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Baiba v Baki [2025] PGNC 180; N11305 (21 May 2025)

N11305

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 84 OF 2021

BETWEEN:
PEDRO BAIBA
Plaintiff

AND
GARI L BAKI CStJ, QPM, DPS as the Commissioner of Police
First Defendant

AND
DEPARTMENT OF POLICE
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: DOWA J
16, 21 MAY 2025

PRACTICE AND PROCEDURE- application for dismissal of proceedings for want of prosecution-Order 4 Rule 36 & Order 16 Rule 13 (13) of the National Court Rules-considerations –inordinate and inexcusable delay- no reasonable explanation for delay– proceedings dismissed.

Cases cited
Seravo v Bahafo (2001) N2078
John Naile v Sepik Coffee Producers Ltd (2004) N2637
Kalang Advertising Ltd v Kappusamy (2008) SC924

Counsel
C Nindue for the plaintiff
K Haroro for the defendants

RULING

1. DOWA J. This is a ruling on the Defendant’s application for dismissal of the Plaintiff’s proceedings for want of prosecution. The application was heard on 16^th May 2025, and the ruling was reserved which is now delivered.
   

Background Facts

2. The Plaintiff is a former probationary officer with the PNG Royal Constabulary until dismissed from the Police Force on 22nd January 2016. On 27th October 2015, the Plaintiff was charged with two counts of serious disciplinary offences under Section 20 of the Police Act. The Plaintiff opted not to defend the disciplinary charges. He was eventually found guilty and dismissed from the Police Force on 22nd January 2016.
   
3. On 21st January 2019, three years later, the Plaintiff applied to the Commissioner of Police to review the dismissal penalty. On 9th October 2019, the Plaintiff was served a notice of decision dated 24th April 2019, dismissing his application for administrative review.
   
4. Aggrieved, the Plaintiff filed the current proceedings on 16th June 2021, seeking leave to apply for judicial review of the dismissal decision. The application was filed almost four (4) years ago and leave is yet to be granted on a decision made more than nine (9) years ago.
   

The Defendants’ application

5. By Notice of Motion filed 7^th May 2025, the Defendants seek dismissal of the proceedings for want of prosecution. The Defendants rely on the Affidavit of Benjamin Samiat filed 7^th May 2025.
   
6. The Plaintiff opposes the application and relies on the Affidavit of Canute Nidue filed 15^th May 2025.
   

Issues

7. The main issue for consideration is whether the proceedings be dismissed for want of prosecution
   

Law

8. The relevant rules relied on in the application are Order 4 Rule 36 and Order 16 Rule 13 (13) (2) of the National Court Rules. These rules read:
   

Order 4 Rule 36- Want of prosecution

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.

(2) Sub-rule (1) applies, with any necessary modifications, in relation to a crossclaimant as it applies in relation to a plaintiff.

Order 16 Rule 13 (13) (2)- Summary disposal

“(a). Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.

(b). The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court’s own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (c) below.”
9. The principles governing dismissal for want of prosecution are well settled in this jurisdiction as summarised in the cases Seravo v Bahafo (2001) N2078, John Naile v Sepik Coffee Producers Ltd (2004) N2637 and Kalang Advertising Ltd v Kappusamy (2008) SC924 and they are:

1. The Plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim.
2. There is no reasonable explanation given by the Plaintiff for the delay.
3. That the delay has caused injustice or prejudice to the Defendant.
4. The conduct of the parties and their lawyers
5. Interest of justice
   

Consideration

10. The proceedings were filed on 16^th June 2021. The last of the documents was filed on 9^th February 2022. The last session in Court was 17^th February 2022.Since then the Plaintiff did not prosecute his application for leave for judicial review. The Defendants issued a warning letter to the Plaintiff on 30^th August 2024. Despite the warning letter, the Plaintiff did not prosecute his leave application resulting in the current dismissal application by the Defendants.

11. The Plaintiff relies on an affidavit filed by his lawyer, Canute Nidue, explaining the delay. Mr. Nidue deposes that between August 2021 and October 2022 he sent WhatsApp messages to Mathew Bae of the Waigani National Court Registry to list the matter but was not listed. He deposes that when he was served with the Defendants’ warning letter on 3^rd September 2024, he sent several WhatsApp messages to the Waigani National Court Registry to list the matter, and again it was not listed. He deposes that they have filed all relevant documents and are ready to prosecute the matter.

12. I have carefully considered the evidence and submissions of counsel and find there is inordinate and inexcusable delay in prosecuting this matter with due diligence. The Plaintiff was dismissed on 22nd January 2016. He did not appeal the decision to the Commissioner of Police until 21^st January 2019, three years later. After his appeal was refused in April 2019, the Plaintiff did not take immediate steps to file for review until 16^th June 2021. Since filing the application for leave on 16^th June 2016, the Plaintiff did not take any further steps to prosecute the application for almost four years until this dismissal application. I do not accept the explanation that the registry staff failed him for the last four years when the Court has been hearing cases on daily basis. I find there is undue delay, and no good reasons were provided for the failure to prosecute the matter with due diligence.

13. Furthermore, Order 16 Rule 4 (1) of the National Court Rules provides that where there has been a delay in the application for leave, which, if the granting of the relief would likely cause substantial hardship or prejudice the rights of the defendants or would be detrimental to good administration, the Court may refuse such an application. In the present case, the Plaintiff was dismissed nine (9) years ago. It would be detrimental to good administration to allow the proceedings to continue. It is unlikely for the Plaintiff to even succeed in any substantive review application. It is therefore not in the interest of justice to maintain these proceedings especially where the Plaintiff has been slow in prosecuting the claim.

14. For the foregoing reasons, I am inclined to grant the Defendants’ application and thus, the proceeding filed by the Plaintiff shall be dismissed for want of prosecution pursuant to Order 4 Rule 36 and Order 16 Rule 13 (13) (2) of the National Court Rules.

Costs

15. The Defendants seek the cost of the application. It is a discretionary matter. The Plaintiff shall pay the costs for initiating the proceedings.
    

Orders

16. The Court orders that:

1. The Defendant’s application is granted.
2. The Plaintiffs’ proceeding is dismissed.
3. The Plaintiff shall pay the costs of the proceedings.
4. Time be abridged.

_______________________________________________________________
Lawyers for the plaintiff: Nidue & Associates Lawyers
Lawyer for the defendants: Solicitor General