Saiakali v Reto [2008] PGNC 124; N3489 (27 August 2008)

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JENNY RETO, PAKA RETO AND IMMANUEL LUTHERAN DISTRICT HOSPITAL
Defendant/Respondent

PRACTICE AND PROCEDURE – Application to dismiss – plaintiff alleges defendants are relying on incorrect rules to make application – plaintiff also alleges application to be time barred

PRACTICE AND PROCEDURE – Defendants application seeks to dismiss proceedings for want of prosecution – Plaintiff failed to adhere to Notice of Discovery - National Court Rules O.9,r.15(1)

1 YALO, AJ:I heard two applications on 27 August 2008. The first of these is by the Plaintiff Mr Saiakali, seeking to dismiss the Defendants’ application. Mr Saiakali says that the Defendants’ are relying on incorrect rules to make their application. He further argues that their application is time barred. The Defendants’ application filed earlier in time and ahead of Mr Saiakali’s application seeks to dismiss the proceedings for want of prosecution. I heard the Plaintiffs’ application first, followed by the Defendants’ application.

2 Mr Saiakali raises two main arguments to support his application that the Defendants’ application should be dismissed. First, Mr Saiakali submits that the Defendants’ are moving their application three years after it was filed on 12 December 2006. According to Motions (Amendment) Rules 2005 rule 17, the application should have been made in January 2007, a month after it was filed. Rule 17 states:

The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.

3 Mr Saiakali’s argument is straight forward. The Defendants’ failed to prosecute their Motion by January 2007 as required by rule 17.

4 The Defendants’ response to this argument is that it has been difficult to move their application sooner or earlier for two reasons. First, there have been no civil court sittings in Wabag since they filed their application in December 2006. Secondly, since the National Court began to conduct civil sittings in 2008, Mr Saiakali’s Lawyers who are based in Port Moresby usually gave excuses for not attending to Motions in Wabag on the Motions dates fixed by the Court.

5 Both arguments are compelling, but I have to accept one and not the other. Here are my reasons for doing so. The earliest record on file of the mention of this matter was by my late brother Judge, Justice Jalina, on 9 September 2005. After this date the Defendants’ filed their application on 12 December 2006. Following this date, 12 December 2006, there is no record on file of this matter being mentioned again until 13 June 2008. The Defendants’ entered appearance on 13 June 2008 but not the Plaintiff.

6 The matter was mentioned again on 19 June 2008. The Defendants entered appearance. The Plaintiff did appear in Person. Mr Saiakali explained that his Lawyers’ non appearance relates to the issue of legal fees.

7 The third mention of this matter in 2008 was on 13 August. Both parties entered appearance except that Mr Saiakali appeared in person. There was no appearance by his Lawyers, and the matter was adjourned to 20 August.

8 On 20 August the Defendants’ Lawyers appeared but again Mr Saiakali’s Lawyers failed to appear. Their explanation by a fax dated 19 August 2008 was that flights were full and they could not make it to Wabag. Their fax at paragraph 2 states that they got instructions from their client on 5 August that the matter was adjourned to 20 August and the Court’s direction was that that was the last adjournment. It makes a reasonable person to think that since that was the last adjournment, Mr Saiakali’s Lawyers failed to act diligently and book their flight early. Nevertheless when the Lawyers failed to appear on 20 August the Court was lenient and it adjourned once more to 27 August.

9 On 26 August, a day before the application was made, Mr Saiakali’s Lawyers filed an application to dismiss the Defendants’ application on the basis of the grounds I referred to earlier. On the basis of my discussions above Mr Saiakali’s first ground must fail. The reasons in summary are that (1) the Court did not conduct civil sittings since 9 September 2005 till 13 June 2008; and (2) since 13 June to 20 August 2008 Mr Saiakali’s Lawyers failed to serve their client’s interest and appear on the Motions dates fixed by the Court. On 27 August 2008 they appeared and moved this application. I feel inclined to advise Mr Saiakali’s Lawyers about Section 15(b) of the Professional Conduct Rules 1989. A Lawyer shall use his best endeavours to avoid unnecessary waste of Court’s time.

10 Mr Saiakali’s second principal argument in support of his application is that the Defendants’ application relies on the wrong provision of the National Court Rules (NCR). That is, they rely on Order 9 rule (15)(1)(a) of the NCR to seek to dismiss his proceedings for want of prosecution. Mr Saiakali argues that the correct provision they should rely on should be Order 4 rule 36. Mr Saiakali further argues that the issue is about him not complying with the Defendants’ Notice of Discovery. He says that is separate issue from wanting prosecution. What do these rules say and where and when do they apply?

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings. [ My emphasis]

(1) Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division (Order 9 Discoveries, Interrogatories, Admissions) the Court may make such order as it thinks fit including -

(a) if the party in default is the Plaintiff – an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings; or... [My emphasis]

13 These rules need no elaborate interpretation. They are self explanatory. Order 4 rule 36 applies in two different circumstances. First, where a plaintiff defaults in complying with an order or direction of the Court as regards the conduct of proceedings, the Court may stay or dismiss the Plaintiffs’ proceedings. Secondly, the Court may stay or dismiss the proceedings where the Plaintiff fails to prosecute the proceedings with due dispatch. The NCR do not provide the definition of the phrase ‘due dispatch.’ The literal meaning is: "requiring quick completion of..." Oxford Advanced Learners Dictionary of current English, Oxford University Press, 1989).

14 By the clear terms of Order 9 rule 15(1)(a) NCR they are relevant to the particular circumstance of the Plaintiff’s conduct. He has failed to co-operate with the Defendants to supply List of Documents with verification within 14 days since October 2005. The Plaintiff has offered no reason for the failure. He has offered no arguments against the Defendants’ Notice of Discovery served by fax on or about 12 October 2005. It seems no fault of his, but it is of his Lawyers.

15 The Defendants’ are making their application and seeking the appropriate orders they see fit under the correct rule. The Plaintiff’s argument is misconceived. With respect, even a lay person could not interpret Order 9 rule 15(1)(a) NCR any other way than the way the Defendants have.

16 Where does that leave Mr Saiakali’s application? It is refused for the reasons I have set out above.

17 Now I consider the Defendants’ application. The Defendants’ relied on Mr Koeya Peri’s affidavit in support of their Notice of Motion filed on 23 November 2006. Mr Peri, a Lawyer in the employ of the Defendants’ Lawyers, Warner Shand Lawyers, deposes to in chronological order his correspondence to Mr Saiakali’s Lawyers in relation to the Defendants’ Notice of Discovery. The facts deposed to in Mr Peri’s affidavit are condensed in a tabulated form.

No	Date	Document and Details
1	10.10.05	Filed Notice of Discovery at Wabag National Court
2	12.10.05	Faxed sealed copy of Notice of Discovery to Yapao Lawyers
3	19.10.05	Fax to Yapao Lawyers following up on Notice of Discovery
4	18.11.05	Fax to Yapao Lawyers further following up on the Plaintiff’s List of Documents
5	08.12.05	Fax to Yapao Lawyers, another follow up on the Plaintiff’s List of Documents
6	16.02.06	Fax to Yapao Lawyers pleading for them to progress the Plaintiff’s List of Documents
7	19.04.06	Fax to Yapao Lawyers further follow up and refers to fax of 16.02.06
8	24.05.06	Fax to Yapao Lawyers – refers to fax of 19.04.06 and warns that if Plaintiff’s List of Documents are not filed by 31 May the Defendants’ will file application to dismiss the entire proceedings
9	07.07.06	Fax to Yapao Lawyers, referring to their letter of 03.07.06 and advises that they file List of Documents within the next 14 days
10	19.07.06	Letter from Yapao Lawyers advising that that they will file Plaintiff’s List of Documents
11	15.09.06	Fax to Yapao Lawyers – refers to their List of Documents which do not include other Documents. Requires the Plaintiff himself to verify the Documents
12	10.10.06	Fax to Yapao Lawyers – requesting sealed copies of List of Documents
13	01.11.06	Fax to Yapao Lawyers – referring to letter of 10.10.06 and advises that no sealed List of Documents have been served on the Defendants

18 This is a clear and very unfortunate case where Mr Saiakali’s Lawyers have failed him miserably. How many more times do they expect the Defendants to remind them to file and serve a complete verified List of Documents? How many more times do they expect the Defendants to plead with them? As a matter of fact it is their client’s case. Yapao Lawyers should act professionally and diligently to ensure that their client’s proceedings are brought to trial with due dispatch. They have sat on their client’s interest. It is simply professional negligence.

19 Section 8 of the Professional Conduct Rules 1989 obliges a lawyer to be diligent. A lawyer shall treat a client fairly and in good faith, giving due regard to -

a) the dependence by the client upon him and his special training and experience; and

20 Mr Saiakali is a mere lay person who has given his full trust and confidence to his lawyers to protect his interests. Being a lay person, the degree of trust, confidence and the hope of due dispatch and success of his case placed on his lawyers’ special training, skill and experience is very high. I need not say more.

21 I grant the Defendants’ application. Mr Saiakali’s entire proceedings are dismissed pursuant to Order 9 rule 15(1)(a) of the NCR. Considering all that I have said above and to do justice in the particular circumstance of this case, I invoke Section 155(4) of the Constitution to order that the cost of the whole proceedings for the Defendants shall be borne by Yapao Lawyers, and not Mr Saiakali.

Yapao Lawyers: Lawyer for the Plaintiff
Warner Shand Lawyers: Lawyer for the Defendants

National Court of Papua New Guinea

Saiakali v Reto [2008] PGNC 124; N3489 (27 August 2008)