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James v Motor Vehicle Trust Ltd [2009] PGNC 72; N3661 (17 June 2009)

N3661

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1390 OF 2004

BETWEEN

CECILIA JAMES
Plaintiff

AND

MOTOR VEHICLE TRUST LIMITED
Defendant

Wabag: Yalo, AJ

2008: 22 October
2009: 17 June

Cases cited

Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133
Umbu Waink v MVIT [1997] PNGLR 390
Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) N1630
Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) N1807
Smugglers Inn Resort Hotel Ltd v Papua new Guinea Banking Corporation (2006) N3062

Counsels

Mr. J. Poponawa, for the Defendant/Applicant
Mr. M. Thoke, for the Plaintiff/Respondent

RULING ON NOTICE OF MOTION

YALO, AJ: The Defendant/Applicant (Applicant) by way of a Notice of Motion sought to dismiss the entire proceedings pursuant to Order 10 rule 5 of the National Court Rules (NCR) for want of prosecution. The Applicant sought in the alternative summary determination of the whole proceedings under Order 15 rules 1(a) and 2(a) of the Listings Rules 2005. The Plaintiff/Respondent (Respondent) claimed damages against the Applicant for injuries she sustained from a traffic accident on 20 November 2003. The Respondent opposed the application on the basis that it is misconceived. So should the entire proceedings be dismissed for want of prosecution?

APPLICANT’S SUBMISSIONS

2 The Applicant sets out the chronology of the events leading up to this application as follows. On 13 October 2004 the Respondent filed her Writ of Summons. The Applicant filed its Defence on 27 January 2005. On 2 March 2005 the Respondent filed a Reply. A Notice to Set Down for Trial was endorsed by both parties and filed on 10 August 2005. On 13 December 2006 the Applicant filed an Amended Defence. On 17 April 2007 the Respondent filed a Reply to the Amended Defence.

3 On 30 April 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to take the next step to progress the matter to trial. They did not respond to this letter. On 27 September 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to progress the matter to trial. They did not respond to the letter. On 10 December 2007 the Applicant’s Lawyers wrote again to the Respondent’s Lawyers giving them notice of their intention to file an application seeking to dismiss the Respondent’s claim for want of prosecution.

4 The Applicant’s Counsel submitted that as at 17 July 2008 neither the Respondent nor her Lawyers have responded to their letters. The Respondent’s Lawyers have not taken any step to progress the matter to trial since the close of pleadings in April 2007 and since the filing of the Notice to Set Down for Trial. The Respondent’s Lawyers actions clearly show that they are not keen in prosecuting the matter. Therefore the matter should be dismissed for want of prosecution.

RESPONDENT’S SUBMISSIONS

5 The Respondent submitted through her Lawyers that she sustained serious injuries in a motor vehicle accident on 20 November 2003 along the Wabag/Laiagam road in the Enga Province. Thereafter she commenced proceedings at the National Court claiming damages against the Applicant. The Respondent’s Counsel outlined the chronology of the progress of this matter in particular the steps taken by both parties before this application was filed. Counsel has set out the chronology of events in his affidavit which are very much the same with the facts outlined by the Applicant’s Counsel in her affidavit. These facts which are not in dispute relate to the commencement of the proceedings on 13 October 2004 up till 17 April 2007 when the Respondent’s Lawyers filed a Reply to the Applicant’s Amended Defence.

6 The Respondent’s Counsel further submitted that on 25 June 2007 they forwarded to the Acting Assistant Registrar in Wabag the Notice to Set Down for Trial for sealing. On 27 September 2007 the Applicant’s Lawyers wrote to them advising that they take steps to have the matter placed on the call-over list for listing and forward to them the copies of the Notice to Set Down for Trial.

7 On 10 April 2008 the Respondent’s Lawyers forwarded to the Applicant’s Lawyer’s sealed copies of the Notice to Set Down for Trial. But the Applicant had proceeded to file the application to dismiss the entire proceedings for want of prosecution. On 7 August 2008 the Respondent’s Lawyers wrote to the Applicant’s Lawyers advising them why they were not able to obtain trial date and asked them to consider withdrawing their applications with costs. The Respondent’s Lawyers enclosed a copy of a letter from Michael Thoke Lawyers who are their town agents who explained the reasons why the matter could not be progressed in 2007.

8 On 26 August 2008 the Applicant’s Lawyers responded by advising that they had instructions to proceed with their application. On 4 September 2008 the Respondent’s Lawyers wrote to the Applicant’s Lawyers advising that since the proceeding were already set down for trial both parties have not filed any witness’ affidavits and they asked the Applicant’s Lawyers to withdraw their application with costs and allow the matter to go for directions hearing first before having the matter listed for trial. The Applicant’s Lawyers declined their request and proceeded with this application.

9 The Respondent argued that the Applicant is being unreasonable in bringing this application to dismiss the entire proceedings. She submitted through her Counsel that there is no serious default or failure on her part to progress the matter to trial. In 2007 the National Court did not have regular civil sittings in Wabag. Some civil matters could have been dealt with during the Court vacation but the resident Judge, late Justice Jalina died and no vacation Judge was available until 2008 when a new Judge was appointed. She argued through Counsel that this is not a case where she had done nothing to progress the matter to trial. The matter was Set Down for Trial on 25 June 2007 and it is now on the call-over list. It should be allowed to go for directions hearing first to enable the parties to file witnesses’ affidavits before it can be set down for trial. Taking into account all of the above reasons she asked the Court to refuse the Application with costs because it is misconceived.

THE LAW

10 Order 10 rule 5 of the National Court Rules states:

5. Want of prosecution. (33/6)

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.

11 This particular rule has been applied by this Court on many previous occasions. For instance in Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133; the court held that the power of the court to dismiss for want of prosecution pursuant to Order 10 rule 5 NCR should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been long and inexcusable delay. In Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) N1630; Lenalia, J said: "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 Rule. Rule 5 of Order 10 requires that within six (6) weeks after the pleadings are closed, the plaintiff is entitle to set the matter down for trial. The court has power to dismiss proceedings 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 the proceedings." This statement was later reiterated in 1997 by this Court that Order 10 rule 5 are in plain English and ‘are self explanatory’: Umbu Waink v MVIT [1997] PNGLR 390. In Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) N1807 Sevua, J said:

"In my view a plaintiff, who institutes a law suit has an obligation to prosecute it without unnecessary delay. He has a duty to comply with any court order relative to the law suit; he has a duty to comply with the rule of the court to ensure that prosecution of the suit reaches finality without inordinate delay, and without causing prejudice to the defendant. A party cannot just ignore court process, if he does, he does so at his peril."

12 In the case of Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062 the National Court stated:

"where there is a long delay a balance must be struck as between the Plaintiff and the Defendant and decide in the end whether the balance and justice demands that the action be dismissed".

RULING

13 The Respondent suffered injuries in November 2003. It is not uncommon experience that a victim who suffers loss or injuries expects some form of redress. In traditional Papua New Guinea societies particularly in the Highlands, victims expect immediate redress or some form of compensation for their injuries and or losses. In recent times a victim’s expectation of immediate payment of some form of compensation has given rise to the all too common phrase in one of our two national creoles, Pidgin, namely "bel kol". The phrase generally refers to immediate part-payment of some form of compensation claimed by and paid to the victim and his or her family and relatives before the settlement of the main compensation demand. This practice reflects the society’s desire for immediate redress for injuries and losses suffered. In the context of our modern legal system the law provides a victim the right to seek redress for personal injuries or for loss of or damage to property. Where a victim seeks to assert this right two possible scenarios occur. First, parties may negotiate and settle the issue out of court either well before coming to court or after having come to court but before the court resolves the claim.

14 The second scenario is where the other party contests the victim’s claim for injuries or losses and the claim and the contest is before the court. In this scenario the party contesting the victim’s claim has equal right to defend and contest the victim’s claim if by law he is not obliged to pay compensation or where he is so obliged but that the amount claimed is unfair, excessive or unreasonable. In this scenario the technical rules of procedure and the substantive law apply. Before the court determines the substantive issues in relation to the claim the procedural rules of the court provides for what appropriate steps each party must take to bring the substantive issues to trial. There is embodied in the rules of the court fairness – fairness to both parties and also to the court itself. On the one hand the procedural rules of the court ensures that a Plaintiff who initiates proceedings must act or take the necessary steps to ensure that his claim is resolved with due dispatch: Markscal Limited & Robert Needham v Mineral Resource Development Company Limited & Ors (supra). He must not unnecessarily delay the proceedings and cause inconvenience, hardship or prejudice to the defendant. Otherwise such conduct is deemed to be unfair to the defendant. On the other hand the defendant is also obliged to comply with the procedural rules to ensure that the plaintiff’s claim is not unnecessarily and not unfairly delayed. It may also inconvenience the court in its administration when there is delay. It will cause increase in backlog of cases. This is why the rules set specific deadlines by which time each party must take the appropriate steps.

15 What is the Court’s role? In my humble view the equation in the balancing act set down in the Smugglers Inn Hotel (supra) case should also include the Court where it is appropriate to do so. Where the parties fail to take the necessary steps to bring the matter to trial expeditiously it can step in to issue appropriate directions to the parties to take those steps necessary to progress the matter to trial. It also has a number of broad powers and discretion to exercise under the rules. For instance, where notice to set down for trial has been filed, but the Court considers that the proceedings are not ready for trial, the Court may give directions as to the steps to be taken to make the proceedings ready for trial (Order 10 rule 6 Directions before setting down); or where appropriate, order proceedings to be set aside for irregularity (Order 1 rule 8); or determine the proceedings where the Defendant defaults (Order 12 Division 3 Default judgment); or where the plaintiff does not appear to show interest in pursuing his claim or where it sees fit to do so summarily determine any proceedings (Order 12 Division 4 Summary Determination).

16 The Respondent argued that this court has over the years since 2004 and up till 2007 given little or no attention to civil matters filed in Wabag. With the greatest respect, and sadly, I have found this to be true since I was posted here in April 2008. This is why I stated above that where appropriate the Court must be included in the balancing equation enunciated in Smugglers Inn Hotel (supra) case. And this is one such case. I cannot speculate on the possible or probable reasons for the court’s lack of attention to civil matters in general because this happened before my appointment to the bench and prior to my transfer to this location. Where the parties have complied with the procedural rules of the court and have taken steps to progress the matter to trial the Court ought to endeavor to hear and determine the substantive issues within a reasonable time. With respect, it should not take a casual approach or it should not leave such matters unattended for a long time for reasons known only to the Court itself or for reasons that are not of the parties’ making. When it comes to its obligations to discharge matters in a timely manner the Court should remind itself of the National Goals and Directive Principles laid down in the Constitution. The National Goal No 2 (Equality and Participation) and in particular Directive Principle (4) states:

2. Equality and participation

We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.

WE ACCORDINGLY CALL FOR –

...........

(4) equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations; and... [My emphasis]

17 So far as it relates to us as a nation achieving this goal, that is, every citizen having equal access to legal services and may I add, to assert their rights or seek protection of the law or otherwise, the National Court has an obligation to ensure that in its administration of justice and within its resource constraints, it must aim to give equal attention to all manner of people that enter its door and into the realm of justice seeking justice. Whilst the initial provision of and the distribution and equalization of legal services throughout the country is the role of the executive arm of the national government, the obligation to ensure that the public have not just equal access to legal processes but also that equal attention is given to them and their cases, at venues (the higher courts) that are presently available to them is the role of the judiciary. In this context I humbly believe that the proper construction of the broad guiding directive principle number (4) I have quoted above means that every civil litigant from any part of this country has an equal right as an accused, a remandee or a prisoner in a criminal process to have his case heard and resolved by this court with due dispatch and or within a reasonable time. If the court at its own choosing gives more attention to criminal matters only and pays less than equal attention or no attention at all to civil matters for a prolonged period it falls short of its obligations under the Constitution. Civil litigants may feel and are indeed entitled to feel discriminated by the Court, although unintended. Suspects, remandees and prisoners have no higher right under the law than civil litigants or vice versa. Where it relates to citizen civil litigants in particular, I refer to Section 55 of the Constitution to amplify this argument. Section 55 states:

55. EQUALITY OF CITIZENS.

(1) Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

18 This provision is expressed in plain language. Just as a person (e.g. a citizen) who is charged with an offence has a right under the Constitution[1] to be afforded a fair hearing by the Court within a reasonable time, so has a citizen civil litigant. The Court has equal obligation to hear and determine a civil litigant’s matter within a reasonable time, all else considered. This Court ought to appreciate that civil matters in rural centers such as Wabag, and civil matters in general, affect the rural economy and therefore the national economy. The People’s aspirations to prosper economically and thus their endeavour to contribute meaningfully to the national economy must be encouraged. Quite unlike other constitutions of the world ours contain the National Goals and the Directive Principles. They are deliberately placed right at the beginning of the Constitution so they must mean something and what they say must be important. They should not be regarded merely as a part of the preamble. They should not be overlooked or ignored just because Section 25(1) of the Constitution states that the National Goals and Directive Principles are non-justiciable. No, my comments have basis in law because Section 25(3) of the Constitution gives impetus to the National Goals and Directive Principles. This Subsection states that where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative of other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a manner as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.

19 This Court’s role under our Constitution involves more than the daily hearing of and determination of cases brought before it. The Constitution has apportioned to it its own unique share of role to play to achieve the broad national goals stipulated under the Preamble of the Constitution. Just as every player in a game of football or rugby league has a part to play to ensure that the ball is carried toward the opposite end of the try line to score points and win the game so has this Court and all other players under our Constitution to play their unique roles without fail to achieve our national goals. The comments I have made here are necessary and are not meant to disrespect the Court or to criticize or blame anyone in particular. Rather given the circumstances surrounding this particular application before me this Court is merely reminding itself of its own obligations under the Constitution and the public’s expectation that these obligations are discharged to the full measure in a timely manner and within its resource limitations.

20 Having so far said much about the court’s obligation, what are the parties’ obligations? I have briefly stated earlier their obligations but I should elaborate further. Once an action has been commenced the NCR provides specific timelines when and by which time either party takes the appropriate procedural steps to bring the matter to the stage where the pleadings are closed and or when issues of discoveries, interrogatories and admissions can be attended to before having the matter prepared for trial. So whether a Judge is available or not and whether the court conducts a civil circuit or not parties are at liberty to take the necessary and appropriate steps including filing and service of witnesses’ affidavits to prepare and bring their case to trial by the court. See generally Order 8 (Pleadings) and Order 9 (Discovery, Interrogatories and Admissions) NCR. Nothing in the rules say that parties shall not take any further step (after commencement of proceedings) unless directed by the Court. I have observed in my short time on the bench that it has been the practice that parties come to the court and ask for directions to file affidavits when they themselves can be able to confer among themselves and file and serve these documents and take a keen interest in getting their matter prepared for trial.

21 This is a clear case where the Court, with the greatest respect, has not been fair to the parties. Since 2004 when these proceedings were commenced and up to the end of 2007 this Court gave attention to criminal matters and little or no attention to civil matters. It is also a clear case where the Respondent and her Lawyers have not taken constructive steps to prepare themselves and be ready for trial notwithstanding the Court’s attitude. Notwithstanding that the court gave little or no attention to civil matters since 2004 up to end of 2007 that did not stop the Respondent and her Lawyers and the Applicant and its Lawyers from filing and serving each other the necessary affidavits. The onus was on the Respondent and her Lawyers to drive the progress of the matter and prepare and get it ready for trial so that whenever the Court conducted a civil call-over the matter could have been listed and a trial date allocated. Since I commenced attending to civil matters in May and June 2008 the Respondent’s Lawyers have not taken a keen interest in their client’s claim notwithstanding that they had in Wabag a town agent, namely Michael Thoke Lawyers.

22 Both parties endorsed the Notice to Set Down for Trial and had it filed on 10 August 2005. The Respondent’s Counsel states in his affidavit that he submitted this notice to the Wabag National Court Registry on the same date. He further states in his affidavit that a sealed copy of the Notice to Set Down for Trial was sent to the Applicant’s Lawyers on 10 April 2008. There is no evidence that the sealed copy of this notice was posted or faxed. Their letter of 10 April 2008 (annexure C to Mr. Kunai’s affidavit) is an unsigned copy. Ms Naipet has deposed to in her affidavit filed in support of this application that as at 17 July 2008 they have not heard from the Respondent’s Lawyers and that the last action they took was endorse the Notice to Set Down for Trial. It appears to me that they have not been served a sealed copy of the notice to set down for trial. Why did the Respondent’s Lawyers not respond to the Applicant’s Lawyers’ letters and explain the situation at the Wabag National Court? They have not denied receiving the letters from the Respondent’s Lawyers. The Respondent’s Lawyers had their town agent in town at Wabag who knew what was happening on the ground as it were. Why did they not extend professional and business courtesy to their colleagues and explain much earlier than August 2008 after the Applicant had filed this application? The Respondent’s Lawyer’s letter of 7 August 2008 to the Applicant’s Lawyer’s providing the explanation is too late. They have tried to provide explanation after the Applicant filed this application. The Respondent’s Lawyers and for that matter a Plaintiff’s Lawyer ought to bear in mind what I said earlier about the Plaintiff’s expectation and desire for a timely redress. The Plaintiff’s Lawyer should place himself in the position of his client and taking into account all else, work towards preparing his client’s matter ready for trial whether there is a Judge available or not or whether the Court conducts civil circuit or not.

23 With respect, I have doubt in the veracity of the copies of the Respondent’s Lawyers’ correspondence annexed to Mr. Kunai’s affidavit. The documents are unsigned copies. Were these letters written and signed on the respective dates appearing on each copy or were they unsigned soft copies printed from the computer? Copies of unsigned documents do not tell an independent reader whether they are genuine copies of the original that were signed and posted or delivered to the addressees. In addition the copy of the letter from their town agent, Michael Thoke of Thoke Lawyers referred to in paragraph 8 of Mr. Kunai’s affidavit is not annexed to his affidavit. This part of their evidence is not convincing.

24 Finally the court’s attitude to this matter and for that matter to the Respondent has been, with respect, lacking. Much of the preparation to bring a matter to trial is and ought to be driven by the Respondent who seeks to assert her right. The Respondent’s Lawyers’ attitude to bring their client’s matter to trial has been lacking as well. It is her Lawyers’ and not her making. But I find that their lack and inaction has been partly caused by the Court’s lack of attention to civil matters in general since the filing of the writ. Under the circumstance it will be unjust if this Court dismisses the entire proceedings. The peculiar circumstance of this matter leads me to conclude that it is not appropriate for me to follow the established authorities to dismiss the entire proceedings under Order 10 rule 5 of the NCR. This is not a case where the Respondent’s delay has been intentional or inexcusable or is contumelious: Ronald Nicholas v Commonwealth Niugini Timbers (supra). But I reiterate that steps such as filing and service of witnesses’ affidavits could have been done notwithstanding the unavailability of Judges and the lack of civil circuit. I beg to differ from the Respondent’s Lawyers’ submission that the Applicant is unreasonable and that the application is misconceived. This application was initiated partly due to the Respondent’s Lawyer’s silence to the Applicant’s Lawyers’ numerous correspondences and their inaction in not informing the Applicant’s Lawyers about why the matter could not be progressed. They have been professionally discourteous and un-business-like in their conduct. The Respondent’s Lawyers, and not the Respondent, shall bear the costs of this application including costs of the Applicant’s correspondence and steps the Applicant may have taken in 2007 in relation to this particular matter due to the Respondent’s Lawyers’ lack of communication.

ORDERS

1. The application is refused.

2. Costs against the Respondent’s Lawyers, not their client. Such costs to be taxed if not agreed.

3. Matter is adjourned to 5 October 2009.

_________________________________________________
Mirupasi Lawyers: Lawyers for the Applicant
Kunai & Co Lawyers: Lawyers for the Respondent

^[1] Section 37(3) Constitution, “A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court”.