N4862

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 855 OF 2008

PETER KAMA
First Plaintiff

AND

HOMELAND JOINT VENTURE LIMITED
Second Plaintiff

V

DENNIS REYNOLD
HIGHLANDS MANAGER
SP DEPOT GOROKA
First Defendant

AND

SP BREWERY LIMITED
Second Defendant

Goroka: Ipang AJ
2012: September 14 & October 19

CIVIL LAW – Application by Defendants seeking to dismiss proceedings for want of prosecution – National Court Rules – Order 10 Rule 5 and Order 12 Rule 1 – Factors to be taken in to account – Whether plaintiff's default is intentional or is allowing for an inordinate or inexcusable delay in prosecuting his claim – Whether there is reasonable explanation for the delay – Whether delay has caused injustice or prejudice to the Defendant – How's the conduct of the parties or their lawyers – Whether Court should take in to consideration the plaintiff's delay to give paramount consideration to the dispensation of justice under Section 158(2) of the Constitution.

Cases Cited

Ronald Ncholas v Commonwealth New Guinea Timbers Pty Ltd (1986) PNGLR 133
Alumadiyaa Muslim Mission v Bank South Pacific Limited (2005) N2845
Seravo v Bahafo (2001) N2078
John Niale v Sepik Coffee Producers Limited & Ors (2004) N2647
Kai Ulo & Ors v The State (1981) PNGLR 55
Takori v Yagari (2008) PGSC 3; SC905 (29 February, 2008)

Counsel

Mr. G. Gendua, for the Plaintiffs 
Mr. E. Wamp, for the Defendants

RULING

12th October, 2012

1.	IPANG AJ: The Defendants moved their motion filed on the 16th of August, 2011 seeking for the following orders:

(1)	The proceedings be dismissed for want of prosecution and/or failing to provide further and better particulars of the statement of claim.

(2)	The Plaintiff to pay the Defendants' Costs.

(3)	The time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

2.	This application is made pursuant to Order 10 Rule 5 of the National Court Rules. The Order 10 Rule 5 States:

"Want of Prosecution

Where a Plaintiff does not, within six (6) 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 orders as the Court thinks fit."

3.	The Order 12 Rule 1 provides: 

"General Relief. (40/1)
The Court may, at any stage of proceedings, on application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process. 

4.	Defendants rely on the Affidavit of Ian Raymond Shepherd sworn on the 10th August, 2011 and filed on the 16th of August, 2011, in support of the motion.

5.	The relevant background giving rise to the Defendants filing their motion to have the proceedings dismissed for want of prosecution are as follows:

(1)	The Plaintiff claim that on the 20th of September, 2007 they had entered in to an agreement with the First Defendant for him to exclusively supply liquor to them for sales in the Chimbu Province.

(2)	The Plaintiffs claim that the Defendants breached that agreement by supplying liquor to other persons in Chimbu Province as of 21st January, 2008.

(3)	The Plaintiffs also claim that the Defendants withheld goods belonging to the Second Plaintiff resulting in loss of business.

(4)	Plaintiffs commenced this proceeding on the 25th of July 2008. Defendants filed their Notice of Intention to Defend on the 15th of August, 2008 and their Defence on the 10th of September, 2008. After pleadings closed, parties issued Notice of Discoveries on each other and filed and served relevant Lists of Documents on each other.

The Applicable Law

6.	The Order 10 Rules 5 of the National Court Rules (NCR) is in the following terms:

"5. Want of Prosecution

Where a Plaintiff does not, within six (6) 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."

7.	There are two (2) requirements to be noted under Order 10 Rule 5 of the National Court Rules. These are:

(a)	There must be a default in setting the matter down for trial within six weeks after close of pleadings.

(b)	A party to the proceeding must file an application to dismiss the proceeding for want of prosecution soon after the six weeks period expires.

8.	At the same time, it should also be noted that the Court's power to dismiss the proceeding is discretionary in nature. Courts must be satisfied that the circumstances make it just and proper for the proceedings to be dismissed.

9.	In Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd (1986) PNGLR 133, the Defendant applied to the National Court under Order 4 Rule 36 for an order that the proceedings be dismissed for want of prosecution. The Court in delivering its ruling held that;

"The power of the Court to dismiss proceedings for want of prosecution should be exercised only where the Plaintiffs' default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyers' part, giving rise to a substantial risk that a fair trial will not be possible or to serious prejudice to the defendant. Where there has been a long delay in bringing the proceedings to trial, a balance must be struck as between the Plaintiff and the Defendant and in the end the Court must decide whether or not, in the balance, justice demands that the proceedings should be dismissed."

10.	In Alumadiyaa Muslim Mission v Bank South Pacific Ltd (2005) N2845 Cannings, J set out 5 considerations for a Court to consider when dealing with an application under Order 4 Rule 36 and Order 10 Rule 5. This case specifically dealt with Order 5 Rule 5, however Cannings, J made this remark:

"There is no material difference between Order 4, Rule 36 and Order 10, Rule 5 they both deal with the power of the Court to dismiss proceedings on a ground for want of prosecution. The general principles to apply in deciding both sorts of application are, if not the same, very similar."

11.	In Seravo v Bahafo (2001) N2078, Kandakasi, J summarized matters to be taken in to consideration when dealing with applications to dismiss proceedings for want of prosecution. His Honour stated:

"It is now clear law especially in the context of the National Court Rules that an application for dismissal for want of prosecution may be granted if:

i.	The Plaintiff's default is intentional or is allowing for an inordinate or inexcusable delay in the prosecution of his claim;

ii.	There is no reasonable explanation given by the plaintiff for the delay;

iii.	That delay has caused injustice or prejudice to the defendant."

12.	In John Niale v Sepik Coffee Producers Limited & Ors (2004) N2647 Cannings, J expanded the issues to be taken in to consideration and stated:

"The Court should specifically look at the conduct of the parties and their lawyers."

13.	His Honour Cannings, J in John Niale case (supra) added another factor to be taken in to consideration and that is:

"The Court take in to account of its delay to give paramount consideration to the dispensation of justice under section 158(2) of the Constitution."

Application of the law to the facts

14.	In summary, we can see in Seravo v Bahafo (Supra) that Kandakasi, J highlighted three (3) matters to be considered. Then in John Niale v Sepik Coffee Producers Limited & Ors (Supra), Cannings, J further expanded two (2) additional matters for consideration. This brings to total of five (5) matters that Courts dealing with application to dismiss proceedings for want of prosecution need to consider. I will come back to discuss and apply five (5) considerations in this instant case.

15.	Defendants have raised the issue of dismissal of proceeding for failure to comply with request for further and better particulars in their submission. Normally such application is made where a cause of action is pleaded but there is a lack of particulars. The proper remedy is to request for further and better particulars and amendment done to the pleadings. If a party applies to dismiss proceeding without requesting for better and further particulars where a cause of action is known in law, this may amount to an abuse of process of the Court (See Takori v Yagari (2008) PGSC 3; SC905 (29.02.08).

16.	In moving their application for dismissal of the proceeding for want of prosecution, Mr. E. Wamp of Counsel for the Defendants submitted that the pleadings were closed soon after the Defence was filed on the 10th September, 2008. Defendants say the Plaintiffs were required to file and serve the Notice to Set Down for Trial by 24th October, 2008. Defendants say the Plaintiffs have failed to set this proceeding down for trial by more than three years now.

17.	Defendants submitted that the Plaintiffs have not replied to the Defendants' Request for Further and Better Particulars since 13th January, 2010. They said it is almost 22 months now since they served their request. Defendants say Plaintiffs continue to be in default in setting the proceedings down for trial and responding promptly to their Request for Further and Better Particulars. They say such default is continuous and is intentional thus demonstrating that they have no interest in prosecuting their claim.

18.	Mr. G. Gendua of Counsel for the Plaintiffs counter – argued for the Plaintiffs that the Defendants did not fore warn them that they would apply to have the proceedings dismissed for want of prosecution. Plaintiffs say it is not proper for the Defendants not to give such warning. Plaintiffs also contended that their failure in not attending to the Defendants' Request for Further and Better Particulars has not caused any prejudice to the Defendants. Plaintiffs say they commenced their action only on the 25th of July, 2008 when they filed their Writ of Summons. They say parties have exchanged the List of Documents as part of the discovery process and by comparison the delay has not been a long one.

19.	Now let me revert back to the five (5) criterias identified to consider dismissal of proceedings for Want of Prosecution. I will state each of the criteria and analyze the facts surrounding each criteria.

i.	Whether Plaintiffs' default is intentional or is creating an inordinate and inexcusable delay in the prosecution of their claim.

20.	If we consider the explanation as contained in Mr. Gendua's affidavit sworn and filed on the 11th of October, 2011, he stated that he had difficulty obtaining his Practicing Certificate. This is quite true as copy of the Certificate produced shown it was issued on the 3rd of May, 2010. I am satisfied with that part of the explanation. After he received his Practicing Certificate from 3rd May, 2010, he said he had a number of matters listed for Summary Determination so he concentrated on these matters. This explanation is not convincing to me. From the first reason given regarding Practicing Certificate it was not intentional on Mr. Gendua's part. The default in not been issued his Practicing Certificate is not intentional. But on the second leg of reason I find this to be inexcusable.

ii.	 Whether there is no reasonable explanation given by the Plaintiff for the delay.

21.	The delay caused due to non issuance of Practicing Certificate is reasonable and the default was not caused by Mr. Gendua. However, the explanation given by Mr. Gendua that after he received his Practicing Certificate he noticed some of his matters were up for Summary Determination and his focus was on this is unreasonable in the circumstances.

iii.	Whether the delay has caused injustice or prejudicial to the Defendants.

22.	Defendants have raised issue with Section 37(3) of the Constitution on a right of a person to a fair trial within a reasonable time. Defendants say obligation lies with Plaintiff to progress the matter to trial. They did not elaborate or justify how they are prejudiced under s.37(3) of the Constitution.

23.	Mr. E. Wamp of Counsel for the Defendants submitted that the Second Defendant is the country's largest liquor manufacturer. Counsel said the claim of breach of contract made in this proceeding will have serious ramifications for the reputation of the second defendant as a responsible and prudent supplier of liquor to its customers in Chimbu Province and the Highlands Region. Under this requirement, it is not focused on what injustice or prejudice will happen or likely to happen in future but has already happened.

iv.	Court should look at the conduct of the parties or their lawyers.

24.	The Plaintiffs themselves have not defaulted. It is the Plaintiffs' lawyer Mr. Gendua whose conduct of the matter has caused delay. Counsel is excused for late issuance of his Practicing Certificate however; because his focus was on his Summary Determination matters he lost focus on this case is not a good excuse.

v.	Whether Court should take in to consideration his delay to give paramount consideration to the dispensation of justice under Section 158(2) of the Constitution.

25.	In Philip Takori v Simon Yagari PGSC3; SC905 (29th February, 2008), the Supreme Court stated:

"The National Court often hears a lot of application and readily grants orders aimed at correcting the kind of deficiencies we speak of or order compiling a plaintiff (or a defendant) to take corrective measures. These kinds of orders are made with a view to doing justice on the substantive merits of the case at less costs and delay to the parties. Hence, the practice of the National Court that we are aware is, often one of slow to finally shutting out a party except in the clearest of cases and where there is deliberate and inexcusable failure to comply with Court Orders or the Rules of the Court, only as a last resort and only if no measure of amendments will do."

26.	In this instant case, the interest of justice and balance of convenience lies in favour of refusing the Defendants' application and granting orders for Plaintiffs to comply. The relief sought is to dismiss the proceedings in its entirety and it is a substantive relief.

27.	The Defendants are to consider Order 9 Rule 7 of the National Court Rules that is to seek Orders from the Court for Plaintiff to make available further and better particulars. On the alternative if Plaintiffs are serious in progressing through ADR/Mediation they should do so under the Mediation Rules.

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Gendua Lawyers: Lawyers for the Plaintiffs
Ashurst Lawyers: Lawyers for the Defendants