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Okopi v Pok [2022] PGNC 343; N9832 (15 August 2022)

N9832

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 227 OF 2019

HEWABE OKOPI, HALIMBU LEMBO, JAMES UNDIALU AND OTHER WITA CLAN LEADERS WHO’S NAMES ARE ATTACHED TO THIS SUMMONS AS SCHEDULE 1 FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF THE WITA CLAN OF HIWA BLOCK, PDL1 OF PNGLNG PROJECT
Plaintiffs

V
HON. FABIAN POK AS THE MINISTER FOR PETROLEUM & ENERGY
First Defendant

And:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

And:
LARRY LABE ANDAGALI OF ARUA CLAN, HIWA BLOCK, HIDES PDL1
Third Respondent

Waigani: Miviri J
2022: 11^th & 15^th August

PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Setting Aside Orders Dismissing for Non-Compliance of Court Order – Order 12 Rule 8 (2) (b) & (4) & (5) NCR – Discretionary – Plaintiff Obtained Orders Setting down for Hearing – No Appearance – No Material filed to Vary – Whether Material Relied sufficient – balance Not discharged – Motion refused – Cost follow event.

Cases Cited:

Takori v Yagari [2007] PGSC 48; SC905
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Wawoi Guavi Timber Company Ltd v Molu [2016] PGSC 32; SC1514
Umbrella Hides PDL 7 Association Incorporated v Pok [2020] PGNC 448; N8627
Smith v Ruma Constructions Ltd [2000] PGNC 35; N1982
Philip v Tiliyago [2019] PGSC 17; SC1783
Attorney General v Hamidian-Rad [1999] PNGLR 444
Timothy v Marus [2014] PGSC 50; SC1403

Counsel:

W. Stephen, for Plaintiff/Applicant
G. Lai, for Third Defendants.
No appearance State Defendants.

RULING
15^th August, 2022

1. MIVIRI, J: This is the ruling on the Plaintiff’s/Applicant’s notice of motion of the 14^th July 2022 seeking pursuant to Order 12 Rule 8 (2) (b) (4) and (5) of the National Court Rules that the Court Orders made on the 04^th July 2022 against the plaintiff be set aside. And Costs of the application in the cause. Including time be abridged to the date of settlement by the Registrar.
   
2. Effectively the application seeks to set aside the order dated the 04^th July 2022 that which detailed that; (1) The entire proceedings is dismissed for non-compliance of Court Directions by the Plaintiffs. (2) The plaintiffs are to pay the costs for the defendants. (3) That the time for the entry of the Orders shall be abridged to the time of settlement by the Assistant Registrar which shall take place forthwith. He seeks life back for the proceedings that he instituted and that he has an arguable basis in his cause he has filed now by this order no longer on the records of the court. What are the basis to revive a matter as here that has been dismissed in its entirety?
   
3. He relies on order 12 Rule 8 (2) (b) (4) and (5) of the National Court Rules which is in the following terms:
   

“8. Setting aside or varying judgement or order. (40/9)

(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.

(2) The Court may, on terms, set aside or vary a judgement—

(a) where the judgement has been entered pursuant to Order12Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order—

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.

4. He relies on an affidavit of service filed on the 10^th August 2022. Document number 46 which basically sets out proof of service of the subject motion now moved on the defendants now before the court including the State. It is short serviced but the third defendant does not take issue. The State has not appeared despite service evidenced by this affidavit. It will not prejudice to hear the application in their absence.
   
5. Further affidavit relied is of Counsel moving Willard Stephen of the 14^th July 2022 document number 45. He deposes that he is the lawyer having carriage of the matter. That relevantly on the 20^th June 2022 he attended Court and made appearance before this Court presided by Justice Dingake for directions. Which was not attended nor did the defendants or their lawyers made appearance in the matter. And at that appearance the Court adjourned the matter to the 04^th July 2022 at 9.30am for directions. It directed the plaintiff’s lawyers to inform the defendants of the next directions hearing of the 23^rd June 2022. And which counsel complied and filed an affidavit to that effect. He annexes it as annexure “A” he advised by letter dated 23^rd June 2022 the defendants of the directions hearing date. That letter originates from the firm Taito Lawyers acting for the plaintiffs. It is dated the 22^nd June 2022 addressed to the Solicitor General, Office of the Solicitor General Department of Justice & Attorney General P. O. Box 591 Waigani NCD. It is attention the Solicitor General Mr. Tauvasa Tanuvasa. And subjects the present proceeding. It is under hand of Willard Stephen principal of the firm who act for the plaintiffs. He states that he attended court on the 20^th June 2022 at 9.30am before this Court presided by Justice Dingake in court 4. That there was no attendance by the defendants and matter was adjourned to the 04^th July 2022 for directions. And he writes, Please ensure your attendance. And gives the telephone and email addresses of the writer counsel for the plaintiff. It was served as is evidenced by the endorsement acknowledging by office of Solicitor General.
   
6. He continues at paragraph 4 of his affidavit, “On the 04^th July 2022, I attended to the Grade five committal at the District Court for a submission hearing of another client prior to attending the Directions hearing, however, when I return to the National Court to check on this matter the Court had already dealt with my client’s matter. I did not see any of the defendants’ lawyers at the time.
   
7. On the 06^th July 2022, I conducted a search at the National Court Registry (JR Track) and obtained the copy of the Court File endorsement. And that is annexure “B” to his affidavit which is copy of that file endorsement of the 04^th July 2022 the orders of the Court of that day. And the orders are in these terms; (1) The proceedings are dismissed for failure in noncompliance with Court Directions or for want of prosecution by the Plaintiffs. (2) The matter is accordingly dismissed. It is dated the 04^th July 2022 endorsed by Associate to Justice Dingake.
   
8. What is effectively set by the notice of motion of the plaintiff/applicant is to invoke the subject Order set out above to bring back that action dismissed. The power to dismiss a cause of action is discretionary on the Court. It must be exercised with due care and discharge not without. There ought to be proper basis established by material properly laid out before the Court for it to exercise in accordance. It should not be a case of summary disposal of a case in the hands of the litigant against the defendant but gauged by properly sanctioned evidence warranting apparent identifiable that there lies no other except as applied to dismiss the proceedings because due diligence has not been prompted by, he who alleges but has not seen out with vigour the same: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007).
   
9. So, the applicant/plaintiff must demonstrate credible cogent basis for the discretion to be exercised in his favour to bring the matter back to life. Because when it is dismissed as is the case here, for all intent and purposes the file is no longer alive. And orders of the Court are not upturned at the whim of the Court because Justice is firm and is not fluid. There must be confidence in the hand of Justice on matters brought before the Court. Therefore, there must be proper basis established on the balance by he who alleges to revive the matter. There is a choice to take the matter up on appeal. And this in my view would be the case where the orders have been entered by the words of the order relied here in this motion.
   
10. The evidence relied set out by the plaintiff/applicant is clear that he was the author of the action that was the adjournment to the 04^th July 2022. He knew all along that the case was adjourned to that date. He had given notice of that fact to the other side to make appearance or face the consequences apparent. His own actions have culminated in the invitation to the Court to do what it did. For one it is an order of the Court. And can be varied upon proper material filed, PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) which relates to adjournments, but in my view the principles are relevant also in the case of varying court orders. Here the order was for the hearing of the matter on 04^th July 2022 at the initiation of the Plaintiff now applicant. He chose to be at a district Court hearing and came late to the National Court hearing on the matter that he specifically set dated and timed, notice of which he gave to the other side. His actions led to what the court discretion. The fault is not of the Court in the way that it acted.
    
11. Because it is not as is discussed in Wawoi Guavi Timber Company Ltd v Molu [2016] PGSC 32; SC1514 (21 July 2016) where he has not been given an opportunity to say his piece. He had no excuse for the non-attendance before the Court when the matter was called. Given the facts presented the matter is dead not of the volition of the court. He chose of his own accord not to attend. Orders of the Court be it directions or orders settling the case must be respected. And it is open to the court here given the facts to do what it did, dismiss the matter for want of prosecution. Counsel are officers of the Court and owe duty to the Court to be present and in appearance before the Court when they set matters down as is the case here. And the Court was in the right to do as it did here, to dismiss the entire proceedings. Counsel do not dictate the terms of the operation of the Court. This is not the case as observed in Umbrella Hides PDL 7 Association Incorporated v Pok [2020] PGNC 448; N8627 (30 October 2020) where interim orders are discharged because there is a change of circumstances evidenced by material filed discharging the balance applied. Here there is no material before the Court explaining non-appearance. The discretion is dictated by the material before it and there was none justifying to retain it on the record of the Court, Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). It was open on the record to discretion as did the Court. Because there must be reasonable explanation deposed to in pursuit here by the applicant. And there is no delay in the way he has applied here. And he is by that evidence has cogent and credible basis to be so granted here. That he is not shut out of the hands of Justice without being accorded the opportunity to be heard. It is not capricious, arbitrary, or irregular exercise of authority by the Court (Smith v Ruma Constructions Ltd [2000] PGNC 35; N1982 (2 August 2000).
    
12. I ask myself is that the case here upon the materials relied in the case of the applicant. That he has by his conduct evidenced material to justify the reopening or reviving of the matter? In my view the material relied here do not evidence a denial or the right to be heard because the applicant was versed and was initiating that the matter be heard on the 04^th July 2022. He was at pains to accord the orders that were made and took it upon himself to inform the other side of that fact. But he made no attempt himself to be there when the matter was called. He was instigating the matter and did not have the courtesy to inform the court and seek its’ discretionary powers for adjournment or variation of the initial orders setting it down on that day. Orders can be varied upon proper materials filed not without PNG Deep Sea Fishing Ltd (supra). This is not a case where there was no opportunity accorded to the applicant for his cause. He chose the demise that befall his cause of action.
    
13. This is not a case where the other side has made an application under order 12 rule 40 (1) (a) (b) & (d) of the National Court Rules so that no opportunity has been accorded to the applicant/plaintiff to be heard. That is specifically to do with Judicial review proceedings which are governed by rules specifically attired to it, Attorney General v Hamidian-Rad [1999] PGSC 37; [1999] PNGLR 444 (27 August 1999) and Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014). This is a quarrel against the discretion of the Court of its inherent discretion. And in the aggregate is their cause shown discharging the balance that, that discretion has been vitiated and so must be granted in accordance with the application made. In my view from all the material set out above, the applicant has not discharged the balance. And this is a judicial review proceedings not any other proceedings under the Rules of Court. Specifically, it is addressed by Order 16 here of particular relevance is Order 16 Rule 13 (13) (2) (b) (ii) summary disposal on the Courts own initiative. That is the discretion exercised here and there is no room to reopen by its rules on the material demonstrated. Reliance on Order 12 Rule 8 (2) (b) (4) and (5) of the National Court Rules does not open nor does it accord jurisdiction for the cause that the applicant plaintiff seeks. And the aggregate is that his application is refused with Costs to follow the event.
    
14. The formal orders of the Court are;
    
    • (i) The Notice of motion is denied in its entirety forthwith.
    • (ii) Costs will follow the event forthwith against the plaintiff.
      

Orders Accordingly.
__________________________________________________________________
Taito Lawyers : Lawyer for the Plaintiff/Applicant
Niuage Lawyers : Lawyer for Third Defendants
Office of the Solicitor General : Lawyer for the State