N3644

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 123 OF 2001

BETWEEN

MICHAEL YONA
Plaintiff

AND

WAMP NGA ENTERPRISES LIMITED
First Defendant

AND

WAMP NGA HOLDINGS LIMITED
Second Defendant

Mount Hagen: Makail, J.

2009: 2nd June

PRACTICE & PROCEDURE - Application to vacate trial - Matter not ready for trial - Matter fixed for trial without complying with directions - No Affidavits filed by Plaintiff - Purpose of directions hearing discussed - Inordinate delay of 8 years and 4 months - Whether explanation for failure to file affidavits satisfactory - Application refused - Entire proceeding dismissed for want of prosecution.

No cases cited:

Counsel:

Mr. P Kunai, for the Plaintiff
Mr. M Tamutai, for the Defendants

2 June, 2009

RULING
 
1. MAKAIL J: This is a belated application by the Plaintiff by his Notice of Motion handed up to the Court with the consent of the Defendants seeking to first, vacate the trial of this matter today and secondly, for the matter to be referred for Directions hearing. 

2. The reasons for the application are set out in the supporting Affidavit of Mr. Paulus Kunai sworn on 2nd June 2009 which essentially are that, first the matter was listed for trial under a misapprehension that the Plaintiff and his witnesses have filed their Affidavits, secondly, the Affidavits were in-fact filed in a related court proceeding issued as an Originating Summons proceeding and thirdly, the Plaintiff is prepared to pay for the costs of the vacation of the trial. Finally, that the Defendants had short served a Notice to Cross Examine Witness on him, hence too short a notice for him to attend the trial today.

3. Obviously, the Defendants vigorously opposed the application. First, they argued that the matter has been outstanding for a very long time. This has and will prejudice their case in terms of rounding up of witnesses for the trial. In-fact, they have managed to round only one witness who has filed an Affidavit in defence to the claim. Any further adjournment will seriously jeopardize their chances of bringing witnesses for trial including the one they have been able to round up today. Further, the Defendants’ business operations in Mt. Hagen has since wound up and this will only make it more difficult for them to round up witnesses who were once employed in the workshop of the Defendants to come forward and testify for the Defendants.

Secondly, the reasons offered by the Plaintiff that he has not filed Affidavits in this proceedings is unacceptable and unsatisfactory. Finally, there are many matters listed before the Mt. Hagen National Court and any further delay of bringing the matter once fixed for trial like in this case, will cause inconvenience to other pending matters in terms of getting them heard or tried.

Having heard both counsels’ respective submissions, I entirely agree with the submissions of the Defendants that this matter has been outstanding for a very long time. According to the date of filing of the Writ of Summons, it is 08th February 2001. Today is 02nd June 2009. This is almost 8 years and 4 months of delay. In my view, that is an inordinate delay. This inordinate delay makes me reject the explanation given by the Plaintiff that the matter was fixed for trial under a misapprehension that all Affidavits intended to be relied upon at the trial had been filed. In my view, this explanation is not only unsatisfactory and unacceptable but also a clear case of neglect on the part of the lawyers for the Plaintiff in preparing this matter for trial.

4. According to the endorsement of the Court file of 7th July 2008, the Plaintiff’s lawyers and the Defendants’ lawyers were present in Court when directions were issued by the Court to progress and prepare this matter for trial. One of the directions was for both parties to file and serve Affidavits on each other by or before 25th July 2008. Obviously, the Plaintiff has not complied with this direction. The Defendants have, even though they had difficulty in locating their witnesses.

5. Mt. Hagen National Court has seen the establishment of Direction hearing in 2008. The main purpose of conducting Directions hearings is to progress and prepare cases for trial like this case. I am at a loss as to how this matter was allocated a trial date when directions have not been complied with by the Plaintiff. The Plaintiff is now placed in a dilemma because he has not only failed to comply with the directions but cannot proceed with the trial because there are no Affidavits filed by him to be relied upon at the trial.

He cannot rely on the Affidavits that he says were filed in the Originating Summons proceeding for two simple reasons, and they are, first the Originating Summons proceedings is a separate proceeding from this matter, and secondly, the Originating Summons proceeding is not the case listed for trial today.

6. I accept that the inordinate delay has seriously prejudiced the Defendants in defending this action and any further delay or adjournment will not be in the best interest of the Defendants, in terms of bringing in witnesses for trial. The argument by the Plaintiff that he has been short served the Notice to Cross Examine Witness, thus requiring him to attend trial on short notice as he resides in Lae, in my view is irrelevant and without merit. After all, he and his witnesses have not filed Affidavits so there is really no obligation on the part of the Defendants to file and serve on him such notice in any case. If anything, he should have made himself available today to give oral evidence and be subjected to cross examination. But he is not here today. 

7. For all these reasons, I refuse the Plaintiff’s application to vacate the trial and order that trial must proceed forthwith. Since the Plaintiff is not ready to proceed to trial, I order that the proceeding be dismissed for want of prosecution with costs to the Defendants to be taxed if not agreed.

Orders accordingly

Kunai & Co Lawyers: Lawyers for the Plaintiff
Tamutai Lawyers: Lawyers for the Defendants