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Ermuke v Motor Vehicles Insurance Ltd [2009] PGNC 103; N3719 (18 August 2009)

N3719

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. No. 395 OF 2002

BETWEEN:

GOMA ERMUKE
Plaintiff

AND:

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Mt Hagen: David, J
2009: 7 & 18 August

PRACTICE & PROCEDURE – application to dismiss proceedings – want of prosecution – National Court Rules, O.10 r.5, O.12 r.1 – exercise of court’s discretion – relevant considerations – exercise of discretion in favour of plaintiff – application refused.

Cases cited:

Kai Ulo & 2 Ors v. The State [1981] PNGLR 148
Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55
Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Mapmakers Pty Ltd v. Broken Hill Proprietary Company Ltd [1987] PNGLR 78
Vivisio Seravo v. Jack Bahofa (2001) N2078
John Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637
PNG Water Board v. Gabriel M. Kama (2005) SC821
Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845
Island Helicopter Services Ltd v. Wilson Sagati (2008) N3340
Hilary Singat v. Commissioner of Police (2008) SC910

Counsel:

Paulus K Kunai, for the Plaintiff
Gloria Salika, for the Defendant

RULING ON MOTION

18 August, 2009

1. DAVID, J: INTRODUCTION: This is an application on notice to dismiss the proceedings for want of prosecution pursuant to O.10 r.5 and O.12 r.1 of the National Court Rules.

2. The application is moved by the Defendant pursuant to its Notice of Motion filed on 5 January 2009 and it is supported by the following Affidavits:-

1. Affidavit of Royale Thompson sworn on 24 January 2006 and filed on 30 January 2006 (Royale Thompson’s First Affidavit);

2. Affidavit of Royale Thompson sworn on 17 December 2008 and filed on 5 January 2009 (Royale Thompson’s Second Affidavit);

3. Affidavit of Service By Post of Haho Marjen sworn on 30 January 2009 and filed on 9 February 2009.

On 30 January 2009, the Notice of Motion and Royale Thompson’s Second Affidavit were served on the Plaintiff by causing those documents to be posted to the Plaintiffs lawyer’s address at PO Box 991 Mt. Hagen. That is confirmed by the Affidavit of Service By Post of Haho Marjen.

According to the Court’s record, the Defendant’s lawyers served Royale Thompson’s First Affidavit on the Plaintiff on 7 February 2006. Sealed copies of that affidavit together with a Notice of Motion and a Notice of Change of Name giving notice of the change of the name of the law firm representing the Defendant all filed on 30 January 2006 were caused to be posted to the Plaintiffs lawyer’s address at PO Box 991 Mt. Hagen. That is confirmed by the Affidavit of Service of Lilian Aisi sworn on 9 February 2006 and filed on 15 February 2006. It was by that Notice of Motion that the Defendant first sought an order to dismiss these proceedings for want of prosecution (the first application). The first application was withdrawn by consent on 24 March 2006.

The present application is the second time that the Defendant has filed an application to dismiss these proceedings for want of prosecution.

6. The Plaintiff contests the application. He relies on the Affidavit of Paulus Koim Kunai sworn on 16 March 2009 and filed on 7 April 2009 in response to the Defendant’s application.

BRIEF BACKGROUND AND FACTS

The Plaintiffs claim

7. On 28 March 2002, the Plaintiff commenced these proceedings by filing his writ of summons endorsed with a statement of claim.

8. The Plaintiff claims that he is an adult who was injured in an accident whilst a passenger on a Toyota Coaster bearing registration number P956G (the motor vehicle) owned by a PK Trading and driven by one Luke Honjepari. He claims to have suffered severe injuries to his body in particular the ones to his chest, lower back and left shoulder as a result of the alleged accident. The Plaintiff also claims that the alleged accident occurred along the Rumbarumbanoku road near Daulo in the Eastern Highlands Province at about 03:00 pm on or about 22 September 1999 and it was caused by the negligence of the driver.

9. The Plaintiff claims that the Defendant is liable to pay him damages under the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 for the loss and damage suffered.

Notice of Intention to Defend, Defence and Reply

10. The Defendant’s Notice of Intention to Defend and Defence were filed on 13 May 2002.

11. The Defendant denies liability. It also pleads in its defence that on or about 22 September 1999, it was the insurer of a Toyota Coaster bearing registration number P956Q.

12. The Plaintiffs Reply was filed on 4 June 2002 adopting the Defendant’s admissions and joining issue with the denials.

THE DEFENDANT’S SUBMISSIONS

13. Ms. Salika of counsel for the Defendant referred the Court to the principles governing the dismissal of proceedings for want of prosecution summarised by His Honour, Justice Kandakasi in Vivisio Seravo v. Jack Bahafo (2001) N2078 and followed in Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845 and submitted that these proceedings should be dismissed on the strength of the evidence produced for and on behalf of the Defendant before the Court which she said was sufficient to satisfy all the necessary requirements.

14. Counsel further submitted that when pleadings closed in June 2002, a Notice to Set Down for Trial endorsed by the parties was subsequently filed in July 2002. However, she said because the matter had not been set down for trial since the filing of the Notice to Set Down for Trial coupled with the fact that the Defendant’s lawyers had not, since August 2002, received any communication from the Plaintiffs lawyers, the Defendant decided to file its first application which was later withdrawn by consent.

15. Counsel further submitted that notwithstanding that the matter has been on the civil call-over list for over 6 years, the Plaintiff has taken no meaningful steps to set the matter down for trial including, apart from some correspondence regarding filing of the order withdrawing the first application, not corresponding with the Defendant’s lawyers in relation to further steps taken since the withdrawal of the first application. The delay was either intentional or inordinate and the Plaintiff has provided no reasonable explanation for the delay she contended.

16. Counsel also argued that Royale Thompson’s Second Affidavit contained evidence showing that the Defendant has been severely prejudiced by the Plaintiffs complete failure to take any steps to proceed with his claim considering that it is now about 10 years since the alleged accident and would no doubt affect memories of witnesses to recall facts about that and that the Defendant has incurred considerable expense in conducting the defence of these proceedings.

17. A case for the dismissal of the proceedings for want of prosecution has been established counsel said.

THE PLAINTIFFS SUBMISSIONS

18. Mr Kunai of counsel for the Plaintiff submitted that the delay in setting the matter down for trial was not due to the Plaintiffs fault, but was due to several factors which he highlights in his Affidavit. These are; firstly, the practice adopted and applied by the Court here now is that all matters including matters involving the Defendant are fixed for trial according to the age of matters on the civil call-over list in that older matters take priority over more recent matters; secondly, there were many older matters in the queue before this matter; and lastly, it was also a practice adopted and applied by the Court here now requiring all parties to attend call-overs in order to obtain a trial date.

19. The Listings Rules 2005 have been implemented here since last year and the parties should therefore progress the matter to trial in accordance with those rules counsel said.

20. Mr. Kunai further submitted that the first application was withdrawn because the Defendant took into account the Court’s practice here as to setting down matters for trial. That is acknowledged in Royale Thompson’s Second Affidavit he said.

21. Mr. Kunai also submitted that the Defendant’s application based on the alleged non-compliance by the Plaintiff with O.10 r.5 of the National Court Rules was misconceived because the Plaintiff has already filed a Notice to Set Down for Trial requesting that the proceedings be set down for trial. It was now a matter of getting a date fixed for trial, but because the Defendant was not represented at the call-overs, that made it extremely difficult to obtain a date counsel said.

22. Counsel suggested that if the Defendant wanted to seek other reliefs in respect of these proceedings other than dismissal for want of prosecution, such application(s) should be made under O.12 r.1 of the National Court Rules. This is because that rule gives the Court a considerable discretion at any stage of any proceedings on the application of any party to make such orders as the nature of the case requires he said.

23. Counsel submitted that the onus was upon the Defendant to establish all the necessary requirements for the dismissal of proceedings for want of prosecution. He argued that in the present case, the Defendant has to establish in particular that the delay in setting the matter down for trial was intentional. Counsel stated that whilst it was apparent that there has been a long delay in obtaining a date for trial, the delay as explained in his Affidavit was not intentional contrary to the suggestion by the Defendant that it was nor was the Plaintiff sitting on the matter and doing nothing.

24. The present application should therefore be refused and the matter be listed for directions hearing counsel said.

THE ISSUE

25. The pertinent issue for determination by the Court is whether the Defendant has established a case for the dismissal of the proceedings for want of prosecution.

THE LAW ON DISMISSAL FOR WANT OF PROSECUTION

26. Order 10 rule 5 of the National Court Rules deals with dismissal for want of prosecution for proceedings commenced by writ of summons (O.10 r.1 (1)) and also to proceedings commenced by originating summons to the extent and with such modifications as the Court may direct (O.10 r.1 (2)). It states:

"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 order as the Court thinks fit."

27. Order 10 rule 5 provides that the proceedings be set down for trial within 6 weeks after the pleadings are closed otherwise there is a risk of the matter being dismissed on motion by a party on terms. However, O.10 r.9A (6)(1) (Listings Rules 2005-Notice to Set Down for Trial) provides that the notice may be filed after a lapse of 6 weeks from the close of the pleadings, but only after all interlocutory processes are completed and all parties endorse the notice. There is an apparent inconsistency as to when the notice may be filed. Is it within 6 weeks or after the lapse of 6 weeks from the close of the pleadings? I think O.10 r.9A (6)(1) being the latter promulgation, it is a basic rule of statutory interpretation that it will have the effect of repealing the previous inconsistent provision. The Plaintiff was therefore required to file a Notice to Set Down for Trial after the lapse of 6 weeks from the close of the pleadings and upon completion of all interlocutory processes.

28. The power of the Court to dismiss proceedings on the ground of want of prosecution is discretionary. The discretion is to be exercised having regard to all the circumstances of a case: see Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55.

29. A long line of cases have discussed the law from which emerge a number of well-established principles. These principles were succinctly summarised by His Honour, Justice Kandakasi in the case of Vivisio Seravo. There, His Honour said:

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

1. The plaintiffs default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

2. There is no reasonable explanation given by the plaintiff for the delay; and

3. That the delay has caused injustice or prejudice to the defendant.

This is apparent from cases like that of Ronald Nicholas v. Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133 which has been followed in a number of other cases such as Umbu Waink & Anor v. Motor Vehicles Insurance (PNG) Trust and The State (15/08/97) N1630. I consider those principles relevant and therefore they apply in the context of O.4. r.36 (1), in the absence of any authority to the contrary."

30. In Kai Ulo, the Supreme Court said that the onus is on an applicant to establish a prima facie case of delay and the onus then shifts to the respondent to give a satisfactory explanation for the delay.

31. Matters relevant to determining whether there was inordinate or undue delay or whether satisfactory explanation for the delay had been established were suggested by the late Justice Kapi (as he then was) in Kai Ulo and by the Supreme Court in Burns Philp (New Guinea) Limited. These are:

- the mechanics of producing appeal papers such as typing, compilation of appeal book and shortage of staff, etc;

- the availability of reasons and transcript of evidence;

- the length of and reasons for the delay on the appellant's part;

- the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;

- any negotiations between the parties.

32. Other factors to be used as guides are:-

- that the court should also look at the conduct of the parties and their lawyers: John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637;

- the duty of the court to give paramount consideration to the dispensation of justice under s 158 (2) of the Constitution: Ahmadiyya Muslim Mission.

33. In Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, it was said that where there was a long delay in progressing the 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.

34. I adopt the above considerations and apply them to the present case below.

APPLICATION OF CONSIDERATIONS

Is the plaintiffs default intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim?

35. It is apparent that there has been a lengthy delay in prosecuting this matter considering that; the Plaintiffs writ was filed more than 7 years ago on 28 March 2002; the pleadings closed in June 2002; and the Plaintiffs Notice to Set Down for Trial was filed on 18 July 2002. The question to ask is whether the Plaintiffs delay is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim in the present case?

36. On 30 January 2006, more than 3 years and 6 months after the filing of the Notice to Set Down for Trial, the Defendant filed the first application. The reasons behind the filing of the first application was that despite pleadings closing in 2002 and the subsequent filing of the Plaintiffs Notice to Set Down for Trial, the matter had not been set down for trial coupled with the fact that the Defendant’s lawyers had not, since August 2002, received any communication from the Plaintiffs lawyers.

37. The first application was withdrawn by consent on 24 March 2006 because the Defendant took into account the Court’s practice here as to setting down matters for trial: see paragraph 4 of Royale Thompson’s Second Affidavit.

38. On 5 January 2009, the Defendant filed the present application. That was; over 2 years and 9 months after the withdrawal of the first application; about 6 years and 6 months after the filing of the Notice to Set Down for Trial; and about 6 years and 10 months after the filing of the writ. The reasons advanced by the Defendant here are basically the same as those relied on in the first application. In Royale Thompson’s Second Affidavit, she deposes that in spite of the matter being on the civil call-over list for 6 years, the Plaintiff has taken no meaningful steps to set the matter down for trial including, apart from some correspondence regarding filing of the order withdrawing the first application, not communicating with the Defendant’s lawyers in relation to further steps taken since the withdrawal of the first application.

39. It is not disputed that the Plaintiffs lawyers did write to the Defendant’s lawyers by their letter of 18 March 2008 in response to the latter’s letters to them dated 15 November 2007 and 7 March 2008. The Defendant’s lawyers stated in their letter of 15 November 2007 that they had not been informed about steps taken by the Plaintiff to have the matter set down for trial since the withdrawal of the first application and also by that letter requested the Plaintiffs lawyers to attend the December call-over, obtain a trial date and revert to them. In the letter of 7 March 2008, the Defendant’s lawyers requested an update on what steps had been taken to have the matter set down for trial. The Plaintiffs lawyer’s response was that the matter was on the call-over list for listing.

40. At paragraph 10 of Royale Thompson’s Second Affidavit, she deposes that her law firm then engaged Messrs Tiffany Nonggorr Lawyers to act as town agent and attend call-overs and they were later informed that the matter was not listed on the call-over list for either September or October 2008. There is no explanation as to the inconsistency with that evidence and Mr. Kunai’s that the matter was actually on the call-over list in March 2008.

41. It is my view that once a Notice to Set Down for Trial is filed, the matter falls within the province of the Registrar in so far as dealing with the request to set the matter down for trial is concerned. Thus, prior to coming into operation of the Listings Rules 2005, the matter should automatically have been listed on the call-over list managed by the Registrar. I think the Plaintiff cannot be blamed for the matter not making it to the call-over list if the evidence of Ms. Thompson is to be accepted hence not entering the listing process. In any event, that piece of Ms. Thompson’s evidence is hearsay. In the absence of any strong evidence to the contrary, I will prefer Mr. Kunai’s evidence that the matter is actually on the civil call-over list.

42. The call-over list has now been done away with though under the Listings Rules 2005 (O.10 r.9A (3), but the Registrar is now required to compile and maintain a general civil list of all civil cases (except for those cases specifically excluded) including a list containing cases where a Notice to Set Down for Trial has been filed and other lists involved in the listing process (O.10 r.9A (5). It appears from Mr. Kunai’s Affidavit that the matter has not yet reached the Directions Hearing List.

43. The Court notes that there is evidence showing that the matter was listed for summary determination on 25 April 2005 when Justice Kandakasi issued self executing orders in the event that the parties failed to comply with certain directions His Honour issued. Those orders were set aside by the late Justice Hinchliffe on 13 August 2007 because they were practically not workable.

44. The Plaintiff concedes that although the delay is quite lengthy, the explanation given for the delay shows that it was not intentional.

45. I accept the Plaintiffs submissions. This consideration favours the Plaintiff.

Is there a reasonable explanation given by the plaintiff for the delay?

46. My remarks at paragraphs 35 to 45 above are adopted and applied here. They should suffice. There is a reasonable explanation for the delay. This consideration favours the Plaintiff.

Has the delay caused injustice or prejudice to the defendant?

47. I also adopt my remarks at paragraphs 35 to 45 above and apply them here. I state my other reasons below.

48. The Plaintiffs claim is in respect of an accident which allegedly occurred on or about 22 September 1999. The unresolved dispute between the parties still hangs over the head of the Defendant. I accept the reasons advanced at paragraph 11 of Royale Thompson’s Second Affidavit that the Defendant has been severely prejudiced by the Plaintiffs long delay and will continue to be prejudiced as the years go by. This consideration favours the Defendant.

Conduct of the parties and their lawyers

49. The evidence show that the Defendant’s lawyers seem to have been doing the bulk of the correspondence exchanged between the parties’ lawyers and they did correspond with the Assistant Registrar here. The Plaintiffs lawyers appear to have had a casual approach to the progression of the matter since the filing of the Notice to Set Down for Trial, but, as I have alluded to already, the Plaintiff should not be blamed for not listing the matter on the civil call-over list which was a matter within the province of the Registrar. However, I consider that it was also incumbent upon the Plaintiffs lawyers to communicate with the Registrar through the Assistant Registrar here to list the matter when noticing that the matter was not on the call-over list and once listed attend the call-overs to prepare and have the matter set down for trial. If the Defendant were not represented at the call-overs, then an application for directions would have been in order.

50. The Defendant’s lawyers’ conduct is not without blame. In my view, they have, as the evidence show, pursued the matter with the Plaintiffs lawyers intermittently. I say this notwithstanding the filing of the first application. This is because, whilst they corresponded with the Plaintiffs lawyers, they did not attend the call-overs. The Defendant was never represented at the civil call-overs until they engaged Messrs Tiffany Nongorr Lawyers to act as their town agent last year. If they had attended the civil call-overs, this matter may have been given more attention which would have resulted in it being progressed towards obtaining a trial date. I think this consideration favours the Plaintiff.

Duty of the court to give paramount consideration to the dispensation of justice under s 158 (2) of the Constitution

51. Mr. Kunai in his Affidavit submits that the Defendant’s lawyers failed to forewarn his firm before filing the present application. The Defendant has not taken issue with that. The decision in Mapmakers Pty Ltd v. Broken Hill Proprietary Company Ltd [1987] PNGLR 78 was the basis upon which Practice Direction No. 1/1987 was issued. That Practice Direction required lawyers to forewarn lawyers on the opposing side where a notice of intention to defend has been filed before applying to enter default judgment. The Supreme Court in Hilary Singat v. Commissioner of Police (2008) SC910 remarked on the importance of that practice in the following terms:-

"The aim of the forewarning letter is thus, to give a defendant who might have inadvertently overlooked the need for filing and serving its defence within the prescribed time limits the opportunity to do so. This ties in well with the Courts usual desire to do justice on the substantive merits of a case as opposed to a judgment based purely on technicalities and deficiencies or defaults in compliance with the rules of the Court, which are only a means to an end and not an end in them. At the same time, the requirement also ensures that, a defendant is not taken by surprise by a default judgment and thereby avoids the possibility of an application to set aside a default judgment, with the associated costs and the Court’s time issues."

52. Whilst that practice applies to applications for the entry of default judgments which has now been adopted and incorporated into the National Court Rules by the Motions (Amendment) Rules 2005 (O.4 r.49 sub-rule 19 (3)(a)(i)(4)), the practice of forewarning lawyers on opposing sides in other aspects of civil litigation is a good one and should be a relevant factor to be considered when the exercise of Court’s discretion is required: see PNG Water Board v. Gabriel M. Kama (2005) SC821 and Island Helicopter Services Ltd v Wilson Sagati (2008) N3340. I also adopt part of the reasoning of the Supreme Court in Hilary Singat that ‘[t]his ties in well with the Courts usual desire to do justice on the substantive merits of a case as opposed to a judgment based purely on technicalities and deficiencies or defaults in compliance with the rules of the Court, which are only a means to an end and not an end in them.’ I have also adopted and applied that practice here. This consideration favours the Plaintiff.

CONCLUSION

53. Out of the five (5) considerations considered above, four (4) of them favour the Plaintiff. Justice therefore demands that the Defendant’s application for dismissal for want of prosecution should not be granted in the circumstances of this case.

ORDER

54. These are the formal orders of the Court:-

1. The Defendant’s application is refused.

2. The Defendant is not totally to be blamed for making this application. The Plaintiff has contributed to that. In fairness, each party shall bear its own costs.

____________________________________

Kunai & Co Lawyers: Lawyers for the Plaintiff
Young & Williams Lawyers: Lawyers for the Defendant