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Kekam Ltd (trading as Kekam Car Rentals Lae) v Nasinom [2020] PGNC 114; N8308 (20 March 2020)

N8308

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 75 OF 2017

BETWEEN:
KEKAM LTD trading as KEKAM CAR RENTALS LAE
Plaintiff

AND:
TAWAS NASINOM in his capacity as DPA-PI & G Centers, Morobe Provincial Administration, Morobe Province
First Defendant

AND:
MOROBE PROVINCIAL GOVERNMENT
Second Defendant

Lae: Dowa AJ
2020: 13^th & 20^th March

PRACTICE AND PROCEDURE – defendants seek order by notice of motion to strike out plaintiffs amended Writ of Summons and an order for dismissal of proceedings for noncompliance of court orders - Plaintiff argues proceedings should not be dismissed as it made a part compliance – reasons given by plaintiff for delay inexcusable – defendants motion to dismiss also refused – costs for application awarded to defendants - proceedings stayed pending plaintiff’s payment of costs to defendants

Cases Cited:

Gend v Mangre (2019) PNNC 368 N8090
Kave v Yakasa (2014) N5692
Rambi v Trappe (2012) N4924

References:

National Court Rules 1983
Counsel:

W. Ganjiki, for the Plaintiff
T. Berem, for the Defendant

RULING

20^th March 2020

1. DOWA AJ: This is a ruling on an interlocutory application by the Defendant in this and three other related matters in WS No. 66 of 2017 – Kekam Ltd v Sam D. Agi, in his capacity as the President of AHI LLG and Aihi Local Level Government, WS No. 73 of 2017 – Kekam Ltd Trading as Kekam Car Rentals Lae v Elizabeth Sibabel in her capacity as the Audit Officer, Morobe Provincial Administration, Morobe Province, WS No.74 of 2017 – Kekam Ltd trading as Car Rentals Lae v Alfred Peka, Morobe Provincial Administration, Office of the Governor and Others.

2. It was agreed by Mr. Ganjiki of counsel for the Plaintiff and Mr. Berem of counsel for the Defendants that the Submissions for the parties in this matter be adopted and applied in their other three matters. They also agreed that the ruling in this matter is applicable and binding on the other three matters, as well. This was because:

1. The four Notices of Motion by the Defendant was the same, seeking the same or similar orders
   
2. The parties are the same
   

100. The issues and facts raised were identical and the same
     

3. This ruling therefore is for this and the other three matters, jointly.

FACTS

4. The Plaintiff instituted proceedings seeking payment of monies due to it by the Morobe Provincial Government for the hire of its Motor vehicles by their various officers.

5. The Writ of Summons was initially filed by one Carol Tai, on 13^th February 2017. After learning, Carol Tai lacked capacity to sue, the Plaintiff sought leave to amend and substitute Carol Tai with Kekam Ltd as Plaintiff.

6. On 3^rd June 2019, the Court amongst other Orders granted leave to the Plaintiff to file and serve its Amended Writ of Summons within fourteen (14) days. The Court also granted leave for Carol Tai to be substituted by Kekam Ltd trading as Kekam Car Rentals.

7. The plaintiff did not file its Amended Writ of Summons within the said fourteen (14) days for various reasons.

8. On 8^th November 2019, the Plaintiff sought an extension of time to comply with Orders of 3^rd June 2019. The Court in granting the extension ordered the Plaintiff to file and serve its Amended Writ of Summons within fourteen (14) days.

9. On 21^st November 2019, the Plaintiff filed its Amended Writ of Summons.

10. On 10^th February 2020, sealed copies of the Amended Writ of Summons were served on the Defendants lawyers.

11. The extended time given for filing and serving the Amended Writ of Summons lapsed on 22^nd November 2019.

12. It is clear, the Amended Writ of Summons was filed in time, but was served outside of the extended period by 57 days.

MOTION

13. The Notice of Motion is seeking to striking out of the amended Writ of Summons and an order for the dismissal of the proceedings for non compliance of the orders of 3^rd June and 8^th November 2019.

14. Mr Berem of Counsel for the Defendant submitted that partial compliance is not compliance at all.

15. Mr Ganjiki of Counsel for the Plaintiff submitted that there was substantial compliance. He submitted the Amended Writ was filed in time. Due to misunderstandings with his employed Lawyer, Mr Kints and the Plaintiff, the Amended Writ was not served before 22^nd November 2019. He submitted there was compliance.

ISSUES

16. Whether partial non-compliance of Orders of Court amount to non-compliance, and if so, what is the reasonable remedy available to the party seeking dismissal.

FINDINGS

17. The act ordered to be done were intertwined. It was inseparable with the word “and”. In my respectful opinion, partial compliance is not compliance at all. I am of the view that partial non-compliance amounts to non-compliance of the Orders.

18. The interlocutory orders and directions given in Court are to ascertain the rights and interest of parties involved. It is to set in motion a course of action and scheduling a time table leading to finalisation of the proceedings.

19. Any defiant conduct only delays and brings confusion and chaos in the timely and orderly disposal of the matter.

20. Any such non-compliance of Court directions ought not to be taken lightly. In Gend v Mangre (2019) PNNC 368 N8090, the Defendant was ordered to attend the Registrar of the National Court to give a statement of his account. He did not attend. He was charged with contempt. The Defendant was found guilty and fined a substantial amount. In the course of his ruling Cannings J had this to say:

As I said in Milupol v. Garai (supra) the defendant’s actions have the effect of undermining the authority of this court and the administration of justice and the imposition of a penalty is necessary to protect both the interests of the plaintiff and the administration of justice. In their joint judgment in Australian Meat Industry Employees Union v. Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 107, this was recognised by

Gibbs CJ, Mason, Wilson and Deane JJ when they said that:

“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the Courts orders will be enforced.”

and in Witham v. Holloway (1995)183 CLR 525 at 533-4, Brennan, Deane, Toohey and Gaudron JJ stated that:

“Even when proceedings are taken by the individual to secure the benefits of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court’s authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests..... All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.’

21. In Rambi v Trappe (2012) N4924, the Court dismissed an election petition for noncompliance of Court directions. At paragraph 9-10 of his judgment, Makail J said:
    

“This case concerns the failure by the petitioner to comply with Court directions and just to reiterate the Court's position on the need to comply with Court directions and the resultant effect of non-compliance, in Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598, the Supreme Court said:

"We re-emphasize the principles laid down in Karo v Kidu (supra) and Mendepo v Nali (supra), which recognize the importance of the need for parties, in particular the petitioner who bears the burden of proof, to promptly and meaningfully attend to and participate in pre-trial conferences in order to assist the Court set the course of conduct for the speedy hearing of election petitions. And when the court makes an order requiring the attendance of parties at a pre-trial conference or for filing and service of affidavits or witnesses' statements prior to the hearing date, the court expects total compliance with that order. If a party is facing difficulties in fully complying with the order, he should request a further pre-trial conference and seek an extension or variation of that order; not simply turn up on the trial date and expect the Court to be engaged in another series of pre-trial conferences."

It is even suggested that non-compliance with Court orders or directions is a show of disrespect to the Court and contemptuous. Thus, it must not be taken as a simple or technical failure. Last month, I dismissed a petition for want of compliance with Court directions. That was in the case of Edward Ekanda Alina -v- Francis Mulungu Potape & Electoral Commission (2012) N4877. That was a case where the petitioner served affidavits 2 weeks after the due date fixed by the Court for filing and service of affidavits.”

22. I hold the same view. When a party fails to fully comply with orders, it delays the process and interferes with the speedy administration of justice.
    

CONSEQUENCES OF NONCOMPLIANCE

23. Mr Berem submitted that the noncompliance is repeated, and is serious enough to strike out the amended Writ of Summons and the dismissal of proceedings.
    

23. Mr Ganjiki submitted the Court should not grant the Defendants motion. The Court exercise its discretion in favour of the Plaintiff. Mr Ganjiki relied on the authority of the National Court in Kave v Yakasa (2014) N5692.

24. Basically he submitted that:

1. The plaintiffs default is not intentional,
2. There was no inordinate and inexcusable delay

100. There was a reasonable explanation for the delay

4. A dismissal will cause grave injustice to the Plaintiff.
   

25. I find the Plaintiffs default inexcusable. They were granted leave on 3^rd June 2019. These orders were extended at the request of the Plaintiff on 8^th November 2019, after a period of 5 months. They effected service of the amended Writ of Summons on 10^th February 2020, a further 2 months. This is unreasonable and inexcusable delay. I do not find the reasons given by the Plaintiff acceptable.

26. I also find that, the delay is likely to cause injustice or prejudice to the Defendants, especially the Morobe Provincial Government. This is because overtime, the officers who are named as first Defendants may transfer or be replaced by other officers, and may not be available to give evidence in defence.

27. In respect of the final consideration, I agree with Counsel for the Plaintiff. I am not inclined to grant the orders sought by the Defendants. If I strike out the Amended Writ, it is likely that the original Writ of Summons will become frivolous and will not succeed on its own. The aggregate value of the proceedings amount to more than K560,000.00. I am not prepared to drive the Plaintiff out of the judgment seat, at this stage.

28. The question I am left with is, what should the Court do with parties who show little respect for the orders of Court as in this case. Can cost be sufficient remedy.

29. In the present case, I am asked in the Notice of Motion to make any other such orders. I have the discretion under Order 12 Rule 1 to make other or further orders. In this case the appropriate order is for the stay of the proceedings until the costs that is necessarily incurred by the Defendants up to the date of this order, is paid by the Plaintiff.

ORDERS

1. The Defendants Notice of Motion seeking dismissal of the Plaintiffs proceedings is refused.
   
   2. The Defendants cost be paid by the Plaintiff.
      
   3. The proceedings be stayed until the Defendants cost of and incidental to these proceedings up to the date of these orders are paid.
      
   4. Time be abridged.

________________________________________________________________
Kessadale Lawyers : Lawyer for the Plaintiff
Berem Lawyers : Lawyer for the Defendant