N3666

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1648 OF 2003

BETWEEN

SEM MOKOSETA
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
Singali Mondo v The State N2653 (2004)
Smugglers Inn Resort Hotel Ltd v Papua new Guinea Banking Corporation (2006) N3062
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

Counsels

Mr. Poponawa, for the Applicant
Mr. M. Thoke, for the Respondent

RULING ON NOTICE OF MOTION

1	YALO, AJ: This is an application by way of a Notice of Motion filed by the Defendant/Applicant (hereafter Applicant). It sought to dismiss the entire proceedings pursuant to Order 10 rule 5 of the National Court Rules (NCR) for want of prosecution. In the alternative the Applicant sought to have the whole proceedings summarily determined pursuant to Order 15 rules 1(a) and 2(a) of the Listings Rules 2005. The Plaintiff/Respondent (hereafter Respondent) filed the proceedings claiming damages arising from a motor traffic accident. The accident occurred on 2 August 2001. He opposed the application arguing that it is misconceived. Should the entire proceedings be dismissed for want of prosecution or alternatively should the proceedings be summarily determined?

APPLICANT’S SUBMISSIONS

2	The Applicant relied on the affidavit of Judy Naipet filed on 28 July 2008. Ms Naipet deposes to the facts relating to the chronology of action taken in relation to this matter since 17 November 2003 when the proceedings were commenced. The Applicant did not file its Defence until 13 December 2006 following a consent order granted to it to file Defence out of time. The Respondent then filed a Reply on 17 April 2007. On 25 June 2007 Notice to Set Down for Trial endorsed by both parties was filed. 

3	On 30 April 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers referring to their previous correspondence and asking them to take steps to progress the matter to trial. Five months later on 27 September 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to liaise with the National Court at Wabag to have the matter listed on the call-over list with a view to obtain a trial date. They asked for a sealed copy of the Notice to Set Down for Trial. There was no response from the Respondent’s Lawyers. On 10 December 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers advising them that they have not taken necessary steps to progress the matter to trial. That if they failed to take any steps to progress the matter within the next fourteen days the Applicant was entitled to file an application seeking to dismiss the proceedings. But even after the expiry of the 14 days on 24 December 2007 the Applicant did not file the application until 28 July 2008 which I now determine. A sealed copy of the notice of motion and the affidavit in support was posted to the Respondent’s Lawyers on 8 September 2008 by express mail.

4	Finally the Applicant submitted that the Notice to Set Down for Trial was served on 10 April 2008. The Respondent has not taken any reasonable steps to have the matter brought to trial. There has been a long delay. The facts deposed to in Mr. Kunai’s affidavit filed on 8 October 2008 were events that occurred following the Applicant filing this application. The last meaningful action taken by the Respondent to bring this matter to trial was the filing of the Notice to Set Down for Trial. The Applicant relied on the case of Singali Mondo v The State N2653 (2004) to support its application. 

RESPONDENT’S SUBMISSIONS

5	Mr. Thoke of Thoke Lawyers who appeared as an agent for Kunai and Co. Lawyers who represent the Respondent made the following submissions. They agree with the Applicant’s chronology of the events from the filing of the Writ on 17 November 2003 to 10 April 2008 when they served the sealed copy of the Notice to Set Down for Trial. By a letter dated 7 August 2008 they wrote to the Applicant’s Lawyers asking them to withdraw their application seeking to dismiss the whole proceedings for want of prosecution. The Respondent’s Lawyers explained the reasons for the delay in bringing the matter to trial. They enclosed their explanation contained in Mr. Thoke’s letter, Mr. Thoke being their town agent lawyer in Wabag. The copy of this letter is not in evidence, see Annexure D to Mr. Kunai’s affidavit. Even Mr. Kunai’s letter of 7 August 2008 is unsigned so I cannot tell when it was actually written. Mr. Kunai further stated in his affidavit that by a letter dated 4 September 2008 they wrote to the Applicant pointing out that since the filing of the Notice to Set Down for Trial both parties have not filed any witnesses’ affidavits and so the Applicant should consider withdrawing their application. 

6	The Respondent argued that the Applicant is unreasonable in bringing the application seeking to dismiss the entire proceedings because there is no serious default or failure by the Respondent. The Respondent further argued that there was no regular civil sitting of the National Court in Wabag in 2007. After the death of the then resident Judge Justice Jalina in early December 2008 there were no sittings until early 2008. The Respondent submitted that this is not a case where she has done nothing to progress the matter and so taking into account her arguments the Court should dismiss the Application. 

7	Finally Mr. Thoke relied on the case of Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062 to submit that the Court should consider the chronology of facts and strike a balance between the issue of delay and the actions of both parties. 

THE LAW

8	Order 10 rule 5 of the NCR provides:

"5. Want of Prosecution (33/6).

Where a plaintiff does not, within 6 weeks after the pleadings are closed, set the proceedings down for trial, the court, on Motion by the other party, may, on terms, dismiss the proceedings or make such other order as the court thinks fit".

9	This rule has been considered and applied in many previous occasions in this jurisdiction. It is sufficient to list just a few: Singali Mondo v The State N2653 (2004); Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133; Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) N1630; and Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999). N1807. These cases are referred to and discussed in Singali Mondo’s case (supra). 

10	In Ronald Nicholas’ case the court held that the power of the court to dismiss proceedings 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 the case of Martin Sambai (supra) 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 is in plain English and ‘are self explanatory’: Umbu Waink v MVIT [1997] PNGLR 390.

11	In Markscal Limited & Robert Needham’s case (supra) 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	The line of authorities above say the same thing about the application of Order 10 rule 5 NCR. 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". 

13	Justice Lay in the Smugglers Inn Resort Hotel Ltd case (supra) applied the principle of law above after analysing the relevant principles of law from within this jurisdiction and other jurisdictions. The statement of law quoted above were the words of Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411. 

RULING

14	As restated time and again by this Court the terms of Order 10 rule 5 of the NCR are in plain words. Where pleadings are closed, the Plaintiff has six weeks within which he must take steps to have the proceedings set down for trial. If he fails the Court can on application by any other party, may on terms dismiss the entire proceedings or issue such other appropriate orders it thinks fit. The operation of the rule in my view is not automatic. Relevant facts and circumstances that impede on the Plaintiff (and the Defendant) from taking steps to bring the matter to trial ought to be taken into account before the Court dismisses the proceedings under Order 10 rule 5 NCR for want of prosecution. The rule is deliberately discretionary, thus the words "… may on terms …" present in the rule.

15	Proceeding on that basis there is a clear delay by the Respondent. Six weeks after the pleadings were closed in April 2007 the matter had not been brought to trial. Even after the Notice to Set Down for Trial generally at Wabag was filed on 25 June 2007 no further steps had been taken to have the matter set down for trial. The Applicant’s Lawyers wrote to the Respondent’s Lawyer on 30 April, 27 September and 10 December 2007 asking them to take the necessary steps to bring the matter to trial. There is no evidence that the Respondent’s Lawyers extended the professional and business courtesy to respond to the Applicant’s Lawyers to advise them of whatever their position was or whatever the difficulty they were experiencing. The Respondent’s Lawyers’ silence prompted the Applicant to instruct its Lawyers to file this application on 28 July 2008. It was only after the filing and serving of this application did the Respondent’s Lawyers write to the Applicant’s Lawyers on 7 August and 4 September asking them to consider withdrawing their client’s application.

16	I do appreciate that this Court may not have conducted civil sitting in the whole of 2006 and 2007. I draw this conclusion from the fact that there is no notation on the court file in relation to this matter. So the Respondent is not entirely at fault. With respect, this Court contributed to the delay. 

17	My transfer to Wabag in April 2008 was a matter of public record. I believe the Respondent’s Lawyers and their agent Lawyers who are based in Wabag had full knowledge of my taking up residency here in Wabag. I began to mention civil matters commencing from 3 June 2008. In one of the very first civil matter (i.e. CIA No 149 of 2006 Lyndon Kundalin v Jacob Yangari) mentioned on 3 June 2008 Mr. Thoke appeared for the respondent. The Respondent’s Lawyers’ agents based in Wabag were aware of the National Court’s attention to civil matters. I did inform during the commencement of the mention of civil matters that I will be giving equal attention to civil matters commencing from June 2008. Given these facts, and given that the proceedings were commenced five years ago in November 2003 and given the fact that the Applicant has on many previous occasions in 2007 asked them to take meaningful steps to bring this matter to trial, the Respondent’s Lawyers and their agents based in Wabag ought to have commenced taking serious steps beginning in April, May or June 2008. 

18	Up to this point I have in setting out my findings conducted the balancing act laid down by the principle of law in Smugglers Inn Resort Hotel (supra). Clearly this application is not an abuse of the court process. It was brought about by the Respondent’s Lawyers lack of communication and silence. They and not the Respondent shall pay for the costs of this application. Lawyers hold out as lawyers to the public at large that they possess the relevant qualification, skills and experience to assist them with their claims, legal issues etc for fees. Litigants trust and rely on a lawyer’s qualification, skills and expertise to seek redress at a court of competent jurisdiction. The lawyers have obligation to prepare and bring the matter to trial with professionalism and with such business savvy they hold out to the public at large and say they possess. Had it not been for the Court’s contribution to the delay I would have granted the application without hesitation. Since this application was invited by the Respondent’s Lawyers lack of professional courtesy and business sense they, and not their client, shall bear the costs of this application.

ORDERS

1.	The Application is dismissed.

2.	The Respondent’s Lawyers, and not their client, shall bear the costs of this application. 

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