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Turagara Hire Car Ltd v Apeti [2023] PGNC 45; N10162 (17 March 2023)

N10162

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 803 OF 2021

BETWEEN:
TURAGARA HIRE CAR LIMITED
Plaintiff

AND:
DONALD APETI, Commander, Eastern Highlands Correctional Institute Services
First Defendant

AND:
SIMON LAKENG, Assistant Commissioner of Correctional Institute Services, Highlands Region
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Goroka: Mugugia, AJ
2023: 14^th & 17^th March

PRACTICE AND PROCEDURE – Claim for breach of contract – Seeking payment of outstanding invoices - First and Second Defendants’ motion to dismiss proceedings for want of prosecution pursuant to Order 10, Rule 5 of the National Court Rules - 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 – If so, whether the proceedings should be dismissed for want of prosecution – Principles to consider - The First and Second Defendants have not established a case for the dismissal of the proceedings for want of prosecution – Case of want of prosecution not made out - First and Second Defendants’ motion dismissed.

Cases Cited:

Seravo v. Bahofa (2001) N2078
Tani v. Motor Vehicles Insurance Ltd. (2010) N3984

Counsel:

Victor Tarere (Owner/Director of the Plaintiff), for the Plaintiff
Vincent Gonduon, for the First and Second Defendants
No appearance for the Third Defendant (State)

RULING ON APPLICATION TO DISMISS PROCEEDINGS FOR WANT OF PROSECUTION

17^th March, 2023

1. MUGUGIA, AJ: The current proceedings was instituted against the First and Second Defendants named in their capacity as State agents, and the State on 17^th November 2021. The PNG Correctional Service Legal Services Section which filed a notice of intention to defend on behalf of the First and Second Defendants filed their clients’ Notice of Motion (motion) on 6^th March 2023 to dismiss the entire proceedings for want of prosecution.

2. The Plaintiff’s lawyer Mr Samuel Ifina of Rex Kasito Lawyers was not in Court at the hearing of the motion on 14^th March 2023. There was no legal representation for the State by the Office of the Solicitor General. The Plaintiff’s Owner/Director Mr Victor Tarere turned up at the hearing and contested the motion. I heard this motion and reserved my ruling to 17^th March 2023, which I now deliver.

THE RELEVANT FACTS

3. The Plaintiff is suing the Defendants for breach of contract, and is claiming a sum of K210,558.27 for outstanding invoices which were rendered for payment, general damages, special damages, interest and costs. The Plaintiff’s claim is that it entered into a Memorandum of Agreement (Contract) on 25^th October 2020 with the Eastern Highlands Correctional Institute Services for the Plaintiff company to provide its vehicles to the First Defendant on hire basis. Mr Victor Tarere and the First Defendant signed the Contract.

4. A vehicle described as White Toyota Land Cruiser Ten-Seater, bearing registration number IAB 739 was provided by the Plaintiff for the First Defendant to use for his official duties. The First Defendant used the vehicle from 27^th November 2020 to 28^th August 2021. The Plaintiff issued regular monthly invoices for the hire. The Defendants made two (2) separate payments of K16,800.00 and K26,400.00. The First and Second Defendants terminated the Contract on 30^th August 2021 without any notice or reason for the termination. The sum of K210,558.27 is now outstanding for payment. The Plaintiff makes its claim for payment of the outstanding on a quantum meruit basis.

ISSUE

5. The First and Second Defendants’ motion to dismiss the proceedings for want of prosecution was moved under Order 10, Rule 5 of the National Court Rules which 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 issue that arises from this particular motion for me to address is: 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. If yes, should the proceedings be dismissed for want of prosecution?

THE PRINCIPLES TO CONSIDER
7. 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.”

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

PARTIES’ EVIDENCE AND SUBMISSIONS

9. Mr Gonduon of Counsel for the First and Second Defendants relied on the First Defendant’s affidavit in support filed on 6^th March 2023, and his written submissions filed on 13^th March 2023.

10. The evidence in the supporting affidavit is that the First Defendant appeared in court on a number of occasions, and the matter was adjourned because there was no appearance by the Plaintiff or its lawyer. The First Defendant deposes that the Plaintiff or his lawyer on record failed to appear in Court on four respective mention dates. The Plaintiff has not demonstrated an intention to act expeditiously within six (6) weeks to progress his claim to the substantive hearing pursuant to Order 10, Rule 5 of the National Court Rules. For this reason, the proceedings should be dismissed for want of prosecution.

11. The First and Second Defendants’ submissions as contained in their lawyer’s filed submissions are that the National Court ought to dismiss the Plaintiff’s claim on the grounds that there is lack of interest to prosecute the matter within the reasonable time frame of 6 weeks.

12. The Plaintiff presented no evidence at the hearing. In opposing the First and Second Defendants’ application, Mr Victor Tarere submitted that lawyers (Rex Kasito Lawyers) were engaged to assist the Plaintiff but the lawyer in carriage failed to attend to the matter. He further submitted that the Plaintiff’s claim is a genuine one, and the Court should refuse the First and Second Defendants’ application.

CONSIDERATION

13. I have to first determine 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. The Plaintiff defaults when it does not, within six weeks after the pleadings are closed, set the proceedings down for trial.

14. If I find that there was a default and delay by the Plaintiff then I will have to consider whether the Plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of its claim, whether there is no reasonable explanation given by the Plaintiff for the delay, and whether the Plaintiff’s delay has caused injustice or prejudice to the Defendants.
15. Order 8, Rule 23(1) of the National Court Rules (Close of pleadings) 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.”

16. Rex Kasito Lawyers filed the Plaintiff’s writ of summons on 17^th November 2021. The writ of summons was served on the State on 13^th December 2021. The Office of the Solicitor General filed notice of intention to defend for the State on 20^th January 2022, and defence on 16^th March 2022. The writ of summons was served on the First Defendant on 18^th November 2022. No affidavit of service was filed in court to confirm that the writ of summons was served on the Second Defendant. I take it that the Second Defendant was not served with the writ of summons.
17. Since the First Defendant was served with the writ of summons, he had forty four (44) days to file his defence. The Court vacation period was from 19^th December 2022 to 31^st January 2023. As per my calculation, the First Defendant was required to file his defence by 13^th February 2023 (expiry date). He did not file a notice of intention to defend or defence within the required time after being served with the Plaintiff’s writ of summons.

18. After the expiry date, close to a month later, on 6^th March 2023, the PNG Correctional Service Legal Services Section filed a notice of intention to defend for the First and Second Defendants. Their motion to dismiss the proceedings for want of prosecution was filed at the same time.

19. I make the following findings:

(i) The First Defendant defaulted in filing a defence.

(ii) As to the Plaintiff’s claim against the First and Second Defendants, pleadings have not closed for Order 10, Rule 5 of the National Court Rules to apply.

(iii) The First Defendant’s affidavit in support is insufficient. It does not demonstrate evidence supporting the order for dismissal sought in the motion, in that, it does not clearly show how the Plaintiff did not set the proceedings down for trial within six weeks after the pleadings closed, within the meaning of Order 10, Rule 5 of the National Court Rules.

(iv) There has been no default on the part of the Plaintiff within the meaning of Order 10, Rule 5 of the National Court Rules.

(v) The Plaintiff has not delayed the prosecution of his claim against the First and Second Defendants.

(vi) The First and Second Defendants have not established a case for the dismissal of the proceedings for want of prosecution. Their case of want of prosecution has not been made out.

20. Having made these findings, I see no need for me to apply the principles in the Seravo v. Bahofa case to the present case.

21. I have considered the circumstances of the case. This is a straight forward claim where part payments have been made by the Defendants. The Plaintiff has a reasonable cause of action against the Defendants. It has come to this Court to seek redress. The First Defendant defaulted in filing a defence. He failed to file a formal application in court to seek extension of time to file defence.

CONCLUSION

22. The Court has a paramount duty to dispense justice (s. 158 of the Constitution). Considering the circumstances of this case, justice demands that the proceedings should not be dismissed at this interlocutory stage. In the exercise of my discretion, I will not dismiss the proceedings. I shall dismiss the First and Second Defendants’ motion. Parties are to take appropriate steps to progress the matter to trial.

COST

23. An order for cost is discretionary. In the present case, the non-attendance by the Plaintiff’s lawyer in Court on the dates for mention prompted the First and Second Defendants to file their application to dismiss the proceedings for want of prosecution. The First Defendant failed to file his defence. The First and Second Defendants’ case of want of prosecution has not been made out. I will order that each party bear its own costs.

ORDERS OF THE COURT

24. I make the following orders:

1. Pursuant to Order 12, Rule 1 of the National Court Rules, the First and Second Defendants’ Notice of Motion filed on 6^th March 2023 to dismiss the proceedings for want of prosecution is dismissed.

2. Each party shall bear its own costs.

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.

________________________________________________________________
Victor Tarere Owner/Director in Person
PNG Correctional Services In-House Legal Services: Lawyers for First and Second Defendants :
No Appearance for the State