Mondo v Independent State of Papua New Guinea [2004] PGNC 135; N2653 (31 August 2004)

N2653

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

MP 481 OF 1995

BETWEEN:

SINGALI MONDO
Plaintiff/Respondent

AND:

THE INDEPENDENT STATE OF PNG
Respondent/Applicant

MADANG : SAWONG, J.
2004 : 26TH & 31ST AUGUST,

FACTS:

The defendant applied to dismiss the plaintiff’s claim on the basis that the proceeding had not been set down for trial within six (6) weeks after the pleadings had closed. The Plaintiff had filed proceedings in October 1995 claiming damage for alleged breaches of Constitutional rights. The pleadings had closed in April 1997. Since then no further steps had been taken by the plaintiff to set down the matter for trial or to prosecute the matter.

HELD:

1. That O.10, r. 5 of NCR expressly empowers the Court to dismiss any proceeding for want of prosecution if the plaintiff does not set down the proceeding for trial within the proper time.
   
2. In addition to its express powers, the Court has inherent jurisdiction to dismiss an action for want of prosecution if there has been default in complying with the rules or excessive delay in the prosecution of an action.
   
3. That the entire proceedings be dismissed as the plaintiff had not set down the proceedings for trial within six (6) weeks, after the pleadings closed.
   

CASES CITED:
Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133;
Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) (Unreported judgment of the National Court) No. N1630;
Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) (Unreported judgment of the National Court) No. N1807

Counsel:
NO APPEARANCE, for Plaintiff/Respondent
R. SALMON-MINAK, for the Respondent/Applicant

DECISION

31st August, 2004

SAWONG, J: This is an ex parte application by way of a Notice of Motion seeking the following orders:

1. That the proceedings dismissed for want of prosecution pursuant to O.10, r.5 of the National Court Rules, (NCR) or
   
2. The proceedings be dismissed for non-disclosure of a course of action and for being frivolous and vexatious pursuant to O.12, r.40 (1) of the National Court Rules (NCR).
   

Counsel for the applicant relies on his own affidavit filed on 27th July, 2004, the affidavit of Paul Yimalang Tange sworn on the 23rd of August, 2004 and filed 24th August, 2004 and the affidavit of service of Tobias Dalid sworn on the 23rd August, 2004 and filed 24th of August, 2004.

The Notice of Motion was first mentioned on 18th August, 2004. At that time the plaintiff appeared, but as he had not been served with the Notice of Motion and the affidavit the court directed counsel for the applicant to serve all necessary and relevant documents on him. I then adjourned the matter to Thursday 26th August, 2004 at 9:30a.m. for hearing. The plaintiff was informed of this on that particular day in open court. Despite being served and advised, he has not appeared before the court on 26th August, 2004. The matter therefore proceeded ex parte.

The brief facts are that the respondent filed proceedings for enforcement of his Constitutional rights pursuant to s.57 and 58 of the Constitution. He alleged that his Constitutional rights were violated when his house was searched by members of the Police Force during a pre-dawn raid on the 6th of October, 1995. He alleged that the policemen who had apprehended him that night breached his right to freedom from arbitrary search of entry given by s.44, Liberty of the person guaranteed by s.42 and his right to privacy accorded by s.49 of the Constitution.

The policemen acting on a tip-off, were in search of unlicensed firearms believed to be weapons used in the murder of a Pilipino national along the Bugati road. He filed his human rights applicant on the 12th of October, 1995.

The State filed its defence in April, 1992. No reply had been filed by the plaintiff and the plaintiff did not take any steps at all to set down the matter for trial or to prosecute the matter.

Mr Salmon-Minak did not pursue the alternative ground. He based his application and submissions were made on the first ground of the Motion. The issue for consideration is whether or not the entire proceedings should be dismissed for want of prosecution. The relevant rule in relation to dismissal of proceedings for want of prosecution for not setting down a matter for trial within the prescribed time, is provided by O.10, r.5 of the National Court Rules. It provides:

"5. Want of Prosecution (33/6).

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

This rule has been the subject of judicial considerations in many cases in this jurisdiction. It is sufficient to refer to some of them only. In Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133, the court held that the power of the court to dismiss for want of prosecution should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been long and inexcusable delay.

In Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) (Unreported judgment of the National Court) No. N1630 in an application for the dismissal of the proceedings for want of prosecution, Lenalia, J said:

"The Law in relation to dismissal for want of prosecution is quite clear. This is evident from the wording of O.10, r.5 of the Rule. Rule 5 of Order 10 requires that within six (6) weeks after the pleadings are closed, the plaintiff is entitle to set the matter down for trial. The court has power to dismiss proceedings for want of prosecution on Motion by the other party where there has been a long delay and default or where there has been inordinate and inexcusable delay on the part of the party who instituted the proceedings."

In Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) (Unreported judgment of the National Court) No. N1807 Sevua, J said:

"In my view a plaintiff, who institutes a law suit has an obligation to prosecute it without unnecessary delay. He has a duty to comply with any court order relative to the law suit; he has a duty to comply with the rule of the court to ensure that prosecution of the suit reaches finality without inordinate delay, and without causing prejudice to the defendant. A party cannot just ignore court process, if he does, he does so at his peril."

Order 10 Rule 5 requires the plaintiff to set down a matter for trial within six (6) weeks after the pleadings are closed, the failure to do so may prompt the other party to have the proceedings dismissed. This rule expressly empowers the court to dismiss any action for want of prosecution if the plaintiff does not set down the proceedings for trial within the proper time. There are similar express provisions elsewhere in the rules, for example, O.4, r.36 (want of prosecution), O.9, r.15 (default in discovery). But in addition to these express provisions, the Court has inherent jurisdiction to dismiss an action for want of prosecution if there has been default in complying with the rules or excessive delay in the prosecution of the action. Generally speaking the same principles are applied whether the court is acting under its expresses powers or under its inherent jurisdiction.

From all those authorities, it appears to me that there are two distinct, though related, circumstances in which an action may be dismissed for want of prosecution. These are namely,

(a) when a party has been guilty of intentional and contumelious default, or

(b) where there has been inordinate and inexcusable delay in the prosecution of the action.

In addition, in an application such as this, the onus is on the applicant to dismiss the demonstrate to the court that the plaintiff has not set down the proceedings for trial within the proper time. The onus then shifts to the plaintiff to give reasonable explanation why he did not set down the motion for trial within the proper time.

In the present case the applicant seeks to have the proceedings dismissed not because there has been an intentional and/or contumelious default on the part of the plaintiff. The argument has been advanced on the basis that there has been an inordinate and inexcusable delay in that the respondent has not set down the proceedings for trial within six (6) weeks after the pleadings had closed. The argument that has been put forward was that, there has been an inordinate and inexcusable delay on the part of the plaintiff in not setting down the matter for trial as required by O.10, r.5 of the National Court Rules.

Mr Salmon-Minak submitted that a period of seven (7) years has lapsed since the pleadings were deemed to close. He has not prosecuted the proceedings with due dispatch. It was submitted that as the respondent has not prosecuted his case with due diligence, it can be inferred that the respondent has no further interest in pursuing his cause.

Mr Salmon-Minak has submitted that the evidence for himself, from the court records and the other supporting affidavits shows that the State would be prejudice because two of its key witnesses may no longer be available to give evidence on behalf of the State. One of the potential witnesses has died and the other has resigned from the Police Force and has gone back to his village.

In the circumstances he submitted that the proceedings to be dismissed.

In the circumstances of this case, I accept the application and I find that there has been an undue delay on the part of the Respondent. I find that since the pleadings closed, the plaintiff has not set down the matter for trial as required by O.10, r.5 of the National Court Rules. Furthermore, the proceedings were filed in October, 1995. The State filed its defence on 23rd April, 1997. No reply has ever been filed by the applicant, thus the pleadings closed in 1997. A period of seven (7) years has lapsed since the pleadings closed. A search of the court file revealed that since the pleadings closed the respondent has taken no further steps in prosecuting this proceedings.

Furthermore, one of the State’s witness has died. The other one has gone back to his village. These have the real potential of prejudicing the applicant’s case.

Further, despite being informed of the date and time of the hearing of the motion and being served with all relevant documents, the plaintiff did not appear and offered no explanation for the delay. He has offered no explanation at all.

In the circumstances the proceedings must be dismissed with costs to the applicant.

I therefore order that the entire proceedings be dismissed with Costs.
______________________________________________________________________
LAWYER FOR PLAINTIFF/RESPONDENT : NO APPEARANCE
LAWYER FOR RESPONDENT/APPLICANT : PARAKA LAWYERS