[1999] PNGLR 52

PAPUA NEW GUINEA

[national court of justice]

MARKSCAL LIMITED & ROBERT NEEDHAM

V

MINERAL RESOURCE DEVELOPMENT COMPANY LIMITED;
MASKET IANGALIO;
GEREA AOPI; and
CHARLES LEPANI

waigani: sevua j
3, 18 March 1999

Practice and procedure – Court order – Failure to comply with time limits specified in order – Delay in complying with order – Failure to set down for trial – Right of party to apply for dismissal – Order 10 Rule 5, National Court Rules.

Delay – Close of pleadings – Failure to set down for trial – Delay of more than 1 year to set down for trial – Inordinate delay – Application to dismiss for want of prosecution – Order 10 Rule 5 – Delay causing prejudice to defendant – Application granted.

Facts

This is an application by the first defendant, by way of notice of motion, seeking orders that the plaintiff’s writ of summons and statement of claim be dismissed for want of prosecution, pursuant to Order 10 r 5 of the National Court Rules, and that the plaintiff pays the first defendant’s costs of this motion.

Held

1.	A party who institutes legal proceedings is obliged to prosecute it without delay, has the duty to comply with orders relative to the proceedings, has the duty to comply with the rules, and has the duty to prosecute it to finality without undue delay and without causing prejudice to the defendant.

2.	There is no impediment to the granting of this application.

3.	Plaintiffs must pay the first defendant’s costs of the proceedings.

Papua New Guinea cases cited

Credit Corporation Ltd v Gerald Jee [1988-89] PNGLR 11.
Titus Keran v Jerry Warun & Country Motors Pty Ltd [1984] PNGLR 130.

Counsel

K Frank, for plaintiff.
P Young, for first defendant.

18 March, 1999

Sevua j. This is an application by the first defendant, by way of notice of motion, seeking orders that the plaintiff’s writ of summons and statement of claim be dismissed for want of prosecution, pursuant to Order 10 r 5 of the National Court Rules, and that the plaintiff pays the first defendant’s costs of this motion.

The plaintiff’s writ of summons claiming K17,377,775.00 for loss and damages relating to an alleged wrongful breach of an agreement, was filed on 28th August, 1996. Since then, various documents have been filed and served. Court records reveal that at least two interlocutory applications have been made, and two interim orders issued consequently.

The evidence in support of the first defendant’s application comes from an affidavit sworn by Andrew Furigi, an employed lawyer of the first defendant’s lawyers, sworn on 16 December 1998. The plaintiff has not disputed this evidence, and I accept that evidence.

It is pertinent to refer to the following events in chronological order, in order to appreciate the failure or otherwise of the plaintiff, in not taking reasonable steps to prosecute this claim. The chronological order of these events is confirmed by Court records endorsed on the file cover. In the opinion of the Court, upon a full consideration of these matters, the decision arrived at herein will be fully appreciated.

I now advert to these events as unfolded by the evidence. 

On 1 October 1996; just a little over a month after the plaintiff’s writ was filed, the first defendant filed and served on the plaintiff, a notice to produce documents. Three days after that notice was filed and served, the first defendant filed and served on the plaintiff, a request for further and better particulars of the plaintiff’s statement of claim. The plaintiff did nothing to respond to those documents. Consequently, on 25 October 1996; the first defendant correctly obtained Orders from the Court. Two of the orders directly relate to the documents filed by the first defendant which have been alluded to. The Court makes one important observation here. In respect of the documents I have adverted to, the plaintiff did nothing until prompted by a formal order of the Court. In my view, it will become evident later in this judgment that the behaviour of the plaintiff demonstrated a pattern of conduct which reflected the casual attitude of the plaintiff towards the lawsuit.

The Court specifically highlights herein, the attitude of the plaintiff, in so far as, the notice to produce and request for further and better particulars, are concerned. The order of 25 October 1996; were that the plaintiff provide the documents and particulars within 14 days of their payment into Court, the security ordered on the same date. The sum of K40,000.00 was paid into Court as security for costs on 6 May 1997. That meant, the plaintiff was required to comply with the orders in respect of the documents filed by the first defendant, by 20 May 1997. But the plaintiff failed to comply with the time limit specified by the order.

On 5 August 1997; some two months two weeks and three days later, following payment into Court, the plaintiff filed notice of appointment to inspect documents, together with further and better particulars. The plaintiff, not only failed to comply with the Court Order of 25 October, 1996; but further delayed in providing the required documents and particulars, by two months and three days. But let me go back to the period prior to the payment of security. It took the plaintiff six months and eleven days from the date of the order, to pay money into Court, in compliance. Whilst the Court Order did not specify a time limit within which security had to be paid, the delay of more than six months is inexcusable, and has not been satisfactorily explained by the plaintiff.

The failure by the plaintiff to comply with the orders of 25 October 1996; prompted the first defendant to file an application to have the proceedings dismissed for want of prosecution, however, the application was declined. 

The first defendant subsequently filed its defence and cross claim on 11th February 1998; and served them on the plaintiff nine days later. A little over a year from that date, the plaintiff has yet again failed to act to take steps to conclude pleadings and have the matter brought on for trial.

More than two years six months since the plaintiff instituted these proceedings, the suit is not ready for trial.

In the meantime, the co-plaintiff, Robert Needham, is overseas. From the plaintiff’s evidence, which does not dispute the matters deposed to in the first defendant’s affidavit, the last time the plaintiff’s lawyers contacted Robert Needham, was when he was in Ghana, but no one knows the date of that contact. Whilst Mr Needham is globetrotting, he expects the National Court to wait for him until such time he arrives, or gives instructions to his lawyers, to bring this action on for hearing. That is a typical attitude of litigants who think they can let the Court wait for them at their own convenience. Unfortunately, in this case, the Court is not going to wait for the plaintiff forever. 

The first defendant states in its affidavit that since the proceedings commenced in 1996, it has been carrying contingent liabilities in its accounts in respect of the plaintiff’s claim. As a public listed company, the contingent liability shown in its account is likely to affect the value of its shares. Counsel for the plaintiff, did not contradict this evidence, but submitted that the first defendant should have provided documentary evidence. In my view, the plaintiff’s counsel cannot make that submission because he has produced no evidence to refute the first defendant’s evidence.

The plaintiff acknowledged some delay, but denied that the delay was in excess of seven months. If I understood Mr Frank correctly, he submitted that the first defendant was guilty of delay as well. I do not accept that submission simply because it flies in the face of the undisputed evidence. The plaintiff’s delay from the date of order, to 16 May 1997; the date of payment of security is exactly six months and six days. It is true, that the delay was not more than seven months, but six months delay is quite unreasonable, and in my view, it amounts to undue delay.

Then there was a further delay of a little over two and a half months for the plaintiff to comply with their response to documents filed by the first defendant. These matters have been highlighted, thus it is not necessary to repeat them here.

However, I reiterate that the reason for the first defendant filing its defence and cross claim some fifteen months after the Court order of 25 October 1996; was a result of the inordinate delay caused by the plaintiff. The plaintiff therefore cannot accuse the first defendant of being guilty of delay as well. In my view, it is quite unfair for the plaintiff to point fingers at the first defendant when the plaintiff was guilty of gross misconduct in its own affairs in this matter, by not acting reasonably, and by using delay tactics.

The evidence which I have adverted to and highlighted herein, clearly revealed and demonstrated a pattern of conduct by the plaintiff. That pattern of conduct was simply, a blatant disregard for and failure to comply with the orders of the Court which constituted an inordinate delay that has not been satisfactorily explained.

Needless to say, exactly one year twenty days from the date the first defendant filed its defence and cross claim, to the date of this application, the plaintiff has failed to set the proceedings down for trial. In the meantime, Mr Needham tours the world and expects the Court to wait for him. Who is he, to dictate the calendar of the Court, in so far as this case is concerned? Pleadings closed on 25th February, 1998, that is, fourteen days after the plaintiff was required to file a defence to the cross claim, but the plaintiff has failed to have this matter set down for trial.

From the evidence before me, I am satisfied that the plaintiff, not only had failed to comply with the time limit specified in the order and the rules of Court, but has caused inordinate delay that has not been satisfactorily explained. Consequently, the first defendant has been prejudiced, and after more than a year after close of pleadings, the plaintiff has yet to set the proceedings down for trial and the prejudice continues.

In my view, a plaintiff, who institutes a lawsuit, has an obligation to prosecute it without unnecessary delay. He has the duty to comply with any Court order relative to that lawsuit, he has the duty to comply with the rules of Court to ensure that prosecution of the suit reaches finality without inordinate delay, and without causing prejudice to the defendant. I adopt what Woods, J said in Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11, at 12; and which I quoted in Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130; and that is, "a party cannot just ignore Court process, if he does, he does so at his peril." In the present case, the plaintiff ignored Court process, Court orders and Court rules and now finds itself in peril.

It is the opinion of this Court that there is no impediment to the granting of the first defendant’s application; therefore, the judgment of the Court is that the application should be granted. The Court therefore orders that the plaintiff’s writ and statement of claim be dismissed for want of prosecution, pursuant to Order 10 r 5 of the National Court Rules.

The first defendant shall have his costs, to be taxed, if not agreed upon.

Lawyer for plaintiff: Maladinas.
Lawyer for first defendant: Allen Arthur Robinson.