Sent v Motor Vehicle Insurance Ltd [2025] PGNC 320; N11458 (29 August 2025)

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PRACTICE AND PROCEDURE - Writ of Summons - Notice of Motion - Application to dismiss proceedings - Want of prosecution - National Court Rules - Order 10, Rule 5 - Relevant considerations - Discretion of Court - Order

Cases cited
Roland Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Umbu Waink & Anor v Motor Vehicles Insurance (PNG) Trust and The State (1997) N1630
Viviso Seravo v Jack Bahafo (2001) N2078
John Niale v Sepik Coffee Producers Ltd [2004] PGNC 125; N2637
Ahmadiyya Muslim Mission v Bank of South Pacific [2005] PGNC 112; N2845

1. KAULE AJ: This is a joint ruling in relation to the defendant’s Notice of Motion seeking to have 19 proceedings against it dismissed on the common ground of want of prosecution, pursuant to Order 10 Rule 5 of the National Court Rules (“Rules”).

2. The same application to dismiss proceedings for want of prosecution was filed by the defendant in these proceedings.

3. Each plaintiff is claiming damages against the defendant for injuries allegedly sustained in a motor vehicle accident. All the plaintiffs are represented by Mr Kunai while the defendant is represented by Ms Kot.

4. Counsel indicated their agreement at the start that I hear the application in WS No. 1043 of 2020 - Wendy Sent v Motor Vehicle Insurance Limited (“Wendy Sent’s case”) and the ruling I make in that proceedings would apply to the rest of the 18 proceedings before me.

5. The plaintiff, Wendy Sent, who is an adult female from Mun village, Dei District in Western Highlands Province, claims damages against the defendant for injuries allegedly sustained in a motor vehicle accident on 8 August 2015.

6. The plaintiff filed the Writ of Summons on 17 December, 2020 and served it on the defendant on 21 April, 2022.

7. The defendant filed its Notice of Intention to Defend on 31 May, 2022 and its Defence on17 June, 2022.
8. The plaintiff filed a Reply on 3 October, 2022.

9. The Notice to Set Down for Trial, endorsed by counsel, was filed on 25 May, 2023.

10. No further court documents were filed by either party from 25 May, 2023 until the defendant filed its Notice of Motion to dismiss the proceedings on 5 May, 2025.

11. The Defendant filed an affidavit of the defendant’s Executive Claims Manager, Mosley Elly, on 5 May, 2025, in support of the application.

(a) Whether there was default by the plaintiff to set down the proceedings for trial within six weeks after pleadings were closed.
(b) If the answer to (a) is in the affirmative, whether the proceedings should be dismissed for want of prosecution.

14. The defendant relies on Order 10 Rule 5 of the Rules which is in the following terms:

“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 orders as the Court thinks fit.”

15. The principles governing dismissal of a case for want of prosecution were established in Roland Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133. In the headnote of that case, the following principles were mentioned:

“(1) The power of the Court to dismiss proceedings for want of prosecution should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial will not be possible or to serious prejudice to the defendant.

(2) Where there has been a long delay in bringing proceedings to trial a balance must be struck as between the plaintiff and the defendant and in the end the Court must

decide whether or not, in the balance, justice demands that the proceedings should be dismissed.”

16. These principles were adopted and applied in subsequent cases in the Supreme and National Courts. One such case is Viviso Seravo v Jack Bahafo (2001) N2078 in which his Honour Kandakasi J (as he then was) summarised the considerations that need to be taken into account, when an application is made to dismiss proceedings for want of prosecution. These are as follows:

It is now clear law especially in the context of O. 10 r. 5 of the National Court Rules that an application for a dismissal of proceedings for want of prosecution may be granted if:

This is apparent from cases like that of Roland Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 which has been followed in several other cases such as Umbu Waink & Anor v Motor Vehicles Insurance (PNG) Trust and The State (1997) N1630.

17. In John Niale v Sepik Coffee Producers Ltd [2004] PGNC 125; N2637 (24 August 2004) his Honour Cannings J added a fourth consideration, namely, that the Court should have regard to the conduct of the parties and their lawyers.

18. In Ahmadiyya Muslim Mission v Bank of South Pacific [2005] PGNC 112; N2845, his Honour Cannings J included a further consideration, namely, that the Court take account of its duty to give paramount consideration to the dispensation of justice.

19. I now apply the five considerations noted in the cases cited above to determine the issues posed by the defendant’s application.

First Consideration: The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim.

20. From a careful review of this matter, I find that there has been a lengthy delay by the plaintiff in prosecuting this matter.

21. To start with, from the date of the alleged motor vehicle accident on 8 August, 2015, the plaintiff delayed for over five years before she filed the Writ of Summons on 17 December, 2020. To give some perspective of the delay, that is exactly 1,956 days from the date of the alleged accident to the date of filing the proceedings.

22. Furthermore, it took the plaintiff four months after filing the Writ of Summons, to serve it on the defendant on 21 April, 2022.
23. The defendant filed its Notice of Intention to Defend on 31 May, 2022 and its Defence on17 June, 2022 respectively. Pursuant to Order 8 Rule 5(1) of the Rules, the plaintiff should have filed her Reply 14 days after the Defence was filed on 17 June, 2022, that is, by 1 July, 2022. However, the plaintiff waited four months before she filed her Reply on 3 October, 2022. This was done well outside of the period stipulated by the Rules.

24. The pleadings would have closed on 1 July, 2022, which was the last day for the plaintiff to file a Reply. Pursuant to Order 8 Rule 23(1) of the Rules: “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 a statement of claim.”

25. Based on my calculations, the six weeks period stated in Order 10, Rule 5 of the Rules for the plaintiff to set the proceedings down for trial would have run from 2 July, 2022 to 13 August, 2022. The plaintiff did not set the matter down for trial within that period.

26. It took the plaintiff 9 months from 13 August, 2022 before she filed a Notice to Set Down for Trial on 25 May, 2023. After that, the plaintiff did nothing up to the time the defendant filed its present application on 25 May, 2025 to dismiss the proceedings for want of prosecution.

27. The plaintiff has not filed any affidavit since filing the proceedings on 17 December 2020, either to substantiate her claim in the proceedings or give reasonable explanation for the apparent delays. The plaintiff has demonstrated a careless, indifferent attitude towards the earliest prosecution of her case during the years the proceedings has been before this Court.

Second Consideration: There is no reasonable explanation given by the plaintiff for the delay.

28. Having ascertained that there has been a lengthy delay in prosecuting this matter, the next factor to consider is whether the plaintiff has given any explanation for the delay, and if so, whether such explanation is reasonable.

29. The plaintiff has not filed evidence to provide an explanation for the apparent lengthy delay in prosecuting this matter. The plaintiff failed to utilize the opportunity presented by the defendant’s application, to explain the lack of activity on her part. Such failure by the plaintiff does nothing to enhance the prospects of continuity of the proceedings. In fact, the plaintiff’s failure casts a serious shadow of doubt over the credentials of the entire proceedings and makes it highly susceptible to being stopped from progressing further.

30. Whilst I note the verbal submission by the plaintiff’s counsel over the bar table to give further time to the plaintiff, I reject such submission as it is not evidence which the Court can accept and take note of, to influence the due exercise of its discretion. Counsel had sufficient time to file relevant evidence for the Court’s consideration. He did not avail himself of such opportunity when he had the chance to do so. The question I pose is: “What is stopping the plaintiff from offering an explanation for the lengthy delay?” The inescapable conclusion I draw is that the plaintiff has no explanation at all.

Third Consideration: The delay has caused injustice or prejudice to the defendant.

31. The defendant’s evidence in the affidavit of Mosley Elly, the defendant’s Executive Claims Manager, filed on 5 May 2025, demonstrate the injustice or prejudice caused to the defendant, by the lack of real activity on the plaintiff’s part in diligently prosecuting this matter.

32. The plaintiff has not filed any affidavit to challenge the defendant’s position on this point. I am satisfied that the delay by the plaintiff has caused injustice or prejudice to the defendant. The defendant has had to defend a claim arising out of an alleged motor vehicle accident that occurred 10 years ago, in 2015. The defendant’s evidence is clear that with the long passage of time, the defendant faces increasing difficulty to adequately defend this cause of action, with the added burden of retrieving old files, confirming availability of witnesses who may have long left the defendant’s employ, and so on.

Fourth Consideration: Regard to be had to the conduct of the parties and their lawyers.

34. I am of the view that the plaintiff and her lawyers have been slow to have the proceedings set for trial as soon as possible.

35. I am also of the view that the lack of affidavit material by the plaintiff substantiating her claim since the commencement of proceedings can be attributed directly to inaction by the plaintiff and her lawyers. Overall, the conduct of the plaintiff and her lawyers do not augur well for the prospects of her case continuing.

Fifth Consideration: Giving paramount consideration to the dispensation of justice.

36. I note the plaintiff has a right to have her case litigated in this Court. I note also the defendant has the right to defend the cause of action against it.

37. Having considered all the material before the Court and the submissions by counsel, I am persuaded that the interest of justice lies in granting the defendant’s application to dismiss the proceedings.

38. I accept the defendant’s submission that the public interest of finality of proceedings and due dispensation of justice are adversely affected because of the lengthy delay by the plaintiff in prosecuting the proceedings.

39. I find that the five considerations noted above weigh in favour of the defendant. Accordingly, I will exercise my discretion and rule against the plaintiff. The defendant’s application shall therefore be granted for the proceedings to be dismissed for want of prosecution.

40. To apply my ruling to the rest of the proceedings, I have carefully perused each of the court files relating to each proceedings and see indications of the same pattern of unexplained delay to prosecute, as I found in Wendy Sent’s case. I highlight below, by way of summary in tabular form, the background of activities by parties and relevant dates in each of the proceedings.

No.	Proceedings: WS No.	Plaintiff	Date of Alleged Accident	Date of Filing Writ of Summons	Date of Filing Defence	Date of Filing Reply	Date of Filing Notice to Set Down for Trial	Activity After Filing Notice to Set Down for Trial
1	1039 of 2020	Jack Kua	08/11/2014	05/11/2020	09/12/2022	19/04/2023	Nil	Nil
2	1025 of 2020	Sambai Jacob	15/05/2015	17/12/2020	09/12/2022	02/05/2023	05/11/2024	Nil
3	1049 of 2020	Julie Ban	06/12/2017	17/12/2020	09/12/2022	02/05/2023	05/06/2023	Nil
4	1055 of 2020	Timothy Joseph	08/11/2014	05/11/2020	09/12/2022	02/05/2023	05/06/2023	Nil
5	1042 of 2020	Dorothy Bomai	08/11/2014	05/11/2020	09/12/2022	13/06/2023	12/07/2023	Nil
6	773 of 2020	Paul Pawa	01/09/2014	25/08/2020	27/09/2022	14/10/2022	15/05/2023	Nil
7	774 of 2020	Gabriel Paulus	01/09/2014	25/08/2020	03/10/2022	14/10/2022	20/04/2023	Nil
8	767 of 2020	Philip Pora	01/09/2014	25/08/2020	03/10/2022	14/10/2022	20/04/2023	Nil
9	760 of 2020	Esther Simon	01/09/2014	25/08/2020	03/10/2022	14/10/2022	13/06/2023	Nil
10	776 of 2020	Amos Kau	01/09/2014	25/08/2020	05/10/2022	14/10/2022	20/04/2023	Nil
11	1035 of 2020	Kawagi Janet	03/11/2014	15/10/2020	27/09/2022	28/02/2023	23/11/2023	Nil
12	30 of 2021	Jerry Tuman	11/02/2015	03/02/2021	09/11/2022	02/05/2023	05/06/2023	Nil
13	31 of 2021	Martha Hui	11/02/2015	03/02/2021	09/12/2022	02/05/2023	05/06/2023	Nil
14	451 of 2021	Peter McNai	06/08/2015	29/07/2021	09/12/2022	02/05/2023	24/01/2024	Nil
15	452 of 2021	Joe Steven	06/08/2015	29/07/2021	09/12/2022	21/02/2024	Nil	Nil
16	28 of 2021	Nancy John	15/02/2015	03/02/2021	09/12/2022	02/05/2023	05/06/2023	Nil
17	32 of 2021	Thomas Tepra	15/02/2015	03/02/2021	09/12/2022	17/04/2023	24/01/2024	Nil
18	29 of 2021	Janeth Hui	11/02/2015	03/02/2021	09/12/2022	19/04/2023	24/10/2024	Nil

41. In relation to the five proceedings numbered 6,7,8,9 and 10 in the table, each plaintiff filed a Reply within 14 days from the date of the Defence. However, each plaintiff did not file a Notice to Set Down for Trial within six weeks from the close of pleadings. As can be seen from the table, the Notice to Set Down for Trial each plaintiff filed was well outside of the time period of six weeks from the close of pleadings. After filing the Notice to Set Down for Trial, each plaintiff took no further part in each of their proceedings to progress them.

42. As to the 13 proceedings numbered 1,2,3,4,5,11,12,13,14,15,16,17 and 18 in the table, each plaintiff filed a Reply well outside of 14 days from the dates of the Defences. In all these proceedings, each plaintiff did not file a Notice to Set Down for Trial within six weeks from close of pleadings. The Notice to Set Down for Trial each plaintiff filed was well outside of the time period of six weeks from the close of pleadings. After filing the Notice to Set Down for Trial, each plaintiff took no further part to progress their respective proceedings.

43. In carefully assessing each of the proceedings, I find that the five considerations which I applied in Wendy Sent’s case above, and the reasons I gave, apply equally to the 18 plaintiffs. Accordingly, I summarise my findings as follows:

(a) Each plaintiff has allowed for an inordinate and inexcusable delay in the prosecution of his claim.

(d) The conduct of the plaintiffs and their lawyers do not weigh in their favour.

44. Based on the foregoing, I am satisfied that each plaintiff has not set down their respective proceedings for trial within the period provided for under the Rules, and the clear lengthy delay by each plaintiff is unexplained. I will exercise my discretion in favour of the defendant and apply my ruling in Wendy Sent’s case to cover the 18 proceedings. I accordingly grant the defendant’s application to dismiss all 18 proceedings for want of prosecution.

45. The normal rule is that costs follow the event. I see no reason to deviate from that. I order costs in favour of the defendant.

3. The plaintiffs in each proceedings shall pay the defendant’s costs, to be taxed, if not agreed.

4. The time for entry of these orders is abridged to the time of
settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
Lawyers for the plaintiff: Kunai & Co. Lawyers
Lawyers for the defendant: AvRoss & Co. Lawyers

National Court of Papua New Guinea

Sent v Motor Vehicle Insurance Ltd [2025] PGNC 320; N11458 (29 August 2025)