Pyokoal v Enga Provincial Government [1998] PGNC 70; N1821 (24 July 1998)

Unreported National Court Decisions

N1821

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 437 OF 1995
BETWEEN:
PISARA PYOKOAL
- PLAINTIFF -
AND:
ENGA PROVINCIAL GOVERNMENT
- DEFENDANT -

Goroka

Sawong J
10 July 1998
24 July 1998

PRACTICE & PROCEDURE - Application to dismiss an action for want of Prosecution

Counsel

K. Peri, for the Plaintiff

M. Zimike, for the Defendant

24 July 1998

SAWONG J: This was an application by the Applicant/Defendant to have the whole of the proceedings dismissed for want of prosecution. The application was made pursuant to O. 4 R. 36 of the National Court Rules (NCR). This provision is in the following terms:

“O.4 R. 36 &#160t ofnProsecution

(1) &##160;e aerlainplaintiff miff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may or ds theeedingsdings.

.

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(2) Sub-rule (1) appliet, wiy any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.”

It is quite clear that this provision gives a wide dtion e Cou to whether to dito dismisssmiss a pr a proceedings for want of prosecution. But it is in my view equally clear that the exercise of this discretionary power must be exercised on proper principles and on these very clearest of facts or circumstances.

Both parties have filed affidavits. The applicant relies on the affidavit of Mr Peri sworn on 18 and filed on 25 May 1998. The respondent relies on the affidavit of Mr Dowa sworn on 7 July 1998.

From these affidavits, I find that the chronology of events are as follows;

· ټ < On 9th Sbptem996, the matt matter was set down for trial on 17 October 1996.

· ـʔ On 17 October 1996, the trhe trial date was vacated and atterput bn the civil list list for afor a call call over

· ـ < On 6 February the matter tter was fixed for trial on 18 April 1997.

· On 18 April 1997 tha trite date was vacated. The matter was fixedtrial July 1997.

&#1p>·S ҈& < < On 8 July 199 mtheer did ndid not proceed to trial and was adjourned to 19 August 1997 for trip> &##160;; ҈ O60; On 19 November,1997, th7, the trie trial dial did notd not proceed. Various reasons are given in thedavits as to why the matters did not proceed to trial. On the 19 November 1997, due to the the views expressed by the judge regarding the pleadings, the matter did not proceed.

· ҈&<;< C60; Consequently on 28 bevember 1997, the applicants lawyers sought further and better particulars of the claims from the respondent and his lawyers.

·ـ҈& ODec7 December mber 1997, 997, the respondentndents lawyers wrote to the applicants lawyers to allow the 60 days to prothe pulars

· ҈ On 22 December mber 19er 19er 1997, t97, the applicants lawyers wrote to the respondents giving them until 5 January 1998 to provide those particulars.

· &##160; <
n0; Oan8 Jy 1ar8 the rese respondents lawyers again wrote seeking a further 60 days extension.

· &##160; < &#1J016 98 19licppt&;s lawy lawyers wrote to the &#160  <ـ &##10; respondepondents lawyers,rinter info the lawyers th fu exer extensions would be d be grantgranted.

· &##60;& T60;e tern foelowedlowed some correspoes be the es.

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· &##160; < ¦&#1n ; OJanuary 1998,1998, the respondent lawyers advised tplicawyers as they were having difficifficultieulties, the applicants lawyers could proceed with the application to dismidismiss the proceedings.

· &ـʔ< O60; On 5 April 1998, ppliapplicants lawyers wrote to the respondents lawyers advising them:

a)&ـ҈ that they were given until end of April to provide the partiparticularculars,

b) & t60; that if at the end of April no such particulars were provided, they would proceed with this application to dismiss for want of proion.

&##160;;ټ  On 8th April 1the lawyelawyelawyers fors for ther the resp respondent wrote to the lawyers for the applicant advising that “despite numerous reminder letters to this client”, they had not received any instructions and that they could proceed with this application.

The facts and evidence shown clearly that the respondent has not acted promptly and diligently. In fact he has not acted or done anything at all to prosecute this matter expeditiously. In the circumstances I accept the submission made by the applicant.

I therefore Order that;

1. ـ Tte enprre proceedings be s be dismissed.

2. ; That thi plaf/tiff/Respondspondent pay the costs of the Applicant/Dents.

Lawfor tplicant: Warner Snand

Lawp>Lawyers for the Respondent: Paulus Dowa Lawyers