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Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 2) [1977] PNGLR 467 (16 November 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 467 - Mauga Logging Company Pty. Ltd. v South Pacific Oil Palm Development Pty. Ltd. (No. 2)

[1977] PNGLR 467

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MAUGA LOGGING COMPANY PTY. LTD.

V

SOUTH PACIFIC OIL PALM DEVELOPMENT PTY. LTD. (NO. 2)

Waigani

Kearney J

16 November 1977

PRACTICE AND PROCEDURE - National Court - Adjournment - Reasonable cause to be shown - Absence of lawyer handling case - Rules of National Court O. 62 r. 12.

PRACTICE AND PROCEDURE - National Court - Dismissal of action for want of prosecution - No time limit on order for security for costs - Eight months since order for security for costs - Order that security be given within limited time in default of which action to be dismissed.

On 15th March, 1977 in an action for damages for breach of contract, the time for the defendant to deliver its defence was extended to 26th April, 1977 and the plaintiff was ordered to give security for costs “in the sum of K3,000 to be paid into court subject to proceedings upon notice of motion dated 8th March, 1977, and the order made therein.

On 16th March, 1977, an order was made on the notice of motion dated 8th March, 1977, restraining the defendant from remitting or sending out of Papua New Guinea a certain sum of K565,800 (the approximate amount claimed by the plaintiff as damages) pending the determination of the action.

On 1st November, 1977, the plaintiff had not given security for costs, the defendant had delivered its defence (though after 26th April, 1977) and the defendant had not complied with the order made on 16th March, 1977 because the money therein referred to was not within the jurisdiction of the Court.

On an application by the defendant to have the action dismissed, the plaintiff’s solicitor sought an adjournment, on the basis that only one member of his firm was familiar with the case, which was complex and substantial and that he was presently out of the country.

Held

(1)      The discretionary power to grant adjournments under O.62 r. 12 of the Rules of the National Court, should be exercised in the light of what is expedient in the interests of justice.

(2)      The onus is on an applicant for an adjournment to show some reasonable cause.

(3)      In general the absence of a particular lawyer handling the case will not amount to a sufficient reason.

(4)      In the circumstances the adjournment should not be granted.

(5)      No time limit having been imposed on the order for security for costs, the action should not be dismissed.

(6)      Eight months having elapsed since the order for security for costs, it was appropriate that the plaintiff should be ordered to give such security within a limited time in default of which the action should be dismissed.

Motion

This was an action for damages for breach of contract in which the defendant moved on notice of motion to have the action dismissed for want of prosecution, and the plaintiff sought an adjournment thereof. The history of the matter appears in the reasons for judgment herein and in Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. [1977] P.N.G.L.R. 80.

Counsel

G. Cartledge, for the plaintiff (respondent).

G. B. Evans, for the defendant (applicant).

16 November 1977

KEARNEY J: Having given notice on 1st November, 1977 the defendant moves to have the action dismissed. In support Mr. Evans relies upon his own affidavit of that date. The earlier history of this action is set out in an interlocutory judgment of the Chief Justice[div]¹. His Honour there ordered that the defendant be restrained from remitting or sending out of Papua New Guinea a certain sum of K565,800 (the approximate amount claimed by the plaintiff as damages) pending the determination of the action; and directed that this sum meanwhile be invested by the defendant’s solicitors. That order was made as a result of an application by the plaintiff of 8th March, 1977.

On 15th March, his Honour had extended the time for the defendant to deliver its defence, to 26th April, 1977; and had ordered the plaintiff to give security for costs in the sum of K3,000.00 to be paid into court subject to the proceedings upon notice of motion dated 8th March, 1977 and the order made therein, the action to be stayed until that security was given.

According to Mr. Evans’ affidavit of 1st November, as amplified from the Bar table, the plaintiff has not yet given security for costs, while in August the plaintiff was considering instituting proceedings in Japan and had asked the defendant to take no action until the plaintiff had received advice on that matter.

The defendant’s application came on before me yesterday, following an adjournment by consent from 8th November. Mr. Cartledge sought to have the hearing further adjourned for 2 weeks, pursuant to O. 62 r. 12. The reason, basically, was that only one member of his firm was familiar with this case, which was complex and substantial, and he would not be in the country until next week. The application was opposed. In the course of the argument, both on the plaintiff’s application to adjourn and the defendant’s application, I was informed from the Bar table that the defendant had not complied with the order of 15th March, 1977 because the money therein referred to was not at that time within the jurisdiction of this Court. The defendant has delivered its defence though not by 26th April, 1977. The plaintiff has not given security for costs. I reserved a ruling on both applications for further consideration.

Order 62 r. 12 appears to vest in the Court a broad discretionary power to adjourn. The question to be kept in mind, I think, is what is expedient in the interests of justice. I think an applicant to adjourn must show some reasonable cause. There may be circumstances where the reasons here advanced would warrant a further adjournment, but in general I do not think that the absence of a particular lawyer handling the case, would amount to a sufficient reason. In the present case, I see no reason why the hearing of the defendant’s application should be further adjourned.

The defendant’s application is to dismiss the action, presumably for want of prosecution. But the action is presently stayed until the plaintiff gives security for costs, and no time-limit is imposed on the giving of such security. I do not see any warrant for dismissing the action, in those circumstances, though there may be power to do so, as a matter of law — LaGrange v. McAndrew[dv]². However, 8 months has now elapsed, since the plaintiff was ordered to give security. I think it is appropriate upon the defendant’s motion to order the plaintiff now to give security within a limited time, in default of which the action will be dismissed. Accordingly the order of 15th March, 1977 is varied by the following order:—

Order that the plaintiff give security for costs in the sum of K3,000.00, to be paid into Court on or before Tuesday 29th November, 1977 and that in default thereof the action be dismissed.

Costs reserved, liberty to apply.

Solicitors for the plaintiff: McCubbery, Train, Love & Thomas.

Solicitors for the defendant: Gadens.