N5692

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 116 OF 2009

BETWEEN

FREDDY KAVE, KAWAGE ONGUGLO, BENSON KAIRO, JOHN MARK, GEREGA KERVA ON BEHALF OF 47 ORS AND 2038 PLAINTIFFS (2,514 DEPENDANT PLAINTIFFS)
Plaintiffs

AND

FRED YAKASA-METROPOLITAN SUPERRINTENDENT
First Defendant

AND

GARI BAKI AS COMMISSIONER
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Murray, J
2012: 3rd December
2014: 4th July

Cases Cited:

Vivisio Seravo v. Jack Bahafo (2001) N2018
Ahmadiyya Muslim Mission v. BSP Ltd (2005) N 2845
John Naile .v. Sepik Coffee Producers Ltd and Ors (2004) N2637

Counsel:

Mr. C.Narakobi, for the Plaintiffs
Mr.L. Kandi, for the Defendants
RULING ON NOTICE OF MOTION

4th July, 2014

1.	MURRAY, J: Before me was a Notice of Motion by the Defendants seeking a dismissal of the Plaintiffs' proceedings on 2 grounds. Firstly for want of prosecution and secondly for non-compliance of Court orders of 13th April 2012.

In response, the Plaintiffs through their lawyers filed an application by way of a Notice of Motion, on 22nd October 2012, seeking various orders. One of the orders being an order to refer the matter to Alternate Dispute Resolution (ADR). Although this application by the Plaintiffs was mentioned together with the Defendants Notice of Motion, it was not moved. The only application I heard submissions on was the Defendants' application.

Background

2.	The Plaintiffs instituted this proceeding by way of a Writ of Summons on 12th February 2009, claiming various heads of damages against the Defendants over an alleged police raid at Tete settlement behind Gerehu Stage 2 following the killing of a businessman, allegedly by men from Tete settlement.

3.	On 3rdJune 2009, the Plaintiffs obtained Default Judgment against the Defendants.

4.	On 8th June 2009, the Court, set aside the Default Judgment of 3rd June 2009, and also made the followings orders.

(i)	Plaintiffs to file an Amended Statement of Claim fully setting out in the pleadings each Plaintiff's losses and damages and their estimated value and any special damages.

(ii)	The Amended Statement of Claim shall be filed and served personally on each Defendant by 8th of September 2009.

(iii)	Pleadings shall then continue and be concluded in accordance with National Court Rules.

(iv)	No order as to costs.

5.	On 23rd September 2009, Plaintiffs moved an application filed 15th September 2009. The Court granted the orders as per items 2, 3, 4 and 7 of the Notice of Motion filed 15th September 2009. These orders were: 

(1)	Plaintiffs be given further month to file their statement of claim and statement of Plaintiff losses, damages and value of the properties lost.

(2)	That the Plaintiffs and or their dependants are entitled to claim for violation of their Constitutional Rights if proven.

(3)	Plaintiffs are entitled to claim for loss of business if proven.

(4)	Costs be in the cause.

6.	On 16th November 2009, the Plaintiffs filed their Amended Writ of Summons and Statement of Claim as per the Court orders of 23rd September 2009.

7.	On 10th February 2010, another application for Default Judgment by the Plaintiffs was made and it was granted.

8.	On 18th February 2010, the Defendants filed their Notice of Intention to Defend.

9.	 On 22nd February 2010, the Defendants filed an application to set aside the Default Judgment obtained on 10th February 2010. The Defendants also sought various other orders in that motion.

10.	That application was heard on 7th April 2010 and a decision delivered on 13th April 2012 in favour of the Defendants. The orders granted included: 

(1)	The Default Judgment entered on 10th February 2010 for damages to be assessed be set aside pursuant to Order 12 Rule 35 of the National Court Rules.

(2)	Pursuant to the Orders of the Court made on 8th July and 23rd September 2009 the Plaintiffs Writ of Summons and Statement of Claim filed on 12th February 2009 be further amended to include the 2, 038 unknown Plaintiffs referred to in the writ and each Plaintiff to plead the Statement of Claim with sufficient particulars of their losses, damages and their reliefs sought against the Defendants.

(3)	The Plaintiffs shall file and serve the further amended Writ of Summons and Statement of Claim personally on each of the Defendants named in the proceedings within 21 days from the date of this order.

(4)	Pursuant to Order 1 Rule14 and 15 of the National of Court Rules, with the Defendants are granted leave to file and serve their defence within (14) days upon service of the Plaintiffs further amended writ of summons and statement of claim.

(5)	The pleadings in this proceedings shall continue and be concluded in accordance with Rules of the Court.

(6)	The Defendants costs of this application shall be paid by the Plaintiffs.

(7)	Time for Entry of these Orders be abridged to the time of settlement which shall take place forthwith.

11.	The Defendants, having not received the plaintiffs' further amended Writ of Summons and Statement of Claim as ordered by the Court on 13th April 2012, wrote to the Plaintiffs forewarning them of their intention to apply for dismissal of the Claim, for want of prosecution.

12.	On 10th October 2012, 6 months after the grant of the orders of 13th April 2012, the Defendants filed the application, now the subject of this ruling.

Evidence

13.	The Defendants Notice of Motion is supported by the affidavit of Mr. Laias Paul Kandi sworn 5/10/12. In response to the Defendants' application, the Plaintiffs rely on the affidavit of Mr. Narakobi, filed 22nd of October 2012.

Defendant's submission

14.	Counsel for the Defendant in moving his application for dismissal submitted that, the order of the Court of 13th April 2012 had directed the Plaintiffs to file and serve a further amended writ of summons and statement of claim within 21 days. That period lapsed on 4th May 2012 and no further amended Writ of Summons and Statement of Claim was filed and served on the Defendants. Further, 6 months had lapsed since the Orders of 13 April 2012 and the plaintiffs had not done anything to progress their claim.

Plaintiffs Submission 

15.	Counsel for the Plaintiffs in response submitted the Defendants are not entitled to the orders they seek, because, firstly, they have not filed their Notice of intention to Defend and a Defence. Secondly, although counsel for the Plaintiffs conceded that there was delay, he submits they have an explanation for that and it is not a question of whether or not the reason is good. As long as an explanation is provided, that is sufficient.

Law

Jurisdictional Basis of the Application 

16.	The Defendants' application for dismissal is made under 2 different provisions. The first provision being relied on is Order 4, Rule 36 of the National Court Rules and the second provision is, Rule 15 of the National Court Listings Rules, (2005) now Order 10, Rule 9A (15) of the National Court Rules (Consolidated 1983 - 2011)

17.	Order 4, Rule 36 

Order 4, Rule 36 of the National Court Rules reads:

(1)	Where a plaintiff makes default in complying with any other or directions as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.

(2)	Sub-rule (1) applies with necessary modifications, in relation to a cross-claimant as it applies in relation to a Plaintiff

18.	Order 4, Rule 36, which is titled, "Want of prosecution" provides 2 bases upon which a Court may dismiss the proceedings. The first being, a situation where the Plaintiff makes default in complying with any order or direction as to the conduct of the proceeding and second being a situation where a Plaintiff has not prosecuted the proceeding with due dispatch.
 
19.	On the face of it, this rule would seem an appropriate rule for an application for dismissal as sought by the Defendants in the present case. However, on a closer examination of this rule, this rule is under Division 4 of Order 4 of the National Court Rules which is titled, Originating Summons.

20.	In my view, the application of Order 4, Rule 36 is only applicable to proceedings commenced by Originating Summons, whilst a Defendant bringing an application for dismissal in proceedings commenced by Writ of Summons, has recourse under Order 10, Rule 5 (" Want of Prosecution") and or Order 10, Rule 9 A (15) of the National Court Rules (Consolidated 1983- 2011).

21.	In the present case, the Defendants are seeking an order to dismiss the Plaintiffs' claim which is commenced by Writ of Summons. I find Order 4, Rule 36 is not an appropriate provision for this Court to invoke in determining the Defendant's application, and would not consider it under this provision. 

22.	Order 10, Rule 9 A (15) of the National Court Rules (Consolidated 1983- 2011)

Rule 9A (15) reads: 

(1)	The Court may summarily determine a matter:

a.	on applications by a party; or
b.	on its own initiative; or
c.	upon referral by the Registrar under (3) below

(2)	The Court may summarily dispose of a matter in the following situation:

a.	for want of prosecution since filing the proceedings or since the last activity on the files; or

b.	for a failure to appear at any of the listings or directions hearing by a party of his lawyer; or

c.	for non- compliance of any order or directions previously made or issued by the Court at any of the listing processes.

d.	under any grounds set out in Order 12 Rules 40 and Order 8 Rules 27 of the National Court Rules.

e.	on any competency ground relating to non compliance with the National Court Rules or any other relevant rules of Court.

(3)	Where the Registrar refers a matter for summary determination, the following procedure shall be followed:

a.	A notice in the form in schedule "D" is issued by the Registrar which gives notice to the parties of his intention to refer the matter to the judge for summary determination on the ground(s) stated in the letter. The letter will also give the parties thirty(30) days to respond and fix a return date and time for the matter to come before the judge. In appropriate cases, the Registrar may publish the notice letter in the media.

b.	If the Registrar receives a response, either in writing or in verbal, he must place on the file the written response or a note of the verbal response and advise the parties to appear in Court on the date fixed.

c.	Upon expiry of 30 days, the Registrar shall forward the file to the judge,

d.	The judge may determine the proceedings summarily based on the response received and any further representations made by the parties in Court or give such directions as may seem necessary for the future conduct of the proceedings.

e.	 If the parties are unrepresented, the Registrar shall draft the consent order, enter it and forward sealed copies to the parties.

f.	The file is closed and forwarded to Archives for storage.

23.	This rule provides 5 situations in which a Court may summarily dispose of a proceeding commenced by a Writ of Summons. More relevant to the present application are Rule 15(2) (a) and (c).

24.	As the current application is brought in a proceeding commenced by Writ of Summons, I find Rule 9A (15) of Order 10 of the National Court Rules (Consolidated Rules 1983-2011) appropriate and thus consider the Defendants' application under this provision.

Relevant Consideration 

25.	I am unable to find a case authority specifically on the application of Order 10 Rule 9A (15) 2(a) and (c) of the National Court Rules (consolidated 1983- 2011) 

26.	It is, however noted that, the terms of Rule 15 (2) (a) and (c) are almost same as the terms of Order 4, Rule 36 of the National Court Rules. Consequently, I find the discussions by other Courts of applicable principles with regard to Order 4, rule 36 appropriate. 

27.	The Application of Order 4, Rule 36 was discussed by Kandakasi J in Vivisio Seravo v. Jack Bahafo (2001) (N2018) and followed by Cannings J in Ahmadiyya Muslim Mission v BSP Ltd (2005) N 2845.

28.	In Viviso Seravo, when determining an application for dismissal brought under Order 4, Rule 36 of the National Court Rules, the Court held that, the principles governing want of prosecution under Order 10, Rule 5 of the National Court Rules apply to Order 4, Rules 36 applications.

29.	On Page 3 of the Judgment in Seravo, under the sub heading, " want of prosecution" His Honour, Kandakasi J stated:

"It is now clear law especially in the context of Order 10, Rule 5 of the National Court Rules that an application for a dismissal of proceedings for want of prosecution may be granted if:

(1)	The Plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
(2)	There is no reasonable explanation given by the plaintiff for the delay; and 
(3)	That the delay has caused injustice or prejudice to the defendant".

30.	Cannings J, followed the judgment in Seravo in 2 of his judgments in the cases, namely John Naile .v. Sepik Coffee Producers Ltd and Ors (2004) N2637 and Ahmadiyaya Muslim Mission (Supra) and added to the list of considerations by Kandakasi J, the following:

(1)	The Court should specifically look at the conduct of the parties and their lawyers and

(2)	The duty of the Court to give paramount consideration to the dispensation of justice.

31.	As the terms of Rule 9A (15) (2) (a) and (c) are essentially the same as that of Order 4, Rule 36 of the National Court Rules, I consider those principles or considerations set out by Kandakasi J and Cannings J in their respective judgments relevant and applicable in the context of Rule 15 (2) (a) and (c) as well.

Application of the considerations or principles for dismissal for Want of Prosecution 

Is the default by the plaintiffs intentional or has it allowed for inordinate and inexcusable delay in the prosecution of their claim. 

32.	The delay complained of in the present case is 6 months, following an order of this Court giving the plaintiffs a third opportunity to fix up their pleading. The first opportunity was given on 8th June 2009 by this Court. The plaintiffs were to file an amended statement of claim and serve it by 8 September 2009, but it seemed they failed to do that. Then on 23 September, this Court extended their time to do that. This was a second opportunity given to the Plaintiffs. The Court order specifically allowed them a month to do that. This did not happen. Instead of filing and serving their amended statement of claim within a month from the 23 of September 2009, the plaintiffs filed their amended statement of claim on 16 November 2009. This was over a month outside the period allowed by the Court. Then, about 2 months later, they applied for and obtained default judgment against the defendants on 10th February 2010. The default judgment was however set aside on 13 April 2012, after the court was satisfied that the pleading in the amended statement of claim was still bad. In addition to setting aside the default judgment, the court allowed the plaintiffs to fix up their pleading. Again, the plaintiffs sat on it. Hence the complaint of delay by the defendants and the application the subject of this ruling.

33.	Considering that the proceeding was filed on 12th February 2009, with a pleading which the Court found to be bad in law, not once but twice, resulting in 3 opportunities given to the plaintiffs to correct it, and the fact that the plaintiffs are represented by lawyers, who failed to comply with Court orders of 23 September 2009 and 13 of April 2012, I am of the view that the delay of 6 months is inordinate and in excusable under the circumstances. The failure to comply with Court orders makes the default by the plaintiffs more serious, in my view. 

Is there a reasonable explanation by the plaintiffs for the delay?

34.	No affidavits have been filed by the plaintiffs themselves to explain the delay. The only explanation is by their lawyer, Mr. Narokobi, which he sets out in his affidavit filed 22 October 2012. In paragraph 7 of the said affidavit, Mr. Narokobi stated: 

"It was difficult to further amend the writ within 21 days for the following reasons:

(a)	Volume 1 of Plaintiffs loses of 359 Plaintiffs pages missing loses suffered disappear from our office the Courts copies have been missing also the same for Defendants offices.

(b)	I went to National Elections and was free till August 2012.

(c)	Re-typing of all loses appear to be impractical as there are 476 Plaintiffs whose loses are pleaded or set out in 3 Volumes of total of 1206 pages".

35.	In response, Mr. Kandi submitted:

Firstly, as to Mr. Narokobi's first reason, Mr. Kandi submitted it has no merits and must be rejected on the basis that, the reason is not substantiated by evidence, that all 3 copies of the said document, not only disappeared from Mr. Narokobi's office but also from the National Court Registry and the Defendants' Lawyers' office. This, Mr. Kandi adds, is a very serious allegation and therefore warrants corroboration of that allegation, which the plaintiffs' lawyers have failed to do. It was further submitted that, there is no evidence by the Plaintiffs or whoever that did the search of the Court file to confirm that this document was missing from the Court Registry. Furthermore, even if the plaintiffs did conduct a search of the Court file and noted this, there is still no evidence to confirm that they did conduct a search and that a complaint of the missing document was registered with the Registry and communicated to the defendants. In so far as the defendants are concerned, they were never informed of this problem until after they filed their application.

Further, Mr. Kandi submitted, what is contained in the Affidavit of Clement Kubaram comprising the 3 Volumes of document had nothing to do with drawing a further amendment to the Writ and the Statement of Claim and finally, there was no real nexus in the information contained in that Affidavit and the information that was required to draw up the amendments.

36.	Secondly, as to Mr. Narokobi's second reason, Mr. Kandi submitted also that it has no merits and must be rejected as well on the following bases: Firstly, the Directional Orders of His Honour Justice Salika DCJ were made on the 13th April 2012. The 21 days lapsed on or before the 4th May 2012. The National Election that Mr. Narakobi got involved was in mid July 2012. 

It is clear that the National Election could not have disturbed compliance of this order. The National Election was more than some 3 months away. This should not be an excuse at all. Secondly, even if he was involved in early campaigns, there were other lawyers in his firm who should have been instructed to comply with these orders. Thirdly, the Plaintiffs ought to have been advised or on their own volition withdraw their instructions from Narokobi Lawyers and instruct another law firm, since Mr. Narakobi was going for National General Election and lastly, the election maybe important to Mr. Narakobi and his electorate, however, his duty to his clients and most importantly the Court is of equal or paramount importance and so, by giving this lame excuse, Mr. Narakobi and his clients' have demonstrated to the Court that they are not interested in the case and that they do not have any respect for the Court Orders of 13th April 2012.

37.	Finally, as to Mr. Narakobi's third reason, it is also Mr. Kandi's submission that, it be also rejected as having no merits and makes the following submissions. Firstly, rewriting of documents is the responsibility or work of the typists and secretaries. The Plaintiffs have failed to say how much time was required to retype such number of pages. This Mr. Kandi submitted was an excuse which clearly shows that the Plaintiffs deliberately ignored the Court order. Non-Compliance with Court Orders or directions is a show of disrespect to the Court and contemptuous. Thus it must not be taken as a simple technical failure. The Plaintiffs have not taken any serious steps to comply with the directions. They have allowed their Lawyer to give such nonsensical and baseless reasons. 

38.	I have considered the submissions by Mr. Kandi for and on behalf of the defendants and agree with his submissions that the explanations and or reasons given by Mr. Narokobi, are not reasonable and reject all of it on that basis.

Has the delay caused injustice or prejudice to the defendants?

39.	Mr. Narokobi submitted there is no prejudice to the defendants. Mr. Kandi on the other hand argued that the defendants have been prejudiced and makes the following submissions.

40.	Firstly, this is a massive class action against the State. As the time passes people are likely to move on in life, though retirement, passing on, shit of job, etc. This delay has substantially prejudiced the Defendants. At the time of making these submissions, it is not known whether the First and Second Defendants are still with the Royal PNG Constabulary. The same question applies to those police officers that served under their command.

41.	 Secondly, because of the Plaintiffs' failure to file and serve the amended Writ and Statement of Claim, the Defendants have been prejudiced in filing their Defence.

42.	Thirdly, it will be extremely difficult for the Third Defendant to organize witnesses and evidences. This is a crucial detriment to the Defendants case. The Court in Niale case held this issue of difficulty of organizing witnesses and evidence to be given regard when it comes to determining this principle.

43.	I agree with Mr. Kandi that the delay has caused the defendants injustice and is prejudicial to their defence, given the length of time that has passed and so even an order for costs, would not remedy the injustice caused, in my view. Further, if I were to accept Mr. Narokobi's argument that, the plaintiffs were not able to file the further amended statement of claim as ordered, because of some difficulties which they have now overcome, and that they are now able to file the amended statement of claim, there is still a problem which Mr. Narokobi has in my view not considered. That is, if the plaintiffs are ready to comply with the order which they have already breached, there is no evidence of that. In my view, if a party has defaulted in complying with a court order, then before he seeks further orders from the Court, he must come prepared. Come prepared means, to do all things necessary to convince the Court to go in your favor. In the present case, the plaintiffs ought to have attached a draft of the further amended Statement of claim. That in my view would show that they are serious about their claim and more importantly, they are not seen to be willfully defying previous orders. As it is, they did not do that. Their failure to do that is now an indication of willful disobedience of a Court order on their part. This goes to support the arguments by the defendants that their default is intentional, which I agree. 

Court to look at conduct of the parties and their lawyers.

44.	The application by the defendants which is the subject of this ruling is as a result of the conduct of the plaintiffs and their lawyer. Since the Court order of 3rd April 2012, the plaintiffs and their lawyer did nothing to progress the matter. An order was specifically made for the plaintiffs to further amend their statement of claim within 21 days from the order. The 21 days lapsed on 4th May 2014. No attempts were made prior to the expiry of the 21 days to extend the time allowed by the Court on 13 April 2012. This order was not complied with. The plaintiffs themselves failed to provide an explanation why the order was not complied with. Mr. Narokobi provided 3 reasons attempting to explain the delay and their failure to comply with the orders of 13th April 2012. I have found those reasons to be unreasonable. This leads me to conclude that both the Plaintiffs and their lawyer simply have no respect for Court Orders. Consequently, their conduct in my view cannot warrant any further orders in their favour. 

45.	As to the conduct of the Defendants and their lawyer, Mr. Narokobi argued that, this Court should not grant their application because they themselves have not filed a Notice of Intention to Defend and Defence. I find this argument has no merits because a Notice of Intention to Defend has been filed and as for the Defense, it cannot be filed until the plaintiffs have filed and served their further amended statement of claim on the defendants. Up to the date of hearing the defendants' application, the plaintiffs had not filed and served their amended statement of claim. Therefore, I find nothing improper about the conduct of the defendants and their lawyer. 

Duty of the Court to give paramount consideration to dispensation of justice.

46.	This consideration involves the issue of "where the interest of justice lie". It is not disputed that the Plaintiffs may have a claim (underline mine) against the Defendants. What is being challenged is that, this claim is yet to materialise. The alleged cause of action arose in 2008. The proceeding filed in February of 2009. By the time, the application by the defendants was made; the claim had not yet materialized. In my view, ample opportunities were given to the plaintiffs to do that through the orders of the Court but they let that slip, by their lack of action, resulting in non compliance of Court orders. Non-Compliance of an order, in my view is a very serious matter and if there is no good explanation for the failure to comply, then, in my view, the interest of justice cannot favour the party who has not complied.

Conclusion

47.	In light of the discussions above, it is clear that the defendants have satisfied the 5 principles required for the orders sought in their Notice of Motion. Consequently, I grant the application by the Defendants with costs.
___________________________________________________________________

Narokobi Lawyers Lawyer for the Plaintiffs
M S Wagambie Lawyers: Lawyer for the Defendants