[1997] PNGLR 390

PAPUA NEW GUINEA

[national court of justice]

UMBU WAINK; and
MARTIN IMBU SAMBAI

v

MOTOR VEHICLES INSURANCE (PNG) TRUST; and
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

mount hagen: lenalia aj
25 July and 15 August 1997

Civil Jurisdiction - Practice & Procedure - National Court - Application to dismiss for want of prosecution - Discretionary matter - Principles applicable - Inordinate delay - Balance of justice - Plaintiffs within Highlands Region - No change in lawyers - Whether delay intentional and contumelious - National Court Rules O. 10 r. 5.

Practice & Procedure - Costs improperly incurred or without reasonable cause - Costs incurred by undue delay - Whether Solicitor should meet certified costs.

Facts

On an application by the lawyers for the defendants to dismiss proceedings for want of prosecution pursuant to Order 10 rule 5 of the National Court Rules:

Held

1.	The power of the court to dismiss proceedings for want of prosecution should only be exercised where the plaintiff’s default has been intentional and where there has been inordinate and inexcusable delay: Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 considered.

2.	Where there has been lengthy delay in setting down for trial, O. 10 r. 5 of the National Court Rules should be construed in favour of an application to dismiss for want of prosecution only where circumstances are such that there has been a long delay and where there is no reasonable explanation given by the plaintiff.

3.	Accordingly, orders for dismissal of the proceedings should be made where almost some six years have elapsed since institution of the proceedings.

4.	The Court may order a solicitor to pay costs only on exceptional circumstances where it finds that costs are incurred improperly without reasonable cause or undue delay or by any other misconduct and where it appears to the Court that the solicitor is responsible.

Papua New Guinea cases cited

Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133.

Counsels

P Koeya, for the two plaintiffs.
A Kandakasi, for the first defendant.
J Kumura, for the second defendant.

15th August 1997

Lenalia aj. This is an application by the lawyers for the first defendant, the Motor Vehicle Insurance (PNG) Trust to dismiss the plaintiffs claims for want of prosecution pursuant to the National Court Rules O. 10 r. 5. The brief historical background of WS No. 636 of 1991 is as follows. The plaintiff filed the writ of summons on the 12th of September 1991, claiming damages for personal injuries on a motor vehicle accident, which occurred on or about the 7th of July 1990 between Mount Hagen and Wapenamanda along the Okuk Highway. The writ was served on the first defendant on the 24th day of September 1991. A notice of intention to defend was lodged and filed on the 8th of October the same year. By the 31st of October the same month, the plaintiff replied to the defence. A number of correspondences were exchanged between the lawyers for the parties. Then on the 28th of April 1992, the plaintiff filed a notice to set down for trial. On the 4th of November 1994, a notice of trial was filed showing the trial being listed for hearing on the 15th of November 1994 at the National Court sitting in Wabag, Enga Province. Some more correspondences were exchanged between the lawyers for the parties.

The plaintiff filed a notice of motion on the 14th of November 1994 seeking orders to vacate the trial date and have the matter transferred to the National Court at Mount Hagen. On that same notice of motion, the plaintiff applied for and was granted leave to amend his statement of claim and to join the second defendant as a party to the proceedings. The first defendant’s lawyers filed a notice of motion on 3rd of January 1995 seeking a dismissal of the proceedings for want of prosecution. Mr Kandakasi then deposed in his affidavit sworn on the 29th of December 1994, in support of the motion, giving an account of events that occurred since the proceedings were commenced. It would seem that the application for dismissal of the proceedings was refused. On the 10th of February 1995, the first defendant filed its defence to the plaintiff’s amended proceedings. By the 15th of March the following month, the second defendant filed its defence.

The plaintiff further filed a second amended writ of summons on the 22nd of September 1995. A day after this, the Court granted leave to the plaintiff to file and serve an amended statement of claim. Further to what occurred either in Court or at the Mount Hagen Registry Office, many correspondences were exchanged between the lawyers for the plaintiff and defendants.

It is apparent from the course of dealings of the parties that the parties were before the court for trial on W.S. 657 on the 6th of September 1995, but the trial was vacated following the plaintiff’s successful application for further amendments to his statement of claim. The first defendants lawyer successfully obtained an order for costs against the plaintiff and a certificate of taxation was filed and dated as far back as the 11th of April 1995. The costs payable to the defendant after being taxed were put at K2,369.39. No further development took place until the current motion was brought before me on 25th August 1997.

Facts relative to WS 657 of 1991 are similar to WS 636/91. The plaintiff in WS 657/91 took out proceedings against the first defendant on the 24th September 1991. A notice of intention to defend and a formal defence were simultaneously filed on the 1st of November 1991 following which the plaintiff filed a notice to set down for trial on the 27th April 1992. A number of correspondences were exchanged between the lawyers for the plaintiff and the defendant and the Mount Hagen Registry Office. The plaintiff on motion filed on the 14th of November 1994 moved the Court for orders in Wabag seeking vacation of the trial date which was scheduled for 15th the following day. In that same motion, the plaintiff successfully sought orders to join the second defendant a party to the proceedings. The plaintiff also sought orders to file and serve an amended statement of claim. It seems to me, as it is not clear from the records that all orders were granted. An amended statement of claim was then filed pursuant to the court order of the 14th of November 1994.

At a call-over in August 1994, the first defendant applied to have the proceedings fixed for hearing on the 4th of November 1994 as an alternative to applying for a dismissal. Following that fixture, the plaintiff filed and served a notice of trial on the 4th of November 1994. On the 14th of November the same year, the plaintiff filed a notice of motion seeking vacation of the time date and several amendments to his statement of claim. A circuit judge in Wabag heard the notice on the 14th of November 1994. The plaintiff was granted leave to amend his statement of claim within fourteen days. It also ordered vacation of the trial. On that same motion, the second defendant was added as a party to these proceedings. The defendants served and filed their defences to the amended writ. More correspondences followed and by 23rd October 1995, the National Court in Hagen granted leave to the plaintiffs to amend his second amended statement of claim. The court also ordered costs in favour of the first defendant up to then to be paid by the plaintiff. On a letter dated 11th March 1996, the Assistant Registrar in Mount Hagen wrote to the defendant’s lawyers advising that taxation on WS 636 and 657 was fixed for Thursday the 11th of April 1996. A taxed figure was put at K2,369.39. Following this, the first defendant’s lawyer filed a notice of motion on the 22nd of November 1996 seeking orders to dismiss these proceedings unless the plaintiff paid in full within fourteen days those costs taxed against him as per the certificate of taxation dated the 11th April, 1996. In his short ruling refusing the first defendant’s application, Injia J expressed the following sentiments:-

"By motion on notice served on the plaintiff’s lawyers, the applicant/first defendant applies for orders, inter alia, that the "proceedings against the first defendant shall stand dismissed, unless the plaintiff pays in full within 14 days from today, the costs taxed against him per the certificate of taxation of the 11th of April, 1996". The outstanding costs of K2,369.39 and they arise from two (2) orders for costs upon adjournment of the part-heard trial. Mr Kandakasi of counsel for the defendant in his affidavit has set out the relevant circumstances pertaining to the non-payment of the defendant’s costs and the plaintiff’s failure to continue with the adjourned trial. Mr Peri Koeya who appeared for the plaintiff at the hearing of this application did not oppose the motion saying he had nothing to say because other lawyers from his office were working on the file.

This application is a peculiar one. Therefore, it is necessary for the applicant or it’s counsel to assist the Court in pointing out the basis in the rules of court upon which the application is based and all matters pertinent to the exercise of the Court’s discretion to make such an order. Nowhere in the oral submissions of the applicant’s counsel or in his affidavit or in the notice of motion is there any reference to the relevant rule, which vests the court jurisdiction to make such an order. The applicant therefore, does not persuade me that I do have the jurisdiction and the jurisdictional discretion to make such an order. I dismiss this application. I make no order as to costs".

The first defendant’s solicitors filed yet another notice of motion on the 2nd of July 1997 seeking orders to dismiss the proceedings for want of prosecution and to order the plaintiff’s solicitors to pay for costs as per the terms of the National Court Rules O. 22 rr 62 and 65.

There are two issues involved. First whether this Court should dismiss these proceedings for want of prosecution and secondly whether I have the power under law to exercise the Court’s discretion to order the plaintiffs’ lawyer as per the terms of O. 22 r. 65 of the National Court Rules. The law in relation to dismissal for want of prosecution is quite clear. This is evident from the wording of O. 10 r. 5 of the Rules. Rule 5 of O. 10 requires that within six weeks after the pleadings are closed, the plaintiff is entitled to set the proceedings down for trial. The Court is empowered to dismiss a proceeding for want of prosecution on motion by the other party where there has been a long delay and default or where there has been inordinate and inexcusable delay on the part of the party who instituted proceedings.

Mr Kandakasi for the first defendant argued that it is now almost six years since the two proceedings were instituted and the respective plaintiffs have not set the proceedings for trial as per the requirement of O. 10 r. 5 of the National Court Rules. In fact the proceedings were both issued in September 1991. It is now almost six (6) years and the plaintiffs have not been able to set the proceedings down for trial. It has been said that the power of the court to dismiss for want of prosecution should only be exercised where the plaintiff’s default has been intentional and contumelious or where there has been long and inexcusable delay: Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133.

It is obvious that the result of the plaintiffs’ inaction to set down for trial and prosecute is that it is now almost some six years since institution of these two claims and simply put the plaintiffs have defaulted. They have not prosecuted with due dispatch. It is of great importance in the interest of justice that these actions should have been brought to trial with reasonable expedition. Where there has been a long delay, a balance must be struck between the parties’ course of dealings and at the end the Court must decide whether the balance demands if an action should be dismissed. These two actions have been maintained since 1991. I am of the view that there has been actually a long delay in setting down for trial and the law is quite specific and requires that where there is an inordinate and inexcusable delay, the Court has the discretion to dismiss for want of prosecution. The defendants have the right to be prosecuted with due dispatch. Where prosecution with due dispatch is wanting, it can be assumed that the plaintiff has no interest in pursuing his cause. This is the second or third time the first defendant has asked by motion to dismiss for want of prosecution. Mr Kumura for the second defendant argued in similar terms as per Mr Kandakasi relying mainly on Mr John Kawi’s affidavit sworn on 18th of June 1997, expressing the same concern that the plaintiffs have badly defaulted. In the State’s motion filed on the 25th June 1997, the second defendant also seeks orders for dismissal for want of prosecution.

The second issue arises from the contention by the defendants’ lawyers that if the court granted their applications to dismiss the two proceedings for want of prosecution, then it should order that the plaintiffs solicitors should pay costs to the defendants as per the certificate of taxation plus the costs of these applications. Mr Kandakasi submitted that the court has the power under the National Court Rules to order the plaintiffs lawyers to pay their costs. He referred the Court to O. 22 rr. 62 and 65 of the Rules. Rules 65 is in the following terms:--

"65. Personal liability of solicitor for costs. (52/66)

(1)	Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that solicitor is responsible (whether personally or through a servant or agent), the Court may after giving the solicitor a reasonable opportunity to be heard---

(a)	disallow the costs as between him and his client; and

(b)	direct the solicitor to repay to his client costs which the client has been ordered to pay to any other party; and

(c)	direct the solicitor to indemnify any party other than his client against costs payable by the party indemnified.

(2)	Without limiting the generality of Sub-rule (1) a solicitor is responsible for default for the purposes of that Sub-rule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor:-

(a)	to attend in person or by a proper representative; or

(b)	to file any document which ought to have been filed; or

(c)	to deliver any document which ought to have been delivered for the use of the Court; or

(d)	to be prepared with any proper evidence or account; or

(e)	otherwise to proceed

(3)	The court may, before making an order under Sub-rule (1), refer the matter to the taxing officer for enquiry and report.

(4)	The Court may order that notice of any proceedings or order against a solicitor under this Rule shall be given to his client in such manner as may be specified in the order under this Sub-rule". (Emphasis added)

The essence of O. 22 r. 65 is that where it appears to the court that costs are improperly incurred without reasonable cause or wasted by undue delay and where the court thinks that the solicitor is responsible, it must give that solicitor a reasonable opportunity to be heard. I heard Mr Koeya briefly who appeared for the plaintiffs. Although he objected to the two applications, he did not give the court any reasons why the certified costs should not be ordered against Warner Shand Lawyers. Mr Koeya’s objection relies basically on the ruling by Injia J in which his honour expressed reservation as to the courts authority to make orders in the terms of the motion, which sought orders to dismiss unless costs were paid. His Honours’ ruling refusing an order that the proceedings against the first defendant "shall stand dismissed, unless the plaintiff pays in full within 14 days from today the costs taxed against him per the certificate of taxation of the 11th of April, 1996" which His Honour said unless there was authority for him to make such orders, he was not prepared to grant such orders.

Mr Kandakasi argued that the plaintiffs’ lawyers are responsible for the delay because the proceedings could not conveniently proceed and that the matters have been so far adjourned without any useful progress being made because of the plaintiffs and lawyers failure to expedite the hearing processes. It is my view that the protection of law guaranteed by the Constitution and the laws of this country carry with them the right for persons to bring actions to the courts to protect their rights and resolve disputes amicably. Thus the defendants have the right to have their cases heard with due dispatch. That has not eventuated.

Costs are in the discretion of the Court. On perusal of the two files, I find the following sentiments by Warner Shand Lawyers on a letter dated 1 April 1997 addressed to the Solicitor General, Mr Francis Damien:

"You will agree with us that the above matters have taken so long without substantive hearing of the actual claims simply because our clients are unable to pay the costs awarded against them. To make the matter worse, our clients have an accumulated huge bill of over K9,000.00 outstanding. Imagine how disastrous it would be for the poor clients if we insisted on settlement of our fees and failing took debt recover actions. Leaving aside our costs, to expect a simple villager and an aid post orderly to put together the defendants’ total costs of over K5,000.00 really would be very unreasonable considering their backgrounds. As it now stands our clients are lost in the impression that "justice is too expensive to buy" and this proves true as time ticks away leaving them wondering if their claims will ever be given a hearing by the court.

Our remarks above in no way suggest that the defendants are not entitled to insist on up front payment of their costs. This is a rule of time of the very honourable profession we serve in. However, the remarks are intended to stress the real positions our clients are placed in with a view to proposing out of court settlement of the whole matters in terms of the following submission".

The first paragraph seem to put this court on notice that, the plaintiffs solicitors were well aware that their clients were unable to meet the costs; may be expecting that their clients would win their cases to latter foot the bills. The court gave sufficient time to the plaintiffs to grant adjournment after adjournment allowing them to file various documents. And that time Warner Shand Lawyers, which was charged with carriage of their client’s cause, represented them. Be that as it may, for the Court to make an order in terms of O. 22 r 65, the Court would have to be exceptionally sure that the plaintiffs’ lawyers were at fault or were negligent in carriage of these claims. I do not find that the plaintiffs’ solicitors are personally liable for the plaintiffs default. I order that the proceedings in relation to WS 636 and WS 657 of 1991 be dismissed for want of prosecution. It also further ordered that the plaintiff should pay the certified costs and the costs of this motion.

Lawyer for plaintiffs: Warner Shand Lawyers.
Lawyer for the first defendant: Young & Williams.
Lawyer for the second defendant: Solicitor General.