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Shepherd Transport Ltd v Steven [2025] PGNC 267; N11426 (24 July 2025)

N11426

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 592 OF 2022

BETWEEN
SHEPHERD TRANSPORT LIMITED
Plaintiff/Cross-Defendant

AND
JAMES KENNEDY STEVEN
First Defendant/Cross-claimant

AND
CLASSIC ENGINEERING & CONSTRUCTION LIMITED
Second Defendant/Cross-claimant

LAE: TOLIKEN J
24 JULY 2025

PRACTICE AND PROCEDURE – cross-claim – main claim dismissed for want of prosecution – no notice to court and opposing party of intention to prosecute cross-claim at time of dismissal – cross-claimant requests by letter to Assistant Registrar to list cross-claim for directions.

PRACTICE AND PROCEDURE – cross-claim - whether cross-claim survives after dismissal of main claim – cross-claim may survive notwithstanding the dismissal, discontinuance or stay of the main proceedings – matter of discretion.

PRACTICE AND PROCEDURE – mode of instituting intention to prosecute cross-claim where no notice given at time of dismissal of main claim – letter to Assistant Registrar requesting listing – whether proper notice – not a proper notice – proper notice – notice of motion – no notice of motion – abuse of process - National Court Rules, Order 8 Rule 41 (1), 47 (1), Rule 47.

Cases cited
Kemesi v Walambo (2006) N3069
Epere v Nett Holdings (2022) N1009

Counsel
G K Topa, for the plaintiff/cross-defendant
B Tomake, for the defendants/cross-claimant

RULING

1. TOLIKEN J: The defendants/cross-claimants seek to prosecute their cross-claim against the plaintiff/cross-defendant after the latter’s main claim was dismissed for want of prosecution.
   
2. They come to Court, not by a Notice of Motion or Application, but by a mere request to the Assistant Registrar to list the cross-claim for direction.
   

Background

3. The brief background facts to this matter are these; the plaintiff/cross-defendant sued the defendants/cross-claimants for the repossession of three trucks sold by it to the defendants/cross-claimants at the sum of K500,000.00 per truck for the total sum of K1500,000.00.
   
4. The defendants/cross-claimants counter sued for, among others, the sum of K562,724.30 spent by them on the trucks to make them serviceable and roadworthy.
   
5. The main claim was dismissed on 12 July 2024 for want of prosecution.
   
6. By letter of 02^nd May 2025, the defendants/cross-claimants wrote the Assistant Registrar of the National Court in Lae. They requested for their cross-claim against the plaintiff/cross-defendant to be listed for directions to progress their cross-claim.
   
7. The Assistant Registrar brought the matter to the attention of the Judge Administrator by memo on 26^th May 2025 requesting for the matter to be listed.
   
8. The matter was listed before Dowa J on 01^st July 2025. It was then adjourned to 07^th July 2025 but was further adjourned to 11th July 2025 for hearing before me. I heard submissions and reserved. This my short ruling.
   

Issues

9. Whether the Defendants/cross-claimants’ cross-claim can be prosecuted separately despite the dismissal of the main claim.
   

Law

10. The institution of cross-claims is provided for under Order 8 Rule 47 of the National Court Rules (the Rules). The Rule provides:
    

“A cross-claim may proceed notwithstanding that the judgment is entered on the writ of summons or any other cross-claim in the proceedings or that the proceedings on the writ of summons or any other cross-claim are stayed, dismissed or discontinued.”

11. A cross-claim may therefore survive, notwithstanding the dismissal, discontinuance or stay of the main proceedings. Whether it does in fact proceed is, however, entirely a matter of discretion. (Kemesi v Walambo (2006) N3069).
    

Submissions

12. Ms Topa submitted on behalf of the plaintiff/cross-defendant that the attempt by the defendants/cross-claimants to prosecute the cross-claim should not be allowed for want of notice to the court and to the plaintiff/cross-defendant when the main proceedings were dismissed.
    
13. Counsel relies on Epere v Nett Holdings (2022) N1009, where Makail J dismissed the defendants/cross-claimants’ attempt to prosecute their cross-claim without having first given notice of their intention. However, his Honour went on to hold that the dismissal of the cross-claim in those circumstances was not a bar to further proceedings by the cross-claimants.
    
14. Mr. Tomake for the defendants/cross-claimants relies on the same authorities cited by Ms. Topa. He submitted therefore that since the dismissal of the main claim here is not a bar to the cross-claim proceeding, the Court in its discretion ought to allow it to proceed. So, should the cross-claim be allowed to proceed after the dismissal of the main claim in the instant case?
    

Consideration

15. Whether or not the Court will allow the cross-claim to proceed is not, in my view, the real issue here. Rather, the real issues are whether:
    
    • (1) The defendant/cross-claimant ought to have given notice of their intension to prosecute their cross-claim at the time the main claim was dismissed or at any other time thereafter; and
    • (2) Did the letter to the Assistant Registrar constitute a proper notice, and
    • (3) since notice was not given at the time of dismissal, how and in what form should notice be given to the court and the opposing party?
      
16. Here, the defendants/cross-claimant did not alert the Court of their intention to prosecute their cross-claim when the main claim was dismissed. But did they subsequently formally notify the Court and the other party of their intention?
    
17. Apparently, they did not. All they did was request the Assistant Registrar, albeit in writing, for their cross-claim to be listed for directions. Their letter of 02^nd May 2025 was not even copied to the plaintiff/cross-defendant, let alone, its lawyers. There is no evidence that the plaintiff/cross-claimant was ever formally served notice.
    
18. Would the request to the Assistant Registrar constitute a proper notice of intention to prosecute the cross-claim?
    
19. I am of the firm view that where a cross-claimant does not alert the court and the other party (if present) of its intention to prosecute its cross-claim at the time the main claim is dismissed, a letter to the Assistant Registrar or the Registrar at that, for the matter to be listed for direction on the cross-claim does not constitute a proper notice.
    
20. It follows therefore that proper notice of intention to prosecute a cross claim must be given to the court and the opposing party. But what mode should such a notice take?
    
21. Order 8 Rule 41(1) (Division 3 – Cross-claims) appears to me to provide the answer here. It states:
    

41. Directions

(1) A party to the proceedings may, at any time after the filing of a cross-claim move for directions. (underling supplied)
20. Sub-rule (1) of Rule 41 appears to me to provide the mode in which a cross-claimant may give notice of his intention to prosecute his cross-claim, where the Court or the other party was not alerted at the time the main claim was dismissed. The cross-claimant must by Notice of Motion give notice of his intention and move for directions.

21. This was not done in this case. There is no motion for directions before the Court. The defendants/cross-claimants’ written request to the Assistant Registrar is deficient as I have held above. Effectively, there is no basis for the Court to consider the defendants/claimants’ attempt to animate their cross-claim.

22. Without a proper Notice of Motion these proceedings are a nullity and an abuse of process.

Orders

1. The attempt by the defendants/cross-claimants to prosecute their cross-claim without proper notice by way of a Notice of Motion, is dismissed for being an abuse of process.
2. The defendants/cross-claimants shall pay the plaintiff/cross-defendants’ costs, which shall be taxed if not agreed upon.
3. The defendants/cross-claimants are at liberty to prosecute their cross-claim afresh if they so desire.

So, ordered.
________________________________________________________________
Lawyers for the plaintiff/cross-defendant: Myles Legal Services
Lawyers for the defendant/cross-claimant: Luke Vava Lawyers