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Hides Gas Development Co Ltd v HBS (PNG) Ltd [2019] PGNC 331; N8116 (26 November 2019)

N8116

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 53 OF 2017

BETWEEN:
HIDES GAS DEVELOPMEMT COMPANY LIMITED
Plaintiff

AND:
HBS (PNG) LIMITED
Defendant

Waigani: Anis J
2019: 11 & 26 November

NOTICE OF MOTION – dismissal of proceeding – Order 10 Rule 9A, 15(1)(a), Order 4 Rule 36(1) and Order 10 Rule 5 – National Court Rules –want of prosecution and summary disposal of proceeding – whether the matter should be dismissed – discretion

Cases Cited:

Steven Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2013) SC1297
Umbu Waink v. MVIT [1997] PNGLR 390

Counsel:

Mr K Iduhu, for the Plaintiff/Respondent
Mr W Frizzell, for the Defendant/Applicant

RULING

26^th November, 2019

1. ANIS J: The defendant applied to dismiss the proceeding summarily for want of prosecution. Its notice of motion was heard on 14 November 2019. I reserved my ruling to a date to be advised.

2. Parties have been notified so I will rule on it now.

MOTION

3. The defendant’s notice of motion was filed on 7 November 2019 (motion). The main relief it seeks is, and I quote:

That the Plaintiff’s claim be dismissed for want of prosecution pursuant to Order 10 Rule 9A (Listing Rules 2005) Sub-rules 15(1)(a), 15(2)(a), and Order 4 Rule 36(1) and Order 10 Rule 5 of the National Court Rules.

EVIDENCE

4. The defendant’s main evidence in support are the affidavits of Augaia Jane Dalton and Bob Watkins, both filed on 7 November 2019. The plaintiff, on the other hand, relies on the unsealed affidavit of Maleva Kipa which was sworn on 13 November 2019. The affidavit was unsealed but it was tendered at the hearing without objection and with leave of the Court.

BACKGROUND

5. The plaintiff filed this proceeding on 7 February 2017. It seeks recovery of debts under contractual arrangements that it claims to have had with the defendant in 2012. The events alleged occurred or were alleged to have occurred at the time when the defendant was engaged with various contracts whereupon its employees were stationed at an area described as Para Residential Camp at Hides in Hela Province in Papua New Guinea. According to the statement of claim, the plaintiff’s claim is in two folds. The first is for Accommodation Costs and the second is for Vehicle Hire and Fuel Costs. In total, the plaintiff claims, amongst others, a liquidated sum of K701, 469.08.

6. The claim is defended. The defendant has filed a defence and cross-claim. The defendant denies the plaintiff’s claim and claims, amongst others, a liquidated total sum of K32,000, that is, K20, 000 for legal fees it claims to have incurred for the dispute, and K12, 000 for alleged unlawful enrichment.

ISSUE

7. The main issue is delay, that is, whether there was delay by the plaintiff in progressing the matter to trial, and if so, whether the delay was inordinate.

LAW

8. The case law on onus of proof and delay is settled. Let me refer firstly to the case of Steven Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2013) SC1297. The Supreme Court stated, and I quote in part:

The onus is on an applicant who seeks dismissal of proceedings to establish that there is a delay and it is inordinate. In Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81, the Supreme Court held that where an appellant fails to prosecute an appeal and fails to give an explanation for the delay, the appeal will be dismissed for want of prosecution. In that case, the delay was one year and two months. The Court dismissed the appeal for want of prosecution.

9. I also refer to the case of Umbu Waink v. MVIT [1997] PNGLR 390. Justice Lenalia held in part, and I quote:

(1) The power of the Court to dismiss proceedings for want of prosecution should only be exercised where the plaintiff's default has been intentional and where there has been inordinate and inexcusable delay.

(2) Where there has been lengthy delay in setting down for trial, O. 10 r. 5 of the National Court Rules should be construed in favour of an application to dismiss for want of prosecution only where circumstances are such that there has been a long delay and where there is no reasonable explanation given by the plaintiff.

DELAY & WHETHER DELAYINORDINATE

10. The plaintiff filed its Reply and Defence to Cross-Claim on 26 April 2017. It seems obvious that the pleadings would have closed in April of 2017. Both parties filed their List of Documents, the plaintiff on 29 June 2017 and the defendant on 6 June 2017. Discovery would have closed in June of 2017.

11. Let me consider the affidavit of Ms Dalton. She deposes that the last communication they had had with the plaintiff was an email from them dated 14 December 2018. She deposes that the Statement of Agreed and Disputed Facts and Legal Issues (SADFLI) that was prepared in December of 2018 still remains to be settled. The plaintiff in response through the affidavit of Mr Kipa disputes these facts. The plaintiff says that it had taken various steps from December of 2018. For example, it says that it filed the SADFLI on 21 December 2018.

12. From the court file, I note the following. Firstly, there is a filed Statement of Agreed and Disputed Facts and Legal Issues (SADFLI). It was filed on 21 December 2018. I also notice Court activities recorded, from December 2018 to the time the motion was filed on 7 November 2019. The first activity of course was the filing of the SADFLI. I note that the matter had returned to Court on 13 December 2018. Only the plaintiff appeared at that time. His Honour Justice Hartshorn issued directions on the said day. A minute of the Order was filed on 28 January 2019. The matter next returned to Court on 3 April 2019 for hearing as per the Court direction of 13 December 2018. The parties were not ready and the trial date was vacated. There appears to be no activity on the Court file after the trial had been vacated up until the defendant filed its motion on 7 November 2019. It was after when the defendant filed its motion that the plaintiff forwarded a draft Notice to Set Down for Trial to the defendant to counter-sign, on 11 November 2019. Evidence of that is contained in the affidavit of Mr Kipa.

13. My views are as follows. I note firstly that both parties have filed claims against each other and I refer to the Statement of Claim and the Defence and Cross-Claim. This is not the case where it is only the plaintiff who is suing and the defendant defending, but rather, it is a case where both parties are suing each other. In a case where a plaintiff is the only party suing, he or she would, in my view, have a higher burden or duty to expedite the hearing without delay. In this case, however, and in my view, the burden or the duty to progress the matter should rest squarely on both parties, that is, to ensure that their claims are, if not resolved, expedited to a hearing stage. Having these in mind and when I consider the present case, I find firstly that the defendant has established that there has been some delay on the part of the plaintiff in progressing the matter to trial, that is, since March or April of this year. There appears to be a delay of 8 months to the time the defendant filed its motion. But when I look at the various Court appearances and the actions or want of actions from the parties, I also note tardiness on the part of the defendant. I note that it had not appeared in Court at 4 consecutive occasions before its motion was filed. There had been an appearance made by Mr. Frizzell prior to the 4 consecutive adjournments, on 21 June 2018. And before that, I notice a further 3 consecutive absence by the defendant when the matter had been called in Court. In my view, after the vacation of the trial on 3 April 2019, both parties should have progressed the matter to trial. They appeared not to have done that and I find that to be the case. And the defendant now belatedly files this motion and the plaintiff has reacted to it by forwarding its draft Notice to Set Down for Trial. It appears and I so find that both parties were responsible for the past 8 months delay in the progression of the matter.

14. I also find that Court’s time is being wasted by these inactions and even by the present motion. Both parties should have, in my view, focused their attention towards setting the matter down for hearing.

15. For these reasons, I am in doubt as to whether I should grant the defendant’s motion and dismiss the matter for want of prosecution. But before I rule or exercise my discretion on the matter, let me consider the defendant’s other argument.

PREJUDICE

16. The defendant argues that the delay has caused or may have the potential of causing prejudice to its intended witnesses. It produced evidence through the affidavit of Mr Watkins in that regard. Mr Watkins deposes that 5 of their witnesses have left the country and that it would be difficult to locate and bring them all back to give evidence if the matter proceeds to trial. He therefore urges the Court to dismiss the claim.

17. Because of my findings, particularly given the fact that both parties were or appeared to be responsible for the delay, I am not inclined to accept this argument by the defendant. I will also comment that based on Mr Watkin’s evidence, most of these witnesses appeared to have left the country before and not after the proceeding was filed.

DISCRETION

18. I therefore am not inclined to exercise my discretion in favour of the defendant. Although I find that there had been a delay of about 8 months, the delay was caused not just by the plaintiff but also by the defendant. As such, it would be unjust to only penalize one party and in this case dismiss the entire proceeding.

COST

19. Cost is discretionary. In this case and based on my reasoning in my ruling, namely, where I have found fault on the part of both parties, I will order that each party shall bear their own costs of the motion.

ORDERS OF THE COURT

20. I make the following orders:

(i) The defendant’s notice of motion filed on 7 November 2019 is dismissed.

(ii) The parties shall bear their own costs of the notice of motion.

(iii) Time for entry of these orders is abridged to the date of settlement by the Deputy Registrar of the National Court which shall take place forthwith.
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Fairfax Legal/PLN: Lawyers for the Plaintiff

Warner shand Lawyers: Lawyers for the Defendant