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Papau v Jeffrey [2019] PGNC 410; N8110 (13 November 2019)

N8110

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.153 OF 2016

BETWEEN:
WILLIAM PAPAU
Plaintiff

AND:
TOKOM JEFFREY
First Defendant

AND:
KAUT KILANG
Second Defendant

Kokopo: Dingake J
2019: 12^th November

PRACTICE AND PROCEDURE – application for adjournment – reasons for adjournment – consideration of - Overall interest of justice - Effect of the adjournment on the parties - When a new hearing can be scheduled - Any fault causing the delay - Whether all parties consent to the adjournment – adjournment granted

Cases Cited:

OK Tedi Mining Ltd v Niugini Insurance Corporation and Others [1988 - 89] PNGLR 355

Counsel:

Ms. C. Pulapula, for the Plaintiff
Mr. N. Kubak, for the First & Second Defendants

EX PARTE RULING

13^th November, 2019

1. DINGAKE J: Before me is an oral Application; moved by Counsel for the plaintiff, Ms Pulapula, that this matter should be adjourned to a later date. A Writ of Summons and a statement of claim was filed with this court against the defendants in March, 2016. Service was effected on the defendants on or about the 11^th of March, 2016. More than three (3) year later the matter has not been finalised as it remains pending. The matter cannot in my mind be regarded as a complicated one.
   
2. The record shows that the trial date was vacated once, on or about the 18^th of September, 2019, because the parties were not fully prepared for the trial. On the 9^th October, 2019, my brother Kassman J, set down this matter for trial today, being the 12^th of November, 2019 at 9:30 am. The parties were given time lines to file and serve the extract of submissions, which they have done.
   
3. When the matter was called for hearing on the 12^th November, 2019, learned Counsel for the plaintiff, Ms Pulapula, pronounced herself conflicted, as the plaintiff is her uncle and therefore unable to deal with the matter or represent the plaintiff. She argued that her senior at work advised her that it would not be in the interest of justice to proceed with the matter because of “her personal interest”.
   
4. The record shows that as far back as early 2018, Counsel, Pulapula, had carriage of the matter as she commissioned and signed several Affidavits in Support of the case of the Plaintiff. Quite plainly, she should have known about this alleged conflict then and took appropriate steps in time which she did not do. I do not accept this reason as meritorious. It seems to me to be an after thought put forth conveniently to secure an adjournment.
   
5. The second reason advanced for the adjournment sought is that the office of the Public Solicitor in Port Moresby was unable to send a replacement lawyer, ostensibly on account of lack of funding. Not much should turn on this ground because it was a statement made from the bar by Counsel. No Affidavit deposing to the internal difficulties that were encountered to have a lawyer to represent the plaintiff from the Public Solicitor’s office was filed. This ground too has no merit and it is rejected.
   
6. In terms of Order 10, Rule 11, of the National Court Rules, this Court has the power to grant or refuse the adjournment as it deems appropriate. As a matter of judicial policy this Court disapproves of unnecessary adjournments. All adjournments sought must be based on a good reason (OK Tedi Mining Ltd v Niugini Insurance Corporation and Others [1988-89] PNGLR 355).
   
7. Quite often an impression is created that an adjournment should be granted simply because it is sought. This cannot be correct. Adjournments must be justified. Ordinarily, unless the circumstances dictate otherwise, a formal application should be filed supported by an Affidavit that sets out explicitly the reasons why the matter should be adjourned. The reason why an adjournment application should be justified is because judicial time is a national resource that must be used prudently.
   
8. I take judicial notice of the notorious fact that in our jurisdiction there are far too many adjournments that frustrate the efficient and speedy disposal of cases. Unnecessary delays are contrary to the dictates of justice.
   
9. As it is often said justice “delayed is justice denied”. This statement should never be regarded as a slogan but a statement capturing an important value in the administration of justice. Unpacked, what this maxim/phrase means is that it is the duty of this Court, which is constitutionally enjoined to do justice to the parties, to deal with matters that come before it without unnecessary delay, wasting time and resources, and if possible, in a manner that would not occasion unnecessary and heavy litigation costs.
   
10. It is good practice which this Court encourages that litigants and lawyers should give reasonable notice of an intended application to adjourn a matter to the other side. The Court views with strong disapproval applications of adjournments that are made on the day the matter is set to proceed. It is also desirable, unless the reasons for adjournment are sudden, that a formal application supported by an affidavit must be filed.
    
11. In granting an adjournment the Court may consider a number of factors, including but not limited to the following:
    
    1. Overall interest of justice.
    2. Reasons for the adjournment.
    100. Effect of the adjournment on the parties.
    4. When a new hearing can be scheduled.
    5. Any fault causing the delay.
    6. Whether all parties consent to the adjournment.
       
12. In my mind that a matter has not been previously adjourned, or that a party wants a new lawyer or is otherwise unprepared for the case cannot amount to sufficient cause. It is also not good enough to argue that lawyers or parties agree on an adjournment.
    
13. For purposes of broad guidelines only, to practitioners, the following, depending on the circumstances of each case, may be considered sufficient cause to grant an adjournment:
    
    1. Sudden medical emergency
    2. A party was not notified in time of the date of hearing.
    100. Unanticipated absence of a material witness or witnesses.
    4. Illness or family emergency of Counsel or a litigant.
       
14. The above list is not exhaustive. Every case would turn on its own circumstances.
    
15. Strictly, a consideration of all the above factors, in the circumstances of this case, having regard to the reasons advanced for adjournment suggest that I should refuse the adjournment sought. However, two particular circumstances have compelled this Court to temper justice with mercy, peculiarly for this case.
    
16. Counsel for the plaintiff concedes that the adjournment is on plaintiff’s account and agrees to pay costs occasioned by the adjournment. The parties are ready to have the matter rescheduled and argued in less than three weeks’ time, on the 27^th of November, 2019; and the plaintiff’s Counsel undertakes that if the Court agrees to adjourn the matter to the 27^th of November, 2019, the matter would not be adjourned again for reasons advanced earlier.
    
17. It is also material that the proposed date of the 27^th of November 2019 is acceptable and convenient to both parties for the matter to be heard and finalised.
    
18. In the result it is ordered as follows:
    
    1. This matter is adjourned to the 27/11/2019 at 1:30pm.
    2. Costs of the adjournment should be paid by the Plaintiff to the Defendants as may be agreed or taxed.
       

___________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiffs
Kubak & Kubak Solicitors & Barristers: Lawyers for the First & Second Defendants