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Kega v Mondo [2019] PGNC 375; N8071 (21 October 2019)

N8071

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 568 of 2018

Between
GORDON KEGA
First Plaintiff

And
GRACE KEGA
Second Plaintiff

And
SIMON JONES MONDO
First Defendant

And
JOHN DEGE AS MANAGING DIRECTOR FOR NATIONAL HOUSING CORPORATION
Second Defendant

And
NATIONAL HOUSING CORPORATION
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2019: 17^th October

PRACTISE & PROCEDURE – originating summons – Statement in support Order 16 (3)(a) NCR – affidavit verifying facts Order 16 Rule 3 (b) – Leave granted – delay prosecution – motion Order 4 r 36,Order 10, r 5 NCR – dismissal – breach of direction orders – whether inordinate & inexcusable delay – change of Lawyers – delay in endorsement of draft review Book – substantial & good reasons – discretion of court– motion to dismiss refused – cost in cause.

Cases Cited:

Punagi v Catholic Diocese of Mount Hagen Board of Trustees [2013] PGSC 49; SC1297 (20 November 2013)

Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133.
Counsel:

B. Boma, for Plaintiffs
P. D. Kaii, for First Defendant
No appearance, Second, Third & Fourth Defendants

RULING

21^st October, 2019

1. MIVIRI, J: This is the Ruling of the court pursuant to a Notice of Motion filed by the First Defendant Applicant 19^th September 2019 whereby he seeks the following orders:
   

(i) That pursuant to Order 4 Rule 36 (1) and Order 10 Rule 5 of the National Court Rules the entire proceeding be dismissed.

(ii) And the Plaintiff pay the costs of the proceedings.

(vi) Any other orders this Court deems fit.

2. To succeed he must show on the balance of probabilities that the plaintiffs have defaulted in complying with any order or directions as to the conduct of the proceedings or to prosecute the proceedings with due despatch upon which the court will either grant a stay or dismissal of the proceedings. It is discretionary and therefore He must point to orders that were issued by the court that the plaintiffs in the present have failed to execute successfully. This includes the argument that plaintiffs have not set the matter down for hearing or trial within 6 weeks. The overall history of the file will need to be glossed to arrive at the appropriate discretion.
   
3. He relies on the affidavit dated the 19^th September 2019 of search deposed to by Henry Kaii filing clerk Peter Daime Kaii Lawyers who conducted a file search at the National Court registry in the matter. Who retrieved a copy of the Index of the file with the file endorsement sheet of the 6^th,13^th May 2019 and 03^rd June 2019. On those dates there was no appearance by both the lawyer for the plaintiff as well as the defendants. And each time the court simply adjourned the matter to the registry. The first defendant has served all the parties evidenced by the affidavits of Peter Daime of 15^th October 2019, the National Housing Corporation being the second and third defendants. The fourth defendants on 14^th October 2019 and the first and second plaintiffs. The hearing of the motion is in order.
   
4. Essentially what he must show is continued persistent failure to bring the case to finality. Prima facie the facts set out above do not support his contention but goes against him in that he too has not made appearance on those days. He is also by that fact at fault together with all other defendants and the plaintiffs. The reason is clear there is no lawyer on record for the parties. That period cannot be counted as being deliberate calculated breach of court directions. Nor can it be held to be a case of the plaintiffs not showing interest in the prosecution of their matter. Because when the file index is looked through there is a notice of change of lawyers Leo Lawyers on the 26^th November 2018 for the first defendant. Then on the 16^th February 2019 he changes to Bilou Lawyers who file notice of ceasing to act for him on the 4^th September 2019. Then on that same date the appearance by Notice of the present lawyer on record Peter Daime Kaii.
   
5. These facts are consistent with the submission by the plaintiffs the first defendant has not been consistent in the retention of his lawyers so that there is continued work between the parties to see out the matter to finality. His action has contributed to the deficient disposal of the matter and the status of the file as it is now. He bears responsibility and cannot shift the blame and fault entirely upon the plaintiffs. It is clear and follows from these facts that the Statement of agreed and disputed facts and legal issues cannot be settled without proper professional advice and assistance by his lawyers nor of cooperation from him as the first defendant in the proceedings.
   
6. Affidavit of Awi Yer of the 9^th April 2019 sets this out that the plaintiffs complied with preparation and service of the draft Statement of agreed and disputed facts and legal issues for trial upon the defendants on the 4^th December 2018, but the defendants have not responded either by comments or otherwise to move the case forward. That affidavit also sets out the constant change of lawyers by the first defendant contributing to the slow progress of the matter. On the court file document number 27 is Statement of Agreed and disputed facts and Legal Issues for trial that the Plaintiffs have filed with seeking leave to file and serve it on the defendants because of the attitude of the defendants in commenting and endorsing to move to trial. That application was granted in favour of the plaintiffs. Which is confirmed by the affidavit of service by Jimmy Onduku dated the 12^th April 2019 document 29 on court file. Attached to that affidavit is a letter dated the 5^th April 2019 clearly stating that first defendant has not responded to the Statement of Agreed and disputed facts and legal issues despite the intent of the plaintiffs to progress the matter to substantive hearing. On 25^th May 2019 Jimmy Onduku of Boma Lawyers deposes that he served the statement of agreed and disputed facts and legal issues on the defendant including the second and third.
   
7. These records of the court are self-executing and do not spiral the contention of the first defendant. The first defendant comes unclean to seek. Because it is evident it is his fault that the matter has not moved. He bears the consequences of the facts set out above from the court records.
   
8. I consider in the light of all above that the First Defendant Applicant has not discharged the burden the detailed path of the progression of the file from day one 21^st August 2018 is consistent with the plaintiffs continued insistence to efficiently bring the matter to finality justice. The motion to dismiss has not been made out given the facts set out above. It is a question of discretion Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133. And in this case the facts and circumstances do not warrant dismissal of the proceedings because the evidence is not consistent that the plaintiffs have breached to warrant. First defendant applicant has not discharged on the balance of probabilities Punagi v Catholic Diocese of Mount Hagen Board of Trustees [2013] PGSC 49; SC1297 (20 November 2013). His motion is dismissed forthwith.
   
9. He will pay the cost of this proceedings if not agreed to be taxed.
   
10. Consequentially the following orders are made forthwith:
    
    1. The plaintiffs are granted liberty to file further affidavits or material upon which they may seek to rely on within 10 days.
    2. The first defendant and all other defendants are granted liberty to file further affidavits and material in reply within 10 days.
    3. The plaintiffs will cause an amendment to the Statement of agreed and disputed facts and legal issues arising from the new affidavits including insertion of the name of the present lawyers for the first defendant Peter Daime Kaii Lawyers and serve it on the first defendant and all other defendants within 14 days.
    4. The first defendant and all other defendants will comment on the statement of agreed and disputed facts and legal issues and return it to the Plaintiff within 10 days.
    5. The Plaintiffs will file the settled statement of agreed and disputed facts and legal issues by or before 10 days.
    6. The Plaintiffs will serve the draft index to the Review Book on the First Defendant and all other Defendants by or before 7 days.

7. The First Defendant and all other defendants are to return the draft Index to the Review Book with their comments to the Plaintiff by or before 7 days.
   8. The Plaintiff is to file and serve the settled Index to the Review Book by or before 10 days upon the first defendant and all other defendants.
9. The Plaintiff is to file and serve the Review book based on the settled index by or before Monday 02^nd December 2019.
10. The matter will return to court for further directions Monday 09th December 2019 at 9.30am
    

Orders Accordingly.

__________________________________________________________________

Boma Lawyers: Lawyer for the Plaintiff/Applicant

Peter Daime Kaii Lawyer s: Lawyer for First Defendant