N8460

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.595 OF 2015

BETWEEN
H.R. HOLDINGS LIMITED trading as BASE SEAL PNG
Plaintiff

AND
PACIFIC RIM CONSTRUCTORS PTE LIMITED
Defendant

Waigani: 	Kandakasi, DCJ
2017:	11th April
2019:	01st July

JUDGEMENT & ORDERS – Application seeking to set aside summary judgment – Courts jurisdiction – Effect of summary judgment – Matter concluded – Correct mode – Appeal or review – Decision in Wawoi Guavi Timber Company Ltd & Ors v. John Molu (2016) SC1514 – Distinguished – Court has no jurisdiction to deal with the matter.

JUDGEMENT & ORDERS – Summary dismissal of proceedings for continuing want of prosecution, failure to appear and for failure to comply with Court orders – Matter referred to mediation with specified dates for conduct of mediation and for return of matter – No application made and orders granted varying original orders – Parties failing to appear in Court on required date after mediation – Parties and mediator proceeding outside Court order – Court not properly kept informed – No settlement through mediation – Parties agreeing to terminate without good reason – Parties duties – Need to agree on facts and clear statement of meritorious issues - Effect of breach -  No reasonable explanation provided for breach of Court orders, failure to appear and for want of prosecution – Application for set aside dismissed. 

Cases cited:

Wawoi Guavi Timber Company Ltd & Ors v. John Molu (2016) SC1514
Dr Yvonne Sapuri v. Peter Kolly (2014) SC1310
Harry Toovon & Ors v. Carl Malpo & Ors (2016) N6420
James Aiwasi v. Monty Derari – Oro Provincial Administrator & 2 Ors (2017) N6602
Thomas Barry & Ors v. Joel Luma & Ors (2017) SC1639
Peter Malt v. Dean Queen & Christian Union Mission Inc. (2009) N3577
North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145

 Counsel:

Mr. R. Diweni, for the Plaintiff
Mr. N. L. Ako, for the Defendant

01st July, 2019 
1.	KANDAKASI DCJ:	By a notice of motion the Plaintiff, HR Holdings Limited trading as Base Seal PNG, (HR Holdings) is seeking a set aside of an order dismissing the proceeding.  The dismissal came following HR Holdings failure to comply with orders and directions of the Court and for want of prosecution.

2.	HR Holdings argues that, this Court has jurisdiction to entertain its motion and have the dismissal order set aside.   Reliance is placed on the decision of the Supreme Court in Wawoi Guavi Timber Company Ltd & Ors v. John Molu (2016) SC1514, per Makail, Sawong and Neill JJ, (Wawoi Guavi case). HR Holdings also argues that, the Court denied it’s right to be heard before coming to the decision to dismiss. The Defendant, Pacific Rim Constructors Pty Ltd (Pacific Rim) argues to the contrary and in particular it argues that this Court is without jurisdiction to deal with the motion and grant it, since it was a summary judgment which was final. It also argues that HR Holdings has failed to provide any reasonable explanation for allowing judgment to go in its absence and or failing to comply with Court orders.  It relies on a string of National Court decisions and the Supreme Court decision in Dr Yvonne Sapuri v. Peter Kolly (2014) SC1310, per Sakora, Yagi and Logan JJ. 

Relevant factual background

3.	On 08th May 2015, HR Holdings filed its writ of summons in this proceeding and served it on Pacific Rim on 14th May 2015.  Pacific Rim filed its defence to the claim on 26th June 2015 with an affidavit verifying its defence.  Almost 2 months later on 14th August 2015, HR Holdings file a notice of discovery and Pacific Rim filed a similar notice on 27th August 2015.  Pacific Rim filed its verified list of documents on 31st and HR Holdings did likewise on 2nd September 2015. Nine months passed without HR Holdings as the plaintiff taking any meaningful step to prosecute its claim.  This resulted in HR Holdings being forewarned by Pacific Rim by letter dated 9th June 2016, that it will apply for a dismissal of the claim unless, meaningful steps were taken to prosecute the matter without further delay.   HR Holdings failed to respond in any manner or form.  This led to Pacific Rim filing an application seeking a dismissal of the claim for want of prosecution on 28th June 2016.  Rather than dismissing the proceeding, the Court on 21st July 2016, made the following main orders after having heard the parties:

“1.	The application to dismiss the proceeding is declined.

2.	The Plaintiff shall pay the Defendant’s costs of the Notice of Motion and such costs to be agreed, if not taxed.

3.	The Plaintiff shall take every step to have this matter resolved by direct negotiations between the parties for which purpose the Defendant shall cooperate.

4.	If the parties do not have this matter resolved by 1st August 2016, they shall return to the Court with a draft consent order for mediation on 2nd August 2016.

5.	If there is further unnecessary delay or failure to comply with these orders on the part of the Plaintiff, the proceeding will stand dismissed.”

4.	The parties failed to have the matter settled through their direct negotiations.  Neither of the parties either returned to Court or submitted for endorsement any draft mediation order for the Court’s endorsement on 2nd August 2016 as required by the orders of 21st July 2016.  The Court had the matter listed for 04th August 2016. At Paragraph 4 of his affidavit, Ralph Diweni for HR Holdings speaks of attending at the registry and noted that the matter was stood over to 04th August 2016. Upon return of the matter on 04th August 2016, neither of the parties appeared and, in any case, the matter did not appear on the list for the day.  The Court therefore, adjourned the matter with directions for the Registry to inform the parties of that fact.  At paragraph 5 of his affidavit, Mr. Diweni says he attended at the Registry on 04th August 2016 and noted that the matter was stood over to 18th August 2016.   He says nothing about his failure to appear in Court that day.

5.	The matter did not go before the Court on 18th August 2016 but was stood over to 6th October 2016.  On 06th October 2016, Mr. Diweni for HR Holdings appeared and confirmed the parties’ failure to settle and ask for mediation orders.   The Court directed the parties to forward draft consent orders for mediation for the Court to consider and if all in order, issue formal Chambers orders for mediation.   Following compliance of that order, the Court issued chambers orders for mediation on 09th November 2016.  Those orders fixed the matter to return to Court on 20th December 2016 after mediation.

6.	Mediation took place on 20th December 2016, the date when the matter was to return to the Court.   The parties reached a preliminary agreement and agreed to continue their negotiations and hold a further mediation conference by 20th February 2017.  However, on 26th January 2017, the parties agreed to terminate the mediation and they failed to reach any agreement and informed the mediator by email.  Since the parties fail to settle the matter fully at mediation, term 12 of mediation orders of 09th November 2016 applied. That term reads:

“If the mediation fails to resolve the matter fully, the parties shall together with the assistance of the mediator:

(a)	identify what if any meritorious legal issue is presented;

(b)	how the issue is beyond resolution by mediation;

(c)	how it is one not already determined by any Court in PNG; and

(d)	agree and settled the relevant facts upon which such an issue is presented.”

7.	There is no evidence of this term of the order being complied with. Also, although Mr. Diweni deposes to having kept the ADR Services and my associate informed of what was happening in the court ordered mediation, no evidence of such communication is provided. Clearly therefore, the Court was not kept informed of the parties’ failure to have the mediation conducted well before 20th December 2016.  They failed to appear in Court and inform the Court of what was happening.   The Court therefore had the matter listed on 12th January 2017 along with other matters.  Notice of that listing was published through the Judiciary’s website.

8.	On 12th January 2017, when the matter next returned to the Court, again, neither of the parties appeared. The Court had the matter further adjourned to 03rd February 2017. The Court also extended all previous orders including, those made on 21st July 2016 and directed the parties to comply with them fully.  The Court then forewarned, failing any such compliance especially by the plaintiff, will result in a dismissal of the proceeding.  When the matter returned to the Court on 03rd February 2017, neither of the parties turned up.  Consequently, the Court proceed to order a dismissal of the proceedings in accordance with the terms of the orders of 12th January 2017.

9.	In his affidavit, Mr. Diweni says he became aware of the listing of the matter for 12th January 2017 later on. However, he does not say when.  He then says he took leave from 29th January 2016, which should correctly read 2017.  He says he became aware of the orders of 03rd February on 16th February 2017 after he resumed duties on 10th February 2017.

Jurisdictional question 

10.	I will deal with the jurisdictional question first.  Order 10, r.9A (15) (2) authorises the National Court amongst others, to order a dismissal of proceedings summarily.   This rule reads:

“15.	SUMMARY DISPOSAL.
(1)	The Court may summarily determine a matter:
a.	on application 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 situations:
a.	for want of prosecution since filing the proceedings or since the last activity on the file; or
b.	for a failure to appear at any of the listing or directions hearing by a party or 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 of the grounds set out in Order 12 Rule 40 and Order 8 Rule 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.”

11.	This proceeding was dismissed on 03rd February 2017 summarily on the basis of HR Holdings’ failure to prosecute the matter with due diligence as the plaintiff, for its failure to comply with Court orders and for its failure to appear in Court on the relevant date.  As noted, HR Holdings relies on the decision of the Supreme Court in Wawoi Guavi and submits that, this Court has the jurisdiction to set aside the order dismissing the proceedings. 

12.	A careful reading of the decision in the Wawoi Guavi makes it clear that, the judgement was centred on Order 12, r.8(3)(a) in the context of a dismissal of proceedings purely for want of prosecution.  I also note that, the decision does not discuss the effects of the provisions of Order 12, r. 8 (4), which I considered in my decision in the Harry Toovon & Ors v. Carl Malpo & Ors (2016) N6420 and before that in James Aiwasi v. Monty Derari – Oro Provincial Administrator & 2 Ors (2017) N6602.  In those two cases, I also held that, once a proceeding is dismissed, the proceeding stands concluded or terminated.  That being the case, no notice of motion which are dependent on existing proceedings, can be used to resurrect or revive the proceeding.  The only options are appeals or reviews against the decision.  The decision in Wawoi Guavi does not address this point. The case before me arises out of a failure to comply with Court orders, failure to appear in Court and for want of prosecution.   Further, I raised with counsel the effect of Order 12, r. 8 (4).   Given these, I do not find the decision in Wawoi Guavi applicable. 

13.	 A Supreme Court decision that is applicable and most directly on point is the decision in Thomas Barry & Ors v. Joel Luma & Ors (2017) SC1639, per Kirriwom, Yagi & Ipang JJ. (Thomas Barry case).  That case went to the Supreme Court on a refusal by myself to entertain an application similar to the one before me in this case.  I took a firm view that, once a matter is dismissed, that is the end of the matter. The only recourse available to an aggrieved plaintiff is to appeal.  As the Supreme Court correctly noted, I followed Peter Malt v. Dean Queen & Christian Union Mission Inc. (2009) N3577, per Makail AJ (as he then was).  In that case, the plaintiff applied unsuccessfully to set aside an ex parte order dismissing the proceeding for want of prosecution. 

14.	Turning then to the nature and or effect of a dismissal order, the Supreme Court referred to the five-member Supreme Court decision in Steven Punangi v. Pacific Plantation Timber Limited (2011) SC1153, per Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ.  There, the Court settled the debate on whether an order dismissing a proceeding for want of prosecution is final or interlocutory.  It held that a dismissal of an appeal for want of prosecution, is not an interlocutory judgment within the meaning of s. 14 (3)(b) of the Supreme Court Act, as it finally determines the proceeding and the issues raised therein.

15.	As the Supreme Court in Thomas Barry noted, the earlier decision of the Supreme Court in Christopher M Smith v. Ruma Constructions (2002) SC695, per Kapi DCJ, Los and Kandakasi JJ., reinforced the view that, the National Court did not have the jurisdiction to review its own decision in the guise of an application to set aside an ex-parte order. Effectively, it emphasizes the point that, once the National Court has decided on an issue, whether by summary judgment for a plaintiff or a dismissal for want of prosecution or for none compliance of Court orders, the National Court cannot deal with the matter and set aside the summary judgment.  The only way around that is by way of appeals or reviews to the Supreme Court.

16.	Having so noted, the Supreme Court, considered in full the provisions of Order 12, r. 8.  It first reproduced the whole of the provision in question. It then interpreted this provision in the following terms:

“15.      It is clear from a reading of the whole of the provisions of Rule 8 that there is general power, albeit discretionary, vested in the National Court to set aside or vary a direction for entry of judgment or order. It is, however, also important to note that such power can be exercised only when an application (notice of motion) is filed “before entry of judgment” but this requirement may be dispensed with in appropriate circumstances under Order 1 Rule 7. Where the relief under Order 1 Rule 7 is not sought and or granted, there is no power to be exercised.

16.      Sub-rule (1) grants a general power; however, the conditions for the exercise of the power are specific and are provided under Sub-rule (2). There are only 3 conditions; firstly, in cases where a default judgment is entered under Division 3 of Order 12, or, secondly, in cases where a judgment has been entered ex parte, or, thirdly, in cases where judgment has been entered in proceedings relating to land.

17.   Sub-rule (4) whilst making provision for additional or supplementary powers, at the same time, provides two caveats or exceptions to the general power. It specifically says that there is no power to set aside or vary a judgment or order for ‘dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.’

18.      The reason in our view is simple. The process for setting aside or varying an order is without question an interlocutory process. Sub-rule (1) expressly provides for that. In the broader context and scheme of things under the Rules of Court a civil proceeding is commenced by a substantive process. These processes are provided under Order 4. Except as authorized by any other law there are only two modes of commencing a civil proceeding; by a writ of summons and by an originating summons.” 

17.	The Court then went onto to specifically address the issue of using notices of motions to seek a set aside of an order dismissing a proceeding.   The Court said: 

“19.      A notice of motion is only an interlocutory process. It cannot be used to commence or re-commence a substantive proceeding. It can only be used, as its name suggests, whilst the substantive proceeding is current. It is intended to be used within and not without a current proceeding. Where the proceeding is brought to a finality by way of a dismissal order the currency or life of the proceedings is at end and cannot be brought back to life or resurrected, as it were, by an interlocutory process. This is made clear by virtue of Rule 4 of Order 4. It states:

‘4.	Mode of proceedings in interlocutory matters.
Proceedings may be instituted by motion, only if they relate to an interlocutory application.’

20.      Rule 4 is further reinforced by Rule 37 of Order 4 where it reads:

‘37.	Interlocutory or other application in proceedings. (19/1)
An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.’

21.     Put it in another way in the context of the present appeal the effect of Rule 4, is that, a notice of motion cannot be employed to resurrect, restore or revive a substantive proceeding that has been dismissed even on the basis of an ex parte order. The remedy for an aggrieve party does not lie in an application under Order 12 Rule 8 but through an appeal or review process in the Supreme Court.”
 
18.	The Court did have regard to my decisions in the James Aiwasi (supra) and Harry Tovon and endorsed both of those decisions in these terms:

“22.     We have read the National Court decision in James Aiwasi (supra). In the course of writing this decision we have also come across another judgment of the National Court in Harry Tovon v Carl Malpo (2016) N6240. Both are judgments of his Honour Kandakasi J. These two cases discussed, amongst others, the effect of Rule 8(4) of Order 12 and both reached the same conclusion on the very issue before us. In Harry Tovon case (supra) his Honour Kandakasi J discussed, amongst others, the scheme of the Rules and the meaning of “interlocutory” in the context of the Rules. Both of his Honour’s decisions agree with the reasoning by Makail AJ (as he then was) in Peter Malts case (supra). We are of the view that the reasoning in these 3 cases is sound in law and practice. We agree with and endorse their Honours’ reasoning and conclusion.”

19.	Finally, the Supreme Court had regard to the most important public policy consideration of finality in litigation.  It reiterated the well know principles in the following terms: 

“23.      …. The Public Policy dictates or requires finality in litigation. There must be finality in litigation once a final decision has been arrived at. We adopt the remarks as stated in Richard Dennis Wallbank & Jeanette Miniffe v The Independent State of Papua New Guinea [1994] PNGLR 78;

‘… the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that in its earlier judgment it has proceeded on a misapprehension as to the facts or the law. As this Court is a final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify.
 
What it perceives to be, an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court, nor is it to be exercised simply because a party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and a misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.’”

20.	For these reasons, the Court decided in the case before it that, the ex-parte order dismissing the proceedings for want of prosecution, and for not disclosing a reasonable cause of action, was a final decision that effectively determined “the life of the substantive proceeding before the National Court.”  It then went on to hold:  

“25.      A party like the Appellants in this case who are aggrieved by an ex-parte dismissal order can only appeal to the Supreme Court as of right and leave is not required. see Rea Joseph v Manau Sereva & Ors (2011) SC1152”

21.	If there was any doubt in the law, the Supreme Court’s decision in Thomas Barry settled it clearly. A party who is aggrieved by a decision that dismisses a proceeding as only the recourses of an appeal or a review.  Hence, such a party has no right to return to the same Court that dismissed the proceeding and ask for a set aside.   For amongst others, the case is no longer alive for a notice of motion to be filed and pursued upon, since motions are dependent on a live and yet to be concluded or yet to be terminated proceeding.  A dismissal order concludes or terminates the proceeding.

Present case

22.	In the present case, as noted, this Court had the proceeding dismissed for a failure to comply with Court orders, want of prosecution and for failure to appear in Court for or by the Plaintiff.  That concluded this proceeding. Hence, on the authority of the Supreme Court decision in Thomas Barry’s case, the matter stands concluded and this Court has no jurisdiction to entertain the motion and grant it.  That being the case, the application should be dismissed without any further consideration.  

23.	I am also of the view that, substantially, no meritorious case has been made out for a revisit and set aside of the dismissal orders.  Here is why. 

(a)	Want of prosecution and failure to appear 

24.	As already noted, HR Holdings delayed in a diligent prosecution of its claim for 9 months since the last activity on in the case.  Pacific Rim gave a forewarning notice of its intention to apply for dismissal of the proceedings.  That did not attract any response from HR Holdings.  Consequentially, that resulted in an application by Pacific Rim for a dismissal of the proceeding.  A case was made out for a dismissal of the proceeding. However, the Court decided in the exercise of its discretion, to give HR Holdings one more chance to prosecute its claim with due diligence and directed it to take the lead in the taking of a number of steps to expedite a resolution of the matter. Those steps are set out in the orders of 21st July 2016, which I reproduced earlier in this judgment. 

25.	As already noted, the parties did not have the matter settled.  It was then incumbent upon HR Holdings as the plaintiff to take the lead in taking the next step. The next step was to appear in Court on 02nd August 2016, with a draft consent order for mediation for the Court’s endorsement.  Neither HR Holdings nor his lawyer turned up in Court. The Court had the matter listed for 04th August 2016.  In the only affidavit filed for HR Holdings which is from its lawyer Mr. Ralph Diweni speaks of attending at the registry and noted that the matter was stood over to 04th August 2016. Upon return of the matter on 04th August 2016, neither of the parties appeared and in any case the matter did not appear on the list for the day.  The Court therefore, adjourned the matter with directions for the Registry to inform the parties of that fact.  Mr. Diweni says he attended at the Registry on 04th August 2016 and noted that the matter was stood over to 18th August 2016.   However, he says nothing about his failure to appear in Court that day. 

26.	The matter did not go before the Court on 18th August 2018 but was stood over to 6th October 2016.  On 06th October 2016, Mr. Diweni for HR Holdings appeared and confirmed the parties’ failure to settle and asked for mediation orders.   The Court directed the parties to forward draft consent orders for mediation for the Court to consider and issue Chambers orders.   The Court issued chambers orders for mediation on 09th November 2016.  Those orders fixed the matter to return to Court on 20th December 2016 after mediation, which was to be conducted on 26th November 2016 or such other dates but before 30th November 2016 when the mediation was ordered to be concluded. 

27.	However, the parties failed to take steps within the times fixed for each of the steps they had to take for the mediation process, including, the dates for the conduct and conclusion of the mediation. Instead, the mediation took place on 20th December 2016, the date when the matter was to return to the Court.  HR Holdings as the plaintiff, was under an obligation to return to the Court for a variation of the orders to allow for mediation to be conducted on dates outside what was fixed by the Court orders. This had to happen well before 20th December 2016 when it became clear to HR Holdings that the mediation was going to be conducted outside the date fixed by the Court.  This was necessary when it was going to be conducted on the date fixed for a return of the matter to the Court.  This obligation was not discharged.   

28.	The mediation conducted on 20th December 2016, albeit outside the time frames fixed by the Court, resulted in a preliminary agreement. The parties agreed to continue their negotiations. They also agreed to hold a further mediation by 20th February 2017.  However, on 26th January 2017, the parties agreed to terminate the mediation. They failed to reach any agreement and informed the mediator by email, without providing reason for their decision.  Following that, the mediator issued her mediator’s certificate.   

29.	None of the parties came to the Court with information on what was happening in the mediation process.  Counsel for HR Holding claims he kept the ADR Service and the Court informed by email.  This is not supported by any evidence of that being done.  Of the two parties, HR Holdings as the plaintiff and the party that was given one more chance to take all the steps necessary to have this matter prosecuted without further unnecessary delay was required to take all of the necessary steps faithfully.  Those steps included:

(1)	an application well before 20th December 2016 for a variation of the dates for mediation and the next return date for return of the matter after completing the mediation process; 

(2)	failing (1) above, appear in Court and inform the Court of the changes in the various dates and formally apply for an extension;

(3)	allowing for the follow up mediation to occur instead of terminating it by correspondence without providing any reason; and

(4)	attending all Court sessions and keep the Court informed of all developments attending the matter.
  
30.	Further to the steps HR Holdings failed to take as the plaintiff, it also failed to take the steps it was required to take by term 12 of the orders.  This order became operational when the parties failed to settle the matter fully at mediation.  The term of the order in question again reads: 

“If the mediation fails to resolve the matter fully the parties shall together with the assistance of the mediator:
(a)	identify what if any meritorious legal issue is presented;
(b)	how the issue is beyond resolution by mediation;
(c)	how it is one not already determined by any Court in PNG; and
(d)	agree and settled the relevant facts upon which such an issue is presented.”
31.	There is no evidence of this term of the order being complied with. In the absence of any such evidence, it is clear the parties failed to comply with this order.  The failure leaves this case with no idea as to what issues prevented settlement through the mediation process and how the undisclosed issues are beyond resolution by mediation and how they warrant resolution judicially.   Additionally, the orders required the parties to settle the relevant facts forming the basis for each of the issues.  HR Holdings says nothing about the non-compliance of the provisions of term 12 of the orders for mediation.

32.	This is a serious failure by HR Holdings as a plaintiff and Pacific Rim as well as parties ordered to attend mediation in good faith and have the matter settled.  If they fail to settled, they were required to settle the facts and the issues on which they failed to settled for the purposes of progressing the matter to trial expeditiously.

33.	Mediation comes with the promise of expedited dispute resolutions at less costs in a short space of time.  Term 12 of the orders was intended to follow consistently with that so as to ensure that the time, money and other resources outlaid in the mediation process is not wasted.  Hence, mediation should and does serve either of the twin objectives of settling the matter or failing that, settle the facts and clearly identifying and state meritorious issues that warrant judicial consideration and determination. Issues may be hard to settled but the facts should be straight forward and settling them through the mediation process could easily be achieved unless they are highly technical in nature.  If they are highly technical in nature factual issue, the parties could have agreed to engage the services of an expert on the subject and whose views could be final.  In the present case, there is no evidence explaining why the parties were not able to comply with the requirements of term 12 of the orders for mediation.  In the absence of such evidence, it is obvious that they failed to comply for no good reason. Since the duty is always on a plaintiff, HR Holdings was required to provide the kind of evidence in question. It has failed to do so.

34.	The Court conducted an audit of all of the cases on its list and decided to list all matters with no activity on them for some time for directions hearing.  In this case, there was no activity on it as far as Court records went for more than 4 months from 04th August 2016.  The Court therefore, had the matter listed for directions hearing on 12th January 2017, along with other matters.  Notice of that listing was published through the Judiciary’s website.

35.	On 12th January 2017, when the matter next returned to the Court, again neither of the parties appeared. The Court had the matter further adjourned to 03rd February 2017. The Court also extended all of the previous orders including those made on 21st July 2016 and directed the parties to comply with them fully.  The Court warned through an expressed term of the orders that, any failure to comply with the orders especially by the plaintiff will result in a dismissal of the proceeding.  When the matter returned to the Court on 03rd February 2017, neither of the parties turned up.  Consequently, the Court proceed to order a dismissal of the proceeding in accordance with the terms of the orders of 12th January 2017.

36.	In his affidavit, Mr. Diweni says he became aware of the listing of the matter for 12th January 2017 later on. However, he does not say when.  He then says he took leave from 29th January 2016, which should correctly read 2017.  Finally, he says he became aware of the orders of 03rd February on 16th February 2017 after he resumed duties on 10th February 2017.  I find these purported explanations evasive and provides no reasonable explanation for counsel and his client’s failure to comply with Court orders and prosecute the matter with due diligence.

37.	Clearly there was want of prosecution on the part of HR Holdings as the plaintiff.  The duty was on the plaintiff to provide clear and convincing explanation for the clear case of want of prosecution in accordance with the law on point.  This, I find HR Holding has failed to do.  There is not even an affidavit from a responsible officer of HR Holdings in line with the many decisions on point such as the one in North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145.  The only affidavit is from its lawyer, Mr. Diweni. 

(b)	Failure to comply with Court orders

38.	Turning specifically on HR Holdings non-compliance of the various orders of the Court made on 21st July and repeated in 12th January 2017, I note the law is also well settled.  One of the latest decisions of the Supreme Court involving a case of a self-executing orders as in this case is the decision in Dr Yvonne Sapuri v. Peter Kolly (2014) SC1310.   In that case, sitting in the National Court, I made amongst others, the following two orders:

“(a)	the defendants are required to appear in court at 9:30 am to be heard in their defence before the court gives further directions for the progress of the matter;

(b)	failing appearance for or by the defendants will result in judgement entered for the plaintiff with damages to be assessed.”

39.	On the next return of the matter to the Court, the defendants failed to appear as required. I therefore, ordered judgment for the Plaintiff pursuant to the self-executing order and the provisions of Order 10, r. 9A (15) (2) of the Court Rules.  Upon appeal, the Supreme Court in dismissing the appeal said:

“This case then entails an unremarkable application of settled principle by the primary judge. Its facts and outcome do offer some timely and salutary reminders to the legal profession and those they represent. The rules of court and its other practices and procedures are designed to ensure that litigants are afforded a reasonable opportunity to be heard. The finite nature of the judicial resources of the Nation is such that that opportunity is not and cannot be unlimited. The parties to this case had a claim to those finite resources but so did all other litigants.  More particularly, the case offers reminders that:

(a)	directions and orders made by the National Court are not aspirational statements;
(b)	 systems of internal communication within legal firms must be tailored and implemented so as to ensure that required appearance dates do not pass unnoticed;
(c)	a breach of the rules of natural justice is not established by a failure to take any or any adequate advantage of an opportunity to be heard; and
(d)	bald assertion by a person ignorant of the facts does not show that there is a defence on the merits.”
								(Underling mine)

40.	 In this case, HR Holding as the plaintiff was required to provide reasonable explanation for the various non-compliance of Court orders. Its various non-compliances saw the passage and wastage of the Court’s time and took up time that could have been allocated to other cases.  It also failed to provide any explanation as to why it could not apply for a variation of any of the orders before each of their respective due dates arrived.  Further, the mediation orders required the parties to have the matter settled or failing that, settle the facts and issues warranting judicial consideration and determination.  There is no explanation for their failure to comply with those orders.  HR Holdings might argue that, it is not the only party that is guilty of none compliance.  But such an argument ignores the fact that, a plaintiff is always under an obligation to take the lead in progressing a matter to trial and its conclusion and not a defendant.  That duty commences from the date of filing of the proceeding to its final disposition either by trial or settlement reached through the parties’ direct negotiations, or mediation or a judicial dispute resolution process conducted by a Judge. Hence, before looking at the fault of the opposing parties, a plaintiff as the duty to fully explain his or her own failures first.  This HR Holdings has failed to do here.  Hence, the decision to dismiss the proceedings.

41.	For foregoing reasons, I arrived at the conclusion that the application should fail with costs. Accordingly, I make the following formal orders:

1.	The application by notice of motion filed on 24th February 2017 is dismissed on the basis that the Court lacks the necessary jurisdiction and that no case has been made out on its merits.

2. 	The matter stands concluded by the orders of 03rd February 2017.

3.	Costs to the Defendants to be taxed, if not agreed.

4.	Time for the entry of the orders is abridged.

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Diweni Lawyers:		Lawyers for the Plaintiff/Applicant
Jema Lawyers: 	Lawyers for the Defendant/Respondent