N8833

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1211 OF 2018

BETWEEN:
PHILIP TAKIRUA
Plaintiff

AND:
PAPUA NEW GUINEA AIR SERVICES LIMITED
Defendant

Kokopo: Suelip AJ
2020: 11 December & 2021: 5 March

CIVIL – Practice and Procedures – application to dismiss for want of prosecution – delay of 1 year 10 months – plaintiff’s non-compliance of consent directions previously ordered – no reasonable explanation as to delay and non-compliance of consent directions 

Cases Cited

Steven Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2003) SC1297
Viviso Seravo v. Jack Bahafo (2001) N2078
Dogoliv v. Laho [2005] N2885
Markscal Ltd v. Mineral Resources Development Company Ltd (1999) N1807

Counsel

S Kiene, for the Plaintiff 
T Kuma, for the Defendant

RULING

5th March, 2021
1.	SUELIP AJ:	The defendant seeks an order for dismissal of proceedings pursuant to Order 10 rule 5 of the National Court Rules (NCR) in its Notice of Motion filed 5 November 2020. In the alternative, the defendant seeks leave to file its amended defence pursuant to Order 8 rule 50 of the NCR.

2.	The application is contested by the plaintiff.

3.	This is my ruling.

Brief facts

4.	The plaintiff was formerly employed by the defendant. He resigned in 2008, received his entitlements, and went to Australia for studies. When he returned in 2014, he asked the defendant to rehire him, but the defendant refused and said that since he had resigned in 2008, he can reapply once a position becomes available.

5.	He then filed this proceeding seeking a declaration that he had not resigned but was on study leave. He is also seeking orders for unpaid entitlements, repatriation costs, superannuation, damages to property, general damages and exemplary damages with interests, and costs. 

Brief history of proceedings

6.	The plaintiff’s statement of claim was filed on 8 October 2018. The defendant filed its defence on 8 January 2019. For the balance of 2019 and much of 2020, not much activity was recorded on the Court file until 13 August 2020, when parties consented to some directions towards preparations for trial. 

Law

7.	The jurisdictional basis for the defendant’s application are Order 10 rule 5 and Order 8 rule 50 of the National Court Rules (NCR). Order 10 rule 5 provides: 
	5. Want of prosecution. (33/6)
Where a plaintiff does not, within six 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.	Further, Order 8 rule 50 of the NCR provides: 
	General. (20/1)
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
(3) Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.
(4) This Rule does not apply to the amendment of a minute of a judgement or order.
9.	As regards the defendant’s application for dismissal pursuant to Order 10 rule 5, the Supreme Court, in Steven Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2013) SC1297 discussed, in part and I quote:

“The onus is on an applicant who seeks dismissal of proceedings to establish that there is a delay and it is inordinate. In Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81, the Supreme Court held that where an appellant fails to prosecute an appeal and fails to give an explanation for the delay, the appeal will be dismissed for want of prosecution. In that case, the delay was one year and two months. The Court dismissed the appeal for want of prosecution.”…

10. 	In Viviso Seravo v. Jack Bahafo (2001) N2078, Kandakasi J (as he then was) said it is clear law that an application pursuant to Order 10 rule 5 will be granted if:

(i)	the plaintiff’s default is intentional or allows for an inordinate and inexcusable delay;
	(ii)	no reasonable explanation for delay; and 
	(iii)	delay has caused prejudice to defendant.

11.	Essentially, the applicant must prove delay on the part of the plaintiff and further that he has been prejudiced by the delay. The onus then shifts to the plaintiff to provide a reasonable explanation as to why there is a delay in prosecuting his claim, failing which the claim will be dismissed for want of prosecution. 

12.	The Court’s power to dismiss in such application is discretionary. The applicant has the right to seek dismissal, but it does not automatically result in a dismissal. See Dogoliv v. Laho [2005] N2885.

Issue
13.	The issue is whether the plaintiff has failed to prosecute his claim with due dispatch, and if so, whether the Court should exercise its discretion and dismiss the proceeding.
14.	Should the application for dismissal not succeed, the other issue is whether leave should be granted to the defendant to amend its defence. 
Delay

15.	The Statement of Claim was filed on 8 October 2018. Pleadings closed on 8 January 2019. According to Order 10 rule 5, the matter ought to have been listed for trial within 6 weeks from that date. That would be on or about end of February 2019. 

16.	From close of pleadings to the hearing of the defendant’s application to dismiss for want of prosecution, it is about 1 year and 10 months. 

17.	The plaintiff did not provide any explanation in evidence or otherwise on the delay in expediating his claim to trial.

Compliance with previous Consent Directions

18.	The defendant has complied with some consent directions of 13 August 2020. For the other consent directions, counsel caused a letter of enquiry to the plaintiff’s lawyers as to the filing of the notices under the Evidence Act, the Statement of Agreed and Disputed Facts and the Pleadings Book. However, there was no response from the plaintiff’s lawyers. 

19.	The plaintiff conceded that he only complied with the first consent direction of 13 August 2020 and is yet to comply with the other directions. His only explanation from the bar table from his counsel is that he is employed by Lihir Gold Mine and he is currently on site. When the Court enquired as to where he resides, his counsel said he lives here in the East New Britain Province. There are no other explanations nor was there an affidavit filed to explain delay.

20.	A counter argument raised by the plaintiff was this. She submitted that the evidence to support the defendant’s application to dismiss and for leave to amend a defence ought to come from the defendant itself and not the lawyer. Counsel undertook to provide case authorities that supported her argument before close of business that day. To date, no authorities were provided to the Court. 

21.	In response, the defendant’s counsel says his affidavit in support contains only 2 paragraphs and attaches letters sent to the plaintiff’s lawyers which he authored. Besides, there is a separate affidavit by one Daphne Tion sworn and filed 7 September 2020. Ms Tion is the Manager, Human Capital of the defendant and her affidavit provides evidence to support the defendant’s case. 

Consideration

22.	It is quite obvious there is a delay in setting this matter down for trial within 6 weeks as required by the rules. Essentially, there is a delay of 1 year and 10 months. This is inordinate delay. Such unexplained delay only cause prejudice to the defendant in defending the claim. 

23.	The onus then shifted to the plaintiff to provide a reasonable explanation as to why there is a delay. The only reason advanced from the bar table is that the plaintiff is currently on site at his job on Lihir Island although he is a resident of East New Britain Province. 

24.	If the Courts continue to relax the rules and not adhere to stricter compliance, there will be a continuous backlogging of cases. Sevua J said in Markscal Ltd v. Mineral Resources Development Company Ltd (1999) N1807:

“In my view, a plaintiff who institutes a lawsuit has an obligation to prosecute it without unnecessary delay, and without causing prejudice to the defendant. A party cannot just ignore court process, if he does, he does so at his own peril.”…

25.	As to the issue raised by the plaintiff’s counsel on the affidavit of the defendant’s counsel, no rule or case authority was provided by counsel to support her contention. The evidence in the defendant’s counsel’s affidavit contains only 2 paragraphs and attaches 2 letters he authored with the draft defence. Therefore, I accept the defendant’s counsel’s affidavit as it is. 
 
Discretion

26.	Essentially, the plaintiff has not prosecuted his claim within the time prescribed by the rules of the Court. He also has not provided a reasonable explanation as to why delay was caused except that he is currently on site at Lihir, which is not too far from here. Further, the plaintiff is a resident of this province. These explanations are not reasonable in the circumstances. 	

27.	The defendant did not come to this court on its own will. It was summoned to come and defend itself. It waited 2 years before filing the application to dismiss for want of prosecution. There is also noncompliance by the plaintiff of consent directions previously ordered by this Court. Further delay will only cause prejudice to the defendant in defending this matter. 

28.	I am therefore inclined to exercise my discretion to dismiss the proceeding for want of prosecution. In the circumstances, it is not necessary to deal with the defendant’s application for leave to amend its defence. 

29.	Costs follow the event and I award costs to the defendant on a party/party basis to be taxed if not agreed.

Orders

30.	The Orders of the Court are: 

	(i)	the proceeding is dismissed for want of prosecution.

(ii)	costs for the defendant on a party/party basis to be taxed if not agreed. 

_______________________________________________________________
Cornerstone Legal Services: Lawyers for the Plaintiff 
Bradshaw Lawyers	:	Lawyers for the Defendant