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Wilkinson v K92 Mining Ltd [2024] PGNC 130; N10787 (16 April 2024)

N10787

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1474 OF 2018

BETWEEN:
TIMOTHY WILKINSON
Plaintiff

AND:
K92 MINING LIMITED
Defendant

Waigani: David, J
2024: 23^rd February & 16^th April

PRACTICE & PROCEDURE – application to order for mediation – reliance on Rules Relating to the Accreditation, Regulation and Conduct of Mediators 2010 (ADR Rules 2010) – ADR Rules 2010 repealed by Alternative Dispute Resolution Rules 2022 – all motions to contain concise reference to the Court’s jurisdiction to grant orders being sought – National Court Rules, Order 4 Rule 49(8).

PRACTICE & PROCEDURE – application to dismiss proceedings for failure to pay into National Court Trust Account K60,000.00 for security for costs within the time ordered by court, alternatively for want of prosecution – leave to rely on all prior affidavits filed in the proceedings refused - National Court Rules, Order 4 Rules 44(1) and 49(12), Order 14 Rule 27, Order 10 Rule 9A(15)(1)(a) and (2)(a).

Cases Cited:

Papua New Guinean Cases
Kai Ulo & 2 Ors v The State [1981] PNGLR 148
Burns Philp (New Guinea) Limited v Maxine George [1983] PNGLR 55
Yap v Tan & Ors [1987] PNGLR 227
Vivisio Seravo v Jack Bahafo (2001) N2078
John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637
Nelson & Robertson Exports Pty Ltd v Barrell (2004) N2893
Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845
Lomai v Seal (Manus) Ltd (2008) SC1326
Golobadana No.35 Ltd v Bank South Pacific Ltd (2015) N5890
Kenken v National Airports Corporation Ltd (2022) SC2247
Tuka v Toyota Tsusho (PNG) Limited (2023) N10419

Overseas Cases
Idoport Pty Ltd v National Australia Bank Ltd (2002) NSWCA 271
Idoport Pty Limited v National Australia Bank Limited (2002) NSWSC 18

Counsel:
Gibson Geroro, for the Plaintiff
Jordan Kakaraya, for the Defendant

JUDGMENT

16^th April 2024

1. DAVID, J: INTRODUCTION: This is a ruling on two notices of motion moved by each of the opposing parties which were both contested and heard together. One is the defendant’s application to dismiss the proceedings for the plaintiff’s failure to pay into the National Court Trust Account security for costs in the sum of K60,000.00 by close of business on 21 August 2023 as ordered by the Court on 21 July 2023 pursuant to Order 14 Rule 27 of the National Court Rules or alternatively for want of prosecution pursuant to Order 10 Rule 9A(15)(1)(a) and (2)(a) of the National Court Rules. The other is the plaintiff’s application seeking an order for the proceedings to be resolved by mediation pursuant to the Rules Relating to the Accreditation, Regulation and Conduct of Mediators 2010 (ADR Rules 2010) and to adjourn the hearing of the defendant’s notice of motion pending the outcome of mediation.
   

BRIEF BACKGROUND

2. The plaintiff commenced these proceedings by writ of summons endorsed with a statement of claim filed on 21 November 2018 (Statement of Claim). In the Statement of Claim, the plaintiff makes the following averments.
   
3. The plaintiff is a former employee of the defendant who worked at the defendant’s Kainantu Gold Mine in the Eastern Highlands Province (the Mine) pursuant to a written contract of employment between himself and the defendant dated 30 March 2016 (Contract of Employment). He was employed by the defendant as a Manager of Occupational Health & Safety, Training & Environment. On or about 19 April 2016, the plaintiff travelled to the Mine and commenced his employment with the defendant. He returned to Queensland, Australia on or about 7 May 2016 presenting with chronic lethargy, severe headaches, light sensitivity, fever and general malaise. He travelled from Queensland to the Mine on or about 18 May 2016, but remained unwell after that and on or after 22 May 2016 returned to Cairns, Australia for further treatment and investigation following diagnosis at the Lae International Hospital for malaria and pneumonia and treatment. On or about 7 June 2016, he travelled from Queensland to the Mine, but having been physically unwell between 8 and 11 June 2016, on or about 12 June 2016, he returned to Queensland for treatment firstly at the Proserpine Hospital and on or about 15 June 2016 he was transferred to the Mater Hospital in Townsville. Due to the defendant’s failure to provide a safe working environment and safe system of work at the Mine during the course of his employment and the negligence of the defendant’s representatives, servants or agents or alternatively was caused by the breach of contract by the defendant’s servants or agents, he contracted malaria which developed into cerebral malaria and encephalitis and suffered loss and damage as a result.
   
4. The plaintiff claims; general damages; past economic loss; past loss of superannuation; future economic loss; future loss of superannuation; past care and domestic assistance as to his illness; future care and domestic assistance as to his illness; Medicare refunds and “out-of-pocket” medical expenses; pharmaceutical expenses; travel expenses; and future treatment and medication.
   
5. In its defence filed on 20 December 2018, the defendant admits; that the Contract of Employment was entered between the plaintiff and the defendant; and the plaintiff made physical attendances at the Mine in 2016, but denies liability.
   
6. In his reply filed on 21 January 2019, the plaintiff joins issue with non-admissions and denials in the defendant’s defence.
   

ISSUES

7. The main issues that emerge from the parties’ notices of motion for the Court’s consideration and determination are:
   
   1. Whether the Court should make an order for mediation?
   2. Whether the proceedings should be dismissed for the plaintiff’s failure to give security within the time allowed by the Court or alternatively for want of prosecution?
      

APPLICATION FOR AN ORDER FOR MEDIATION

8. I will address the plaintiff’s application first. The plaintiff’s application is moved pursuant to a notice of motion filed on 7 November 2023 through which he seeks the following main relief:
   
   1. An order that the proceedings be resolved by mediation pursuant to Rules 4(2)(c), 5(2) and 6 of the ADR Rules; and
   2. An order that the defendant’s notice of motion filed on 23 August 2023 be adjourned pending the outcome of mediation pursuant to Order 12 Rule 1 of the National Court Rules and s.155(4) of the Constitution.
      
9. In support of the application, the plaintiff relies on and reads the following affidavits:
   
   1. Affidavit of Mapusaga Tanuvasa Chou-Lee sworn and filed on 7 November 2023;
   2. Affidavit of Service of Lawrence Kope sworn and filed on 8 November 2023;
   3. Affidavit of Jorden Yamai sworn and filed on 13 February 2024; and
   4. Affidavit of Service of Ronald Livuana sworn and filed on 22 February 2024.
      
10. The plaintiff also relies on his Notice to Rely on Affidavits filed on 18 September 2023 through which notice has been given to read and rely on the following affidavits at trial:
    
    1. Affidavit of Timothy sworn and filed on 16 August 2021;
    2. Affidavit of Dr. Malcolm Wallace sworn on 4 May 2023 and filed on 5 May 2023;
3. Affidavit of Dr. Don Todman sworn on 27 April 2023 and filed on 5 May 2023;
4. Affidavit of Dr. Andrew Lingwood sworn on 3 May 2023 and filed on 5 May 2023;
5. Affidavit of Dr. Scott Campbell sworn on 8 May 2023 and filed on 9 May 2023;
6. Affidavit of Dr. Evan Bursle sworn on 9 May 2023 and filed on 9 May 2023;
7. Affidavit of Timothy Wilkinson sworn on 23 June 2023 and filed on 26 June 2023;
8. Affidavit of Timothy Wilkinson sworn on 10 July 2023 and filed on 7 August 2023;
9. Affidavit of Dr. Ulahannan sworn on 15 May 2023;
10. Affidavit of Timothy Wilkinson sworn on 13 June 2023;
11. Affidavit of Catherine Wilkinson sworn on 9 June 2023; and
12. Affidavit of Debbie Anderson sworn on 23 May 2023.
    
11. Mr. Geroro for the plaintiff submits that an order for mediation should be granted as:
    
    1. Under s.166 of the Constitution, the Court has unlimited jurisdiction to refer the matter to mediation and that is further strengthened by s.7B of the National Court Act which empowers the Court to order a resolution of a matter before it by mediation at any stage of a proceeding;
    2. Mediation is compulsory in the absence of leave being granted by the Court;
    3. The nature of the plaintiff’s claim is not prohibited from being mediated; and
    4. The matter is ready for trial and relevant affidavits to be relied on at trial have been filed already.
       
12. The defendant does not rely on any affidavit in opposing the plaintiff’s application, but requests the Court to take judicial notice of and take into account the following documents:
    
    1. Notice of Motion filed on 6 July 2021;
    2. Orders made on 8 September 2021;
    3. Notice of Motion filed on 10 September 2021; and
    4. Directions given on 11 November 2021.
       

13. Mr. Kakaraya for the defendant submits that the application should be dismissed as:

1. It is the plaintiff’s second attempt to seek an order for mediation when a similar application was heard and refused by Wurr AJ on 10 November 2021 and therefore the principle of res judicata applies;
2. The notice of motion is defective as it has pleaded the wrong jurisdictional basis for the orders sought as he relies on rules under ADR Rules 2010 which have been repealed and replaced by the Alternative Dispute Resolution Rules 2022 (ADR Rules 2022); and
3. The plaintiff’s claim was inappropriate for mediation.
   

14. I concur with the plaintiff’s submission that s.166 of the Constitution grants the National Court with unlimited jurisdiction particularly in relation to matters specified under sub-section (2), but otherwise as provided by the Constitution or any other law. The National Court Act 1975 which provides for, inter alia, the practice and procedure of the National Court, in my view, is a law that falls within the meaning of “any other law” under s.166(2).

15. The Judges of the Supreme Court or of the National Court are vested with power under s.184 of the Constitution, s.41 of the Supreme Court Act 1975 and s.8 of the National Court Act 1975 to make Rules of Court of the Supreme Court and National Court.
    
16. The Judiciary through the National Court is engaged in a system of mediation called court-annexed mediation. In 2008, the National Court Act 1975 was amended by the National Court (Amendment) Act 2008 to provide procedures for alternative dispute resolution through mediation and for related purposes. Through the amendment, the National Court was vested with; power to order a resolution of a dispute or matter before it by mediation (s.7B, National Court Act); conduct and conclude mediations (ss.7C and 7D, National Court Act); and empowered Judges to make mediation rules (s.7E, National Court Act). The term “mediation” is defined by s.7A, National Court Act and it includes all forms of dispute resolution other than the formal court process.
    
17. Following the amendment of the National Court Act 1975, ADR Rules 2010 were made by Judges pursuant to s.7E (Mediation Rules) in essence regulating Alternative Dispute Resolution and establishing a system of accreditation, standards and code of conduct for mediators.
    
18. The ADR Rules 2010 were repealed and replaced by the ADR Rules 2022. The ADR Rules 2022 came into force on 1 September 2022 by notice published in National Gazette No. G621 of 8 August 2022. The ADR Rules 2022 now regulate Alternative Dispute Resolution in Papua New Guinea which includes mediation.
    
19. In the plaintiffs notice of motion, he does not specifically refer to the ADR Rules 2010, but Mr. Geroro does not take issue with the defendant’s contention that the plaintiff is actually referring to the ADR Rules 2010. In addition, Rules 4(2)(c), 5(2) and 6 do not correspond with the sequencing of the Rules in ADR Rules 2022 as under ADR Rules 2010; Order 4 relates to Exhaustion of or dispensation with mediation; Order 5 relates to Ordering Mediation; and Order 6 relates to Appointment of Mediators whereas under ADR Rules 2022, Order 4 relates to Code of Professional Conduct for ADR Practitioners; Order 5 relates to Discipline of Mediators; and Order 6 relates to Referrals.
    
20. Order 4 Rule 49(8) of the National Court Rules requires all motions to contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Obviously, there is a glaring defect in the plaintiff’s notice of motion in relation to the relief he seeks and therefore it is refused and dismissed.
    
21. The second main relief sought in the defendant’s notice of motion is to adjourn the hearing of the defendant’s notice of motion and rides on and is dependent on the outcome of the first main relief sought and given its refusal and dismissal, it is untenable and refused in the circumstances. In any event, I have heard the defendant’s notice of motion and will decide on its outcome shortly.
    
22. Given this, it is not necessary to consider the other submissions of counsel.
    

APPLICATION TO DISMISS PROCEEDINGS

23. As I have alluded to already, in the defendant’s application, he seeks an order to dismiss the proceedings for:
    
    1. The plaintiff’s failure to pay into the National Court Trust Account security for costs in the sum of K60,000.00 by close of business on 21 August 2023 as ordered by the Court on 21 July 2023 pursuant to Order 14 Rule 27 of the National Court Rules; or alternatively
    2. Want of prosecution pursuant to Order 10 Rule 9A(15)(1)(a) and (2)(a) and Order 12 Rule 1 of the National Court Rules as the plaintiff has failed to diligently prosecute the proceedings.
       
24. In addition, in the defendant’s notice of motion, the first relief that it seeks is for leave to rely on all prior affidavits filed in these proceedings pursuant to Order 4 Rules 44(1) and 49(12) of the National Court Rules.
    

25. The defendant reads and relies on the following documents:

1. Order of 21 July 2023;
2. Notice of Motion filed on 23 August 2023; and
3. Affidavit in Support of Alu Konena sworn and filed on 23 August 2023.
   

26. Mr. Kakaraya for the defendant submits that in the exercise of the Court’s discretion, the application should be granted as:

1. The period that has elapsed since the security was ordered on 21 July 2023 is four months and:
   
   • (a) it is irrelevant whether the security has been paid into the National Court Trust Account following a lapse of four months in blatant breach of the Court’s order;
   • (b) the plaintiff cannot choose as it pleases when it wants to comply with Court orders;
   • (c) the plaintiff did not apply for extension or variation of the orders of 21 July 2023; and
   • (d) the plaintiff has not provided any reasonable explanation as to the delay by affidavit.
2. The plaintiff has been put on notice of the application to dismiss the proceedings through the service of the defendant’s notice of motion and Affidavit in Support of Alu Konena.
3. There is no evidence before the Court to demonstrate that the plaintiff has the ability to further fund the proceedings.
4. The plaintiff’s failure to pay the security within the time ordered by the Court has delayed the proceedings and therefore has caused prejudice to the defendant.
5. The Court indicated in the order made on 21 July 2023 that the defendant was at liberty to make an appropriate application to the Court under Order 14 Rule 27 of the National Court Rules if the need arose and this is such an application.
6. The conduct of the plaintiff demonstrates a blatant disrespect for and a contumelious disregard of the Court’s order.
   
27. Mr. Geroro for the plaintiff contends that while he concedes that the security for costs was paid four months after the time ordered by the Court, the application should be refused as:
    
    1. The order of 21 July 2023 has been substantially complied with by the payment of the sum of K60,000.00 into the National Court Trust Account;
    2. While no affidavit has been filed by the plaintiff to provide an explanation as to why he defaulted in paying the security deposit within the time ordered by the Court, he has already filed sufficient affidavits supporting his claim;
    3. Directions be issued for the proceedings to be progressed to trial; and
    4. The power to dismiss the proceedings must be exercised sparingly taking into account all the relevant circumstances of the case.
       

The relevant facts

28. The relevant facts giving rise to the defendant’s application are:

1. By notice of motion filed on 31 May 2023, the defendant made application for security for costs in the sum of K200,000.00 or such other sum determined by the Court on the basis that the plaintiff was ordinarily resident outside of Papua New Guinea pursuant to Order 14 Rules 25(1)(a) and 26 of the National Court Rules supported by an Affidavit in Support of Alu Konena sworn and filed on 31 May 2023.
   
2. The defendant’s application for security for costs was heard on 17 July 2023 and the ruling was reserved.
   
3. On 21 July 2023, the Court ruled to grant the defendant’s application and ordered the plaintiff to pay into the National Court Trust Account security in the sum of K60,000.00 by close of business on 21 August 2023
   
4. On 21 July 2023, the Court refused to grant the defendant’s application made under Order 14 Rule 27 of the National Court Rules, but said the defendant was at liberty to make such an application at the appropriate time should the need arise.
5. No monies were paid into the National Court Trust Account by the plaintiff as security prior to or by the close of business on 21 August 2023.
   
6. On 23 August 2023, the defendant filed the notice of motion under consideration which was made returnable on 6 September 2023, but was not heard on the date fixed.
   
7. On 7 November 2023, the plaintiff filed his notice of motion seeking an order for mediation.
   
8. On 20 December 2023, the plaintiff paid into the National Court Trust Account security ordered in the sum of K60,000.00.
   
9. On 21 December 2023, the plaintiff informed the defendant that he had paid the sum of K60,000.00 into the National Court Trust Account.
   

Leave to rely on all prior affidavits filed

29. The relief sought was not pressed by the defendant at the hearing. It is averred in general terms and does not expressly state or specify in the notice of motion the prior affidavits the defendant seeks to rely on in support of its application.

30. Order 4 Rule 44(1) of the National Court Rules states:

“Affidavits

Where a motion is founded on facts or on facts and documents, unless the Court otherwise orders, an affidavit setting forth those facts and having annexed to it those documents (if any) shall be filed with the notice of motion, and a copy of the affidavit shall be served on the parties sought to be affected by the motion with the notice of the motion....”

31. Order 4 Rule 49(12) of the National Court Rules states:
    

Supporting affidavits

(1) All affidavits in support of the Motion must be filed on the date of filing the Motion;

(2) All affidavits opposing and counter motions must be filed at the latest by 2 pm on the day before the hearing of the motion;

(3) Motion files will be sent to the Motions Judge at the latest by 3 pm on the day preceding the day the Motion is to be heard;

(4) Leave must be sought from the Motion Judge before any affidavit is filed on the day of the hearing. The Registry will no longer accept affidavits filed after 2 pm on the day preceding the hearing of the Motion or on the morning the Motion is to be heard.

(5) With the exception of contempt hearings, there shall be no cross-examination of deponents of affidavits, except with leave of the Court.”

32. Order 4 Rules 44(1) and 49(12) are expressed in mandatory terms by the use of the word “shall” and “must” in both rules respectively. All affidavits supporting a motion must be filed on the date of filing the motion. An applicant however may seek leave to rely on other affidavits setting out facts and annexing documents supporting a motion filed either before or after the date of filing the motion by the use of the words “unless the Court otherwise orders” under Order 4 Rule 44(1) or on the day of the hearing under Order 4 Rule 49(12)(4).
    
33. These rules, in my view, do not affect the filing of and reliance on affidavits of service as they are to be filed as soon as practicable or on or after the day of service of the motion (Order 4 Rule 49(11)(2).
    
34. I will refuse leave.
    

Failure to give security

35. The rule upon which the application to dismiss the proceedings for failure to give security is predicated as Order 14 Rule 27 of the National Court Rules which states:

“Failure to give security. (53/4)

Where a plaintiff fails to comply with an order under this Division, the Court may, on terms, order that the proceedings on any claims by the plaintiff for relief in the proceedings be dismissed.”

36. This rule applies where the plaintiff fails to comply with an order made under Order 14 Division 4 (Security), ie, in relation to security.
    
37. If a plaintiff who has been ordered to give security for costs does not do so, the proceedings may be dismissed: Nelson & Robertson Exports Pty Ltd v Barrell (2004) N2893.
    
38. The decision in Nelson & Robertson Exports Pty Ltd v Barrell (2004) N2893 is an authority for the proposition that where time is limited for the provision of security the proceedings may be dismissed for failure to comply with that time limit.
    
39. In Nelson & Robertson Exports Pty Ltd v Barrell (2004) N2893, Gavara-Nanu, J said:
    

“The defendants/applicants can invoke Order 14 r 27 together with the inherent powers of the Court if the plaintiffs fail to give security within the time given by the Court under Order 14 r 25 (1)......

This Rule envisages inter alia; an application being made to the Court by the defendants for dismissal of the proceedings should the plaintiffs fail to comply with this Order. At this stage however, the Court is bound by strict terms of Order 14 r 25 (1) (a) and it cannot go behind it.

In the event that the plaintiffs fail to give security within twenty eight days from today, the defendants will be at liberty to apply for the dismissal of the proceedings by invoking the Court’s inherent powers and Order 14 r 27.”

40. The power to dismiss the proceedings under Order 14 Rule 27 is discretionary, ie, the discretion to dismiss conferred by the rule is considerably a broad one, unfettered by any express limitation to be exercised in the circumstances of a particular case.
    
41. Order 14 Rule 27 is based on Part 53 Rule 4 of the Supreme Court Rules of New South Wales and guidance will be sought from appropriate cases that have considered the equivalent rule there particularly the principles to be applied in determining whether the Court should exercise its discretion to dismiss proceedings for failure to comply with an order for payment of security for costs. Part 53 Rule 4 of the Supreme Court Rules of New South Wales was considered by the New South Wales Supreme Court per Einstein J in Idoport Pty Limited v National Australia Bank Limited (2002) NSWSC 18 where he accepted the defendant’s submission as correct that the principles that are required to be applied when dealing with the exercise of the court’s discretion to dismiss proceedings for failure to provide security are:
    
    1. The period that has elapsed since the security was ordered;
    2. The fact that the plaintiff has been on notice of the application for dismissal;
    3. The seeming inability of the plaintiff to further fund the proceedings;
    4. The prejudice to the defendant; and
    5. The position of the Court.
       
42. These principles were considered by the New South Wales Court of Appeal in Idoport Pty Ltd v National Australia Bank Ltd (2002) NSWCA 271 when dismissing the appeal against the decision of the court of first instance. These Australian (New South Wales) cases are persuasive and I will adopt and apply the principles enunciated and considered there to the circumstances of the present case.
    
43. The principles identified in Idoport Pty Limited v National Australia Bank Limited (2002) NSWSC 18 are by no means exhaustive.
    
44. In considering these principles, I make the following findings:
    
    1. The period that has elapsed since the security was ordered – The order for security for costs was made on 21 July 2023, but the payment was made on 20 December 2023 out of time and in breach of the Court order of 21 July 2023. No explanation, reasonable or otherwise, for the failure to comply with the Court order or the delayed payment was provided by the plaintiff by way of an affidavit (Golobadana No.35 Ltd v Bank South Pacific Ltd (2015) N5890). A sufficient period of four months had elapsed since that time. This is something that favours the grant of the discretion.
       
    2. The fact that the plaintiff has been on notice of the application for dismissal- Term 3 of the Order of 21 July 2023 made it clear that the defendant was at liberty to make an appropriate application for an order under Order 14 Rule 27 if the need arose. There is no dispute that the defendant’s notice of motion under consideration was filed and served on the plaintiff’s lawyers on 23 August 2023 (Affidavit of Narepa Hannevo sworn on 23 August 2023 and filed on 24 August 2023 (Doc 88)). On 7 November 2023, Geroro Lawyers filed a Notice of Change of Lawyers to act for the plaintiff (Doc 97). Ample notice of the application to dismiss was given to the plaintiff and his lawyers. This is something that favours the grant of the discretion.
       
    3. The seeming inability of the plaintiff to further fund the proceedings – No evidence has been placed before the Court on this subject. This is something that favours the grant of the discretion.
       
    4. The prejudice to the defendant – The events that gave rise to the proceedings occurred in 2016. The proceedings were commenced on 21 November 2018 and pleadings closed in or about February 2019. The proceedings ought to have been set down for trial within six weeks of the pleadings closing (Order 10 Rule 5, National Court Rules) and there has been a long delay since in progressing the proceedings to trial. The plaintiff’s failure to pay the security within the period ordered by the Court has further delayed the proceedings from being progressed to trial. There is a clear public interest in the final determination of the litigation. The plaintiff’s behaviour is contumelious. This is something that favours the grant of the discretion.
       
    5. The position of the Court - Term 3 of the Order of 21 July 2023 made it clear that the defendant was at liberty to make an appropriate application for an order under Order 14 Rule 27 if the need arose. The plaintiff was amply forewarned by the order. The effect of the order was that it affected the proceedings from being progressed to trial diligently unless the security was paid within the time ordered. The defendant’s notice of motion under consideration was filed and served on the plaintiff’s lawyers on 23 August 2023 because by then the plaintiff had not paid the security. Ample notice of the application to dismiss was given to the plaintiff and his lawyers. Further delay has been occasioned by the hearing and determination of the parties’ applications. This is something that favours the grant of the discretion.
       
45. The five principles favour the grant of the discretion. However, does this mean that the defendant is entitled to the order sought for the dismissal of the proceedings for a failure to pay the security within the period ordered? I do acknowledge that the plaintiff cannot choose as he pleases when he wants to comply with a Court order as it is trite law that an order remains valid until it is discharged and must be complied with by the parties to whom it is directed including lawyers representing them (Yap v Tan & Ors (1987) PNGLR 227, Kenken v National Airports Corporation Ltd (2022) SC2247, Lomai v Seal (Manus) Ltd (2008) SC1326, Tuka v Toyota Tsusho (PNG) Limited (2023) N10419). The order was made under Order 14 Division 4 (Security) and the failure to comply with an order to give security may result in the proceedings being dismissed. The relief is not automatic however. The Court still has a discretion to exercise. On 18 September 2023, the plaintiff filed a Notice to Rely on Affidavits pursuant to s.35 of the Evidence Act giving notice that he would rely on twelve affidavits identified in the notice at trial. I have listed these affidavits already in the earlier part of this judgment. It would appear that the plaintiff is ready for trial. Would the interests of justice be served by the dismissal of the proceedings for the failure to pay the security within the time ordered by the Court? No.
    
46. Taking into account all the relevant circumstances of the present case and straining, consistently with the interests of justice, to avoid taking the radical step of dismissing the proceedings (Idoport Pty Limited v National Australia Bank Limited (2002) NSWSC 18), I think this is not an appropriate case to dismiss the proceedings for failing to lodge security within the period ordered. The plaintiff should not be driven from the judgment seat; he should have his day in Court.
    

Want of prosecution

47. The defendant did not press the second relief at the hearing. This is a separate and distinct application from an application made under Order 14 Rule 27. However, I will make the following brief observations.
    
48. The power of the Court to dismiss proceedings on the ground of want of prosecution is discretionary. The discretion is to be exercised having regard to all the circumstances of a case: Kai Ulo & 2 Ors v The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v Maxine George [1983] PNGLR 55.
    

49. The principles governing the dismissal of proceedings for want of prosecution are well established in this jurisdiction. They are summarised by His Honour, Justice Kandakasi (as he then was) in Vivisio 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 where additional principles were suggested by His Honour, Justice Cannings. An application for a dismissal of proceedings for want of prosecution may therefore 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;

3. the delay has caused injustice or prejudice to the defendant;

4. the conduct of the parties and their lawyers warrants; and

5. it is in the interests of justice.

50. The first, second, third and fourth principles favour the grant of the discretion as:

1. There is an inordinate and inexcusable delay in prosecuting the claim since the close of the pleadings in February 2019;
2. The plaintiff has not given any explanation, reasonable or otherwise, by affidavit for the delay;
3. The delay has prejudiced the defendant; and
4. The conduct of the plaintiff warrants.
   

51. However, taking into account all the relevant circumstances of the present case and again straining, consistently with the interests of justice, to avoid taking the radical step of dismissing the proceedings, I think this is not an appropriate case to dismiss the proceedings for want of prosecution. The plaintiff has filed the affidavits he wishes to rely on at trial and is ready to go to trial. The plaintiff should not be driven from the judgment seat; he should have his day in Court.

ORDER

52. I make the following orders:

1. The plaintiff’s notice of motion filed on 7 November 2023 is dismissed.
2. The defendant’s notice of motion filed on 23 August 2023 is dismissed.
3. Each party shall bear their own costs.
4. Time is abridged.
   

Judgment and orders accordingly.
_____________________________________________________________
Geroro Lawyers: Lawyers for the Plaintiffs
O’Briens Lawyers: Lawyers for the Defendants