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John v Motor Vehicle Insurance Ltd [2012] PGNC 175; N4867 (31 October 2012)

N4867

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1488 OF 2001

RUTH JOHN
Plaintiff

V

MOTOR VEHICLE INSURANCE LIMITED
Defendant

Goroka: Ipang AJ
2012: 12 & 31 October

CIVIL MOTION – To dismiss proceedings for want of prosecution – Order 10 Rule 5 of the National Court Rules & Rule 15 (2) (a) of the Listings Rules, 2005 – Order 10 Rules 5 of the National Court Rules – deals with dismissal for want of Prosecution of proceedings commenced by Writ of Summons

Cases cited

Ronald Nichols v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Alumadiyaa Muslim Mission v Bank South Pacific Limited [2005] N2845
Seravo v Bahafo [2001] N2078
John Niale v Sepik Coffee Producers Limited & Ors [2004] N2647
Kai Ulo & 2 Ors v The State [1981] PNGLR 55

Counsel

Mr. K. Pilisa, for the Plaintiff (Nil Appearance)
Ms. E. Suelip, for the Defendant

RULING

31 October, 2012

1. IPANG AJ: The Defendant, Motor Vehicles Insurance Limited (MVIL) seeks the following Orders from its motion filed on the 23rd of August, 2012:
   
   1. That the proceedings be dismissed for want of prosecution pursuant to Order 10 Rule 5 of the National Court Rules and Rule 15 (2) (a) of the Listings Rules, 2005.
      
   2. Plaintiff pays the Defendant's cost of and incidental to these proceedings.
      
   3. Such further or other orders that the Court considers appropriate.
      
2. On the 21st September, 2012 Mr. Pilisa of Counsel for the Plaintiff was not prepared when Ms. E. Suelip of Counsel for the Defendant tried to move her motion. The matter was adjourned with costs to the 12th October, 2012. On the 12th October, 2012 Mr. Pilisa showed no appearance. Defendant's motion was then moved ex parte.
   
3. In moving this motion, the Defendant relies on the Affidavit of Maitang sworn on the 08th of August, 2012 and filed on the 23rd of August, 2012. I will revert to this affidavit when I consider the grounds that the Defendant relied on to move its motion.
   
4. The Defendant invoked its jurisdiction under Order 10 Rule 5 of the National Court Rules and Rule 15 (2) (a) of the Listings Rules 2005 to move its motion. The Order 10 Rule 5 is stated in the following terms;
   

"5, Want of Prosecution

Where a Plaintiff does not, within six (6) 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."

5. The Rule 15 (2) (a) of the Listings Rules 2005 is in the following;
   

"15. SUNMARY DISPOSAL

(2) The Court may summarily dispose of a matter in the following situations;

(a) For want of prosecution since filing the proceedings or since the last activity on the file."

6. In order to appreciate and determine whether the Defendant has made out a case under Order 10 Rule 5 of the National Court Rules and Rule 15 (2) (a) of Listings Rules 2005, is for the Court to consider the facts or the activities that took place after the Writ of Summons was filed.
   
7. The following are the activities that took place on the file:
   
   1. On the 17th October, 2001 Plaintiff filed a Writ of Summons. In the Writ of Summons filed endorsed with the Statement of Claim, the Plaintiff claimed for damages against the Defendant for injuries she claims to have sustained in a motor vehicle accident on the 04th of November, 1996. She claimed that she was a passenger at the back of a motor vehicle bearing Registration No. AEV. 316 from Faganofi village towards Henganofi Station in the Eastern Highlands Province. Along the way the driver of the vehicle she was travelling on, lost control of the vehicle and the vehicle overturned down the edge of a mountain where she was thrown off and she sustained injuries to her legs and shoulders.
      
   2. The Writ of Summons was served on the Defendant on the 18th October, 2001. On the 13th of November, 2001 the Defendant filed its Defence. The pleadings were closed on or around 01st December, 2001. On the 18th November, 2002, the Plaintiff filed a Notice to set Down for Trial.
      
   3. The Defendant says from the date of filing the Notice to Set down for Trial up to 20th July, 2010, both parties one way or the other attempted to bring this matter up for trial but a trial never eventuated. As a result, a period of 9 years and seven months have passed.
      
   4. On the 21st July, 2010, the Plaintiff's lawyers wrote to the Defendant's lawyers notifying them that they intended to have the matter listed for Directions Hearing on September, 2010 Call-Over.
      
   5. On 2nd February, 2011 the Defendant's lawyers wrote to the Plaintiff's lawyers enquiring whether the matter was listed on the Directions Listings List and that they, Defendant's lawyers consented to any trial date. The Defendant's lawyers also requested Plaintiff's lawyers to provide them with an up to date Medical Reports for consideration for possible settlement as the matter was dragging for number of years.
      
   6. On the 18th of February, 2011 the Defendant's lawyers wrote to the Plaintiff's lawyers requesting the Plaintiff's lawyers to provide them with Medical Treatment Notes and the Police Accident Report. Defendant's lawyers claimed these documents have not been provided to their client. Defendant's lawyers also forwarded the Plaintiff's lawyers a Proof of Identity and Photograph Form to be completed by the Plaintiff and returned. Defendant's lawyers informed the Plaintiff's lawyers that upon receipt of the documents, Defendant would make an offer for settlement.
      
   7. On the 8th of September, 2011 the Plaintiff's lawyers wrote to the Defendant's lawyers and forwarded them with the Proof of Identity and the Photograph form but not the initial medical treatment notes requested for. Plaintiff's lawyers had indicated that they interlarded to have the matter listed for Directions Hearing in October, 2011 and then they forwarded the Defendant's lawyers with the Statement of Agreed and Disputed Facts and Legal issues for trial.
      
   8. On the 20th December, 2011, the Defendant's lawyers wrote to the Plaintiff's lawyers and asked them to forward them (Defendant's lawyers) the Plaintiff's initial discharge Summary Notes and Medical Reports.
      
   9. The Defendant's lawyers say the Plaintiff's lawyers have not provided them with the initial medical treatment notes, the discharge summary note and the Medical Reports for the matter to be progressed to possible settlement and conclusion. The Defendant says since 8th September, 2011 the Plaintiff has not taken any substantive and proactive steps to have the matter listed and prosecuted. The Defendant submitted that the matter has been dragging on without any positive steps being taken by the Plaintiff to bring the matter to finality.
      

8. In Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, the Defendant applied to the National Court under Order 4 Rule 36 for an order that the proceedings be dismissed for want of prosecution. It was held:

"The power of the Court to dismiss proceedings for want of prosecution should be exercised only where the Plaintiffs' default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyers' part, giving rise to a substantial risk that a fair trial will not be possible or to serious prejudice to the defendant.

Where there has been a long delay in bringing 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."

9. In Alumadiyaa Muslim Mission v Bank South Pacific Limited (2005) N2845 Cannings, J set out 5 considerations for a court to consider when dealing with an application under Order 4, Rule 36 and Order 10 Rule 5. This case specifically dealt with Order 5 Rule 5, however Cannings, J remarked:

"There is no material difference between Order 4, rule 36 and Order 10, rule 5 they both deal with the power of the court to dismiss proceedings on a ground of want of prosecution. The general principles to apply in deciding both sorts of application are, if not the same, very similar."

10. In Seravo v Bahafo (2001) N2078, Kandakasi, J summarized matters to be taken into account when dealing with applications to dismiss proceedings for want of prosecution. His Honour stated:

"It is now clear law especially in the context of the National Court Rules that an Application for Dismissal for want of prosecution may be granted if:

(i) The plaintiffs' default is intentional or is allowing for an inordinate or inexcusable delay in the prosecution of his claim;

(ii) There is no reasonable explanation given by the plaintiff for the delay;

(iii) That delay has caused injustice or prejudice to the Defendant."

11. It is in John Niale v Sepik Coffee Producers Limited & Ors (2004) N2647 where Cannings, J expanded the issue to be taken into consideration and stated:

"The Court should specifically look at the conduct of the parties and their lawyers."

12. His Honour Cannings, J added another factor to be taken into consideration and that is;

"The Court take into account of its delay to give paramount consideration to the dispensation of justice under section 158 (2) of the constitution."

Application of the law to the facts

(i) Whether Plaintiff's default is intentional or is creating an inordinate and inexcusable delay in the prosecution of his claim.

13. The Plaintiff had on the 18th of October, 2001 instituted legal proceeding against the Defendant through a Writ of Summons. Since the filing of the Writ of Summons there were minor activities on the file with correspondences exchanged between counsels having carriage of the matters for both parties. The last activity on the file by the Plaintiff was on the 8th of September, 2011.

(ii) There is no reasonable explanation given by the Plaintiff for the delay

14. Plaintiff has not provided any explanation for the delay from 8th September, 2011 up to the time this motion was filed and moved. This is the period where there was no legal activity on File. This has demonstrated that the Plaintiff has no interest of progressing the matter to trial. In the case of Kai Ulo & Ors v The State [1981] PNGLR 55, the Supreme Court pointed out that the onus is on an applicant to establish a prime facie case of delay and the onus then is shifted to the respondent to give a satisfactory explanation for delay. In this present case, there is no reasonable explanation given for the delay in prosecuting her claim.

(iii) Whether delay has caused injustice or prejudice to the Defendants.

15. Since the last activity on the File that was on the 8th of September, 2011 the matter has not progressed for almost more than one (1) year. This in my view has caused injustice to the Defendant. The Defendant continues to wait on the Plaintiff to prosecute her claim against the Defendant. In Ronald Nicholas v Commonwealth Timbers Pty Ltd (supra), the Court dealt with a lengthy delay in progressing the matter to trial. The court held that a balance must be struck between the Plaintiff and the Defendant and in the end the Court must decide whether justice demands that the proceedings be dismissed.

16. In this present case, it seems the Plaintiff has abandoned her claim after 8th September, 2011 when there was no further legal activity on the File.

(iv) Court should look at the conduct of the parties or their lawyers

17. Mr. Pilisa of Counsel for the Plaintiff was apparently present on the 21st of September, 2012 when this matter was adjourned to 12th October, 2012. On the 12th October, 2012 Mr. Pilisa showed no appearance even the plaintiff herself showed no appearance. Even on the 21st September, 2012, the plaintiff had costs of adjournment against her. The conduct of the Plaintiff's counsel has also contributed to further delay in the prosecution of this matter.

(v) Whether Court should take into consideration of her delay, to give paramount consideration to the dispensation of justice under s. 158 (2) of the Constitution

18. I consider more than one (1) delay in prosecuting her claim to be unjustifiable and unreasonable since the last legal activity on the File on the 8th September, 2011. The interest of justice and the balance of convenience lies in favour of relieving the Defendant of this burden and dismissing the proceedings because of the Plaintiff's unreasonableness in prosecuting this matter.

19. For the aforesaid reasons, I grant the orders sought in the motion and dismiss this proceeding in its entirety with costs. Costs to be agreed if not to be taxed.

__________________________________

Pilisa Lawyers: Lawyer for the Plaintiff
Mirupasi Lawyers: Lawyer for the Defendant