Melina Ltd v Martens [2001] PGNC 28; N2183 (24 August 2001)

N2183

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. 998 of 1999

BETWEEN:

MELINA LIMITED trading as CN MERCANTILE

Plaintiff

AND:

FRED MARTENS

Defendant

WAIGANI : Kandakasi J
2001 : 9 April
24 August

JUDGMENT

PRACTICE & PROCEDURE – Matter listed for trial at the request of the Plaintiff in the absence of the Defendant – Plaintiff failed to inform the defendant of the trial date – Plaintiff not ready to proceed with trial – Parties agreeing to adjourn trial by consent – Agreement of parties not binding on the Court’s discretion to decided otherwise – Listing a matter for trial when not ready amounts to an abuse of process – Court has power to struck out proceedings for want of prosecution and for abuse of process – Need to inform Court of matter not proceeding to trial in ample time discuss – Matter struck out for want of prosecution and abuse of process National Rules Order 10 rules 4, 5, 6, 7, 9, and Order 12 r. 40.

Cases cited:

Lupi Iohoi v. Motor Vehicle Insurance (PNG) Trust [1993] PNGLR 366 to 367
OK Tedi Mining Limited v. Niugini Insurance Corporation and Ors (1) [1988-1989] PNGLR 355
Mantly John Poling v. Motor Vehicle Insurance (PNG) Trust of [1986] PNGLR 228
Andrew Kumburi of Paulus M. Noel Lawyers v. The State [1998] SC545
General Accident and Fire Assurance Corporation Limited vs. Ilimo Farm Products Pty. Ltd. [1990] PNGLR 331
Burns Philip (New Guinea) Ltd. v. George [1983] PNGLR 55

Facts

This matter was listed for trial more than a month back in the absence and without the agreement of the defendant. The plaintiff took no steps to be ready and proceed with the trial including, a failure to notify the defendant of the trial date by reason of which the defendant was not ready for trial. Parties therefore agreed to adjourn on the date of trial. No prior notice of the trial vacating given to the Court.

Held

1. It is an abuse of process to list matters for trial when party requesting listing is not in fact ready.
   
2. Consent of parties to vacate trial date on date of trial not binding on the Court.
   
3. Failure to take every step to proceed to trial by the plaintiff without any good explanation or reason operates against any adjournment but provides a basis to infer want of prosecution warranting dismissal.
   

Counsel:
T. Boboro for the Plaintiff
Mr. Kubak for the Defendants

9th April 2001

KANDAKASI, J: This matter came before me for trial on 9th of April 2001. However the parties were not ready to proceed with the trial as the plaintiff’s key witness was not available and therefore the plaintiff was not ready to proceed with the trial. Also, the plaintiff after having obtained the trial date in the absence and without the consent of the defendant failed to notify the defendant of the trial date. The defendant was thus kept in the dark regarding the trial date until my Associate called the defendant’s lawyers on the 8th of April 2001 to confirm the trial.

After inquiring into the reasons why the matter was not proceeding to trial on the date set, I asked the plaintiff’s lawyer to show cause as to why I should not strike out the proceedings for want for prosecution and for abuse of process especially in relation to having the matter listed for trial when the plaintiff was not in fact ready for trial. Counsel for the plaintiff was not able to do that. I therefore ordered a strike out of the proceedings and ordered costs against the plaintiff on the defendant’s application.

I undertook to set out my full reasons for my decision given that many lawyers now appear to continuously adopt a practice of failing to extend common courtesies to each other especially to the opposing side and to properly prepare for proceed with the trial of a matter once a date has been set. On many occasions I note that, lawyers come on the day of the trial and say they have reached agreement to vacate the trial date. They often forget or over looked the fact that the courts time and calendar and administration of cases are adversely affected by such conduct. Also, listing a matter for trial when parties are not ready unnecessarily takes up time that could be allocated to another case that is indeed ready for trial and allow for a better utilization of judicial time. This kind of conduct in my view, raises the possibility of parties abusing the process of listing matters for trial when they are not in fact ready. It is now time in my view to say to lawyers and parties alike that it is no longer acceptable for them to turn up on the day of the trial and agree to an adjournment unless circumstances beyond their control occurs, such as the death of a party or a witness. It is also time now to spell out in a written judgement as to the true and correct meaning and intend of listing a matter for trial and the need to proceed with a trial once the matter has been listed for trial. This is particularly important when there is an increase in the volume of cases going before the courts and the number of pending cases is also on the increase which is partly contributed to by conduct such as the one under consideration.

Background

This is a claim for a recovery of a debt allegedly assigned to that plaintiff by the firm of Carter Newell Lawyers. The alleged debt is sixteen thousand one hundred & sixty one Kina forty-one toea (K16,161.41). The defendant denies any knowledge of the debt or the assignment and denies the claim in full.

The proceedings were issued on the 15th of September 1999. On the 28th of September 1999, the defendant filed its Notice of Intention to Defend followed by a Defence on the 28th of October 1999. On the 10th of April 2000 a Notice to Set Down for Trial with the endorsement of both parties was filed. Then according to the file notation, the matter was before my brother Justice Sakora on call-over on the 2nd of June 2000, when the matter was stood-over to the next call-over for listing. On the 7th of February 2000, a call over was conducted at which, this matter was listed for trial on the 9th of April 2000 at 9.30am. Mr. Boboro appeared for the plaintiff but it seems no appearance was made for or by the defendant. Counsel for the plaintiff informed me that, after obtaining the trial date, the defendant was not notified of the trial date. He says a letter was written but was not actually sent as they were going to file and serve a Notice for Trial which did not occur. The defendant was not informed of the trial date until my Associate telephoned its lawyers on the 8th of April 2001 to confirm the trial date. That obviously, took the defendant’s lawyer by surprise and he was not ready to proceed with the trial on the next day, 9th of April 2001.

On the other hand, the plaintiff’s counsel after having obtained the trial date, notified his client’s key witness, who is a partner in the firm of Pacific Legal Group, which was formerly known as Carter Newell Lawyers to avail himself to give evidence for the plaintiff in this matter on the set date. For reasons unknown to counsel for the plaintiff, that witness was not available to proceed with the hearing on the 9th of April 2001. No witness summons was filed and served on the witness. The plaintiff did no notify the defendant of the trial date. By reason of that, the defendant was not ready for trial and plaintiff took advantage of that and agreed to a vacation of the trial date, by reason of its own failures as noted.

The plaintiff failed to take any step to notify the Court of the possibility of the matter not proceeding to trial so that the Court could better utilize its judicial time to deal with other matters that were awaiting receipt of the Court’s attention.

Listing a matter for trial

Order 10 Rule 4 of the National Court Rules provide that after the pleadings have closed, a party may file a Notice to Set Down for Trial which is in effect a request for the proceedings to be set down for trial. A notice of that has to be given to the other party or parties to the proceedings. Then Rule 7 provides that once a notice to set down for trial has been filed, the Registrar shall place the matter on the list of matters for hearing at the next sittings of the court. Once a date has been allocated, Rule 9 requires notice of that to be given in Form 41 to a party who has an address for service and who was not present or represented when the proceedings were set down for trial.

A failure to set the proceedings down for trial by a plaintiff has the risk of being dismissed for want of prosecution by virtue of Rule 5. That rule provides that:

"Where a plaintiff does not, within 6 weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the court thinks fit."

The practice now is that no Notice to Set Down for Trial will be filed unless it is endorsed or consented to by both parties. This is to ensure that both parties agree to the matter being ready for trial after the completion for pleadings and interlocutories. If a party unnecessarily and without good basis withholds consent to the filing of a Notice to Set Down for Trial, an application can be made to the Court for a dispensation of the required consent.

Once a Notice to Set Down for Trial has been filed either with the endorsement of both parties or by order of the Court, the matter is ready for trial. All that needs to happen is, attendance at a call-over by the parties and obtain a date for the trial. It is good practice for parties to communicate and agree on a possible date for trial before attending the call-over and obtaining a date for trial, to avoid conflicts, or other difficulties with the date. After obtaining a trial date, it is also good practice to confirm the date in writing with all the parties involved including, the Court in addition to the plaintiff filing and serving a Notice of trial at least 14 days before the date set for trial. The need to file and serve a Notice to Set Down for Trial is the responsibility of the plaintiff although order 10 rule 9 requires the Registrar to do so. In practice all documents required to be filed and served on parties are prepared and filed with the Registry by the parties concerned. There is no requirement for a party to wait for the registrar to file and serve those documents, on his/her own. A case on point is Lup Iohoi v. Motor Vehicle Insurance (PNG) Trust [1993] PNGLR 360 at pages 366 to 367. In that case, the Court held that the filing and serving of Court orders is that of although the Rules speak of the Registrar of the Court. That equally applies where a step is required to be taken as in this case.

It is always the plaintiff who has to take the next step in the proceedings to ensure that his claim against a defendant or defendants proceeds expeditiously as much as possible and avoid unnecessary delays and wastage of time and money. That is why order 10 rule 5 provides for a dismissal of proceedings where the plaintiff fails to set a matter down for trial. If a party is indeed ready and goes through the normal process to fix the matter for trial, he will also see to appropriate notices of trial being filed and served on the other parties involved. Then when the matter is called for hearing, the plaintiff is required to be ready with his witnesses to proceed with the trial at the place, time and date fixed for that purpose. Before that, a plaintiff would have filed and served witness summons in accordance with the rules to secure witnesses appearance in Court to proceed with the trial at the place, time and date appointed. The relevant rules are in order 11 rules 1 – 7.

In this case, without having undertaken and complied with the requirements for actually getting the case ready for trial and proceed with the trial on the date set for the trial, the plaintiff came into Court on the day of the trial and asked for an adjournment to cover for its own failure. It has been held that the Court does have the power to grant or to refuse an application for adjournment of proceedings set down for trial. An applicant for an adjournment bears the onus of showing why a refusal to adjourn would result in injustice to him or her. He or she also has the obligation to make the application promptly and must prove actual prejudice and not a mere speculation of prejudice. When considering such an application, the Court is required to also consider the interest of the respondent to such an application. That is to say the court should consider whether an adjournment would result in injustice to the respondent. Those principles where clearly enunciated by the Deputy Chief Justice in OK Tedi Mining Limited v. Niugini Insurance Corporation and Ors (1) [1988-1989] PNGLR 355.

The above case involved complex issues with a large number of witnesses. A large number of documents also had to be lead in evidence which was so numerous. As such, a special fixture for hearing of the case was necessary. At a direction hearing, the matter was listed for trial on the 2nd of October 1989. By Notice of Motion filed on the 25th of August 1989 the defendant applied to adjourn the hearing by 6 weeks. That application was prompted by late discovery of documents by the plaintiff. Those documents were discovered on the 11th of August 1989 and counsel for the defendants indicated to the Court on the 14th of August 1989, during the hearing of another matter that, they would be conducting inspection of those documents and consequential actions would be taken. He indicated that, they would inspect the documents in greater detail and would make an application for an adjournment if the need arose. At the time of the hearing of the motion, he informed the Court that, that would take a longer period of time and that they would not be in a position to start the trial on 2nd of October 1989.

The plaintiff in opposing the application argued that, the defendants must show actual prejudice before they can succeed on the application for adjournment. The Court however, found that the defendant would suffer prejudice if it did not grant the application for adjournment. It should be noted that, in that case, the parties did in fact prepare for trial and the application for adjournment was made when the defendant realized that it did required much more time to actually complete discovery following the plaintiff giving late discovery. The application was therefore, made almost a month before the date set for the trial and was granted.

In the present case, the matter was set down for trial at a call-over conducted on the 7th of February 2001 in the absence of the defendant and without the defendant’s knowledge. The Plaintiff fail to notify the defendant of the trial date and also failed to file and serve witness summons on its key witnesses. Clearly, the plaintiff did nothing to ensure that the matter was ready for trial on the set date after having obtained the trial date more than two months in advance. It then waited till the last minute on the day of trial to turn up in Court and apply for an adjournment. By reason of its failure to notify the defendant of the trial date, it managed to obtain the consent of the defendant. It seems in the absences of any evidence to the contrary that, the plaintiff deliberately failed to notify the defendant to facilitate the defendant’s consent to an adjournment of the trial date.

The case was not a complicated one which required much more energy, effort and time to prepare and proceed with the trial on the date set. It was simply a debt claim. The main and key witness for the plaintiff was a partner of the plaintiff’s lawyer’s firm. Mr. Boboro, Counsel for the plaintiff informed the Court that a letter was given to the partner concerned but on the day of the trial he appeared not to be present and was therefore not available to proceed with the trial. I asked Counsel for the plaintiff to show cause as to why I should not strike out the proceedings for want of prosecution and abuse of process. I raised that question with Counsel for the plaintiff having regard to the provisions of order 10 rule 5 which provides the basis for a dismissal of a claim, for want of prosecution unless the plaintiff’s set the matter down for trial. In this case the plaintiff may have listed the matter for trial to avoid such an application. That is evidenced by the fact that the plaintiff has taken absolutely no step whatsoever to get the matter ready for trial including a failure to inform the defendant of the trial date and confirm it by filing and serving a notice of trial as is required by order 10 rule 9. It also seems that the proceedings were listed for trial when in fact the plaintiff was not ready to proceed with the trial. It therefore, in my view, amounted to an abuse of process particularly, the process concerning and governing the setting down of matters and listing of matters for trial. A matter can only be listed for trial, when all the pleadings have closed and all interlocutories have been completed and parties are indeed ready for trial. When a matter is in fact not ready after the close of pleadings and completion of interlocutories and the plaintiff applies for and obtains a date for trial as in the present case, there is the possibility in my view that, such a step is being taken to avoid consequences such as those contemplated by order 10 rule 5 and in my view, that amounts to an abuse of process. Hence it should be meet with the appropriate penalty or consequence.

There is ample authority for the proposition that non-compliance with any of the rules do not render any proceeding void unless the court otherwise orders see: Anthony John Poling v. Motor Vehicle Insurance (PNG) Trust of [1986] PNGLR 228 at page 230 and Andrew Kumburi of Paulus M. Dowa Lawyers v. The State (1998) SC545 at page 22. There is also ample authority for the proposition that, the rules are rules of the Court and that any breach of those rules cannot be considered lightly. This principle was clearly express by the Supreme Court although in the context of its own rules in the General Accident and Fire Assurance Corporation Limited v. Ilimo Farm Products Pty. Ltd. [1990] PNGLR 331 at p.330: see also Burns Philip (New Guinea) Ltd. V. George [1983] PNGLR 55 at page 56.

In the present case, I also took into account the interest of the defendant who fully denies the plaintiff’s claim. He is entitled to a speedy trial and without the need to incurred unnecessary expenses. The defendant did nothing to delay the trial or prevent the plaintiff from getting his case ready for trial. If I were to grant the adjournment, it would no doubt force the defendant to incur further unnecessary costs and be continuously faced with a claim over his head. He has to get on with life without worrying about a matter or a claim against him that has not been pursued promptly and in due compliance with the rules and in seriousness against him.

It has also become common practice for some lawyers and parties to turn up on the 11th hour and apply for adjournments and in some cases, with the consent of the parties. They often forget the trouble and the expenses the Courts are put through to allocate its scarce time for the hearing of a particular matter which, could have been better utilized on another matter. When parties do not get themselves organized and ready to proceed with a trial, it unnecessarily wastes the Court’s time and takes up time that could have been allocated to other matters which could have been listed on that day and help minimize the growing list of cases.

In this case, the plaintiff also seems to have taken a casual approach to listing the matter for trial and proceeding with the trials when the date for trial arrived. As I said, it is appropriate and the time has now come to point out to parties and lawyers that they need to seriously reconsider their conducts especially in relation to fixing matters for trial and seeking adjournments or vacating trials with or without the consent of the other parties. With the growing number of cases both new and existing, the parties, their lawyers and Courts have to seriously and appropriately manage the limited available time to deal with the matters in a timely manner. The Court can adjourn a trial for all manner of reasons, if to do so will serve the interest of justice and will not unnecessarily result in a delay in a resolution of a dispute expeditiously and without incurring further unnecessary costs.

In the present case, if the plaintiff is serious and does have a genuine claim against the defendant, there is nothing preventing it from re-issuing the proceedings but after having paid the defendant’s costs occasioned by its failure to proceed with the trial on the date allocated at its request. Counsel for the plaintiff did not argue nor is there any evidence before me that the claim will became statutory time barred, which may make it difficult for the plaintiff to re-issue its proceedings if it pleases, after the strike out order. In the circumstances, I considered it appropriate and serving the interest of justice to strike out the proceedings as I did.

I also considered that, unlike the defendant, the plaintiff was in a position to have a recourse against his lawyers for their professional negligence as demonstrated by the lack of getting notice of the matter being listed for trial to the defendant and failing to file and serve witnesses summons to secure witness appearances in Court and generally failing to take all the steps that were necessary to proceed with the trial on the date set on its application. Indeed the Professional Conduct Rules prohibits a lawyer from engaging in any conduct that is not in the best interest of his or her client, let alone incur costs unnecessarily. Indeed s.8 of the Provisional Conduct Rule requires a lawyer to act diligently and to act fairly in good faith when acting on instructions from his client. Further, s.15(4) requires a lawyer amongst others to use his best endeavours to avoid unnecessary expenses and wastage of the court’s time, inform the court of any development which affects the information already before the court and not to delay proceedings that have been set down for trial without good reason. A failure in this area amounts to professional misconduct for which the lawyer may be appropriately dealt with.

In the present case, counsel for the plaintiff consented to an adjournment to cover for his own failure. In other words, the plaintiff came into court to apply for an adjournment to benefit from his own negligent conduct. Such conduct is unacceptable and is not in the interest of justice. It is not reflective of good conduct on the part of a lawyer. A lawyer engaging in such a conduct should be held accountable or liable to his client for professional negligence for whatever costs and expenses or damages the client may suffer. In this case, if the plaintiff incurs any damages or costs as a result of the strike out order, the plaintiff is not left without any recourse. It could sue its lawyers for professional negligence.

Having regard to all of the above. I decided to strike out the proceedings with costs against the plaintiff.
_______________________________________________________________________
Lawyers for the Plaintiff : Pacific Legal Group
Lawyers for the Defendant : Kubak Lawyers