N9486

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 97 OF 2020

BETWEEN
FINANCE CORPORATION LIMITED trading as FINCORP
Plaintiff

AND
PACIFIC NETWORK LIMITED
Defendant

Waigani:     Linge A J
2022: 22nd February

PRACTICE AND PROCEDURE- application for want of prosecution-failure to prosecute urgent application – notice of motion non-compliant with the Rules

Cases Cited:

 Pokia v Yallon [2014] PGSC 3; SC 13336 

Counsel:

Mr M. Wapi, for the Plaintiff
Ms J. Topo, for the Defendant

RULING
22nd February, 2022
1.	LINGE A J:	This is a ruling on the application by the defendant filed on the 11 February 2022 for dismissal of the defendant’s Notice of Motion filed on 9 June 2021 for want of prosecution pursuant to Order 4 Rule 49 (17) of the National Government Rules.
2.	Order 4 Rule 49 (17), otherwise the Motion List Rules reads:
“The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”

3.	The applicant relies on the affidavit of Jessy Biar filed on the 11 February 2022 and that of Peni Vogusan filed on the 11 February 2022.  Service of both affidavits have been properly served on the defendant.
4.	The defendant since the filing of the Notice of Motion on the 9 June 2021 did not take appropriate steps to prosecute the Motion.  Its Motion was as an urgent application pursuant to Order 4 Rule 49 (5) of the National Court Rules to stay the Court Order of 2 March 2021, that granted the plaintiff summary judgment and vacant possession of property being State Lease Volume 15 Folio 3729 and Unit 12, Ridgeway Apartment, Allotment 28, Section 40, Granville, Port Moresby, NCD contained in State Lease Volume 92 Folio 6.
5.	On the 22 November 2021 this Motion was mentioned for the first time.  The defendant did not appear, and the Motion was adjourned to the 25 November 2021.  On the 25 November 2021 both parties did not appear in Court and defendant’s Motion adjourned to 01 December 2021.
6.	On the 01 December 2021 both parties made appearance, but Motion was not moved.  Further adjournments were made on the 9 December 2021 and when it retuned on the 13 December 2021, the Court again vacated the Motion hearing for that day and adjourned to the first Motion Listing in 2022.  The Court also granted liberty to the plaintiff to file any application prior to the return date in 2022 and parties were ordered to liaise with the National Court Registry for the first available Motion date in 2022.
7.	When the matter returned on the 8 February 2022, again there was no appearance by the defendant’s counsel.  Plaintiff’s lawyer who appeared was directed to notify the defendant or this lawyer of the adjournment to the 21 February 2022.
8.	The plaintiff filed this application on the 11 February 2022 and was mentioned on the 15 February 2021 and due to short service, I adjourned application to 21 February 2021 for hearing.
9.	The plaintiff’s Notice of Motion is pursuant to Order 4 Rule 47 (17) of the National Court Rules.  In response to my interjection to counsel to read out the actual order he seeks to rely on he read out the following passage:
“The Court may on its own Motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”
10.	The National Court Rules does not have Order 4 Rule 47 (17) but rather than striking out the applicant’s notice of motion allowed Counsel to proceed and to read out the relevant passage of the National Court Rules he is relying on.
11.	Counsel read out the following:
 “The Court may on its own Motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”
12.	The passage read out is clearly from Order 4 Rule 49 (17) of the National Court Rules in substance and thus I proceeded to hear the application by the plaintiff to dismiss the defendant’s Notice of motion.
13.	In Pokia v Yallon [2014] PGSC3; SC 13336 (2 May 2014) the Supreme Court held that:
 “even though the notice of motion was non-compliant the primary judge still had discretion to hear and determine the motion. As a result, the appeal alleging an error of law in this regard was dismissed.”
14.	Also, the defendant did not raise any point of law or any objection and thus I proceeded to hear submissions by counsel.
15.	Mr. Wapi for the plaintiff/applicant submits that there is clear breach of the National Court Rules on both grounds of failure to prosecute within one (1) month, and that the defendants Notice of Motion was adjourned more than twice.
16.	Ms. Topo of counsel for the defendant submits in response to the plaintiff’s application that the delay in presenting her clients’ Notice of Motion filed on the 9 June 2021 was not in the control of her clients.
17.	She submits that since the application filed for her clients on the 9 June 2021 was in relation to an Order for Summary Judgment issued by Her Honour Royale Thompson, it is the Court’s practice that she continues to hear the application 
18.	She submits further that the Registry staff are at fault for not notifying the defendant about the non-availability of Judge Thompson or to secure another judge. In any case this matter of setting down for hearing before a judge is not within the control of the defendant she submits.
19.	In my consideration of the plaintiff’s application, I confirmed from the record of proceedings that the order which gave rise to the Notice of Motion of 9 June 2021 was granted on the 2 March 2021 and was entered on the 5 March 2021.
20.	In the end I rule as follows:
	1.	The Notice of Motion filed by the Defendant on the 9 June 2021 is dismissed pursuant to Order 4 Rule 49 (17) for reasons that as it was not prosecuted within one (1) month and was already adjourned twice.
	2.	Cost of and incidental to this proceeding is to be paid by the defendant.
	3.	Time for entry of the orders is abridged to the date of settlement by the Registrar which takes place forthwith.
______________________________________________________________
Inhouse Lawyer, Finance Corporation: Lawyers for the Plaintiffs
Kombri Lawyers: Lawyers for the Defendants