Bau v Narenge [1999] PGDC 4; DC50 (9 April 1999)

Unreported District Court Decisions

[1999] PNGDC 12 - ISAAC BAU V YORINGE NARENGE

[1999] PNGDC 12

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 218 OF 1998

ISAAC BAU (Complainant)

v

YORINGKE NARENGE (Defendant)

Kimbe

S Lenalia PM

9 April 1999

CIVIL JURISDICTION—Practice and Procedure—District Court—Dismissal for want of prosecution—Discretionary—Principles applicable—Complainant represented—Whether delay intentional and contumelious—District Courts Act (Ch40) s144.

Cases referred to:

Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, Birkett v James [1978] AC 297

Legislation:

District Courts Act (Ch40) s144, s181(1)

Representation:

Counsel/Representative:

Informant: No Appearance by or for Complainant

Defendant: No Appearance by or for Defendant

S LENALIA PM:

N1>[1]      The complainant commenced proceedings by way of a Summons to a Person Upon a Complaint and was filed on 9 September 1998. The summons was returnable on 23 of the same month. When the matter was called the plaintiff appeared in person but the defendant did not appear because service had not been effected. The matter was adjourned to 1 October last year for mention only awaiting proof of Service and the summons was extended. On 1 October, the complainant appeared and the presiding magistrate noted on the file that proof of service had been effected on the defendant but despite this, there was no appearance of the defendant. The magistrate ordered an ex parte trial be conducted on 15 October at 9.00 am. A Notice of Ex parte trial was taken out but it is not clear whether service was effected on the defendant.

N1>[2]      On 15 October, the matter was again called and only the complainant appeared and the matter was heard ex parte at the end of which the defendant was ordered to pay K2,000.00 compensation for injuries suffered by the complainant. The order was made payable by the 15 November 1998. By 18 November, the complainant took out a Warrant of Execution. The same was returned by a Police Officer on 21 December 1998 certifying that nothing could be executed from the defendant's possession. By 12 January this year, the judgment creditor took out a summons for Oral Examination which was served on the same date. The defendant was to be orally examined on 26 January as to his means pursuant to s181(1)(a)(b)(c) and (d) of the District Courts Act. The defendant did not turn up on that date and a Warrant of Arrest was issued for his arrest. The matter was then stood over to 15 February 1999 at 9.30 am for mention and the clerk was required by the same order to issue notice to defendant. On the last mention date both parties appeared before myself and after listening to the parties I was convinced that the defendant had not been given reasonable opportunity to defend himself and so I directed the defendant to file an application to set aside the order of 15 October.

N1>[3]      The application to set aside was set to 10 March 1999 by which both parties appeared and the application was granted and the matter was set for hearing on 24 March 1999. On that date complainant sought an adjournment for reasons that his witnesses were not available. No objection was made by defendant. The matter was further adjourned to 1 April 1999 at 9.00 am for trial on which date Mr Latu appeared for Complainant and Mr Latu requested for the matter to be further adjourned to a date between 6 and 9 April. The matter was set down for trial on 9 April 1999.

N1>[4]      Prior to 9 April, Latu Lawyers wrote to Mr Vava requesting that the matter be further adjourned because their client/complainant had not paid a deposit of K500.00. The defendant turned up on 09/04/99 but the complainant nor his lawyers turned up. I dismissed the complaint for want of prosecution.

N1>[5]      The law is clear that where at the time and place specified in the summons or an adjournment date, a defendant attends in obedience to the date and time set for a hearing but where the complainant does not appear by himself or his legal representative, the court is bound to either dismiss or if it thinks proper adjourn the hearing on terms as it thinks appropriate (see s144 District Courts Act). The facts of the case show that this matter had been adjourned from time to time for various reasons which I have tried to explain earlier on.

N1>[6]      It would seem that the lawyer representing the complainant were more interested in their cause then the cause of their client. He was represented by an able law firm in town. This Court has power to dismiss a case for want of prosecution. An excellent analysis on the power of the court to dismiss for want of prosecution as stated by Woods J in Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 where his honour quoted from Birkett v James [1978] AC 297 where the Court said that the power of the court to dismiss an action for want of prosecution should only be exercised where the plaintiff's default had been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial would not be possible or which may cause serious prejudice to the defendant.

N1>[7]      In the matter before me, the defendant was present at that time for the matter to be tried. The order had been set aside and the complainant was required to prove his case on the civil standard. Apparently the court could not confirm the order or reinstate the order of 15 September. Had the defendant been absent that would have been the case but here was a case where the defendant was present and the complainant had neglected to prove his case. For that reason, I dismissed the case for want of prosecution.

N1>[8]      Ordered accordingly.

<