N4142

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 202 OF 2010

EDDIE TARSIE FOR HIMSELF AND IN HIS CAPACITY AS WARD 
COUNCILLOR OF WARD 3, SAIDOR LOCAL-LEVEL GOVERNMENT
First Plaintiff

FARINA SIGA, FOR HIMSELF AND IN HIS CAPACITY AS WARD 
SECRETARY OF WARD 3, SAIDOR LOCAL-LEVEL GOVERNMENT
Second Plaintiff

PETER SEL
Third Plaintiff

V

RAMU NICO MANAGEMENT (MCC) LIMITED
First Defendant

MINERAL RESOURCES AUTHORITY
Second Defendant

DR WARI IAMO
IN HIS CAPACITY AS DIRECTOR OF ENVIRONMENT
Third Defendant

DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang: Cannings J
2010: 23, 24 September

PRACTICE AND PROCEDURE – application by plaintiffs for leave to discontinue proceedings – National Court Rules, Order 8, Rule 61. 

The plaintiffs, who commenced proceedings six months previously, applied to the court under the National Court Rules, Order 8, Rule 61 for leave to discontinue the whole of their claim for relief. The defendants consented to the application and did not seek costs.

Held:

(1)	If a plaintiff wishes to discontinue proceedings and their application for leave to do so is made with the consent of all defendants, leave should generally be granted, it being in the interests of justice to encourage parties to reach an out-of-court settlement of their disputes.

(2)	To refuse leave to discontinue would constitute a restriction on a plaintiff's right to freedom based on law under Section 32 of the Constitution and the right to the full protection of the law under Section 37(1) of the Constitution; and such a restriction ought only be imposed in extreme circumstances.

(3)	Leave was granted on terms that a notice of discontinuance be filed by each of the plaintiffs within three days and that the parties bear their own costs of the entire proceedings.

Cases cited

The following case is cited in the judgment:

Eton Pakui v The State (2006) N3001

Counsel

D Steven, for the plaintiffs
C Scerri QC, G Gileng & C Posman, for the first defendant
A Mana, for the second defendant
I M Molloy & T Tanuvasa, for the third, fourth & fifth defendants

24th September, 2010

1. CANNINGS J: This is a ruling on an application by the plaintiffs for leave to discontinue the proceedings, WS No 202 of 2010, which they commenced in March this year. They filed the application on 21 September 2010, which was the day set for the start of the trial.

2. Their application is based on Order 8, Rule 61(1)(c) (discontinuance) of the National Court Rules, which states:

A party making a claim for relief may discontinue proceedings so far as concerns the whole or any part of any claim for relief by him … at any time—with the leave of the Court.

3. All defendants consent to the application and do not seek costs against the plaintiffs.

4. This is a very late application and the court has been greatly inconvenienced by it. Eight sitting days were set aside for the trial. Other important cases have been pushed aside to make way for this case. A considerable amount of court time has been devoted to preparing for the trial. Be that as it may, there are two factors that work strongly in favour of granting the application.

5. First, if a plaintiff wishes to discontinue proceedings and their application for leave to do so is made with the consent of all defendants, leave should generally be granted, as it is in the public interest and it is in the interests of justice, to encourage parties to reach an out-of-court settlement of their disputes.

6. Secondly, to refuse leave to a plaintiff to discontinue would constitute a restriction on his right to freedom based on law under Section 32 of the Constitution and the right to the full protection of the law under Section 37(1) of the Constitution; and such a restriction ought only be imposed in extreme circumstances (Eton Pakui v The State (2006) N3001).

7. The present circumstances are unusual, special, exceptional and, to a degree, suspicious (what really has led to the plaintiffs sacking their lawyers on the eve of the trial and seeking leave to discontinue on the day of the trial – have they been intimidated? threatened? paid off? – these being the sorts of questions reasonable people will legitimately ask) but they are not sufficiently extreme to warrant the court forcing the plaintiffs to continue their case. I do not see any sufficient reason to refuse leave, so the application will be granted.

8. As for the terms on which leave should be granted I am tempted to impose some sanction on the plaintiffs, even a nominal one, to signal and symbolise the court's displeasure at being inconvenienced. However, I have been persuaded by all counsel that it would not be appropriate to do so, as it may run counter to the two principles I have outlined above that favour the granting of leave, which are fundamental to the administration of justice in PNG. The only terms will be to impose a time limit on the filing of a notice of discontinuance and to bring into force the agreement of the parties that the defendants do not seek costs.

ORDER

(1)	Leave is granted to the plaintiffs to discontinue the proceedings so far as concerns the whole of their claim for relief on the following terms:

(a)	Each plaintiff shall file and serve a notice of discontinuance within three days after entry of this order;

(b)	All parties shall bear their own costs of the entire proceedings.

(2)	Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Ruling accordingly.
____________________________

Stevens Lawyers: Lawyers for the Plaintiffs 
Posman Kua Aisi Lawyers: Lawyers for the First Defendant 
Allens Arthur Robinson Lawyers: Lawyers for the Second Defendant 
Solicitor-General: Lawyer for the Third, Fourth & Fifth Defendants