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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO.1461 OF 2019
BETWEEN:
KOWATI TUKA. GAWI TUKA, WOWOTO TUKA,
DOCAS TUKA AND SHELLY TUKA
Plaintiffs
AND:
TOYOTA TSUSHO (PNG) LIMITED
trading as ELA MOTORS
Defendant
Waigani: David, J
2023 : 19th April & 14th July
PRACTICE AND PROCEDURE — application to summarily determine matter — National Court Rules, Order 10 Rule 9A(15)(2)(c).
Cases Cited
Bore v Malaisa [2013] N5274
Golobadana No. 35 Ltd v Bank South Pacific Ltd [2015] N5890
Lomai v Seal (Manus) Ltd [2008] SC1326
Kenken v National Airports Corporation Ltd [2022] SC2247
Counsel
Raymond Obora, for the Plaintiff
Wilson Mininga, for the Defendant
RULING
14th July, 2023
2. In support of the application, the defendant relies on and reads the affidavit of Charity Kuson sworn on 14 February 2023 and filed on 1 March 2023.
4. The plaintiff relies on and reads the affidavit of Raymond Obora sworn and filed on 17 April 2023.
5. I have considered the affidavit evidence.
ISSUES
6. The main issues for my consideration and determination are:
SUMMARY DISPOSAL
7. Mr. Mininga for the defendant submits that this matter should be summarily determined pursuant to Order 10 Rule 9A(15)(2)(c) as:
8. Mr. Obora for the plaintiffs submits that despite the plaintiffs’ failure to comply with the orders or directions made on 1 December 2022, the order sought should be refused because:
CONSIDERATION
9. The Court’s power under Order 10 Rule 9A(15)(2)(c) of the National Court Rules is discretionary and it is to be exercised taking into account proper considerations. A matter may be summarily determined by the Court on application by a party (Order 10 Rule 9A (15)(1)(a)), amongst other things, for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes (Order 10 Rule 9A (15)(2)(c)). The rule states:
“15. SUMMARY DISPOSAL
(1) The Court may summarily determine a matter:
(a) on application by a party; or .......
(2) The Court may summarily dispose of a matter in the following situations: ...
(c) for non - compliance of any order or directions previously made or issued by the Court at any of the listing processes.....”
10. In Golobadana No. 35 Ltd v Bank South Pacific Ltd [2015] N5890, the Court acting on its own initiative exercised its power under Order 10 Rule 9A(15) to summarily determine the consolidated proceedings
for the plaintiff’s failure to comply with directions issued to file and serve his affidavits including affidavits of expert
witnesses if any by or before a specified date. The Court, amongst other things, said:
11. In Kenken v National Airports Corporation Ltd [2022] SC2247, in dealing with an appeal from a decision of the National Court to dismiss the National Court proceedings under the rule under consideration and in particular the appeal ground that the National Court erred in exercising his discretion by placing “so much weight” on the “strict compliance of the court directions” and that less or no consideration was given to questions of prejudice and interests of justice, the Supreme Court relevantly adopting the observation of the Supreme Court in Lomai v Seal (Manus) Ltd [2008] SC1326, among other things, said orders or directions given by the court are to be obeyed by all parties who seek redress through the courts and it is not simply a matter of convenience for the parties to be observed when it is suitable for them and all persons to whom the order relates until the order is discharged. At [30] of the judgment, the Supreme Court said:
“Contrary to the apparent belief of the appellants, the interests of justice require, at the very least, that parties comply with Court orders. Compliance with directions is not simply a matter of convenience for the parties, to be adhered to when it is suitable for them; it is crucial to the administration of justice and for the parties to understand the case which they have to meet in a timely manner. As the Supreme Court observed in Lomai:
It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck v Cremer (1846) 1 Coop T Cott 205; [1846] EngR 924; 47 ER 820: "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.”
12. In deciding how to exercise my discretion, I will take into account the following considerations that were considered and applied in Bore v Malaisa [2013] N5274 and Golobadana No. 35 Ltd v Bank South Pacific Ltd [2015] N5890:
Did the plaintiffs fail to comply with any Court order or direction?
13. The parties handed up a draft minute of Consent Directions (Consent Directions) endorsed by counsel for the parties to the Court for its consideration and endorsement at the Directions Hearing conducted on 1 December 2022 which I endorsed with some amendments (paragraph 7, affidavit of Mr. Obora). The Consent Directions were made or issued during a Listing process (Order 10 Rule 9A(1) (Interpretation), National Court Rules and these are:
“1. The plaintiffs shall file and serve on the defendant any further affidavit they wish to rely on in trial by or before Friday, 16 December 2022.
14. I take judicial notice of the Consent Directions that I endorsed in Court on 1 December 2022 which is contained in the Court file. The minute of the Consent Directions shows that it was signed by Mr. Obora of Raymond Obora Lawyers representing the plaintiffs and Ms. Sharon Peri of Bradshaw Lawyers representing the defendant.
15. The Court file endorsement of 1 December 2022 shows that Mr. Obora and Ms. Kuson of Bradshaw Lawyers were both in attendance at the Directions Hearing (annexure “G” affidavit of C. Kuson).
16. The terms of the Consent Directions are in congruence with the Court file endorsement entered by my Associate.
17. The defendant asserts that the plaintiffs have not complied with direction number 1, that directed the plaintiffs to file affidavits they wished to rely on at the trial by or before Friday, 16 December 2022. The plaintiffs do not seriously dispute that they failed to comply with that direction, but have attempted to give an explanation for that. The plaintiffs did not apply to the Court to seek an extension of time within which to file their affidavits pursuant to direction number 7.
18. I find as a fact that the plaintiffs have failed to comply with direction number 1 of the Consent Directions endorsed by the Court on 1 December 2022. They did not file their affidavits by or before Friday, 16 December 2022. This favours the grant of the application for want of compliance.
19. Given that finding, the Court needs to decide on how its discretion should be exercised. I will therefore proceed to addressing matters relevant to the exercise of the Court’s discretion below.
20. Have the plaintiffs demonstrated why they have not complied?
What is the nature and extent of the failure to comply?
21. Mr. Obora attributes non-compliance to the National Court Registry not returning to him or his firm signed and sealed copies of the Minute of the Consent Directions prior to the time for compliance expired despite it being filed soon after the Consent Directions were endorsed by the Court and him personally following up twice at the National Court Registry in December 2022.
22. The Listing Rules 2005 promulgated by Judges in accordance with s.184 of the Constitution and s.8 of the National Court Act were inserted in the National Court Rules by the National Court Listing Rules 2005. These rules relate to pre-trial preparation and the setting down of cases for trial and are intended to improve the disposition of civil cases in a quick, fair and cheap manner. In other words, these are case management directions made or issued by the Court in relation to any pre-trial matter set out in Rule 7(4) giving a timetable as to when certain steps should be taken. The overarching purpose of case management is to ensure that proceedings are conducted and determined justly and efficiently. In the present case, the dispute is about filing of affidavits (Rule 7(4)(o)). Given their nature, Court directions take effect as of the date of the direction. In addition, the parties had agreed to the Consent Directions and handed up in Court at the Directions Hearing on 1 December 2022. They are bound by the Consent Directions. Mr. Obora’s contention that the plaintiffs were not solely to be blamed for the default attributing blame to the National Court Registry is misconceived as the direction under consideration took effect as of the date of the direction and he had consented to the timetable set out in the Consent Directions.
23. Mr. Obora also attributes the non-compliance of the direction to the non-cooperation of potential witnesses for the plaintiffs who he asserts are employees of the defendant despite a Summons to Give Evidence filed on 14 October 2022 having been served on the witnesses on 28 November 2022 (annexure “A”, affidavit of Raymond Obora). He has identified the witnesses in his affidavit and the Summons to Give Evidence as Aaron Abanigi and Jasper Aho. Mr. Obora further asserts that a Summons for Production of certain materials ordered and entered on 14 October 2022 has been served on the defendant (annexure “B”, affidavit of Raymond Obora). Mr. Obora ought to have taken into account the plaintiffs’ purported difficulty with such witnesses when agreeing to the timetable. He is bound by the Consent Directions. He also deposes that that these witnesses filed their respective affidavits on 6 February 2023 and the affidavits were served on the defendant’s lawyers on 7 February 2023. Direction 7 clearly states that parties were at liberty to apply to extend the directions on three day’s notice. The plaintiffs have not complied with this direction as well and instead filed the affidavits. The filing of these affidavits without leave of the Court is a blatant disregard of directions 1 and 7: Golobadana No. 35 Ltd v Bank South Pacific Ltd [2015] N5890. These affidavits are not properly before the Court and will be regarded as not filed and disregarded.
24. When the motion was filed on 1 March 2023, the plaintiffs were still in default of the direction as a result. There is no evidence to show that the plaintiffs notified the defendant in writing before Friday, 16 December 2022 that they would not file any affidavit pursuant to direction number 1. The default is about two months and ongoing. This has affected in a material way the other steps set out in the Consent Directions to be taken to progress the matter to trial. The plaintiffs have not filed any application for extension of time. Failure to comply with or obey orders or directions in itself is a serious matter and should not be taken lightly.
25. This consideration favours the grant of the application for want of compliance.
Is there a good explanation for the failure to comply?
26. Considering the totality of the explanation given, I am satisfied that Mr. Obora and the plaintiffs have not provided any good or reasonable explanation for the failure to comply. In addition to what I have observed already in relation to the previous consideration, Mr. Obora deposes in his affidavit that on 31 December 2022 his Unrestricted Practising Certificate (UPC) expired and he did not have the money to renew the UPC until 31 January 2023 when he was issued one enabling him to practice in 2023. This is not a good excuse. A prudent lawyer, more particularly a private lawyer as is the case here, ought to ensure that he or she has a current practising certificate whether restricted or unrestricted as it is in the best interests of the lawyer and his or her clients and given one cannot practice as a lawyer in Papua New Guinea without a practising certificate pursuant to s.35(1) of the Lawyers Act.
27. This consideration favours the grant of the application for want of compliance.
How have the parties and their lawyers conducted the proceedings?
28. According to the Court file and noted in a written ruling of Court delivered on 15 February 2021, these proceedings were commenced by writ of summons endorsed with a statement of claim on 12 November 2019 and subsequently amended by amended writ of summons to which was endorsed a statement of claim filed on 27 February 2020. Pleadings closed in or about March 2020. Steps to set down matters for trial may be taken after a lapse of six weeks following the close of pleadings (Order 10 Rule 4 and Rule 9A(6) with the commencement of the listing process. Consent Directions were endorsed by the Court on 1 December 2020. The plaintiffs have not complied with direction number 1.
29. By a letter from Bradshaw Lawyers to Raymond Obora lawyers dated 19 January 2023, the defendant’s lawyers informed the plaintiffs’ lawyers, amongst other things, that the plaintiffs had failed to file and serve their affidavits by 16 December 2022 in accordance with the Consent Directions and that an application to dismiss the proceedings would be made if the plaintiffs failed to take appropriate steps to prosecute their claim (annexure “H”, affidavit of Charity Kuson).
30. As I have mentioned above, the affidavits of Aaron Abanigi and Jasper Aho filed on 6 February 2023 are not properly before the Court as they have been filed without leave of the Court.
31. In his affidavit, Mr. Obora also deposes that on 8 February 2023, a draft Statement of Agreed and Disputed Facts and Legal Issues for Trial was delivered to the defendant’s lawyers (annexure C, affidavit of Raymond Obora) and he followed it up by his letter to the defendant’s lawyers dated 29 March 2023 requesting for the latter to give their comments on the draft Statement of Agreed and Disputed Facts and Legal Issues for Trial and return same to them (annexure “D”, affidavit of Raymond Obora). This step was taken by Mr. Obora in total disregard of direction number 3 without the plaintiffs applying for extension of time for compliance of the Consent Directions and ultimately without leave of the Court. The defendant was not obliged to respond to the draft Statement of Agreed and Disputed Facts and Legal Issues for Trial in the circumstances. In any event, the preparation and service of a draft Statement of Agreed and Disputed Facts and Legal Issues for Trial would have followed after the filing of the defendant’s affidavits in accordance with direction number 2. In that respect, the plaintiffs’ attempt to comply with direction number 3 is out of sequence.
32. The conduct of the plaintiffs and their lawyers is improper and is contumelious.
33. This consideration favours the grant of the application for want of compliance.
Where do the interests of justice lie?
34. The interests of justice require parties to comply with Court orders or directions: Lomai v Seal (Manus) Ltd [2008] SC1326, Kenken v National Airports Corporation Ltd [2022] SC2247. Failure to comply is at their peril. All other considerations addressed above favour the dismissal of the proceedings. The conduct of the plaintiffs and their lawyer has been improper and this has led to the delay in setting these proceedings down for trial.
35. I have considered the question of prejudice when addressing my mind to this consideration although it may be a separate consideration to be considered on its own. There is however a specific direction in Consent Directions number 7 giving parties the opportunity to apply for extension of time for compliance with the Consent Directions. The plaintiffs and their lawyers have, by their conduct, chosen not to go by that path and in so doing have blatantly disregarded the Consent Directions and taken steps without leave of the Court. Moreover, the conduct of the plaintiffs and their lawyers has adversely affected the disposition of these proceedings which is over three and half years old in a quick, fair and cheap manner.
CONCLUSION
36. For these reasons and as a matter of the exercise of the Court’s discretion, I will dismiss the proceedings for want of compliance of the Consent Directions endorsed and made by the Court on 1 December 2022.
37. Given this, it is not necessary to consider other submissions of counsel in particular the alternative relief sought by the defendant.
38. The defendant has not sought an order for costs in the notice of motion. Consequently, subject to any earlier costs orders, the parties will bear their own costs.
ORDERS
39. The formal orders of the Court are:
Judgment accordingly
________________________________________________________________
Raymond Obora Lawyers: Lawyers for the Plaintiffs
Bradshaw Lawyers: Lawyers for the Defendant
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