|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 190 OF 2021 (IECMS)(CC1)
BETWEEN:
KERE NAIME
Plaintiff
AND:
TITUS NOKOPA
First Defendant
AND:
LATE SAMUEL DAIVA (DECEASED), JOE DAIVA AND JOANNA AISO (Registered Title Holders of Section 47, Allotment 73, Hohola, Waigani, NCD)
Second Defendant
AND:
ALA ANE in his capacity as the Registrar of Titles, Department of Lands & Physical Planning
Third Defendant
AND:
BENJAMIN SAMSON in his capacity as the Secretary of Department of Lands & Physical Planning
Fourth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
Waigani: Tamade AJ
2022: 27th and 28th April
PRACTICE AND PROCEDURE – application by defendant to dismiss proceedings for want of prosecution and for not disclosing a reasonable cause of action – defendant has not filed a notice of intention to defend and a defence within time frame allowed by court rules – Order 12 rule 37 NCR precludes a matter that pleads an allegation of fraud to be summarily disposed off - principle proposition of O 12 r 37 NCR is that all matters that plead fraud should proceed to trial to be properly heard and determined rather than being summarily disposed off in an interlocutory manner – defendant has not come to court with clean hands – defendants have failed to file Notice of Intention to Defend and Defence within the required timeframe – Defendant should have sought leave of court to file defence out of time – application is misconceived – application dismissed
Cases Cited:
The following cases are cited in the judgment:
Chris v Kaeo [2019] PGNC 436; N8163
General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Kappo No 5 Pty Ltd v Chi Kung Wong and Kuien Mi Wong [1997] PGSC 3; SC520
Malt v Queen [2009] PGNC 15; N3577
Counsel:
Mr. M. Kuma, For the Plaintiff
Mr William Hagahuno, For the First and Second Defendants
Ms. Z. Waiin, for the Third and Fourth Defendants
28th April, 2022
1. TAMADE, AJ: Before this Court is an interlocutory application by way of a Notice of Motion filed by the First and Second Defendants on 25 February 2022 seeking dismissal of these proceedings on the following grounds:
2. The application is contested by Plaintiff and supported by the Solicitor General’s Office who act for the Third and Fourth Defendant except as to certain points which I will address herein.
3. This is the Court’s decision on the application at hand.
4. These proceedings were filed by Plaintiff in person as can be seen from the originating process which is a document titled ‘Amended Writ of Summons’ without it being any amendment at all as that is the first document filed in the matter. Plaintiff had drafted the pleadings and filed them himself. Subsequently, Plaintiff engaged the services of a lawyer who is Mr Kuma who is now representing Plaintiff and defending the matter from being dismissed.
5. Plaintiff’s claim from the Statement of Claim alleges that, he had signed a Contract of Sale with one Samuel Daiva now deceased on or about 1 December 1994. Plaintiff claims that he had attempted to register the title to the subject land after purchasing the land this never eventuated and he later discovered through eviction proceedings in the District Court after the First Defendant filed proceedings to evict the Plaintiff that the title to the land was transferred from the Second Defendants to the First Defendant.
6. Plaintiff pleads fraud against the transfer of the subject land from the Second Defendants to the First Defendant.
Want of prosecution
7. The First and Second Defendants are therefore seeking that upon filing the Writ of Summons and serving the proceedings on them, the Plaintiff has not taken any diligent steps to prosecute the matter as required by the Rules of Court. At the time of filing the application to dismiss for want of prosecution, the Applicants state that the delay by Plaintiff in not prosecuting the matter was ten months. At the hearing of the application, the Applicants say it has been 12 months since service of the Writ of Summons on them.
8. On enquiry with the Applicants/ First and Second Defendants, whether they have filed a Defence to the matter, the Applicants concede that they have not filed a Defence however they have put the Plaintiff to task that he has not prosecuted the matter for more than ten months and or up to a year at the time of hearing their application and that the failure to prosecute the matter should warrant a dismissal of the matter for want of prosecution.
9. The Third and Fourth Defendants however state that they have complied with the Rules by filing their Notice of Intention to Defend and Defence and support the First and Second Defendants in the dismissal of the claim for want of prosecution.
10. The Applicants state that the Plaintiff has filed two other proceedings namely WS 1444 of 2019 and OS (JR) 64 of 2020 only to abandon those proceedings and afterwards filing these proceedings therefore the Plaintiff is a busy body and has not taken any meaningful step in the past twelve months to diligently prosecute the matter.
11. The Applicants rely on the case of Malt v Queen [2009] PGNC 15; N3577 (20 January 2009) and also the case of General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331 in support of the dismissal for want of prosecution in failing to diligently take steps to prosecute the matter.
12. Acting Justice Makail (as he then was) in the case of Malt v Queen discussed the case of General Accident Fire & Life Assurance as referred by the Applicants in the context of the difference between a strike-out of proceedings and a dismissal of proceedings in an application for want of prosecution. The Applicants have not delved into the law on dismissing a case for want of prosecution and the duration of what the Court has previously decided on how much time of inactivity should amount to a matter being dismissed for want of prosecution.
13. Plaintiff in response to the application has raised issues on the pleadings in the Notice of Motion citing incorrect rules of Court, however I am satisfied that the Applicant has pleaded the relevant rules.
14. Plaintiff has stated that the proceedings were filed on 17 March 2021 and served on the First Defendant on 31 May 2021. Plaintiff also agrees that the Applicants have not filed a Defence to the claim and the time for them to do so has since lapsed with there being no Defence being filed.
15. Plaintiff states that in relation to previous proceedings taken out by Plaintiff in WS 1444 of 2019 and OS (JR) 64 of 2020, those proceedings were concluded or came to, an end and the Plaintiff is at liberty to commence this matter before the Court.
.16. The Plaintiff further states that the power of the Court to dismiss a proceeding for want of prosecution should only be exercised where the Plaintiff’s default has been intentional and contumelious or where there has been an inordinate and inexcusable delay on the part of the Plaintiff and his lawyers that it gives rise to a substantial risk that a fair trial will not be possible or that the delay has seriously prejudiced the Defendants.
.17. The Plaintiff relies on the case of General Accident Fire & Life Assurance v Ilimo Farm Products [1990] PNGLR 331 as well where the Supreme Court decided on dismissing the appeal in the Supreme Court for want of prosecution where the Supreme Court stated that:
1.) The power to dismiss an appeal for want of prosecution pursuant to
r 53(a) of the Supreme Court Rules is to be exercised where
the appellant has not prosecuted the appeal with due diligence, having
regard to the public interest in finalising litigation.
2.) Matters relevant to the want of due diligence include failure to
attend on settlement of the appeal book, failure to explain non-
attendance, failure to respond to correspondence and failure to
provide any explanation for dilatory conduct where an explanation
could properly be expected.
18. In addressing the application for dismissal for want of prosecution, I posed to Mr Hagahuno for the Applicants the relevance of Order 12 Rule 37 of the National Court Rules. Order 12 Rules 37 of the National Court Rules states that:
Division 4 – Summary Disposal
This Division applies to all proceedings except proceedings which include:
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage;
or
(b) a claim by the plaintiff based on an allegation of fraud;
(c) a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person.”
19. Order 12 Rule 37, therefore, disallows or precludes a matter that pleads an allegation of fraud to be summarily disposed off and the principle proposition in this rule is that all matters that plead fraud should proceed to trial to be properly heard and determined rather than being summarily disposed off in an interlocutory manner.
20. Mr Hagahuno seems to submit that Plaintiff is precluded from seeking default judgment because of this Rule however his clients are entitled to ask for a dismissal of these proceedings for want of prosecution because Order 12 Rule 37 does not apply to matters seeking dismissal on want of prosecution. The rules of the Court can sometimes cut akin to a two-edge sword. They do not only apply to a party who is a Plaintiff, they also apply to a Defendant and or the parties as litigants before the Court as the Rules govern the Court process and are applicable to the players or the litigants. Mr Hagahuno’s submissions are narrow and evasive and do not assist the Court as to the purpose of Order 12 Rule 37.
21. Ms Waiin from the State agrees to the purpose of Order 12 Rule 37 as put to her by the Court but states that the Plaintiff has not particularised fraud in his Statement of Claim and her clients deny the allegations of fraud in their Defence.
22. Plaintiff through his lawyer Mr Kuma agrees with the purpose of Order 12 Rule 37 as put to him by the Court and states that matters that plead fraud should not be disposed off summarily and should proceed to trial proper to be heard.
23. The Supreme Court in the case of Kappo No 5 Pty Ltd v Chi Kung Wong and Kuien Mi Wong [1997] PGSC 3; SC520 (23 May 1997) affirmed Order 12 Rule 37 of the National Court Rules that it does not apply to matters that plead or allege fraud where there is an application for summary judgment.
24. Justice Jeff Shepherd also in the case of Chris v Kaeo [2019] PGNC 436; N8163 (20 December 2019) considered the application of Order 12 Rule 37 and also cited the above Supreme Court case of Kappo No 5 Pty Ltd. Justice Shepherd said this:
“As the plaintiff’s claim includes a claim against both defendants which is based on fraud, no matter how loosely pleaded it may be, it is obvious that the first defendant is precluded by operation of O.12 r. 37(b) from bringing any application for summary disposal of this proceeding on any of the grounds set out in O.12 r.40. The defendant’s application for dismissal is misconceived and it can and should be dismissed as being an abuse of the process of the Court for this reason alone.”
Ground of disclosing no reasonable cause of action
25. The Applicants’ second leg of the application relies on a dismissal of the proceedings based on Order 12 Rule 40 and Order 8 Rule 7 of the National Court Rules that the Plaintiff’s claim does not disclose a reasonable cause of action. The Applicants have submitted that the pleadings in the Statement of Claim plead no cause of action, the pleadings only go to dispute the particulars of the death of the Second Defendant who is deceased but say nothing in law as to the wrongs of the Defendants. The pleadings though drafted by Plaintiff himself perhaps as a layperson, however, do give the reader and the Court an accusation that the Defendants have committed fraud by transferring the property where he is residing to the First Defendant when he was to be registered as the titleholder. That is clear enough to say there is an allegation of fraud though poorly pleaded.
26. Order 12 Rule 37, therefore, precludes the matter to be summarily disposed off in the manner sought by the Applicants. The second leg of the application by the First and Second Defendants is therefore dismissed.
28. The delay by the Plaintiff in prosecuting this matter therefore would run from when the Writ was served on the First Defendant on 31 May 2021 and according to the Rules of Court, the First Defendant would have about 44 days to file a Notice of Intention to Defend and a Defence to the claim. This period would end on or about mid-July of 2021. From that period to 25 February 2022 when this application was filed, that would be about 7 months of inactivity by the Plaintiff for whatever reason, that is the period of delay that the Applicants should be asking for want of prosecution.
29. The Applicants have sat on their right after being served with the proceedings on 31 May 2021 to file a Defence and have not even sought leave of Court to file Defence out of time. They have sat and watched the time pass only to contest the Plaintiff for taking no action in seven months to prosecute the matter when they are not before the Court with clean hands so to speak. They themselves have not adhered to the rules of the Court yet they have seen fit to complain about Plaintiff not prosecuting the matter. If the matter were to be prosecuted in the past seven months, it would have been to the First and Second Defendant’s detriment with them being defenceless.
30. The First and Second Defendants’ application before this Court is misconceived and is a waste of the Court’s time and resources when they could have concentrated their efforts to help themselves first by proceeding with an application to seek leave to file a Defence out of time then complain about the inaction of the Plaintiff.
31. I, therefore, make the following orders:
Orders accordingly.
________________________________________________________________
Legal Training Institute: Lawyers for the Plaintiff
Williams Attorneys: Lawyers for the First and Second Defendants
Solicitor General’s Office: Lawyers for the Third and Fourth Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2022/138.html