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Namui v Ramu Nico Management (MCC) Ltd [2024] PGNC 335; N11003 (24 September 2024)

N11003

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 89 OF 2020
WADAN NAMUI for himself and on behalf of 52 named persons from Astrolabe Bay and Rai Coast in Madang Province. The 52 named persons whose names are appended to the Affidavit of Wadan Namui gave authority to Wadan Namui and Lomai & Lomai Attorneys
First Plaintiff

KAIMALANG MOSES for himself and on behalf of 425 named persons from Rai Coast in Madang Province. The 425 named persons whose names are appended to the Affidavit of Kaimalang Moses gave authority to Kaimalang Moses and Lomai & Lomai Attorneys
Second Plaintiff

PETER SEL for himself and on behalf of 122 named persons from Rai Coast in Madang Province. The 122 named persons whose names are appended to the Affidavit of Peter Sel gave authority to Peter Sel and Lomai & Lomai Attorneys
Third Plaintiff

BARTHLY ANDREW for himself and on behalf of the 230 named persons from Rai Coast in Madang Province. The 230 named persons whose names are appended to the Affidavit of Barthly Andrew gave authority to Barthly Andrew and Lomai & Lomai Attorneys
Fourth Plaintiff

MICHA WAMAS KOSI for himself and on behalf of the 348 named persons from Rai Coast in Madang Province. The 348 named persons whose names are appended to the Affidavit of Micha Wamas Kosi gave authority to Willie Mathew and Lomai & Lomai Attorneys
Fifth Plaintiff

ASRU MASIL for himself and on behalf of 82 named persons from Rai Coast in the Madang Province. The 82 named persons whose names are appended to the Affidavit of Asru Masil gave authority to Asru Masil and Lomai & Lomai Attorneys
Sixth Plaintiff

WILLIE MATHEW for himself and on behalf of 71 named persons from Rai Coast in the Madang Province. The 71 named persons whose names are appended to the Affidavit of Willie Mathew gave authority to Willie Mathew and Lomai & Lomai Attorneys
Seventh Plaintiff

SAUMA HANGI for himself and on behalf of 77 named persons from Rai Coast in the Madang Province. The 77 named persons whose names are appended to the Affidavit of Sauma Hangi gave authority to Sauma Hangi and Lomai & Lomai Attorneys
Eighth Plaintiff

JOHN SIMOI for himself and on behalf of 389 named persons from Sumkar in Madang Province. The 389 named persons whose names are appended to the Affidavit of John Simoi gave authority to John Simoi and Lomai & Lomai Attorneys
Ninth Plaintiff

MICHAEL BARUI for himself and on behalf of 1,398 named persons from Sumkar in Madang Province. The 1,398 named persons whose names are appended to the Affidavit of Michael Barui gave authority to Michael Barui and Lomai & Lomai Attorneys
Tenth Plaintiff

HENRI AMATH for himself and on behalf of 1,233 named persons from Sumkar in Madang Province. The 1,233 named persons whose names are appended to the Affidavit of Henri Amath gave authority to Henri Amath and Lomai & Lomai Attorneys
Eleventh Plaintiff

STEVEN AREN for himself and on behalf of 510 named persons from Sumkar in Madang Province. The 510 named persons whose names are appended to the Affidavit of Steven Aren gave authority to Steven and Lomai & Lomai Attorneys
Twelfth Plaintiff

KAUTIL MAMARI for himself and on behalf of 373 named persons from Sumkar in Madang Province. The 373 named persons whose names are appended to the Affidavit of Kautil Mamari gave authority to Kautil Mamari and Lomai & Lomai Attorneys
Thirteenth Plaintiff

MADANG PROVINCIAL GOVERNMENT
Fourteenth Plaintiff

V
RAMU NICO MANAGEMENT (MCC) LIMITED
First Defendant

CONSERVATION AND ENVIRONMENT PROTECTION AUTHORITY
Second Defendant

THE STATE
Third Defendant

Madang and Waigani: Narokobi J
2024: 11th & 24th September

PRACTICE AND PROCEDURE – Order 4, Rule 36(1), Order 10, Rule 5 of the National Court Rules 1983 and Order 10, Rule 9A(15)(2)(a) of the National Court (Listing) Rules 2005 – Dismissal for Want of Prosecution.

The first defendant has filed a motion seeking to dismiss the proceedings for want of prosecution with additional orders for costs pursuant to Order 4, Rule 36(1), Order 10, Rule 5 of the National Court Rules 1983 and Order 10, Rule9A(15)(2)(a) of the National Court (Listing) Rules 2005.

Held:

(1) Applying the five generally accepted principles in the determination of whether a proceeding should be dismissed for want of prosecution, two of the five considerations favour the grant of the application, that is there was no reasonable explanation for the delay and the first defendant would be prejudiced. The balance of the considerations favours the plaintiffs – the default was not intentional, the conduct of the parties and their lawyers did not warrant dismissal and the interest of justice being that the plaintiffs should not be driven from the judgment seat. Given this position, the first defendant’s application is refused.

Cases Cited
Mata Holdings Ltd v Adrias (2016) N6221
Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Wartoto v State (2024) N10760

Legislation Cited

National Court Rules 1983

Counsel

C Posman, for the Applicant
B Lomai, for the Respondent

RULING

24th September 2024

1. NAROKOBI J: The first defendant has filed a motion seeking to dismiss the proceedings for want of prosecution with additional orders for costs pursuant to Order 4, Rule 36(1), Order 10, Rule 5 of the National Court Rules 1983 and Order 10, Rule 9A(15)(2)(a) of the National Court (Listing) Rules 2005.
   
2. The first defendant relies on several affidavits, deposed to by the following deponents:
   
   • David Bagiel, sworn and filed on 24 June 2024, court document number 101;
   • Ethel Valakvi, sworn on 30 July 2024 and filed on 31 July 2024, court document number 113;
   • Li Mo, sworn on 30 July 2024 and filed on 31 July 2024, court document number 114;
   • Gong Wenjun, sworn on 2 October 2020 and filed on 7 October 2020, court document number 69.
     
3. The application is opposed by the plaintiffs. The plaintiffs rely on the following affidavits, deposed to by the following deponents:
   
   • P. Lomai, filed on 24 July 2024, document number 109;
   • Lovelyn Mark, filed on 24 July 2024, document number 110;
   • Steven Lomai, filed on 25 July 2024, document number 112;
   • P. Ben Lomai, filed on 2 September 2024, document number 116; and
   • Peter Charles Yama, filed on 8 September 2020, document number 117.
     
4. The principles relevant to an application to dismiss a matter for want of prosecution is well established in this jurisdiction. Both Counsels refer to them. The principles are:
   
   • The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of the claim;
   • There is no reasonable explanation given by the plaintiff for the delay;
   • The delay has caused injustice or prejudice to the defendant;
   • The conduct of the parties and their lawyers warrant dismissal; and
   • It is in the interests of justice.
     
5. One of the early cases that applied these principles was the case of Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133. I apply these principles to the consideration of the issue of whether the proceeding should be dismissed for want of prosecution.
   
6. From the affidavits the first defendant relies on, a useful chronology of events leading up to the present application is presented.
   
   • The proceedings were filed on 5 February 2020 in the National Court in Waigani.
   • The first defendant’s notice of intention to defend was filed on 9 March 2020, and its defence then filed on 24 March 2020.
   • Additional parties were added to the proceeding on 3 December 2020, in Conservation and Environment Protection Authority and the State, as second and third defendant’s respectfully.
   • On 3 August 2021 and 3 March 2022, the plaintiffs through their lawyers wrote to the registry to have their matters listed for directions hearing.
   • On 19 July 2022, Justice Makail transferred the matter from Waigani National Court to Madang National Court to further progress the matter to trial.
   • A forewarning letter was sent to the plaintiffs on 13 June 2024.
   • On 20 June 2024, a letter was sent by the plaintiffs to have the matter listed for directions hearing at the Madang National Court.
   • The first defendant filed its application to dismiss for want of prosecution by notice of motion on 24 June 2024.
     
7. I consider the principles from the evidence and the law submitted by the parties in respect of the application.
   
8. The first question is whether the plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of the claim.
   
9. The first defendant’s submission is that the delay is inordinate. The plaintiff should have set the matter down for trial around June 2020, but have not done so. The last meaningful step was on 3 December 2020 when the joinder application was heard. This is three years and nine months ago. Since the transfer order to Madang National Court on 19 July 2022, the matter has not progressed to directions hearing. The first defendant says that all the plaintiffs have done is write a total of three letters, to have the matter listed for directions within the space of two (2) years and ten (10) months.
   
10. The plaintiffs submit that since the filing of the writ, the plaintiffs have filed over 58 affidavits. It has been a “logistical nightmare,” to organise the affidavits as the deponents come from different areas of the province and it has taken time to arrange and file the affidavits.
    
11. For this consideration, whilst I consider that it has taken the plaintiffs a long period of time, I conclude that the delay was not intentional given the nature of the claim, the location of the parties, and there was an interim activity relating to the joinder application that has contributed to the delay. This claim was initially filed in Waigani and most of the witnesses are based in Madang. This will take time to interview witnesses and have the affidavits brought to Waigani to file and then serve. I agree that it has taken some time to finally get to trial, the delay was not intentional, although inordinate.
    
12. On the second consideration of whether there is a reasonable explanation for the delay, the first defendant submits that shifting the blame to the registry is not an adequate explanation. The defendants says that the explanation that they have not received any notice from the registry that the matter was transferred to Madang is not a reasonable explanation. The first defendant relies on the cases of Wartoto v State (2024) N10760 and Mata Holdings Ltd v Adrias (2016) N6221 to support this contention.
    
13. The plaintiffs, on the other hand submits that they were not aware of the order to transfer the matter to Madang and also that despite their letters to have the matter listed, it was not listed by the Registry.
    
14. On this consideration, I accept the first defendant’s submission that shifting the blame to the registry is not adequate explanation. This is clear from the case authorities cited that one cannot sit and wait on the registry to activate the next step of the process. The plaintiffs could have filed an application to list the matter for directions. They only did that after receiving the letter of forewarning.
    
15. On the third consideration of whether the delay has caused prejudice to the defendant, the first defendant submits that the delay has caused prejudice in the following ways:
    
    • Financial prejudice – financing is difficult because of the perceived risk of legal liability;
    • Commercial prejudice – the claim has caused uncertainty amongst the first defendants suppliers and contractors;
    • Reputational prejudice – the reputation of the first defendant has suffered, especially in the eyes of the State and its agencies;
    • Availability of witnesses – Six (6) key witnesses are no longer available;
    • Cogency of evidence – The passage of time has degraded the memory of witnesses and the reliability of their evidence; and
    • Legal fees – The first defendant has incurred significant legal fees in defending the matter.
      
16. The plaintiffs counter this submission by submitting that there is no evidence that the first defendant has suffered financial loss or that its operations are affected.
    
17. In considering the question of prejudice, in my view the plaintiffs have not sufficiently rebutted the first defendant on the issue of prejudice. Whilst the question of financial risks and liabilities cannot be ascertained, the issue of the reliability of the evidence with the passage of time is real as well as the legal costs for the delay in litigation. I determine the issue of prejudice in favour of the first defendant.
    
18. The fourth consideration is to consider the conduct of the plaintiffs and their lawyers. The first defendant repeats the submission that since the referral of the matter to Waigani on 19 July 2022, the plaintiffs have not progressed the matter, and they were not even aware of the file being transferred to Madang. Furthermore they have submitted a defective notice of motion that is devoid of form. The conduct of the plaintiff and their lawyer therefore warrants dismissal.
    
19. The plaintiffs on the other hand says issued them a forewarning letter on 13 June 2020, and they responded by writing to the registry to have the matter listed and it was as a result listed on 7 July 2024.
    
20. For this consideration, I determine it in favour of the plaintiffs. The forewarning letter has prompted the plaintiff to take active steps to expedite the matter, despite the initial delay.
    
21. The final consideration is the interests of justice. The first defendants says that I take the following matters into account:
    
    • There has been an inordinate delay without any reasonable explanation;
    • The first and third defendant have suffered real prejudice;
    • Unacceptable conduct of the parties to progress the matter to trial after the case was transferred to Madang on 19 July 2022;
    • Lack of good faith in filing a belated application for directions;
    • The plaintiffs are not without remedy. They can sue their lawyer for professional negligence.
      
22. The plaintiffs submit to the contrary stating that whilst there is public interest in finality of litigation, they should not be driven from the judgement seat.
    
23. For this consideration, whilst I consider that the first defendant has provided persuasive submissions, I am persuaded that to answer the question of interests of justice, I must give much weight to the submission that the plaintiffs should not be driven from the judgment seat, given the nature of the claim and the significant amount of work that has already been invested in preparation of the case for trial, especially in filing a large number of affidavits some of which are voluminous.
    
24. In the final analysis, I have determined two of the five considerations in favour of the first defendant, that is whether there is a reasonable explanation and prejudice. The balance of the consideration has been determined in favour of the plaintiffs. Given this position, I will as a result refuse the first defendant’s application.
    
25. Owing to the fact that there is an element of lack of diligence on the part of the plaintiff as it was the forewarning letter that prompted them to react, and the prejudice the first defendant has suffered, the plaintiffs will pay the first defendant’s costs of prosecuting the application, to be taxed if not agreed.
    
26. The formal orders of the court are as follows:
    
    1. The first defendant’s Notice of Motion filed 24 June 2024 is refused.
    2. The plaintiffs shall pay the first defendant’s costs, to be taxed if not agreed.
    3. The matter is adjourned to 15 October 2024 at 930am for directions hearing.
    4. Time is abridged.
       

Ruling and orders accordingly.
________________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Plaintiffs
Posman Kua Aisi Lawyers: Lawyers for the First Defendant