays of several months have been excused where the appellant was awaiting transcripts, and shorter ones penalised where nothing at all had been done. Nor does it address the position where the delay is caused by the Registry or the respondent rather than the appellant. Kalinoe was also decided under the 1984 Rules. The current provisions are Order 7 rules 48 to 53 of the Supreme Court Rules 2012, and Order 13 rule 16 now gives the Court a separate summary determination power that later cases such as Barrick v Nekitel (2021) SC2092 describe. The test the case states has been carried across unchanged.
Recent cases applying it
- Kafafi v Victor [2024] PGSC 87; SC2616 — paragraphs 17 and 20 of Kalinoe quoted as the governing statement on a contested application to dismiss for want of prosecution.
- Monogenis v O’Brien [2022] PGSC 150; SC2754 — the same passages applied.
- Girl Guides Association of PNG v Kamang [2022] PGSC 141; SC2342 — Hartshorn J applied Kalinoe with Burns Philp v George and General Accident.
- Kuima Security Services Ltd v Kikora [2021] PGSC 40; SC2113 — Kalinoe cited on want of prosecution.
Sources
- Kalinoe v Paraka [2007] PGSC 13; SC874 (Jalina, Gavara-Nanu and Batari JJ, 27 September 2007)
- Supreme Court Rules 2012 — Order 7 rules 14 to 18, 48 to 53; Order 13 rule 16
- Burns Philp (NG) Ltd v George [1983] PGSC 9; [1983] PNGLR 55; Kakaraya v Somare [2004] PGSC 11; SC762
- Kafafi v Victor [2024] PGSC 87; SC2616; Monogenis v O’Brien [2022] PGSC 150; SC2754; Girl Guides Association of PNG v Kamang [2022] PGSC 141; SC2342; Kuima Security Services Ltd v Kikora [2021] PGSC 40; SC2113
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Ltd [1990] PNGLR 33 is cited as it appears in the judgment and was not separately opened for this brief.
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