N6137

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1436 OF 2003

BETWEEN:

MIRIAM PAWA ANDA
Plaintiff

AND:

MOTOR VEHICLE INSURANCE LIMITED
Defendant

Mt. Hagen: Frank, J
2015: 11 August

PRACTICE & PROCEDURE- application to dismiss proceedings-want of prosecution-National Court Rules, O10 r5-exercise of court's discretion-relevant considerations- undue delay depends on circumstances-exercise of discretion in favour of plaintiff-application refused.

Cases cited:

Kai Ulo & 2 Ors v The State [1981] PNGLR 148
MVIL v Evelyn Api (2015) SC 1406
Pekarui & Anor v MVIL (2014) SCA No.116 of 2010

Counsel: 

P. Dowa, for the plaintiff/respondent
K.Peri, for the defendant/applicant

RULING ON APPLICATION

11 August, 2015

1. FRANK,J: The defendant, by Notice of Motion filed on 21 May 2015,applies to dismiss this proceeding for want of prosecution pursuant to Order 10 Rules 5 and 15(2)(a) of the National Court Rules ("Rules").

2. The application is supported by the affidavits of:

(a) Koeya J. Peri sworn on 18 May 2015 and filed on 21 May 2015;

(b) Hegoi Igo sworn on 2 June 2015 and filed on 16 June 2015.

3. The plaintiff opposes the application, and in response, relies on the affidavits of: 

(a) Miriam Anda Pawa sworn 4 June 2015 and filed 9 June 2015; and

(b) Paulus Dowa sworn 26 June 2015 and filed 29 June 2015.

4. Neither party has challenged the evidence of the other over the events that took place since the commencement of this proceeding. The chronology of the events from the parties' evidence and the court file is, generally, not in dispute and is as follows:

4.1 17 March 2002- Date of the motor vehicle accident giving rise to this proceeding

4.2 2 October 2003 – Writ of Summons with the Statement of Claim indorsed ("Writ") filed;

4.3 16 October 2003 - Writ served;

4.4 Defence filed;

4.5 13 November 2003- time to file any Reply expired and pleadings closed;

4.6 1 September to 19 October 2004 - Complete Investigations & Research was engaged and conducted & completed an investigation into the claim for the defendant

4.7 8 October 2007 to 19 March 2008- Rigasi Consultancy undertook for and reported back to the defendant the results of its investigations into the claim in this proceeding;

4.8 16 February 2007- Notice To Set Down for Trial was Filed;

4.9 19 November 2008- Affidavit of the plaintiff sworn on 22 September 2008 filed;

4.10 14 February 2013- plaintiff reminded the Assistant Registrar to place matter on the March 2013 Listings List;

4.11 12 March 2013- Affidavit of Dr. Cathy Timothy filed;

4.12 10 April 2013- Poole J issued directions for matter to be placed on the Listings List for May 2013;

4.l3 11 April 2013- plaintiff requested the Assistant Registrar to place matter on the May 2013 Listings List;

4.14 13 April 2013- plaintiff, according to the defendant, failed to set the matter down for trial, however, it does not say if this matter was before the court on this date;

4. 15 May 2013- no record of any activity;

4.16 15 June 2013- matter listed for summary determination, on which occasion:

(a) Mr Peri of counsel for the defendant appeared in court when the court dismissed this proceeding for want of prosecution.

(b) Mr Dowa of counsel for the plaintiff appeared after Mr Peri had left when the court vacated its order dismissing the proceeding and adjourned the matter to 5 August 2013 for mention;

4.17 19 July 2013- The following were filed:

 (a) Affidavit of Konpi Kei sworn 4 June 2013;

 (b) Affidavit of plaintiff sworn 4 June 2013;

 (c) Pleadings Book;

4.18 5 August 2013 - matter was not listed in court (and was therefore re-listed for 14 August 2013);

4.19 14 August 2013 - the court directed that:

 (a) The matter be referred to the Listings List;

 (b) All affidavits be filed and served by 28 November 2014;

(c) Statement of Agreed & Disputed Facts and Legal Issues be filed by 30 January 2015;

(d) Pleadings Book be filed by 27 February 2015

4.20 4 December 2013 - defendant, by a letter from its lawyer of that date, requested the plaintiff to set the matter down for trial on 3 February 2013 stating that 12 years had lapsed since the accident and the defendant was prejudiced as a result of the delay in prosecuting the matter and giving notice that if the matter is not set down for trial on 3 February 2014 or soon thereafter and gave notice that if that did not happen, its lawyers had instructions to apply to have this proceeding dismissed for want of prosecution;

4.21 31 December 2013 -Statement of Agreed & Disputed Facts and Issues for Trial filed; 
 
4.22 6 February 2014 - Affidavit of Constable Ine Daia sworn 3 February 2014 was filed;

4.23 12 March 2014 - Affidavit of Dr. C. Timothy filed;

4.24 17 July 2014 -defendant, by a letter from its lawyers of that date, requested the plaintiff to attend at the next listing and set the matter down for trial;

4.25 14 August 2014 -matter was placed on the Listings List on the application of the plaintiff; 

4.26 18 August 2014 - (a) the defendant received a letter from the lawyers for the plaintiff dated 15 August 2013-

(i) advising that on 14 August 2013,the lawyers for the plaintiff attended court for listing of this matter for trial but were not successful in obtaining a trial date for this proceeding as older matters were given priority and as a result this proceeding was adjourned to 15 February 2015;and 

(ii) enquiring whether the matter could be settled out of court;

4.27 19 August 2014 - defendant's lawyers, by a letter of that date-

 (a) advised that:

(i) its investigators have conducted their investigation into the claim and;

(ii) the driver will attend under a summons to give evidence;

(iii) its investigator will give evidence; and

(b) requested the plaintiff to attend at the first Listing in February 2015 and set the matter down for trial; and

(c) advised that it will apply to dismiss the proceeding if the plaintiff did not comply with its request; and

(d) advised that the delay has prejudiced its client;

4.28 17 December 2014-
plaintiff by letter of that dated to the ADR Clerk-National Court Mt Hagen, requested for this matter to be listed for ADR directions hearing; 
 
4.29 5 February 2015 
-defendant by letter of that date warned the plaintiff that if the plaintiff does not set the matter down for trial, the defendant will apply to dismiss the proceeding; 

4.30 13 April 2015 
-the last directions hearing was conducted in respect of various matters listed in a Directions Hearing List and a Listings List. This matter was not reached when the listings session ended.

5. I deal with Rule 15 first, which provides:

"15. Record of trial (34/9)
The associate, or other proper officer present at the trial, shall be clerk at the trial and shall maintain and complete a record of the trial."

6. This provision is not relevant and does not provide the jurisdictional basis for an application to dismiss for want of prosecution. 

7. Rule 5 provides:

"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 any other party,may, on terms, dismiss the proceedings or make such other order as the Court thinks fit."

8. The power of the Court to dismiss proceedings on the ground of want of prosecution is discretionary. The discretion is to be exercised having regard to all the circumstances of a case: see Kai Ulo & 2 Ors v. The State [1981] PNGLR 148.

9. Proceedings may be dismissed for want of prosecution if:

(a) There has been inordinate delay in the prosecution of the claim;

(b) No reasonable explanation is given by the plaintiff for the delay; and

(c) The delay has caused prejudice to the defendant; and 

(d) the justice of the case favours such dismissal: Willie Pekarui & Paulus M.Dowa trading as Paulus M. Dowa Lawyers v MVIL (SCA No.116 of 2010; Sakora J,Yagi J & Poole J, 27 February 2014); MVIL v Evelyn Api (2015) SC1406.

10. From chronology of the events, it is apparent that there have been lengthy delays in the steps taken in prosecuting this matter.

11. Between 19 March 2008 and 12 February 2013, a period of four years and eleven months passed with the only activities being those reflected by the filing on 19 November 2008 of an affidavit of the plaintiff sworn on 22 September 2008("1st –Period").

12. On 15 June 2013, the matter came before the court for summary determination. According to the defendant, its lawyer appeared and, there being no appearance, the court summarily dismissed the matter. It was after the defendant's lawyer had left that the plaintiff's lawyer appeared and the matter was reinstated and adjourned to 5 August 2013.

13. On 5 August 2013, the court endorsement records no appearance by either party and the matter was adjourned to the Registry. According to the defendant, the matter was not listed o that day but was re-listed for 14 August 2013.

14. The activities between 16 June 2013 and 13 August 2014, a period of about 14 months ("2nd-Period"), are reflected by those matters set out in paragraphs 4.17 to 4.24 above.

15. The Activities between 14 August and 26 February 2015, a period of about 14 months ("3rd –Period"), are reflected by those matters set out in paragraphs 4.25 to 4.29 above. 

16. On 14 August 2014, the matter was on the Listings List before the court. At that appointment, the plaintiff's lawyer attended but could not obtain a trial date, he says, because matter which had been filed earlier in time were given priority and at the conclusion of that day's sitting, this matter was not reached and consequently adjourned to 15 February 2015. The defendant does not dispute this.

17. There is no record of what occurred on 15 February 2015. Neither of the parties deposed to what may have occurred on that day and whether it had attended court as had previously been fixed. There was no activity from this date up until 26 February 2015, a period of almost two weeks. ("3rd –Period")

18. Between 27 February 2015 and 12 April 2015, a period of six weeks, there is no record of any activity in the matter. ("4th –Period")

19. On 13 April 2015, the last directions hearing was conducted in respect of various matters listed in a Directions Hearing List and a Listing List. This matter was not reached when the listing session ended.

20. On 21 May 2015, the defendant filed its Notice of Motion, the subject of this ruling, to dismiss this proceeding.

21. Inactivity and delay for the 1st –period is attributed to the plaintiff. No reasonable explanation was given by the plaintiff for this period of delay. It was inordinate. It contributed to the listings of this proceeding for summary determination on 15 June 2013, when this proceeding was dismissed and later that day reinstated. The defendant did not take any step to challenge the reinstatement. Bo the defendant and the court have had the opportunity to consider this period of delay. In my view, it would not be proper for this court to go back to consider this period of delay for purposes of determining the present application.

22. The 2nd –Period and the 3rd – Period fell within the time frame set by the court pursuant to and for the purpose of the 14 August 2013 directions. Those periods therefore do not constitute delay on the part of the plaintiff for purposes of the application under consideration. It was always open for either party to have applied by motion to request for a trial date, if it considered that the matter was ready for trial and that option was open. Neither party took that course.

23. The defendant could have applied to have the proceeding dismissed on account of the delay for the 4th –period. That period, having regard to the background and status of the proceeding at that point, is significant. The defendant did not take that course until 13 April 2015 when the matter came before the court for listing together with 146 other matters according to the General Listings List for that date a copy of which comprises Annexure "K" to the affidavit of Paulus Dowa sworn on 26 June 2015 and filed on 29 June 2015. This matter was listed as case number 39, which the court did not reach. The defendant does not take issue with this explanation, notwithstanding that the General Listings List for that date a copy of which comprises Annexure "G" to the affidavit of Koeya Peri sworn on 18 May 2015 and filed on 21 May 2015 is shorter, containing a total of 50 matters. These matters would have to be re-listed on another date by the Assistant Registrar in consultation with the court. Since the making of this application, this court has conducted listings hearing for about 31 matters on Monday 10 August 2015, and will conduct a further listings hearing for another 31 matters this afternoon. These do not include those other matters pending and on the Directions Hearing List.

24. The plaintiff says that it is ready to prosecute its claim and requires a trial date. The defendant has filed its affidavit. One of its witnesses has refused to give evidence by affidavit. Its lawyer's have informed the plaintiff that it will summons that witness.

25. In his affidavit, the Claims Manager for the defendant refers to the number of years that have lapsed since the institution of this proceeding and says that the defendant is seriously prejudiced by it. This is a general statement which does not demonstrate the prejudice and is not consistent with the fact that the defendant has identified the witnesses it intends to call at the trial.

26. Taking into account all of these circumstances. I have reached the conclusion that it would not be just to dismiss this proceeding. I therefore refuse the application.

27. The orders are:

(a) The Notice of Motion filed on 21 May 2015 is dismissed;

(b) Costs are in the cause.

____________________________________________________________
Paulus M. Dowa Lawers: Lawyers for the Plaintiff/Respondent
Warner Shand Lawyers: Lawyers for the Defendant/Applicant