N9659

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 435 OF 2021

BETWEEN:
MARIA IFANA
Plaintiff

AND:
STEVEN IFANA
First Defendant

AND:
HONOURABLE PETER NUMU
Second Defendant

Goroka: Mugugia, AJ
2022: 31st May, 8th June

PRACTICE AND PROCEDURE – writ of summons – Defendants’ motion to dismiss proceedings for want of prosecution - National Court Rules, Order 10, Rule 5 relied on – whether there was a default by the Plaintiff to set the matter down for trial in compliance with Order 10, Rule 5 of the National Court Rules - whether the proceedings should be dismissed for want of prosecution – principles to consider - the Defendants established a case for the dismissal of the proceedings for want of prosecution – prejudice - exercise of discretion – Defendants’ motion granted – proceeding dismissed.   

Cases Cited:

Dogoliv v. Laho (2005) N2885   
Seravo v. Bahofa (2001) N2078
Tani v. Motor Vehicles Insurance Ltd. (2010) N3984

Counsel:

K. Pilisa, for the Plaintiff 
N. Onom, for the Defendants 

DECISION 
 
8th June, 2022 

1.	MUGUGIA, AJ: The Plaintiff filed her Writ of Summons on 14 July 2021, claiming costs and the value of replacement of a vehicle described as Toyota 10 Seater Land Cruiser, Registration Number BDR 568. She claims to be the registered owner of this vehicle. She also claims lease payments for the vehicle, damages, interest and costs. A defence was filed by the Defendants on 4 August 2021. When the Plaintiff failed to take active steps to progress the matter, the Defendants filed a motion on 13 April 2022, seeking an order to dismiss the entire proceedings for want of prosecution. The motion was contested by the Plaintiff. I heard this motion on 31 May 2022 and reserved my decision to 8 June 2022. This is my decision. 

Background to the Plaintiff’s claim 

2.	The Plaintiff was married to the First Defendant who is a close relative of the Second Defendant. She alleged that towards the end of 2016, she and the First Defendant permitted the Second Defendant to ship the vehicle from Port Moresby to Goroka for the Second Defendant to use for his campaign in the 2017 National General Elections, and for related purposes. This was done on the understanding that the Second Defendant would pay the Plaintiff for the use of the vehicle. The Second Defendant used the vehicle during his campaign in 2017. After the election, the Second Defendant continued to keep and use the vehicle. In March 2020, the agents and servants of the Second Defendant drove the vehicle and got involved in an accident. The vehicle was severely damaged as a result. The vehicle is now in the Plaintiff’s custody. She claims that as a result of the actions of the First and Second Defendants, she has suffered loss, namely, lease rental of the vehicle from 2017 to March 2020, loss of vehicle, inconvenience and out of pocket expenses.  

The Defendants’ motion 

3.	The National Court Rules cited in the Defendants’ motion are Order 10, Rule 5 and Order 4, Rule 36 of the National Court Rules. The application was moved under Order 10, Rule 5.  

Issues for determination 

4.	The issues for me to determine are:

(i)	Whether there was a default by the Plaintiff to set the matter down for trial within the meaning of Order 10, Rule 5 of the National Court Rules.

(ii)	If yes to (i), should the proceedings be dismissed for want of prosecution?

The Law Applicable 

5.	Order 10, Rule 5 of the National Court Rules reads: 

“5. Want of prosecution. 

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.”

6.	The applicable principles governing the dismissal of proceedings for want of prosecution were summarised by His Honour Justice Kandakasi (as he then was) in the case of Seravo v. Bahofa (2001) N2078. His Honour said, and I quote:

"It is now clear law especially in the context of Order 10, Rule 5 of the National Court Rules that an application for a dismissal of proceedings for want of prosecution may be granted if:

1.	The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
2.	There is no reasonable explanation given by the plaintiff for the delay; and
3.	That the delay has caused injustice or prejudice to the defendant.”

7.	The power of the Court to dismiss proceedings for want of prosecution is discretionary: Tani v. Motor Vehicles Insurance Ltd. (2010) N3984.  

8.	Order 10, Rule 5 of the National Court Rules creates an obligation on the part of the plaintiff to set down the proceedings for trial within 6 weeks from the date of 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 the 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: Sawong J in Dogoliv v. Laho (2005) N2885. 

Defendants’ Evidence and Submissions 

9.	Mr Onom of Counsel for the Defendants relied on his own affidavit in support sworn and filed on 13 April 2022, and his written submissions which was handed up to the Court at the hearing on 31 May 2022. 

10.	The actions taken by the Defendants’ lawyers as contained in the Defendants’ evidence are set out in tabular form below. 

DATE	ACTION TAKEN BY THE DEFENDANTS’ LAWYERS	
26 July 2021	Filed Notice of Intention to Defend.	
4 August 2021 	Filed Defence.	
31 August 2021	Served Defence on the Plaintiff’s lawyers (Pilisa Lawyers).	
29 September 2021	Conducted Court File Search at the National Court Registry.	
29 September 2021	Mr Onom wrote the first forewarning letter dated 29 September 2021 to Mr Pilisa.	
29 September 2021	Mr Onom emailed the letter dated 29 September 2021,  and the Defendants’ Notice of Intention to Defend to Mr Pilisa. 	
27 October  2021	Mr Onom wrote the second forewarning letter dated 27 October 2021 to Mr Pilisa. 	
27 October 2021	Mr Onom emailed the letter dated 27 October 2021 to Mr Pilisa. 	

11.	The Defendants’ submissions based on the evidence are that pleadings closed on or about 25 August 2021 after the Defendants’ defence was filed. Time for the Plaintiff to set down the matter for trial was six (6) weeks from the date the pleadings closed. On 6 October 2021, the Plaintiff’s 6 weeks within which to have the matter set down for trial lapsed (25 August 2021 – 6 October 2021). After the 6 weeks expired, the Plaintiff did not take active steps to progress the matter in the last 6 months until the filing of the motion for dismissal for want of prosecution on 13 April 2022. 

Plaintiff’s Evidence and Submissions 

12.	In opposing the Defendants’ application, Counsel representing the Plaintiff Mr Pilisa relied on two affidavits, namely, the Affidavit in Support of Maria Ifana sworn on 9 May 2022, and filed on 24 May 2022, and the Affidavit in Response of Kamo Pilisa sworn and filed on 30 May 2022. Mr Pilisa relied on his written submissions which was handed up to Court at the hearing on 31 May 2022. 

13.	Mr Pilisa’a evidence contained in his affidavit in response filed on 30 May 2022 is that the Writ of Summons was filed on 14 July 2021, and served on 21 July 2021. The Defendants’ lawyers had up to 21 August 2021 to file notice of intention to defend, and 4 September 2021 to file defence. Six weeks lapsed at the end of October 2021. Goroka and the Eastern Highlands Province were hit hardest by the Covid 19 pandemic from September 2021 to 1 December 2021. There was a lock down and business was restricted. Even the Court sat during morning hours only because of the restrictions. Their office was closed to all clients except matters which were in Court for the month. The restrictions were relaxed in December 2021. The Court then went into recess (25 December 2021 to February 2022).  

14.	The Plaintiff’s evidence in her affidavit filed on 24 May 2022 is that her lawyer took certain steps to prosecute the matter but unfortunately those steps were not completed. For example, they prepared the Request for Further and Better Particulars of the defence. Unfortunately, this was not filed and served. The unsealed draft dated 9 September 2021 is Annexure “D”. Furthermore, they prepared a Reply that was not filed and served. The unsealed draft also dated 9 September 2021 is Annexure “E”.  

15.	The Plaintiff gave evidence that on 11 April 2022, her lawyer told her that he would circulate a notice to set down for trial before he left for court in Minj, Jiwaka Province. However, due to restraint on his timing, the notice to set down for trial was not circulated.  

CONSIDERATION

16.	The Defendants’ motion sought orders to dismiss the proceedings for want of prosecution pursuant to Order 10, Rule 5 of the National Court Rules. I accept the Notice of Motion moved under Order 10, Rule 5.    

17.	The issues for me to determine are:

(i)	Whether there was a default by the Plaintiff to set the matter down for trial within the meaning of Order 10, Rule 5 of the National Court Rules.

(ii)	If yes to (i), should the proceedings be dismissed for want of prosecution?

Whether there was a default by the Plaintiff to set the matter down for trial within the meaning of Order 10, Rule 5 of the National Court Rules.

18.	Order 10, Rule 5 of the National Court Rules states, and I quote:

“5. Want of prosecution. 

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.”

19.	I have to first determine when the pleadings closed. 

20.	The Plaintiff’s Writ of Summons was filed on 14 July 2021. The Defendants contend that the Writ of Summons was served on the Defendants on 16 July 2021. Mr Onom confirms this in his affidavit in support sworn and filed on 13 April 2022, by deposing to the fact that the Writ of Summons was served on his clients on 16 July 2021. On the other hand, the Plaintiff contends that the Writ of Summons was served on 21 July 2021. However, there is no affidavit of service filed by Pilisa Lawyers for the Plaintiff to confirm the exact date of service of the writ of summons on the Defendants. The Plaintiff failed to prove due service of the writ of summons on the Defendants. The Defendants had filed a notice of intention to defend on 26 July 2021. Based on the evidence available and before me, I find that the Plaintiff’s Writ of Summons was served on the Defendants on 16 July 2021. 

21.	Order 8, Rule 23(1) of the National Court Rules provides that the pleadings on a statement of claim shall, unless the Court otherwise orders, be closed, as between any plaintiff and any defendant, on the date of expiry of the last of the times fixed by or under these Rules for filing a defence or reply or other pleading between those parties on the statement of claim. 

22.	The Defendants’ evidence show that the Plaintiff’s Writ of Summons was served on them on 16 July 2021. They filed their Notice of Intention to Defend on 26 July 2021. The notice of intention to defend was filed within 30 days. They had 44 days to file their defence. The 44th day fell on Sunday 29 August 2021 which was on a weekend so the last day was on the Monday next which was 30 August 2021. I find that the pleadings in the present case closed on 31 August 2021.

23.	As per my calculation, the 6 weeks period after the pleadings closed on 31 August 2021 was from 1 September 2021 to 13 October 2021. The Defendants’ lawyers served the Defence on the Plaintiff’s lawyers on 31 August 2021. Mr Pilisa received the Defence. The Plaintiff has not provided credible evidence to show what active steps were taken between 1 September 2021 to 13 October 2021 to diligently prosecute the matter, and have it set down for trial. The Affidavit in Response of the Plaintiff filed on 24 May 2022 contains mostly evidence of the substantive claim. The affidavit shows that the Request for Further and Better Particulars of the defence dated 9 September 2021, and the Reply also dated 9 September 2021 were not filed and served. This is clear inaction on the part of the Plaintiff’s lawyers. No notice to set down for trial has been filed by the Plaintiff’s lawyers. The Plaintiff’s own evidence show that the notice to set down for trial was not circulated.  

24.	Despite the Covid 19 pandemic in the Eastern Highlands Province last year, the National Court in Goroka did sit from September 2021 to December 2021. The National Court Registry was open for business but within restricted hours. 

25.	The Defendants’ lawyers conducted a Court File Search at the National Court Registry on 29 September 2021. The Defendants’ lawyers discovered that after filing the Writ of Summons on 14 July 2021, the Plaintiff did not take any active steps to prosecute the matter.

26.	On 29 September 2021, Mr Onom wrote the first forewarning letter dated 29 September 2021 to Mr Pilisa. Pilisa Lawyers were forewarned to immediately withdraw the proceeding within 14 days or take necessary steps to progress the matter, failing which, an application will be made to dismiss the proceedings with costs to be paid on an indemnity basis. There was no response from Pilisa Lawyers to the Defendants’ forewarning letter dated 29 September 2021 within 14 days. 

27.	On 29 September 2021, Mr Onom emailed the letter dated 29 September 2021 and the Defendants’ Notice of Intention to Defend to Mr Pilisa. Mr Pilisa acknowledged receipt of Mr Onom’s email. However, he did not respond to the Defendants’ forewarning letter dated 29 September 2021 after receipt of Mr Onom’s email. 

28.	On 27 October  2021, Mr Onom wrote the second forewarning letter dated 27 October 2021 to Mr Pilisa. Pilisa lawyers were forewarned to take immediate steps to progress the matter within 7 days, failing which, an application will be made on or immediately after 5 November 2021 to dismiss the proceedings. On 27 October 2021, Mr Onom emailed the letter dated 27 October 2021 to Mr Pilisa. There was no acknowledgement of the email by Mr Pilisa.   

29.	On 29 October 2021, Mr Onom sent a follow-up email to Mr Pilisa. There was no acknowledgement of this email by Mr Pilisa until he replied in the email thread on 9 February 2022. In his email reply, Mr Pilisa referred to his telephone conversation with Mr Onom the week before, saying that his client will not accept part payment of the agreed amount.

30.	I have considered all the relevant materials relied on by the parties’ lawyers at the hearing, and their respective submissions. I have also considered the conduct of the parties and their lawyers. It is the finding of the Court that no meaningful steps were taken by the Plaintiff’s lawyers to set the proceedings down for trial after the pleadings closed on 31 August 2021. The Plaintiff’s default is intentional. There is an inexcusable delay in the prosecution of her claim. No reasonable explanation has been given by the Plaintiff for the delay. The Plaintiff’s delay has caused prejudice to the Defendants. There was clear and convincing evidence provided by the Defendants to prove their allegation that there was a delay in the prosecution of the case, and the default by the Plaintiff. I find that there was a default by the Plaintiff to set the matter down for trial within the meaning of Order 10, Rule 5 of the National Court Rules.

Should the proceedings be dismissed for want of prosecution?

31.	I find the evidence provided by the Defendants in support of their motion very convincing. The affidavit material relied on by Mr Onom demonstrated a clear case warranting dismissal of the proceedings for want of prosecution. 

32.	I have considered the circumstances of the case. To do justice in this case, I will exercise my discretion, and grant the Defendants’ application. I will dismiss the proceedings for want of prosecution for failure to set the proceedings down for trial under Order 10, Rule 5 of the National Court Rules. 

33.	The Defendants’ lawyers had forewarned the Plaintiff’s lawyers by letter dated 29 September 2021 to withdraw the proceeding or take necessary steps to progress the matter, failing which, an application will be made to dismiss the proceedings with costs to be paid on an indemnity basis. The Plaintiff failed to take necessary steps to progress the matter after 29 September 2021 (which was within the 6 weeks period after pleadings closed) and defaulted in setting the proceedings down for trial. I will therefore order costs against the Plaintiff on an indemnity basis. 

ORDERS OF THE COURT 

34.	I order as follows:

1.	The entire proceeding is dismissed. 

2.	The Plaintiff shall pay the Defendants’ costs of the proceeding on an indemnity basis, which may be taxed if not agreed. 

3.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
K. Pilisa: Lawyer for the Plaintiff 
N. Onom: Lawyer for the Defendants