SC715

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 52 of 2002

BETWEEN:

CHAN CONSOLIDATED PTY LIMITED
Appellant

AND:

POLY INDUSTRIES PTY LIMITED
First Respondent

AND:

MAY LAW YAM CHENG
AND WINSON NG JOO OIL
Second Respondent

Waigani:	Kapi DCJ., Los J., Gavara-Nanu J.
2nd April, 15 August 2003

APPEAL – Practice – Striking out for want of presentation – Undue delay depends on circumstances – no satisfactory explanation given for delay.

Cases cited:
Ronald Nicholas Commonwealth New Guinea Timber Pty Ltd [1986] PNGLR 133
Credit Corporation (PNG) Pty Ltd v Tabua [1990] PNGLR 166;
Burns Phillip (New Guinea) Ltd v Maxine George [1983] PNGLR 55;
Joesph & Irene Davis v David Tasion, Controller & Commissioner of Police & Others (1988) SC364
Tengi Kaiulo v Acting Public Prosecutor & Joe Kovea Malai & Others [1981] PNGLR 148).

Counsel:
B. Meten for the Appellant
J. Murray for the Respondent

15th August 2003

By The Court:	Chan Consolidated Pty Ltd (Appellant) has appealed against a decision of the National Court which resulted in a dismissal of the proceedings (WS 709 of 1998) for want of prosecution.

The background to this appeal may be summarised as follows. On 30th July 1998, the Appellant filed a writ of summons for rentals due to a property rented to Poly Industries Pty Ltd (First Respondent) under a lease agreement. On 16th November 1998, the appellant filed an amended writ of summons. 

The First Respondent filed a Notice of Intention to Defend and a Cross-claim on 13th October 1999.

On 22nd May 2002, the First Respondent filed notice of motion for two orders (1) that the Mareva Injunction obtained by the Appellant on 7th February 2002 be discharged and (2) to dismiss Appellant’s cause of action for want of prosecution. The motion was served on 28th May 2002 on Stevens Lawyers Appellant’s lawyers on record and made returnable on 3rd June 2002. The motion was further adjourned to 5th June and finally adjourned to 6th June when it was heard by Sakora J. 

When the matter was heard, two lawyers announced appearance for the Appellant, Mr Okuk of Narokobi Lawyers and Mr Baniyamai of Stevens Lawyers. Mr Okuk had not filed any Notice of Change of Lawyers and had received instructions only that morning to appear and obtain an adjournment. Mr Banyamai had no instructions on the motion and made an application to further adjourn the matter for one to two weeks in order to obtain instructions from the Appellant. It became apparent to Sakora J that two counsel had no instructions to defend the motion. They were there simply to obtain an adjournment in order to seek further instructions. Sakora J was not satisfied with the reasons for adjournment and therefore dismissed the application and heard the motion.

On 14th June 2002, the Court discharged the Mareva Injunction and dismissed the cause of action for want of prosecution.

The Appellant appealed against the whole of the decision. At the hearing, the appellant abandoned the appeal against the decision in respect of the Mareva Injunction. The appeal is confined to the dismissal of the action. The grounds are as follows:

"(i) 	That the Court erred in Law and fact in dismissing the proceeding W.S. 709 of 1998 for want of prosecution in that reasonable steps were taken to prosecute the proceedings within reasonable period of time in that the case was in readiness for a trial date.

(ii)	That the Court erred in law and in fact in dismissing the proceedings W.S. 809 of 1998 in that the Court failed to take into consideration the merits of the Appellant’s case and the Defendant’s Defence and Cross claim which was general and therefore violated Order 8 Rule 18.

(iii)	That the Court failed to take into consideration all the facts relevant to the delay in that the Respondents and the Registrar also contributed to the delay, which result in the Court erring in law in dismissing the proceedings for undue delay.

(iv)	That the Court erred in law in enforcing orders not sought in the Notice of Motion and unreasonably abridged time to entry to such orders.

(v)	That the trial judge failed to give an opportunity for Appellant or his lawyers to provide explanation.

(vi)	That the decision was unjust and unreasonable."

The law in relation to the exercise of discretion to dismiss a proceeding for want of prosecution is well settled (see Ronald Nicholas Commonwealth New Guinea Timber Pty Ltd [1986] PNGLR 133; Credit Corporation (PNG) Pty Ltd v Tabua [1990] PNGLR 166; Burns Phillip (New Guinea) Ltd v Maxine George [1983] PNGLR 55; Joesph & Irene Davis v David Tasion, Controller & Commissioner of Police & Others (1988) SC364; Tengi Kaiulo v Acting Public Prosecutor & Joe Kovea Malai & Others [1981] PNGLR 148).

The central issue in this case is whether the trial judge erred in exercising his discretion to dismiss the cause of action having regard to the circumstances?

The motion was supported by affidavit of Mary Low Yam Cheng sworn 25th May 2002 and affidavit of Miss Murray sworn 16th May and filed on 22nd May 2002. These affidavits set out the circumstances. There was no evidence led on behalf of the Appellant. The lawyers for the Appellant were not in a position to file any material or defend the motion.

The National Court concluded:

"The court is satisfied that the defendant’s application should be granted. I am satisfied firstly that the defendants’ delay in prosecuting the statement of claim has been one intentional and contumelies. And secondly, inordinate and inexcusable so as to be likely to cause serious prejudice or give rise to a substantial risk that a fair trial is not possible. Proceedings issued 30th July 1998, pleadings closed end of October 1999. The plaintiff then engaged lawyers and for different aspects of this proceedings engaged different lawyers. And as I have noted Blake Dawson Waldron, Maladina Lawyers, in relation to the writ of summons Steven Lawyers and Narokobi Lawyers in relation to the Mareva Injunction and an application to discharge that. "

Having regard to the evidence which was not contested before the trial judge, we cannot find any error in the exercise of the discretion.

However, before us counsel for the Appellant sought to lead fresh evidence. Counsel for the Respondent first contested the admission of this evidence but finally agreed to admit the affidavit of Burnie Walsh Meten sworn 28th June 2002 and filed on the same day. This affidavit was admitted with the exception of paragraphs 7, 10, 13, 16, and 18. This affidavit deposes to evidence which was not available before the trial judge. In brief the affidavit explains the steps taken by the Appellant. On 31st May, 1999 and 16th June 1999, lawyers for the Appellant wrote to the lawyers for the Respondents requesting them to endorse the consent to have the matter listed for trial. There was no response to these requests. It appears that when the lawyers for the Appellant wrote again on 18th November 2002, the lawyers for the Respondents then endorsed the notice to set down for trial.

We agree that during the period (May – November 1999) when the lawyers for the Appellant requested the matter to be set down for trial, lawyers for the Respondents did not respond straight away. For this period, the respondents should bear some responsibility for the delay. That is as far as the affidavit of Mr Meten can be taken to give any explanation for the delay. 

However, there is no explanation for the failure on the part of the Appellant to prosecute the action after this period. There does not appear to be any further steps taken until the Appellant obtained the Mareva Injunction on 7th February 2002. Up to the time of the application to dismiss the action, no steps had been taken to set the matter down for trial. As at the hearing of the motion, the Appellants had not given instructions to defend the motion. We do not consider that the facts led before us go far enough to render the exercise of discretion by the trial judge erroneous.

We would dismiss the appeal with costs to the Respondents.
___________________________________________________________
Lawyers for the Appellant		:	NAROKOI
Lawyers for the Respondents		:	HENAOS