N10605

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1379 OF 2015

BETWEEN:
JOHN SAMBEOK
Plaintiff

AND:
PHILIP SAMAR in his capacity as the Acting Managing Director, Mineral Resources Authority
First Defendant

AND:
MINERAL RESOURCE AUTHORITY
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:   Bre, AJ
2023: 	30th October, 01st December
			
CIVIL PRACTICE AND PROCEDURE – Application to summarily dismiss for want of prosecution – delay – prejudice – Discretionary principles considered

Cases Cited
Lord & Company Ltd v Inapero (2014) SC1624
Tani v Motor Vehicles Insurance Ltd [2010] PGNC 96; N3984
Tole v Kongi [2019] PGNC 30

Legislation

National Court Rules 10 r9A(15)(2)(a) and O10r5

Counsel:

Mr L Yapan, for the Plaintiff
Ms B Pora, for the First and Second Defendants

RULING
01st December 2023

1.BRE, AJ: 	INTRODUCTION: The MRA is applying to dismiss the entire proceedings for want of prosecution under the Listing Rules Order 10 Rule 9A(15)(2)(a), Order 10 Rule 5 and Order 12 Rule 1 of the National Court Rules ('NCR').

BACKGROUND

2.	The Plaintiff commenced this proceeding on 06 October 2015 for malicious prosecution. The Plaintiff was criminally charged on allegations of abuse of office and corruption amongst others, in the District Court on two occasions on 02 April 2016 and 05 August 2015. Both criminal charges were dismissed for incompetency by the District Court. 
3.	The First and Second Defendants filed their Defence on 25 November 2015 and the Third Defendant filed its Defence on 08 February 2016.  The Plaintiff filed his Reply on 26 June 2023 to the Third Defendant’s Defence. 

4.	The Plaintiff had filed a Notice of Motion on 04 April 2019 seeking declaratory orders to declare that he was maliciously prosecuted but after adjournments over the years, he withdrew his application on 26 June 2023.  During the course of this time period, the Plaintiff filed a Notice of Trial on 12 August 2019.  Overall, a period of eight years has passed since the proceedings had commenced. 
MOTION
5.	The First and Second Defendants filed their Notice of Motion on 17 July 2023 seeking two reliefs, one for dismissal under Order 12 Rule 40 and the other for want of prosecution pursuant to the Listing Rules.     

6.	Relief sought under Order 12 rule 40 NCR was abandoned due to the case authorities and Order 12 rule 37 NCR,  precluding summary judgment for malicious prosecution cases. See Lord & Company Ltd v Inapero (2014) SC1624 at [52] and [53].

EVIDENCE
7.  The Defendants rely on the following Affidavits:
1)	The Affidavit of Sharon Haihavu sworn on 30 June 2023 and filed 17 July 2023.
2)	The Affidavit of Bethsheba Pora sworn on 17 June 2023 and filed on 27 October 2023.
3)	The Affidavit of Benjamin Hila sworn and filed 5 September 2023.
8.   The Plaintiff relies on the following Affidavits:
1)	The Affidavit of John Sambeok sworn and filed on 27 July 2023.
2)	The Affidavit in Support of John Sambeok sworn and filed on 4 April 2019.
3)	The Affidavit of John Sambeok filed on 29 May 2019.

SUBMISSIONS
9.	Ms Pora counsel for the Defendants, outlined in detail five periods of delay from the time this proceeding was commenced to the time of filing this application to demonstrate that the Plaintiff had several opportunities over these timespans to properly set the matter down for trial and progress his action to trial.

10.	Ms Pora submitted that the Plaintiff had been represented by two law firms and on occasions had attended Court in person. Ms Pora submitted in addition that the Defendants were prejudiced by the delay in fairly defending themselves as the First Defendant and most employees of the MRA who had direct knowledge of the Plaintiff's case are no longer employed by the MRA.

11.	In response, Mr Yapan, Counsel for the Plaintiff submitted that time should be computed from 03 September 2019 being the last activity when the Defendant's first application for dismissal was refused and not from the 05th of October 2015 when the writ of summons was filed on grounds of res judicata 

12.	Mr Yapan submitted that there were financial hardship reasons preventing the Plaintiff from insisting with his Lawyers to prosecute the proceedings diligently.

13.	Mr Yapan also pointed out the exclusion in Order 12 Rule 37 NCR that precludes malicious prosecution proceedings from being dismissed for want of prosecution.  

14.	Both Counsels relied on several caselaw to support their arguments.

ISSUES

15.	Whether the proceedings should be dismissed in its entirety for want of prosecution.

LAW
16.	National Court Rules Order 10 Rule 9A(15)(2)(a) and Order 10 Rule 5.
	Order 10 Rule 9A(15)(2)(a)NCR reads:-
" 15. Summary Disposal. 
(1) ...
(2) The Court may summarily dispose of a matter in the following 		situations:
          		 a) for want of prosecution since filing the proceedings or since the 		last activity on the file;... "
	Order 10 Rule 5 NCR 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."
	Order 12 Rule 1 NCR reads:-
	"1. General relief. 
	The Court may, at any stage of any proceedings, on the application 		of any party, direct the entry of such judgement or make such order 		as the nature of the case requires, notwithstanding that the 			applicant does not make a claim for relief extending to that 			judgement or order in any originating process. "
CONSIDERATION

17.	The Court's power to dismiss the proceeding summarily is based on discretion and must be exercised on proper principles. These principles for summary disposal are stated in the case of Tani v Motor Vehicles Insurance Ltd [2010] PGNC 96; N3984 (12 April 2010) at [18] .

18.	The principles are sourced from the leading cases of  Viviso Seravo v. Jack Bahafo (2001) N2078 and followed in Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845 and John Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637):
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;

3)	The delay has caused injustice or prejudice to the defendant;

4)	The conduct of the parties and their lawyers warrants;

5)	It is in the interests of justice.

19.	I have not considered the application of Order 12 rule 1 NCR because the more specific rules in Order 10 NCR on want of prosecution applies. I turn now to consider each of the principles.

(1) Is the plaintiff's default intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim;   

20.	The two key elements are that the default is intentional or there has been an inordinate or inexcusable delay in the prosecution of the Plaintiff's claim. 

21.	Order 10 Rule 9A(15)(2)(a) NCR provides two alternate starting times to compute time. The first is since the commencement of proceedings and the alternate is since the last activity on file.

22.	The Plaintiff submits time should be considered from 03 September 2019, the date of refusal of the Defendants application for dismissal of proceedings and not 06 October 2015, the date proceedings were commenced.

23.	I accept Mr Yapan’s submission.  The Court has earlier considered the Defendants arguments about want of prosecution from the period from 06 October 2015 to the filing of the Defendant's motion on 30 April 2019 and its hearing and the Court's decision on 03 September 2019. There is no need for me to consider this period on grounds of res judicata.

24.	I will consider if there was delay, whether it was intentional or inexcusable from 03 September 2019.

25.	The Defendants refers to this period as the last period of delay which comprised of three years ten months from 03 September 2019 to the date of this hearing. 
26.	I will compute time from 03 September 2019 to 17 July 2023, the date of filing this motion. This is a period of three years 10 months. The Plaintiff responded to the Defendant’s Motion by filing his Affidavit on 27 July 2023 hence the computation of time ends on the 17 July 2023. 

27.  I find that the period of three years 10 months is inordinate. As to whether it is intentional or inexcusable, these aspects will be considered below in the consideration on providing ‘reasons’.
2)Is there any reasonable explanation given by the plaintiff for the delay;

28.	For this consideration, the reasons by the Plaintiff will be considered for the period from 03 September 2019 to 17 July 2023.

29.	I do not accept the Plaintiff’s reasons about Covid 19 affecting his access to  Court as the Court remained open. As to his reasons about financial hardship, his evidence is not corroborated nor supported with bank statements. Further he has not indicated that he tried to seek Public Solicitor’s assistance. I note his Affidavit filed on 29 May 2019 that he was awaiting a response from the Public Solicitor’s but has not indicated the result of his application then nor  whether he tried again during the three period from 03 September 2019 to 17 July 2023.

30.	I find the Plaintiff has not provided any reasonable explanation for the delay.      

3)Has the delay caused injustice or prejudice to the defendant;

31.	For this consideration, I consider the overall eight year period of the litigation  in considering whether the Defendant suffered any prejudice or will suffer from a prolonged continuation of the litigation.

32.	The Defendant argues that the delay will cause prejudice in defending the suit at trial because most of its employees who are aware of the Plaintiff’s case including the first Defendant, are no longer employed with the MRA. This concern is mentioned in the Affidavit of Sharon Haihavu filed 17 July 2023. I find that this is a genuine concern. The Plaintiff had several years to prosecute the suit earlier given its nature but did not.

33.	I note the Plaintiff claims he faced the hardship in losing his employment from the Defendants, however, this should be all the more reason to actively pursue his case.

34.	The Plaintiff has a duty to progress his action to trial with due dispatch, failing which, his proceedings will be susceptible to dismissal applications such as this.

35.	It is some eight years since the proceedings where commenced. This will greatly affect both parties in sufficiently prosecuting the case as the passage of time will affect the credibility of evidence to prove liability. 

4)The conduct of the parties 

36.	The Defendants submit that the Plaintiff reacted to their application to dismiss the proceedings filed on 30 April 2019 by filing a Notice of Trial on l2 August 2019,  without seeking their consent on readiness to trial, which is irregular.

37.	During the relevant period of 03 September 2019 to 17 July 2023, I accept that the Plaintiff tried to prosecute his case by engaging two different law firms. I accept his evidence that the lack of progress may be due to his financial issues. However, the lawyers inaction is not a reasonable excuse in law as decided by the case of Punangi v Pacific Plantation Timber Ltd (2011) SC1153.

38.	The Plaintiff was able to have his lawyer represent him to oppose this application. This  application is a second attempt by the First and Second Defendant to dismiss the Plaintiff’s proceedings. The Plaintiff should have learned from the first attempt and taken proactive steps to properly proceed his matter to trial after attempting to file the Notice of Trial on 12 August 2019.

39.	It is not the Defendants duty to be prosecuting the action. That duty falls on the Plaintiff.  One cannot launch a lawsuit and let it drag on for several years.
The risk to relevance and reliability of evidence is great with time passing.

39.	For this consideration I find against the Plaintiff.
 
5)It is in the interests of justice.

40.	The interest of justice demands finality of proceedings. The Plaintiff has a duty to prosecute his action. Justice must be dispensed within a reasonable time.  The overall period from commencement of this litigation to the current time is eight years. The Court rules clearly require proceedings to be set down for trial within six weeks of the close of pleadings. Pleadings closed around March 2016.

41.	In considering the merits of the case, malicious prosecution requires the following elements to be proved:

“(a) the defendant is responsible for institution of proceedings against the plaintiff; (b) the defendant instituted the proceedings without reasonable and probable cause; (c) the defendant was motivated by malice or some other improper purpose; and (d) the criminal proceedings were resolved in favour of the plaintiff.” See Tole v Kongi [2019] PGNC 30.

42.	The Plaintiff must prove all these elements to discharge liability. This requires credible evidence to prove or disprove the allegations from both parties. A period of eight years or three years 10 months delay is not progressing the case with due dispatch or in a timely manner. 

43. 	This is the second time after nearly four years the Defendants have filed an application to dismiss the proceedings again. The Plaintiff has not progressed his action to trial. The interests of justice weigh against the Plaintiff.

CONCLUSION

45.	Order 10 rule 5 and rule 9A(15) NCR provides relief to a litigant that is dissatisfied  with the rate and management of the conduct of the proceedings to trial to seek relief to summarily dismiss the proceedings. This relief is also available to the Court to dispose of proceedings at the Courts own motion during listings. The interest of justice requires finality of proceedings. My consideration of the principles guiding the exercise of discretion do not apply to assist the Plaintiff.   

46.	I find that the Plaintiff’s prosecution of his action is wanting and  rule in favour of the Second Defendant’s  application to summarily dispose  the entire proceedings for want of prosecution. 

COSTS

47.	Costs are discretionary. Each Party bears their own costs.

ORDERS

48.	The formal orders of the Court are:
1)	The Second Defendant’s Notice of Motion filed 17 July 2023 granted.
2)	The proceedings are dismissed in its entirety for want of prosecution pursuant to Order 10 rule 5 and rule 9A(15)(2)(a)NCR.
3)	Each Party bears its own costs.
4)	Time is abridged for the entry of these Orders to the time of Settlement by the Registrar which shall take place, forthwith.

Orders Accordingly.

Gibson Bon Lawyers: Lawyers for the Plaintiff
Allens: Lawyers for the First and Second Defendant
Solicitor General: Lawyers for the Third Defendant