N2272

PAPUA NEW GUINEA

[In the National Court of Justice]

WS NO. 872 OF 1994

Between:

ANDREW TAMADEK
Plaintiff

And:

MOTOR VEHICLES INSURANCE (PNG) TRUST
Defendant

Mt. Hagen:	 Jalina J.
2002:	6th March & 2nd July

Counsel:
P. Yer for Plaintiff
No appearance for Defendant

2nd July 2002

RULING ON MOTION TO DISMISS PROCEEDINGS

JALINA, J.:	This is an application by the Defendant to dismiss the Plaintiff’s claim for damages for personal injuries which the Plaintiff alleges he sustained as a result of a motor vehicle accident. The application is founded on two grounds. They are:

1.	That the Plaintiff has not pleaded his case as it does not disclose cause of action.
2.	That the proceedings be dismissed for want of prosecution.

The Defendant in fact filed a Notice of Motion on 9th August 2001, to dismiss the proceedings. That motion was dismissed on 24th August 2001, with a further order that the proceedings be set down for trial on 22nd and 23rd November, and that if the Plaintiff fails to appear at the trial on 22nd and 23rd November 2001, the proceedings would stand dismissed.

On 28th November 2001, the Defendant again applied for the proceedings to be dismissed on the above two grounds and filed its written submissions.

On 4th February 2002, Hinchliffe J. directed the Plaintiff to file his written submissions which he did on 7th February 2002. Hinchliffe J. then adjourned the matter for decision. However, upon my realising that I had a matter also before me for decision, which arose out of the same incident as an earlier case I had dismissed, I swapped my file with this file from Hinchliffe J.

I have considered both submissions and I am of the view that the Defendant’s complaint about the pleadings disclosing no cause of action is in fact not the case. What the Defendant complains about is that the Plaintiff has not pleaded facts as to whether he was a passenger or pedestrian or whether the vehicle was insured. These matters can be brought out during trial and appropriate submissions can be made at that time instead of shutting the Plaintiff out at this early stage.

The Defendant’s other ground, as I have said, for applying to dismiss the proceedings was for want of prosecution. This appears to have been for failure by the Plaintiff to bring the case for trial. However, when I consider this aspect of the submissions, I am unable to find any affidavits from the Plaintiff setting out the history of the case and the reasons it should be dismissed for want of prosecution.

I accordingly dismiss the Defendant’s application. 

The Plaintiff’s costs shall be paid by the Defendant to be taxed if not agreed. 
__________________________________________________________________
Lawyer for the Plaintiff:		Kopunye Lawyers
Lawyer for the Defendant:		White, Young & Williams