Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Irun v Yawar [2015] PGNC 235; N6167 (22 September 2015)

N6167

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 812 OF 2014

DOMOL IRUN OF JOH CLAN, SEIN VILLAGE
Plaintiff

V

GARY YAWAR OF MUDUG CLAN, SEIN VILLAGE
First Defendant

LIONNIE WALA OF MUDUG CLAN, SEIN VILLAGE
Second Defendant

SILEN SAU OF SEIN VILLAGE
Third Defendant

TURIG SAU OF SEIN VILLAGE
Fourth Defendant

ULUWAN NINIBIL OF MEH CLAN, OMURU VILLAGE
Fifth Defendant

BENNY ULUL, CONSULTANT
Sixth Defendant

MADAI BAYE, MADANG DISTRICT LAND MEDIATOR
Seventh Defendant

HIS WORSHIP ROBERT TEKO, PRESIDING MAGISTRATE
Eighth Defendant

MADANG LOCAL LAND COURT
Ninth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendant

Madang: Cannings J
2015: 22 September

PRACTICE AND PROCEDURE – application by defendant to dismiss proceedings for want of prosecution – proceedings in the nature of an application for leave to seek review of decisions of a Local Land Court.

The plaintiff filed an application for leave to seek review by the National Court of decisions of a Local Land Court. The National Court commenced hearing the application on 2 June 2015. The hearing was adjourned on several occasions. The plaintiff was still not ready to complete the application on 23 September 2015, so the defendants applied for dismissal of the proceedings on various grounds including want of prosecution.

Held:

(1) In any situation where consideration is being given to dismissing proceedings for want of prosecution, two basic issues have to be addressed. First, has there been an apparent delay in prosecuting the matter? If yes, does the person apparently guilty of the delay have a satisfactory explanation for the delay?

(2) Here, there was a significant delay in progressing the application for leave. The party apparently responsible for the delay was the plaintiff. It was up to the plaintiff to provide a good explanation for the delay.

(3) The plaintiff failed to provide a satisfactory application, therefore the proceedings were dismissed.

Cases cited

The following cases are cited in the judgment:

Donigi v PNGBC (2001) SC691
Kakaraya v Somare (2004) SC762

APPLICATION

This was an application for dismissal of proceedings for want of prosecution.

Counsel:

J Morog, for the plaintiff
B Ulul, for the first to sixth defendants

22 September, 2015

1. CANNINGS J: The first to sixth defendants apply for dismissal of these proceedings on the ground of want of prosecution. The proceedings are an application by the plaintiff, Domol Irun, for leave to seek review by the National Court of decisions of the Madang Local Land Court, constituted by his Worship Mr Robert Teko, dated 19 November 2014, regarding customary land in Madang District.

BACKGROUND

2. In November 2012 the first to sixth defendants were involved in a successful mediation of a land dispute, which resulted in various agreements being made. The agreements were referred to the Madang Local Land Court under the Land Disputes Settlement Act and ratified by a series of orders dated 19 November 2014.

3. On 21 November 2014 the plaintiff applied to the National Court, by originating summons, for review of the Local Land Court decisions. The matter was mentioned in the National Court on 1 December 2014, 2 February 2015 and 16 February 2015. On 16 February 2015 the plaintiff was directed to file an application for leave to seek review, which was set down for hearing on 10 March 2015. On 10 March 2015, the hearing was adjourned to 20 April 2015; then on 20 April it was adjourned to 22 April 2015; then on 22 April it was adjourned to 2 June 2015.

4. On 2 June 2015 the court commenced the hearing of the application for leave. Mr Morog, for the plaintiff, advised that he was having difficulty getting a copy of the Local Land Court decisions and depositions, so the application was part-heard and adjourned to 10 August 2015, and then to 17 August 2015, and then to 19 August 2015.

5. On 19 August 2015 the Court ordered the Clerk of Madang Local Land Court to provide the decisions and depositions by 4 September 2015 and the part-heard hearing of the application for leave was adjourned to 8 September 2015.

6. By 8 September 2015 the decisions and depositions of the Madang Local Land Court had been placed on the National Court file in these proceedings, OS No 812 of 2014. On 8 September 2015 the part-heard hearing of the leave application was given a "last adjournment" to 22 September 2015.

7. At the morning session on 22 September 2015 the part-heard leave application was called. Mr Morog asked the court for an adjournment of several days so that he could have time to examine the decisions and depositions. I told him that the documents had been on the file for two weeks and stood the matter down to the afternoon session. When the matter was called that afternoon Mr Morog said that he was still not ready and he asked for another adjournment, to 9.00 the next day, 23 September 2015.

8. I did not rule on that oral application for adjournment but instead said that I would hear Mr Ulul's application to dismiss the proceedings for want of prosecution.

APPLICATION TO DISMISS PROCEEDINGS

9. Mr Ulul had, early on 22 September 2015, filed a written application, on behalf of the first to sixth defendants, seeking dismissal of the proceedings on the grounds that they were frivolous, vexatious and an abuse of process. He argued the plaintiff was not a disputing party in the proceedings that took place under the Land Disputes Settlement Act, that the disputes were amongst the first to fifth defendants, that the plaintiff did not participate in the mediation even though it was a public mediation of which public notice had been given, so he had no genuine interest in the land matter, which had been successfully mediated. He therefore has no standing. I informed Mr Ulul that those issues seemed to relate to the merits of the application for review of the Local Land Court decisions and that he should confine his submission to the question of whether the application for leave should be dismissed for want of prosecution. He replied that the plaintiff had delayed the application for leave for far too long.

10. Mr Morog responded that this was a significant case involving customary land and it should not be lightly dismissed. Much of the delay in hearing the application was due to the defendants not being cooperative in providing the plaintiff with copies of the Madang Local Land Court decisions.

DETERMINATION

11. The National Court Rules confer broad power on the National Court to dismiss proceedings for want of prosecution, including Order 10, Rule 9A(15)(1) and (2), which state:

(1) The Court may summarily determine a matter:

a. on application by a party; or

b. on its own initiative; or

c. upon referral by the Registrar under (3) below.

(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; or

b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or

c. for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.

d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.

12. In any situation where consideration is being given to dismissing proceedings for want of prosecution, two basic issues have to be addressed. First, has there been an apparent delay in prosecuting the matter? If yes, does the person apparently guilty of the delay have a satisfactory explanation for the delay? (Donigi v PNGBC (2001) SC691, Kakaraya v Somare (2004) SC762.)

13. Here, there has been a significant delay in progressing the application for leave to seek review of the decisions of the Local Land Court. The party apparently responsible for the delay is the plaintiff. It is up to the plaintiff, through his lawyer, to provide a good explanation for the delay. I reject Mr Morog's submission that the defendants are to blame. It was the responsibility of the plaintiff and his lawyer to get the application for leave moving and to complete it, expeditiously.

14. The plaintiff was put on notice, by the Court's direction on 8 September 2015, that a "last adjournment" was being given, to 22 September 2015, for hearing the application, that the application had to be completed on the appointed date and that failure to be ready would need to be accompanied by exceptional reasons in order to repel an application for dismissal. Copies of the Madang Local Land Court decisions and depositions lay on the National Court file for two weeks without anything positive being done by the plaintiff or his lawyer to get the application for leave completed. The application has been part-heard since 2 June 2015. More than three months later, on 22 September 2015, the plaintiff was still not ready to complete it.

15. The plaintiff has been unable to provide a good explanation for the delay. Therefore the application for dismissal is granted. As the plaintiff has been represented by the Public Solicitor and the parties moving the application have not engaged private counsel I will order that they bear their own costs.

ORDER

(1) The proceedings OS 812 of 2014 are dismissed for want of prosecution.

(2) The parties shall bear their own costs of the proceedings.

(3) The file is closed.

Judgment accordingly,
__________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff