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Waink v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 98; N1630 (15 August 1997)

Unreported National Court Decisions

N1630

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NOS. 636 & 657 OF 1991
BETWEEN:
UMBU WAINK - Plaintiff
AND:
MARTIN IMBU SAMBAI - Plaintiff
And:
MOTOR VEHICLES INSURANCE (PNG) TRUST - First Defendant
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Second Defendant

Mount Hagen

Lenalia AJ
25 July 1997
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 - Whether certified costs can be met by Solicitor - Costs improperly incurred or without reasonable cause - Costs incurred by undue delay - Courts discretion to order such costs be paid by Solicitor.

An Application by the lawyers for the Defendants to dismiss proceedings for want of prosecution in relation to WS Nos. 636 and 657 of 1991.

Held:

(1) ـ The powe power of the Court to dismiss proceedings for want of prosecution should only be exercised where the plaf’s default has been intentional and where there has been inordinate and inexcusable able delay.

(2) e terre hes been lengthy dehy delay in setting down for trial, O. 10 r. 5 of the National Court Rules should be construed in favf an catiodismir wanprosecution only where circumstances are such that that therethere has has been been a lona long delay and where there is no reasonable explanation given by the plaintiff.

(3) &##160;; Accordicordingly, gly, orders for dismissal of the proceedings should be made where almost some six years have elapsed since institution of the proceedings.

(4) ;&#16e Couy orderorder a So a So a Solicitor to pay costs only on exceptional circumstances where it finds that costs are incurred impropeithousonabuse or undue delay or by any other misconduct and where it appears to t to the Cohe Court turt that the solicitor is responsible.

Cases Cited:

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

In these applications, the Defendants’ lawyers sought orders to dismiss proceedings for want of prosecution pursuant to the National Court Rules O. 10 r. 5.

Counsel:

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 applicatiothe Lthe Lawyer for the First Defendant, the Motor Vehicles Insurance (PNG) Trust to dismiss the Plaintiffs claims for want of pution pursuant to the National Court Rules O. 10 r. 5. The brietorical backgroungrounground 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 motorcle accident which occurredurred on or about the 7th of July 1990 between Mount Hagen and Wapenamanda along the Okuk Highway. The Wrs served on the firs first defendant on the 24th day of September 1991. A Notice of Intention tendefend was lodged and fil the 8th of October the same year. B 31st of October the same same month the plaintifintiff replied to the defence. A numf correspoes were exce exchanged between the lawyers for thor the parties. Then on the 28th of April 1992, the plaintiff filed a Noto Set down for trial. On the 4th of ber 1994, a 4, a notice of trial was filed showinhowing the trial being listed for hearing e 15th of November 1994 at the National Court Sitting in Wain Wabag, Enga Province. Some more corresnces were were exchanged between the lawyers for the parties.

The plaintiff filed a notice of motion on the 14th of November 1994 seeking orders to vacat trial date and have the matter transferred to the Nationalional Court at Mount Hagen. On that Notice of Motion tion the plaintiff applied for and was granted leave to amend his statement of claim and to join the second defendant a party to the proceeding60; The first defendant’s lawyers filed an notice of e of motion on 3rd of January 1995 seeking a dismissal of the proceedings for want of prosecution. Mdakasi then deposed in hiin his affidavit sworn on the 29th of December 1994, in support of the motion gave an account of events that occurred since the proceedings were commenced. It would shat the applicatlication for dismissal of the proceedings was refused. On the 10th of Feb 1ary the first defendafendant filed its defence to the plaf’s amended proceedings. By the 15tMarch trch the fthe following month, the second defendant filed its defence.

Thintifther filed a seco second amnd amended Writ of Summons on the 22nd of September 1995 a day after (23.10.95) 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 (see Ann. “21; - “S attached to Mr Kandakasi’s affidavit dvit dated 21st October 1996).

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 firfendants lawyer sucr successfully obtained an order for costs against the plaintiff and a Certificate of Taxation was filed and as far back as the 11th of April 1995. The costs payable to thendefendant after bein being taxed was put at K2,369.39. No furdevelopment took plak place until the current motion was brought before me on 25th August 1997.

Facts relative to WSof 19e similar to WS 6 WS 636/91. Thintiff in WS 657/91 took took out proceedings against inst the first defendant on the 24th September 1991. A Notice of IntentioDefendefend 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 cpondences wers were exchanged between the lawyers for the plaintiff and the defendant and the Mount Hagen Registry Office. The tiff on motion filed oled o 14th of November 1994 moved the Court for orders in Wabag abag seeking vacation of the trial date which was scheduled for 15th the fing day. In that same motion thintiaintiff successfulssfully 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 seemme as it is not clet clear from the records that all orders were granted. An amended statement aim waim was then filed pursuant to the Court order of the of November 1994.

At a call-over in August 1994, the, the first defendant applied to have the proceedings fixed for hearing on4th of November 1994 as an s an alternative to applying for a dismissal. Following that fixtureplai plaintiff filed and served a Notice of Trial on the 4 th of November 1994. On the 14th of ber the same same year the plaintiff filed a Notice of Motieking vacation of the time date and several amendments to h to his statement of claim. The Notice ward by a CircuCircuit Judge bag on the 14th of Novemberember 1994. The plaintiff was granted leave to amend his statement of claim within fourteen days.&#1t also ordered vacation of the trial. On that same mome motion, the second defendant was added a party to these proceedings.&#1he defendants served and find filed their defences to the amended Writ. More correspondences followed and by 23rd October 1995,National Court in Hagen gran granted leave to the plaintiffs to amend his second amended statement of claim. The Court also ordcostsavo favour of the first defendant up to then to be paie paid by the plaintiff. On a letter dateh March 19ch 1996, the Assi Registrar in Mount Hagen wrote to the Defendants lawyers advising that taxation on WS 636 636 and 657 was fixed for Thursday the 11 April 1996. A taxed figure wasat K2,36K2,369.39.&#16. Followiis, the first #160; defendant&#8 lawyer fyer filed a notice of motion on the 22nd of November 1996 seeking orders to dismiss these proceedings unless the plaintiff paid in full within fou dayse costs taxed agad against him as per the certificate of Taof 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 onplaintiff’s lawyers, the applicant/first defendant applies for orders, inter alia, tha, that the ‘proceedings against the first defendant shall stand dismissed, unless the plaintiff pays in full within 14 days from today, the cots taxed against him per the certificate of taxation of the 11th of April, 1996’. The outstanding costs i3692,369.39 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 affidaas set out the relevant circumstances pertaining to the none non-payment of the defendant’s costs and the plaintiff’s faito continue with the adjourned trial.

Mr Peri Koeya oeya 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 thet’s discretion to mako make such an order. Nowhere in the submissionssions of the applicant’s counsel nor 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 aer. I therefore, am n am not persuaded by the applicant that I do have the jurisdiction and the jurisdictional discretion to make such an order. I dismiss thilication.&#16. I make no order costs.s.”

The first Defendant 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 orhe plaintiff’s soliciolicitors to pay for costs as per the terms of the National Court Rules O. 22 rr 62 & 65.

There are two issues involved. whether should this CourtCourt 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 relati dismissamissal for want of prosecution is quite clear. This isent from the wordinording of O. 10 r. 5 of the Rules. Rule 5 of0 requires that what within six weeks after the pleadire cl the plaintiff isff is entitled to set the proceedings down for trial. The Court is e is empowered to dismiss a proceeding for of prosecution on motion byon by the other party where there has been a long delay and default or where there has been inordinate andcusable delay on the part of the party who instituted proceproceedings.

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 Rules. In the proceedings were bore both issued in September 1991. It isalmost six (6) years ears and the plaintiffs have not been able to set the proceedings down for trial. It has been saat ther ofCohe Court turt to dismiss for want of prosecution should only be exercised where the the plaintiff’s default has been inonal and contumelious or where there has been long and inexcusable delay: Ronald Nicholas vlas 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 not prosecuted with dith due dispatch. It is of great importan thin the interest of justice that these actions should havn brought to trial with reasonable expedition. Where there has been g delg delay a ba a balance must be struck between the partourse of dealings and at that the end the Court must decide whether the balance demands if an action should be dismissed. Theseactiove been maintainntainetained since 1991. I am of the view that hase has been actually a long delay in setting down for trnd the law is quite specific and requires that where there is an inordinate and inexcusablesable delay, the Court has the discretion smiss for want of prosecutiecution. The defendants have the right to be prosecuted with due dispatch. Where prosecution with dsp dispatch is wanting, it can be assumed that the plaintiff has no interest in pursuing his cause. This is the seconthird the first defendefendant has asked by motion to dismiss for want of prosecution. Mr ; Mr Kumura forsecond dond defendant arguesimilar terms as per Mr Kandakasi relying mainly on Mr John Kawi’s affidavit sworn onrn on 18th of June 1997, expressing the sancern that the plaintiffs have badly defaulted. In thIn the Sta217;s motiomotion filed on the 25th June 1997, the second defendant also seek orders for dismissal for want of prosecution.

The second issue arises from the contention by the defendants7; lawyers that if the Cour 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 Kandakasmitted that thet the Court has the power under the National Court Rules to order the plaintiffs lawyers to pay their costs. He red the Court to O. 22 . 22 rr. 62 & 65 of the Rules. Ruless in the following teng terms:

“65. Pel liay litsolf solicitorcitor for costs. (52/66)

(1) &##160;ts ose inre incurredurred improperly or without reasonable cause, use, or are wasted by undue delay or by any other misconduct or default, and it appears t Court solr is responsible (whether personally orly or thro through augh a servant or agent), the Court may after giving the solicitor a reasonable opportunity to be heard:

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

(b) &ـ direct rect the sohe solicitor to repay to his client costs which the client has been ordered to payny otarty;/p>

(c) ҈ di0; direct tect the solicitor to indemnify any party other ther than than his client against costs payable by trty iified.

(2) & Without limiting the gene generality oity of Subf 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) &##160; to atte attend in p rsony r by a proper representative; or

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

(c) &##1616 deliveeliver any dony document which ought to have beve been deen delivered for the use of the Court; or

(d) ҈& to be p be prepaitepaith any proper evidence or account; or

(e)  & ot0;rwise to proceed.

(3) &#&#Thet may, bey, before more making an order under Sub-rSub-rule (ule (1), refer the matter to the taxing officer for enquiry and report.

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 the Court thinks that the solicitor is responsible, it must must give that solicitor a reasonable opportunity to be heard. I hMr Koeya briefly who apho appeared for the plaintiffs. Althoughbjected to the twoe two application, he did not give the Cony reasons why the certified costs should not be ordered against Warner Shand Lawyers.&#160 Mr Koeya7;s objection reli relies blly on the ruling by Injia njia J in which his honour expressed reservation as to the Courts authority to make orders in the terms ofmotion which sought orders to dismiss unless costs were paie 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 ctaxed against him per the certificate of taxation of the 11he 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 totectitection 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 Defendante the rihe right to have their cases heard with due dispatch. Tas not eventuated.