N2637

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO MFS-4 OF 1998

JOHN NIALE
Plaintiff

V

SEPIK COFFEE PRODUCERS LTD
1st Defendant
PETER KUMBUN
2nd Defendant
JOEL APAI
3rd Defendant
WANGIWAN KIAMI
4th Defendant
MOSES BAKNAUS
5th Defendant

WEWAK	 : 	CANNINGS J
18, 24 AUGUST 2004

Practice and procedure – writ of summons – notice of motion – service requirements – application to dismiss proceedings – want of prosecution – National Court Rules – Order 4, Rules 38, 48 – Order 10, Rule 5 – Court’s discretion – relevant considerations – order. 

Cases cited:
Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133
Viviso Seravo v Jack Bahafo (2001) N2078
Umbu Waink & Anor v Motor Vehicles Insurance (PNG) Trust and The State (1997) N1630

Counsel:
Mr C Jaminan for the 1st Defendant/applicant

CANNINGS J: 

INTRODUCTION

This is a motion to dismiss the proceedings the plaintiff commenced against the 1st defendant. The motion is brought by the 1st defendant only. The motion seeks the following orders: 

1	The proceedings herein be dismissed as against the 1st defendant.

2	The plaintiff to pay the 1st defendant’s costs.

3	Such further or other orders as the Court may think fit.

The motion is based on Order 10, Rule 5 of the National Court Rules.

That rule states:

Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.

PRELIMINARY ISSUE

When the matter came before me at Wewak on 18 August 2004 there was no appearance by the plaintiff or his lawyers. Therefore, before addressing the merits of the motion it is necessary to consider whether the respondent to the motion was given proper notice of the hearing of the motion. The background to the setting down of the motion is set out in an affidavit by Lucy Gari of 29 July 2004, which was filed today.

On 29 May 2003 the notice of motion to dismiss the proceedings was filed, supported by an affidavit. In June 2003 it was served on the plaintiff. On 10 June 2003 it was set down for hearing before Kandakasi J in Wewak. But his Honour disqualified himself. The 1st defendant’s lawyers then proposed, over a period of several months in 2004, that the file be transferred from Wewak to Waigani. The plaintiff’s lawyers responded on 18 June 2004 that they would seek their client’s instructions. That was the most recent correspondence from the plaintiff’s lawyers. So the 1st defendant’s lawyers' proposal was not acceded to. The file remained at Wewak. 

On 9 August 2004 the National Court circuit in Wewak commenced. Shortly afterwards the 1st defendant’s lawyers secured a date for the hearing of the motion.

On 10 August 2004 the 1st defendant’s lawyers wrote to the plaintiff’s lawyers, giving notice that the application to dismiss the proceedings is set down for hearing on 18 August 2004 at 9.00 am at Wewak. The letter was faxed and posted the same day. An affidavit by Christopher W Jaminan of 10 August 2004 deposes to that effect.

At the start of the hearing I asked Mr Jaminan, for the 1st defendant, if he had spoken to anyone at Warner Shand about this hearing. He replied that he had not. I then asked for submissions on whether proper notice had been given. He drew my attention to Order 4, Rule 48 of the National Court Rules, which states:

(1)	Where notice of a motion for any day has been filed or served, and the motion is not disposed of on that day—

(a)	the Court may hear and dispose of the motion on any later day fixed by the Court; and
(b)	subject to Sub-rule (2), filing or service of further notice of motion shall not be required.

(2)	Sub-rule (1)(b) shall not have effect—

(a)	where the Court directs the filing or service of a further notice of motion; or
(b)	where service is required on a party on whom notice of the motion has not previously been served. 

Neither of the exceptions in Rule 48(2) apply. So it is clear that the Court could hear and dispose of the motion today, it being a day fixed by the Court for that purpose. Further, it was not necessary for the 1st defendant to file or serve another notice of motion. 

I am satisfied that reasonable notice has been given to the plaintiff of today’s hearing. The 1st defendant’s lawyers have made serious attempts to have the matter expedited, by various means, since the filing of the motion last year. By comparison the approach of the plaintiff’s lawyers to the case appears to have been less diligent. 

FACTS RELEVANT TO THE MOTION

I now consider the merits of the motion. Should the proceedings against the 1st defendant be dismissed on the ground of want of prosecution?

The background is as follows. 

On 31 August 1998 the writ of summons was filed. The plaintiff sought damages and other relief arising from a motor vehicle accident that is alleged to have happened in June 1996. The negligence of the 1st defendant’s driver is claimed to be the cause of the accident and the damages suffered by the plaintiff. 

On 30 December 1998 the 1st defendant filed a notice of intention to defend, a defence, a notice to plead facts and a cross-claim. 

On 10 September 1999 the plaintiff filed a reply to the defence and the cross-claim. 

On 14 December 1999 the 1st defendant filed a notice for discovery. 

On 3 April 2000 the 1st defendant filed a notice of motion seeking an order that the plaintiff’s claim against the 1st defendant be struck out and associated orders. 

On 1 May 2000 the National Court (Sawong J) ordered that the plaintiff’s claim was dismissed and his defence to the cross-claim struck out and judgment was entered for the 1st defendant on the cross-claim (N1954). 

On 26 May 2000 his Honour set aside those orders, and delivered another written ruling. But his Honour ordered that the plaintiff pay the 1st defendant’s costs. On the same day, 26 May 2000, the plaintiff filed a verified list of documents pursuant to the notice of discovery of 14 December 1999. 

On 19 September 2001 costs were taxed at K4,843.85. They remain unpaid.

Nothing further happened until 29 May 2003, when the motion presently before the Court was filed. 

Four key facts emerge from that background:

•	the pleadings in this case were closed in late 1999 (see Order 8, Rule 23); 

•	the costs that Sawong J ordered to be taxed and paid, have been taxed but not paid;

•	the last step taken by the plaintiff in this matter was on 26 May 2000, when he provided a verified list of documents; and

•	the plaintiff has not set the matter down for trial.

RELEVANT CONSIDERATIONS 

The basic preconditions for the exercise of the Court’s power under Order 10, Rule 5, are satisfied in this case. First, the plaintiff has not, within six weeks after the close of pleadings, set the matter down for trial. Secondly, another party has given notice of a motion to dismiss the proceedings. The Court’s power is discretionary. It must be satisfied that the circumstances make it just and proper for the proceedings to be dismissed.

Mr Jaminan referred me to the judgment of Kandakasi J in Viviso Seravo v Jack Bahafo (2001) N2078. It contains a succinct summary of the considerations to be taken into account in dealing with such applications. His Honour stated, at page 4:

It is now clear law especially in the context of O.10 r.5 of the National Court Rules that an application for a dismissal of proceedings for want of prosecution may be granted if:

1	The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

2	There is no reasonable explanation given by the plaintiff for the delay; and

3	That the delay has caused injustice or prejudice to the defendant.

This is apparent from cases like that of Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133 which has been followed in a number of other cases such as Umbu Waink & Anor v Motor Vehicles Insurance (PNG) Trust and The State (15/08/97) N1630. 

I accept that they are the main considerations to be taken into account for the purposes of dealing with the present motion. I apply them as follows:

•	There has been a lengthy delay in prosecuting this case. The originating process was filed almost six years ago. The pleadings closed in late 1999. There were some pre-trial complications in 2000, which resulted in two written rulings by Sawong J. The last step taken by the plaintiff was on 26 May 2000. All of that was more than four years ago. The delay is beyond proper or normal limits. It is inordinate.

•	No reasonable explanation has been made known to the Court. In making that observation I am conscious of the fact that the motion was heard in the absence of the plaintiff. But I am satisfied that the plaintiff had reasonable notice of the hearing. I have also looked carefully at the file to satisfy myself that the file does not disclose any reasonable explanation. I could find none.

•	I accept Mr Jaminan’s submission that the 1st defendant has been prejudiced by the delay, for two reasons. First it will face difficulties organising witnesses and evidence if the matter proceeds to trial. The accident giving rise to the claim happened almost eight years ago. Secondly, it is a company in liquidation. It is likely that it will soon be wound up. It is in the company’s interests and the interests of all its stakeholders that its liabilities be clarified with as much certainty as possible.

To those considerations I add another: the Court should always have regard to the conduct of the parties and, to some extent, their lawyers. I consider it is relevant that the plaintiff has not paid the costs that he was ordered to pay by virtue Sawong J’s order of 26 May 2000 and the certificate of taxation of 19 September 2001. That has been outstanding for almost three years. That reflects poorly on the bona fides of the plaintiff. 

ORDER

For the reasons set out above the Court will order that –

1	the plaintiff’s proceedings against the 1st defendant are dismissed, pursuant to Order 10, Rule 5 of the National Court Rules, on the ground of want of prosecution; and

2	the plaintiff shall pay the 1st defendant’s costs of this motion, to be taxed if not agreed.
________________________________________________________________________
Lawyers for the 1st defendant/applicant	:	White Young & Williams
Lawyers for the plaintiff/respondent		:	 Warner Shand