N7967

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1658 OF 2016

BETWEEN:
PAULA IVARAMI YAYABU t/a PAULA YAYABU LAWYERS
First Plaintiff

AND:
ROGERS GAPPU YAYABU
Second Plaintiff

AND:
LOWER TAILINGS LIMITED
Third Plaintiff
AND:
MELANESIAN TRUSTEE SERVICES LIMITED AS TRUSTEE FOR PACIFIC PROEPRTY TRUST
First Defendant
AND:
MARKHAM INVESTMENTS LIMITED
Second Defendant

AND:
PACIFIC EQUITIES INVESTMENT LIMITED
Third Defendant

Lae:  Numapo AJ
2019:  18th July & 20th August

PRACTICE AND PROCEDURE – Dismissal of Proceedings for Want of Prosecution (Order 10 Rule 5) – Discretionary power of the Court to dismiss proceedings under this rule in appropriate circumstances - Plaintiff failed to set the matter down for trial within 6 weeks after the close of pleadings – Plaintiff failed to take steps to prosecute the matter within a reasonable period of time – Inordinate and inexcusable delay – Disclosing no reasonable cause of action, frivolous and vexatious (Order 10 Rule 9A (15) (2) (a) (d) & (e) – Proceedings dismissed in its entirety for want of prosecution.

Cases Cited:

Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845.  
Dogoliv v Laho [2005] PGNC 47; N2885
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Mango v Chow Po Khoon [2005] N2907
Markscal Ltd v Mineral Resource Development Company Ltd (1999) PGNC 117; N1807
Philip Takori v Simon Yagari (2008) SC905
Waink v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 98; N1630
Viviso Seravo v Jack Bahafo (2001) N2078.

Counsel:

Mr J. Langah, for the First Defendant/ Applicant  
Mr M. Mugarenang, for the Third Plaintiff

DECISION

20th August, 2019

1.	NUMAPO AJ: This is an application made pursuant to Order 10 Rule 5 of the National Court Rules (NCR) by the First Defendant/Applicant to dismiss the proceedings for want of prosecution. In the alternative, the matter be dismissed for not disclosing any reasonable cause of action and for being frivolous and vexatious pursuant to Order 10 Rule 9A (15) (2) (a) (d) & (e). 

A.	BACKGROUND

2.	The Plaintiffs filed proceedings against the Defendants after an office complex belonging to the Third Defendant managed by the First Defendant got burnt down. The Plaintiffs claimed for loss of business amongst other things. At the time of filing the proceedings the First Plaintiff was deregistered. On an application by the First Defendant, the Court on the 26th February 2018 dismissed the First Plaintiff’s claim with costs for abuse of the Court’s process. The Court ruled that the First Plaintiff did not have the standing to bring proceedings. Thereafter, what was left remaining was the Second and Third Plaintiff’s claim. 

3.	The proceedings were filed in December 2016 and served in early 2017 and the pleadings closed in May 2017. Since the close of pleadings some 26 months ago to this day, the Second Plaintiff has not taken any steps to set the matter down for trial nor did he made any attempts to prosecute the matter despite several notices and reminders from the First Defendant.

4.	On the 18th July 2019, Mr Langah for the First Defendant informed the Court that he has filed a Notice of Motion along with an Affidavit of Support and an Extract of Submission on the 30th November 2018 seeking to dismiss the proceedings for want of prosecution.

5.	Mr Mugarenang appeared for the Third Plaintiff and informed the Court that he has not received any instructions from his client since the last adjournment on the 05th July 2019 and sought leave to be excused as he was not in the position to assist the court without been properly instructed. He further advised that his client has gone to live in Bougainville and it has been difficult to communicate with him. Leave was granted for Mr Mugarenang to be excused. There is also no appearance of the Second Plaintiff either in person or through a Counsel. Court records showed that since the First Plaintiff’s claim was dismissed in February 2018 the Second Plaintiff has not been turning up for his case. The Third Plaintiff was also not present nor was he represented after Mr Mugarenang was granted leave to be excused from the proceedings. None of the Plaintiffs were present and/or represented to defend the application by the First Defendant to dismiss the proceedings for want of prosecution.

B.	ISSUE

6.	There are two issues with respect to this application:

(1)	“Whether or not the Second Plaintiff’s claim should be dismissed for want of prosecution?” and,

(2)	“Whether or not the Second Plaintiff’s claim against the First Defendant is frivolous and vexatious and discloses no reasonable cause of action?”

7.	The first issue relates to dismissal of the entire proceedings for want of prosecution in that the Plaintiff failed to get the matter to trial within six weeks after pleadings have closed and prosecute the matter within a reasonable period of time pursuant to Order 10 Rule 5. The second issue relates to pleadings, in that the First Defendant/Applicant basically seeks to dismiss the proceedings for being frivolous and vexatious and not disclosing any cause of action known to law pursuant to Order 10 Rule 9A (15) (2) (a) (d) & (e) and more specifically Order 12 Rule 40 on frivolity and Order 8 Rule 27 on prejudice, embarrassment or delay in the proceedings or an abuse of the Court’s process.

C.	THE LAW

8.	The applicable law is Order 10 Rule 5 NCR which states:

(5)	Want of Prosecution. (33/6)

“Where a plaintiff does not, within six weeks after 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.”

9.	The First Defendant further moved that, in the alternative, the matter be dismissed for want of prosecution, for disclosing no reasonable cause of action and for being frivolous and vexatious pursuant to Order 10 Rule 9A (15) (2) (a) (d) & (e) NCR that states: 

(15)	Summary Disposal

“The Court may summarily dispose of a matter in the following situations:

(a)	 For want of prosecution since filing the proceedings or since the last activity on the file; or
(d)  under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27  of the National Court Rules; or
(e) on any competency ground relating to non-compliance with the National  Court Rules or any other relevant rules of the Court.”

10.	Frivolous and vexatious claims as well as claims where no reasonable cause of action is disclosed including an abuse of Court’s process is dealt with more specifically under Order 12 Rule 40 in the following terms:

(40)	Frivolity, etc. (13/5)

(1)	 “Where in any proceedings it appears to the Court that in relation to the     proceedings generally or in relation to any claim for relief in the proceedings – 

(a)	 no reasonable cause of action is disclosed; or
(b)	 the proceedings are frivolous and vexatious; or
(c)	 the proceedings are an abuse of process of the Court,

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2)	 The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

11.	Order 8 Rule 27 refers to a pleading where no reasonable cause of action is pleaded or that the pleading has the tendency to cause prejudice, embarrassment or delay in the proceedings or that it is an abuse of court’s process then the Court would at any stage of the proceedings order that whole or part of the pleading be struck out. Again, the Court on the hearing of an application must be satisfied on the evidence before making an order to strike out the part of or whole of the pleading.

D.	CASE LAW(S)

(1)	    Want of Prosecution

12.	The principles governing the dismissal of proceedings for want of prosecution are well established in this jurisdiction developed over the years in various pronouncements through the many case laws. Order 10 Rule 5 of NCR has been the launching pad for many such applications to dismiss proceedings for want of prosecution. What is clear though is that the power of the Court to dismiss proceedings on the ground of want of prosecution on an application is discretionary after having regard to all the circumstances. 

13.	There are few case laws that, to my mind, better illustrates the circumstances under which proceedings may be dismissed for want of prosecution. The first case is that of Markscal Ltd v Mineral Resource Development Company Ltd (1999) PGNC 117; N1807 where his Honour Sevua J (as he then was) held that:

“In my view a plaintiff, who institutes a law suit has an obligation to prosecute it without unnecessary delay. He has a duty to comply with any court order relative to the law suit; he has a duty to comply with the rule of the court to ensure that prosecution of the suit reaches its finality without inordinate delay, and without causing prejudice to the defendant. A party cannot just ignore court process, if he does, he does so at his peril.”

14.	The second case is that of Dogoliv v Laho [2005] PGNC 47; N2885 where his Honour Sawong J (as he then was) on Order 10 Rule 5 puts it more precisely by stating that;

“Order 10 Rule 5 creates an obligation on the part of the plaintiff to set down the proceedings for trial within 6 weeks from the date of the close of pleadings. This is a discretionary rule. Thus, if a breach of this rule occurs, it does not automatically result in the dismissal of proceedings. The rule however, does give a defendant a right to apply for dismissal of the proceedings and the Court has a discretionary power to dismiss the proceedings under this rule in the appropriate circumstances.”

15.	Lenalia AJ (as he then was) held the similar view in the earlier case of Waink v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 98; N1630 when his Honour said:

“Where there has been lengthy delay in setting a matter down for trial, O 10 r 5 of the National Court Rules should be construed in favour of an application to dismiss for want of prosecution only where circumstances are such that there has been a long delay and where there is no reasonable explanation given by the plaintiff.”

16.	His Honour Kandakasi J (current DCJ) also summarized well the principles governing the dismissal of proceedings for want of prosecution in Viviso Seravo v Jack Bahafo (2001) N2078. See also; Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845.  

17.	The third case that explained clearly the circumstances under which a case may be dismissed for want of prosecution is that of John Niale v Sepik Coffee Producers Ltd (2004) N2637 where Cannings J suggested additional principles and succinctly set them out as follows:

“An application for a dismissal of proceedings for want of prosecution (pursuant to Order 10 Rule 5) may therefore be granted if:

(i)	 The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim;
(ii)	There is no reasonable explanation given by the plaintiff for the delay;
(iii)	The delay has caused injustice or prejudice to the defendant;
(iv)	 The conduct of the parties and their lawyers warrants; and
(v)	 It is in the interests of justice.”

(2)	 Application for Dismissal pursuant to Order 10 Rule 9A (15) (2) (a) (d) & (e) NCR

18.	With respect to the alternative ground to have the matter dismissed for not disclosing any reasonable cause of action or for being frivolous and vexatious pursuant to Order 10 Rule 9A (15) (2) (a) (d) & (e), his Honour Cannings J in Mango v Chow Po Khoon [2005] N2907 explained clearly in details the basic minimal requirements the plaintiff must comply with to have his day in court and pursue his claim. His Honour said: 

(i)	“Whenever a plaintiff brings a case to court, the originating document must demonstrate that the plaintiff has a cause of action. The document must clearly set out the legal ingredients or the elements of the claim and the facts that support each element of the claim. Failure to do so means no reasonable cause of action is disclosed.”

(ii)	Other tests to be applied include; whether it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what is being sought; whether the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings; and whether the statement of claim just leaves a defendant guessing as to what the plaintiff’s allegations are.”

(iii)	If a pleading or a proceeding can be categorized in any of those ways, it will not disclose a reasonable cause of action the court will have a discretion whether to strike out the pleading or dismiss the entire proceedings.

(iv)	Proceedings are frivolous if the plaintiff’s claim is so obviously untenable that it cannot possibly succeed or if the plaintiff would be bound to fail if the matter went to trial.

(v)	Proceedings are vexatious where the case amounts to harassment of the defendant or the defendant is being put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed….”

19.	In Philip Takori v Simon Yagari (2008) SC905; per Kirriwom, Gavera-Nanu and Kandakasi JJ; 

“Our judicial system should never permit a plaintiff or a defendant to be ‘driven from the judgment seat’ in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.
At the same time, however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court. The object of these Rules are therefore to stop cases which ought not to be launched – cases which are obviously frivolous or vexatious or obviously unsustainable. In other words the object of the Rule was to get rid of frivolous actions…”

E.	PRESENT CASE

20.	Having set out the issue(s), the applicable law, the case laws and the relevant principles governing dismissal of proceedings for want of prosecution, I now turn to the matter before me.

21.	I intend to only deal with the first issue and that is; ‘Whether or not the Second Plaintiff’s claim should be dismissed for want of prosecution?’ And my reason for doing that is two-fold; firstly, if I grant the Orders to dismiss the entire proceedings for want of prosecution under Order 10 Rule 5 then this effectively brings the matter to an end hence it will not be necessary for me to deal with the alternative ground for dismissal under Order 10 Rule 9A (15) (2) (a) (d) & (e). Secondly, to dismiss the proceedings for being frivolous and vexatious or that it discloses no reasonable cause of action or that the proceedings itself is an abuse of Court’s process will require evidence on the hearing of an application pursuant to Order 12 Rule 40 (2). In the present case the First Defendant has not produced any such evidence to support the application. As I stated earlier, an application under this rule relates specifically to a pleading and not the entire proceedings, hence the Court may, in the appropriate circumstances, on an application supported by evidence, order that whole or part of the pleading, is struck out for disclosing no reasonable cause of action, or for being frivolous and vexatious, or for abuse of the court’s process, etc. 

22.	In the present case, the Writ of Summons was filed by the Plaintiffs on the 22nd December 2016 claiming damages for loss of properties as a result of a fire that gutted down the old ANZ Bank Building in Lae on the 29th July 2011. The First Defendant files its Notice of Intention to Defend on the 24th April 2017 after been served with the originating process.  The pleadings closed in May 2017. Since then there has been no activity on the substantive matter itself except for some interlocutory applications such as for example, a notice of motion filed by the Plaintiffs on the 18th October 2017 seeking to amend the pleadings and have the Mineral Resources Development Company Ltd (MRDC) joined as a party pursuant to Order 5 Rule 9 of NCR. That application however, was dismissed for want of prosecution on the 19th March 2018. 

23.	The First Defendant wrote two separate letters on the 10th July and 14th September 2018 respectively advising the Plaintiff to take steps to prosecute the matter but to no avail. The Plaintiff did not respond to the First Defendant nor did he advice of his position regarding the case and whether or not he intends to prosecute the matter. By then the matter has been lying idle for almost 21 months with no activity on the case file. Furthermore, the Plaintiff has not taken any steps on his own to set the matter down for trial after the pleadings have closed. If the Plaintiff is not interested in pursuing the matter further then the most logical thing for him to do is to withdraw the matter with the leave of Court pursuant to Order 8 Rule 61 (1) (c).  He has not done that.  

24.	Filing proceedings in Court is a serious business and it is incumbent upon the person filing to comply with the rules of the court and take all necessary steps to prosecute the matter without delay. By filing, the Plaintiff has subjected himself to the rules of the court that governs such proceedings which, amongst others, imposes a duty on him to prosecute his case with due speed and diligence. Order 10 Rule 5 creates a legal obligation on the part of the Plaintiff to set the matter for trial within 6 weeks after the close of pleadings and if the Plaintiff fails to do so the other party has the right to apply to the Court to have the matter dismissed for want of prosecution. The law is very clear on that. See: Dogoliv v Laho and Markscal Ltd v MRDC (supra). 

25.	Plaintiff is also required to give adequate notice to the other party on the progress of the case and the date of the trial once it is fixed. This is also a common courtesy. The inordinate and inexcusable delay in getting the matter to trial is in breach of Order 10 Rule 5. There was no explanation provided by the Plaintiff for the long delay in prosecuting the case. Counsel for the Third Plaintiff Mr Mugarenang who previously acted for the First and Second Plaintiffs could not assist the Court much as he has not received any instructions from any of the Plaintiffs.  

26.	The Plaintiff’s failure to prosecute the matter for such a long period of time amounts to an abuse of Court’s process. Apart from his own case, the Plaintiff must also be considerate of the other party especially the fact that the other party is also incurring costs trying to defend the matter. Filing proceedings in Court is one thing and perhaps the easiest thing to do but to set the matter down for trial and prosecute the substantive claim is another thing that requires a serious commitment and effort on the part of the Plaintiff. Not only is it unfair on the other party but it is also mischievous on the part of the Plaintiff to have filed the proceedings and after having served the originating processes, showed no interest to prosecute the case. The Plaintiff must be held accountable for his actions or inactions which caused the delay.

F.	RULING

27.	There being no appearance by the Plaintiffs, the Defendant has satisfied the Court that it should exercise its discretion to summarily dispose of the proceedings; and accordingly, the proceedings are dismissed, generally.

28.	Having made the ruling (above) it is not necessary for me to deal with the alternative ground under Order 10 Rule 9A (15) (2) (a) (d) & (e).

G.	ORDER

29.	I make the following Orders:

(i)	The proceedings be dismissed in its entirety for want of prosecution pursuant to Order 10 Rule 5 of the National Court Rules.

(ii)	 The Plaintiff pays for the costs of the entire proceedings.

________________________________________________________________
Manase & Co. Lawyers:		Lawyer for the Applicant/First Defendant
Muromu Lawyers:			Lawyer for the Third Plaintiff