N8081

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 366 OF 2017

BETWEEN:
ROSLYN INUGU, MARGARET INUGU, ANA INUGU & VERONICA INUGU as members of the Management Committee of the YAKAINGI BUSINESS (INC)
First Plaintiffs

AND:
YAKAINGI BUSINESS GROUP INC.
Second Plaintiff

AND:
HON. RICHARD MARU, MP in his capacity as the MINISTER FOR TRADE INDUSTRY AND COMMENCE
First Defendant

AND:
ALEX TONGAYU in his capacity as the REGISTRAR OF COMPANIES
Second Defendant

AND:
ADRIAN INUGU, NELSON NEA INUGU & NAKANDA KAIMALAN as the members of the purported Management Committee of YAKAINGI BUSINESS GROUP (INC)
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani:  Gavara-Nanu, J
2019:  21st February & 12th March

PRACTICE & PROCEDURE – Summary determination – National Court Rules; Order 16 r 13 (2) (c) (i) – (viii)- Powers of the Registrar – Dismissal for want of prosecution – Decision final.

Cases Cited: 

Christopher Smith v. Ruma Construction Ltd [2002] PG-SC 13, SC695
Feflo Plantation (PNG) Ltd v. Lalo Development Corporation Ltd (2013) N5065
James Aiwasi v. Monty Derari and Ors [2017] PGNC 15; N6602

Counsel:

A. Serowa, for the Plaintiffs 
B.S. Lai, for the third Defendant
S. Tiankin, for the Fourth Defendant

12th  March, 2019

1.	GAVARA-NANU J:	This is an application by the plaintiffs made pursuant to a Notice of Motion filed on 17 December, 2018, under Order 12 r 8 (3) and Order 4 r 49 (4) of the National Court Rules (NCR), seeking to set aside the Orders made by this Court on 24 October, 2018, dismissing the proceeding for want of prosecution after the matter was referred by the Registrar for summary determination under Order 16 r 13 (2) (c) (i) to (vii) of the NCR.  

2.	The procedure the Registrar follows in referring matters for summary determination is set out under Order 16 r 13 (c) of the NCR.  

3.	Under this Rule the first thing the Registrar does is to send a notice letter to a plaintiff informing the plaintiff that he intends to refer his or her matter for summary determination.  

4.	The grounds of the referral and the reason for the referral is basically inactivity by the plaintiff to progress the matter to trial. The inactivity alleged against the plaintiff are given in the notice letter.  The letter is standard.

5.	All the respondents are forwarded copies of the notice letter.  

6.	The notice letter gives the plaintiff 30 days to respond and fixes a return date and time for the matter to go before a judge.  The notice letter may be published in the print media.  This is optional under the Rules.

7.	If the Registrar receives a response to his notice letter either in writing or verbally from the plaintiff, the response is placed in the Court file if it is a letter.  If the response is verbal, a note is made in the Court file detailing the response.  Upon expiration of 30 days, the Registrar forwards the file with the response, if any, to the Court.  The Court then determines the matter based on all the materials contained in the Court file, with special regard to compliance with the notice letter which essentially contains the requirements of the relevant Rules.  The Court determines the issue of summary dismissal, taking into account among others, the response by the plaintiff, which may include explanations for not prosecuting the matter and anything the respondent/defendant may say to the Court in support of summary dismissal.  The order of the Court is then entered, sealed and served on all the parties.  

8.	If the matter is dismissed for want of prosecution, the Court file is closed and sent to the Archive for storage.  

9.	The procedure regulating summary determinations as can be seen here is detailed and exhaustive, the principal reason for which is to give the plaintiff a full opportunity to defend the referral of the matter by the Registrar for summary determination.  

10.	The plaintiffs in this case claim they were not aware of the matter being listed for summary determination.  They claim they did everything possible to have the matter set down for Directions hearings but the Registry failed to act on their requests.  They relied on a number of affidavits, but I have noted that most of the affidavits relate to substantive issues.  Thus, these affidavits are irrelevant and are of no assistance to the plaintiffs.

11.	One other affidavit relied upon by the plaintiffs is that of McRonald Nale sworn on 28th November, 2018.  Mr Nale is the Managing Partner of Jema Lawyers, which acts for the plaintiffs, he admits in paragraph 23 that Jema Lawyers became aware of the case being listed for summary determination on 22 August, 2018.  Mr Nale claims his firm was not notified of the matter being listed for summary determination on 24 October, 2018.  This was heavily relied upon by Mr Serowa in his submissions. 

12.	It is noted from the endorsements on the Court file that on 24 October, 2018, which was the day the proceeding was dismissed, only Mr Lai appeared in Court.  The other defendants and the plaintiffs did not appear.

13.	In his submissions, Mr Lai counsel for the third defendant told the Court that the matter was published in the newspapers for summary determination. It is indeed critically important that the parties, especially the plaintiffs were aware that the matter was listed for summary determination.
   
14.	As a matter of practice, no case is listed for summary determination by the Registrar unless the procedure prescribed in the Rules as outlined above is fully complied with.  In this case, I have no reason to think that the Registrar did not comply with the procedure in informing the parties, especially the plaintiffs of the matter being listed for summary determination.  

15.	There is no dispute that the plaintiffs and the third defendant knew that the matter was listed for summary determination.  However, only Mr Lai turned up on behalf of his client on 24 October, 2018, not the plaintiffs' lawyers.  

16.	Going by Mr Nale’s affidavit, the plaintiffs’ lawyers had been fully aware of the case being listed for summary determination by 22 August, 2018, but all they did was to write to the Registrar to have the matter listed for Directions hearings.  Therefore, their non-appearance in Court on 24 October, 2018, was clearly due to their slackness and a deliberate decision to avoid attending summary determination hearing.  Rather than write letters to the Registrar, they should have gone to the Registry and enquired about the date for summary determination hearing, because they already knew that the case was listed for summary determination.  I accept Mr Lai’s submission that there was lack of due diligence by the plaintiffs' lawyers in not finding out about the date for summary determination hearing.  

17.	The scheme of the Rules is that once a case is dismissed for want of prosecution, the Court file is archived, clearly indicating the end of the case.  This means the decision to summarily dismiss the case is final.     

18.	Mr Serowa, counsel for the plaintiffs relied on a number of cases in support of his contention that the decision should be set aside.  Having read those cases, I find that they are of no assistance to the plaintiffs.

19.	The decision to dismiss the proceeding being final, the proper recourse for the plaintiffs is either to appeal the decision or seek a review.  Thus, having dismissed the proceeding in its entirety I have no jurisdiction to entertain the plaintiffs’ notice of motion.  

20.	Mr Serowa relied on James Aiwasi v. Monty Derari and Ors [2017] PGNC 15; N6602.  But, as I said earlier, I cannot see how this case can assist the plaintiffs because in that case Kandakasi J, (as he then was) said an ex-parte order dismissing a proceeding terminates the proceeding in its entirety and the only way the plaintiff can challenge the dismissal is to either appeal the decision or have it reviewed.

21.	His Honour also said to challenge such decision by way of a notice of motion to have it set aside as in this case is an abuse of process.  His Honour followed and adopted Christopher Smith v. Ruma Construction Ltd [2002] PG-SC 13, SC695, in which the Supreme Court among others, said that the National Court would lack jurisdiction to review a dismissal order because the National Court would have to apply principles relating to an appeal.  His Honour also cited the case of Feflo Plantation (PNG) Ltd v. Lalo Development Corporation Ltd (2013) N5065, where Sawong J, said an order dismissing an entire proceeding cannot be validly challenged by way of a notice of motion to set it aside.  Such an order can only be challenged by an appeal.  I respectfully agree with the views held in the above cases.  I respectfully think they applied the law correctly.  When a proceeding is dismissed for want of prosecution, the dismissal puts an end to the proceeding because the order dismissing the proceeding is final.

22.	The above proposition in my view harmonizes with the intention behind Order 16 r 13 (2) (c) of the NCR.  I also find that the plaintiffs have not adequately explained why they allowed the case to be dismissed in their absence.  The plaintiffs through their lawyers became aware of the case being listed for summary determination on 22 August, 2018.  Thus they had at least two months to comply with the requirements of the Rules, and take appropriate steps to ensure they appeared in court to be heard.  They say they wrote letters to the Registrar for the matter to be listed for Directions.  But by then, the matter was already listed for summary determination.  There were three letters the plaintiffs wrote to the Registrar to list the matter for Directions hearings.  The first two letters were sent on or about 04 June, 2018 and on or about 03 July, 2018.  The third letter was dated 01 October, 2018, this letter was mischievous because by 22 August, 2018, the plaintiffs knew that the matter was listed for summary determination.

23.	In my view, the correct thing for plaintiffs to do then was to take steps to appear in Court and defend the proceeding from being summary dismissed.  

24.	As to delay, this has been noted by Mr Serowa in paragraph B4 (i) of his written submissions that there has been a delay. Going by Mr Serowa’s submissions, the matter was referred to the ADR track for mediation.  The matter returned to the Judicial Review track on 22 February, 2018, but no genuine steps appear to have been taken by the plaintiffs to progress the matter to trial.  The plaintiffs have not explained what happened to the mediation proceeding and they have not explained the delay.  

25.	The plaintiffs argued that the Registrar did not notify them of the case being listed for summary determination.  I reject this argument for two reasons. First, Mr Lai, counsel for the third defendant appeared in Court on 24 October, 2018, when the case was dismissed.  Mr Lai told the Court that summary determination list was published in the print media.  Second, any doubt whether the Registrar notified the plaintiffs of the matter being listed for summary determination is removed by the fact that the plaintiffs’ lawyers found out themselves on 22 August, 2018, that the case was listed for summary determination.  

26.	To my mind, the plaintiffs through their lawyers did not take genuine steps to appear in Court on 24 October, 2018 for summary determination hearing.  The plaintiffs had the opportunity to be heard on 24 October, 2018, but they failed to avail themselves of the opportunity. This application is mischievous, it has no proper basis and lacks merit. 

27.	The application is therefore dismissed. The plaintiffs will pay the third defendant's costs, which if not agreed is to be taxed.  

28.	Other defendants will pay their own costs.

Orders accordingly.

________________________________________________________________
Jema Lawyers: Lawyers for the Plaintiffs
B.S. Lai Lawyers: Lawyers for the Third Defendant
Solicitor General: Lawyers for the Fourth Defendant