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Kosu Maila Anda Ltd v United Pacific Corporation Ltd [2020] PGNC 68; N8275 (23 April 2020)

N8275

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 779 of 2018 (COMM)

BETWEEN:
KOSU MAILA ANDA LIMITED
Plaintiff

AND:
UNITED PACIFIC CORPORATION LIMITED
Defendant

Waigani: Anis J
2020: 13^th & 23^rd April

NOTICE OF MOTION – Order 10 Rule 5 and Order 10 Rule 9A(15)(2)(a) – National Court Rules – want of prosecution and or summary determination – delay – length of delay - whether delay inordinate or intentional – whether lawyer’s excuse good excuse – interest of justice consideration – exercise of discretion

Cases Cited:

Joe Naguwean v. The Independent State of Papua New Guinea [1992] PNGLR 367
Michael Pundari v. Niolam Security Ltd (2011) SC1123 at para 15
The State v Colbert [1988] PNGLR 138
Small Business Development Corporation v Danny Totamu (2010) SCI054

Counsel:

Mr D Levy, for the Plaintiff/Respondent
Mr N Pilamb, for the Defendant/Applicant

RULING

23^rd April, 2020

1. ANIS J: This was a contested hearing. The defendant applied for the proceeding to be dismissed. It was heard on 13 March 2020. I reserved my ruling thereafter to a date to be advised.

2. Parties have been notified so I will rule on it now.

BACKGROUND

3. The plaintiff claims that it was a permit holder of poker machines from 2007 to 2012. It says that during the said period, it had entered into an agreement with the defendant whereby the defendant had agreed to and had operated under a licence, the plaintiff’s poker machines at the defendant’s business premises. The plaintiff alleged that the defendant had, amongst other things, breached the terms and conditions of the said agreement. The one particular breach alleged was that the defendant had wrongfully or illegally deducted 16% of the plaintiff’s monthly net profit for a period of 60 months that the defendant had been in operation. The plaintiff claims that the said breach has also breached various provisions including section 163 of the Gaming Control Act 2007. The plaintiff is suing the defendant to, amongst others, reclaim the 16% deductions which it says it still outstanding.

4. The defendant has denied the claim. It has filed a defence.

MOTION

5. The main relief the defendant seeks the notice of motion (application) is, and I quote, Pursuant to Order 10 Rule 5 and 9A(15)(1)(a) and 9A(15)(2)(a) & (e) and Order 12 Rule 1, of the National Court Rules, the entire proceedings be dismissed for Want of Prosecution.

6. The source of the application is not contested. Let me deal with the substantive issues

ISSUES

7. I note that there appears to be delay in the matter generally. In this case, the main argument centered around the delay period, that is, the length of the delay, whether the delay was inordinate or unreasonable and as such whether the matter should be summarily dismissed for want of prosecution.

RELEVANT DELAY PERIOD

8. I think the first thing to determine based on what had transpired at the hearing, is the delay period. What was the delay period? The parties are at common ground that the delay period should start from the date when the pleading ended, to the date when the application for dismissal was filed.

9. Let me consider the evidence. The plaintiff filed its Reply on 31 August 2018. And the defendant filed this application on 25 January 2019. The pleadings, in my view, shall end within the time that is prescribed for filing a Reply. In this case, the writ of summons and statement of claim (Writ) was service on 5 July 2018. The Notice of Intention to Defend and Defence were filed within the time prescribed by the National Court Rules. So the total pleading period shall be added as follows, 30 days for filing the Notice of Intention to Defend, 14 days for the Defence, and a further 14 days for filing the Reply, which would be a total of 58 days. See Order 4 Rule 11(b)(ii), Order 8 Rule 3, Order 8 Rule 4(1)(a) and Order 8 Rule 5(1), of the National Court Rules. In this case, the defence was served on the plaintiff on 17 August 2018. Pursuant to Order 8 Rule 5(1), the plaintiff had 14 days (not mandatory) to file its Reply. The plaintiff filed its Reply on 31 August 2018, that is, on the 14^th or the last day for filing its Reply. Pleadings therefore and in my view, ended on the said date. See cases: Joe Naguwean v. The Independent State of Papua New Guinea [1992] PNGLR 367; Michael Pundari v. Niolam Security Ltd (2011) SC1123 at para 15.

10. So, from 1 September 2018, to the date of filing of the application on 25 January 2019, would constitute a delay period of about 4 months 25 days.

WAS DELAY INORDINATE?

11. The issue is whether the delay was inordinate. Again, I refer to the evidence. The plaintiff gives its reasons in the affidavit of John Lais. The affidavit was filed on 4 March 2019. In summary, Mr Lais said these. He said his first lawyers were Mirupasi Lawyers. He said the responsible lawyer who had carriage of the matter left the employ of Mirupasi Lawyers and joined another law firm Lhyrn Lawyers. He said the plaintiff’s court files were taken by the said lawyer to Lhyn Lawyers. He said that had caused confusions between the 2 law firms as to who was acting for the plaintiff. He said that he never instructed Lhyn Lawyers to act for the plaintiff.

12. The defendant submits that the said reason cannot be a valid reason for the delay, namely, failure by lawyers to take steps for a party.

13. The case law is settled that failure by lawyers to progress the matter cannot itself be a good or valid explanation for delay. See cases: The State v Colbert [1988] PNGLR 138, and Small Business Development Corporation v Danny Totamu (2010) SCI054. In this case, I do not consider the reason, namely, misunderstandings between the plaintiff’s lawyers and another law firm as to who was acting for the plaintiff at the material time, as a good reason or excuse. But that said, I also do not think that the delay was intentional and inordinate, and I say this again based on the plaintiff’s explanation given by Mr Lais. There is nothing there that gives me the impression that the plaintiff had deliberately attempted to delay or frustrate the hearing of the matter. The other reason is this. When the Court heard this application and ordered the proceedings to be dismissed for want of prosecution on 15 March 2019, the plaintiff did not give up. It lodged an appeal to the Supreme Court against said decision, and succeeded in the appeal. On 20 December 2019, the Supreme Court ordered, amongst other things, for this application to be re-argued before another judge. Thus, this application is now argued in full before this Court. To me, this clearly demonstrates the willingness of the plaintiff in intending to pursue its matter to trial.

INTEREST OF JUSTICE

14. Let me also ask myself this. Where does the interest of justice lie? To me, it seems obvious that the interest of justice lies in setting the matter down for trial, or to allow the plaintiff complete its case. The plaintiff, in my view, will suffer injustice if it is disallowed from having its day in court. The fundamental purpose for the Court is to, in my view, ensure that parties who come before it, are duly heard; that it (i.e., the Court) should aim at determining or resolving disputes that come before it, and that it should not deflect, traffic the disputes elsewhere, or summarily dispose them without proper regard to justice. The Court must also not be seen or perceived to be seen, to be unreasonably shutting out litigants who wish to be heard. In my view, at sometimes, that may even concern matters that may appear to lack merit. The fundamental role of the Court should be to allow litigants to present their case and for the Court to make a determination.

SUMMARY

15. For these reasons, I am not minded to exercise my powers and dismiss the matter for want of prosecution. I will refuse the application.

COST

16. An order for cost is discretionary. I will order cost to follow the event, that is, cost of the application shall be awarded in favour of the plaintiff on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

17. I make the following orders:

1. The defendant’s notice of motion filed on 25 January 2019 is dismissed.
   
2. The defendant shall pay the plaintiff’s cost of the application on a party/party basis to be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly.
________________________________________________________________
Manase & Co. Lawyers: Lawyers for the Plaintiff

mel & henry lawyers: Lawyers for the Defendant