Marawagi v Motor Vehicles Insurance Limited [2004] PGDC 41; DC396 (14 April 2004)

DC396

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 86 OF 2000

BETWEEN

Anis Marawagi
Complainant

V

Motor Vehicles Insurance Limited
Defendant

Mt. Hagen: Appa - Principal Magistrate
2004: 07th January, 12th March

RULING

Motion: Application for dismissal of proceeding delay in prosecution – cause of
delays determining factor.

Counsel
J. Nandape for the Defendant/Applicant
P. Stegman for the Complainant/Respondent

14th April 2004.

This is an application filed by the defendant to dismiss the proceeding for want of prosecution. The Defendant submitted that since the start of the proceeding the complainant had taken no reasonable steps to prosecute the case. The affidavit of Mr. Christopher Jaminan filed an 29th December 2003 was relied upon as basis for the application.

Ms. Stegman filed her affidavit on behalf of the complainant in rebuttal to the application giving her explanation on causes of the delays. She said that she had provided the particulars requested by the defendant and also paid the cost of K200.00 ordered by the Court. That the case should proceed because her client will suffer injustice if the proceeding is dismissed prematurely.

They feared that with the lapse of time the defendant was likely to suffer prejudice if the proceeding continues at this stage. There were also mindful of the accumulated interest if judgement was against them.

I have considered both arguments and upon perusal of the court deposition, I have formed an opinion that the application to dismiss the proceeding should not stand. I noted that the initial application to dismiss the proceeding was for reasons that the complainant’s lawyer did not provide particulars of the claim in time and also that the cost of K200.00 ordered by the Court was not settled in time. Both of those conditions have since been complied with so the reasons or grounds for the application no longer existed.

I have also noted from court records and minutes that since the start of the proceeding in July 2000, there were 19 appearances made by the Complainant’s lawyer in the absences of defence counsels. It appeared that defence counsels came to the scene on 14/01/03 with filing of their defence. Then from 10th February 2003 City Agent Dowa Lawyers appeared for the defendant and on 04/04/03. This present Motion was filed and so in the nutshell one cannot say the complainant had lost in interest in the case or alone had caused the delay in the prosecution of the case.

For the above reasons, I will disallow the application.

The application for dismissal of the proceeding is disallowed with cost and the case is adjourned to 13/05/04 for trial of the substantive case.

Warner Shand Lawyers: Complainant
Tamutai Lawyers: Defendant