Jacob v Motor Vehicle Insurance Ltd [2009] PGNC 75; N3665 (17 June 2009)

N3665

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 467 of 2006

BETWEEN:

KURI JACOB
Plaintiff/Respondent

V

MOTOR VEHICLE INSURANCE LIMITED
Defendant/Applicant

Wabag: Yalo, AJ

2008: 22 October
2009: 17 June

Cases cited:

Ronald Nicholas v Commonwealth New Guinea Timbers Proprietor Ltd [1986] PNGLR 133
Markscal Ltd v MRDC [1990] PNGLR 52
Umbu Waink v MVIT [1997] PNGLR 390
Singali Mondo v The Independent State of Papua New Guinea (2004) N2653
Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062
Bank of south Pacific Limited v Rau Wok ( ) N2118
NHC v Yama Security Services ( ) N1985

Overseas Cases referred to:

Allan v Sir Alfred McAlphine & Sons Ltd (1968) 2QB 299
Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405

Counsels

Mr J. Poponawa, for the Defendant/Applicant
Mr M. Thoke, for the Plaintiff/Respondent

RULING ON NOTICE OF MOTION

1 YALO, AJ: This is an application by way of a notice of motion filed in July 2008 seeking to dismiss the entire proceedings initiated by the Plaintiff/Respondent (hereafter the Respondent) against the Defendant/Applicant (hereafter the Applicant). The Respondent filed a claim for damages arising from personal injuries she sustained following a traffic accident. The Applicant relied on Order 10 rule 5 of the National Court Rules (NCR) to seek the remedy. The Respondent opposed the application stating that it is an abuse of the court process.

ISSUE

Should the entire proceedings be dismissed for want of prosecution?

APPLICANT’S SUBMISSIONS

2 According to the Court file and the evidence before the Court the Respondent filed against the Applicant a Writ of Summons on 24 April 2006 claiming damages for injuries arising from a traffic accident that allegedly occurred on 15 May 2000. The Applicant filed its Defence on 16 May 2006. On 6 February 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to take the necessary steps to bring the proceedings to trial. Following the Applicant’s prompt, the Respondent filed a Reply on 16 February 2007. On 28 September 2007 the Applicant’s Lawyers wrote again to the Respondent referring to their letter of 6 February 2007 and urged the Respondent to take necessary steps to bring the matter to trial. On 10 December 2007 the Applicant’s Lawyers notified the Respondent’s Lawyers by a letter that if no progress is made to bring the proceedings to trial they would file an application to dismiss the proceedings for want of prosecution.

3 On 19 February 2008 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to prepare and forward to them a Notice To Set Down for Trial. The Respondent’s Lawyers did not respond to the Applicant’s Lawyers’ letter. On 1 July 2008 the Applicant’s Lawyers wrote to the Respondent’s Lawyers referring them to their earlier letter of 19 February 2008 and gave them notice of their intention to file an application seeking to dismiss the Respondent’s proceedings.

4 The Applicant submitted that as of July 2008 the Respondent’s Lawyers or the Respondent has not replied to their letters and further that the Respondent has not taken any steps to progress the proceedings.

RESPONDENT’S SUBMISSIONS

5 The Respondent, through her Lawyer, submitted that in 2005, 2006 and 2007 there were no civil call-overs except once or twice in those years. The Court heard matters in the order of the date of filing and adjourned matters which were not mentioned or heard. The Respondent’s writ was filed on 24 April 2006 and there were some cases filed earlier and this matter was not listed for trial. The Respondent argued that according to their records there was no mention of this matter in 2006 and 2007. The Applicant’s Lawyers are aware of this fact but they have gone ahead to file this application to dismiss the entire proceedings. The Writ was filed two years ago and it is too early for the Applicant to seek to dismiss the proceedings for want of prosecution.

6 The Applicant’s application is an abuse of the court process because their Lawyers are aware of the reasons for the delay. The Respondent submitted that she is not at fault. The Court had a single Judge who was overloaded with criminal trials and he had no time for civil matters between the period 2004 and 2007. Therefore the Respondent argued that it is unfair for the Defendant to make this application to have the entire proceedings dismissed for want of prosecution.

RELEVANT LAW

7 Order 10 rule 5 of the National Court Rules states:

5. Want of prosecution. (33/6)

Where a plaintiff does not, within six 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.

8 This Court has on countless occasions determined applications made pursuant to Order 10 rule 5 of the NCR to dismiss the entire proceedings for want of prosecution: To name a few they are Ronald Nicholas v Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133; Umbu Waink v MVIT [1997] PNGLR 390; Markscal Ltd v MRDC [1990] PNGLR 52; and Singali Mondo v The Independent State of Papua New Guinea (2004) N2653. In these cases the Court has held that Order 10 rule 5 expressly empowers the Court to dismiss any proceedings for want of prosecution if the Plaintiff does not set down the matter for trial within the time allowed by the rule. These authorities have enunciated that the Court has inherent powers to dismiss any proceedings if there has been delay in complying with the rules or excessive delay in prosecuting any action.

9 Order 10 rule 5 states that “Where a plaintiff does not, within six 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”. These words are in plain English and ‘are self explanatory’: Umbu Waink v MVIT [1997] PNGLR 390. Where pleadings are closed, the Plaintiff has six weeks within which he must take steps to have the proceedings set down for trial. If he fails the Court on application by any other party, may on terms dismiss the entire proceedings or issue such other appropriate orders it thinks fit.

10 Markscal’s case (supra) is more appropriately applicable in the present case. There Sevua J held that any party who institutes proceedings against another has an obligation to prosecute his case without unnecessary delay. He has a duty to comply with the rules to ensure that the prosecution of his proceedings reaches finality without inordinate delay. There are other rules which empower the Court to manage its business so that it is not unnecessarily clogged up with procrastinated proceedings due to lack of due dispatch by the parties. For instance, see Order 4 Rule 36 (Want of prosecution) and Order 9 rules 15 (Discovery) and 25 (Default) NCR. Other rules which demonstrate that the Court has power to issue appropriate orders and directions to ensure the efficient management and control of its business include Order 1 rule 9 (Application to set aside for irregularity) and Order 12 rule 40 (Frivolity, etc) NCR.

11 What is before me is an instance where the Applicant accuses the Respondent of not taking meaningful steps to have their proceedings dispensed within a reasonable time whilst the Respondent blames this Court for her not taking those steps to have the matter brought to trial within a reasonable time. I must weigh both arguments. First I find that that the Applicant’s arguments have merit. The Respondent has not taken meaningful steps to have the matter brought to trial within a reasonable time after the filing of the Reply to the Applicant’s Defence on 16 February 2007. The Respondent filed against the Applicant a Writ of Summons on 24 April 2006 claiming damages for injuries arising from a traffic accident which allegedly occurred on 15 May 2000. The Applicant filed its Defence on 16 May 2006. However the Respondent’s Lawyers did nothing to progress the matter until 16 February 2007 when the Respondent filed a Reply following a prompt by a letter dated 6 February 2007 from the Applicant’s Lawyers. I am not sure if the Respondent’s Lawyers would have filed a Reply had there been no prompt from the Applicant. Secondly, I do find merit in the Respondent’s arguments. There is no evidence on the court file that the matter came before the Court or that it was mentioned in 2006 and or 2007. The first mention of the matter was on 13 August 2008.

12 Under the circumstance what is the appropriate conclusion this court must reach to do justice in this case? I must consider other facts relating to this matter. I appreciate the fact that the Court did not allocate time, and if it did, it did not allocate adequate time for civil matters since the commencement of these proceedings. However that fact alone did not stop the Respondents and indeed both parties from taking the necessary steps to bring the matter to trial or have it ready for trial by August 2008. I do note from the court file that the Applicant’s Lawyers had asked the Respondent on numerous occasions in 2007 to take the necessary steps to have the matter ready for trial. The last of these was on 10 December 2007 but thereafter there was a further letter on 19 February 2008. To my knowledge the Respondent’s Lawyers have been and are resident in Wabag where this Court is located. They have not bothered to extend the courtesy and reply to the Respondent’s Lawyers’ letters and explained to them their difficulty and the National Court’s attitude toward civil matters in general since 2005. The Applicant’s Lawyers have always been and are based in Port Moresby so they would not have had the benefit of the knowledge of how the National Court here was treating civil matters. Since they did not have that knowledge and since the Respondent’s Lawyers were silent on the progress of the matter they were entitled to assume that may be the Respondent was not desirous of pursuing the matter in court.

13 The Respondent’s alleged injuries occurred in May 2000. The submission by the Respondent’s Counsel that the proceeding were commenced only two years ago overlooks the very fact that his own client has been expecting some form of redress nine years ago. So far as I know the Courts do not necessarily and strictly discharge matters following a chronological order from the date of their commencement. Whether a case comes to trial and whether a case is resolved by the Courts is very much in the hands of the parties, particularly the one who initiates the proceedings. That party must drive the progress of the matter and endeavour to get it to trial.

14 Since I was appointed resident Judge here in Wabag in April 2008 I began to mention civil matters in June 2008. The Respondent who is in this Province and her Lawyers who are based in Wabag Town and whose office is about 200 meters away from this Court could have taken steps in April 2008 or as late as June 2008 to have the matter set down for trial or at least prevent the Applicant from filing this application before this Court. There is evidence on the Court records that Counsel, Mr. M Thoke appeared in Court on 3 June 2008 in the matter CIA No 149 of 2006 Lyndon Kundalin v Jacob Yangari when I conducted a civil call over that month. Despite the Applicant’s warning on 10 December 2007 and a further letter on 19 February 2008 Counsel has not taken serious steps to bring this to trial. The Respondent’s Lawyers had not even taken steps to file a notice to set down for trial in early 2008. They did not have to wait for a Judge to be appointed to Wabag or they did not have to wait for the court to commence conducting civil circuit. They have not written to the Court Registry enquiring about when the next civil call-over might be in 2007 or 2008 when this Court began to give attention to civil matters. The Lawyers have demonstrated laxity in attending to the Respondent’s proceedings. I reiterate that unlike the Respondent’s Lawyers and quite contrary to their submissions, the Applicant and its Lawyers are based in Port Moresby so they would not have any knowledge about the court’s attitude to civil matters in Wabag. It is the Respondent’s Lawyers who are based in Wabag who ought to have communicated to them about the lack of progress of the civil matters in Wabag. Therefore the Applicant was entitled to file this application.

15 Mr. Thoke for the Respondent relied on the case of Smugglers Inn Resort Hotel Ltd v Papua new Guinea Banking Corporation (2006) N3062 to submit that “where there is a long delay a balance must be struck as between the Plaintiff and the Defendant and decide in the end whether the balance and justice demands that the action be dismissed”, (words of Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411). Justice Lay in the Smugglers Inn Resort Hotel Ltd case (supra) applied the principle of law above after analysing the relevant principles of law from within this jurisdiction and other jurisdictions. The relevant cases in our jurisdiction I quote from Justice Lay’s judgment are:

“Ronald Nicholas v Commonwealth New Guinea Timbers Proprietor Ltd [1986] PNGLR 133; Marksal Ltd and Robert Needham v Mineral Resources Development Limited, Masket Iangaleo, Gerea Aopi and Charles Lepani (1999) N1807 where the Plaintiff ignored the Defendant's efforts to get the case on for trial, the case of Bank of south Pacific Limited v Rau Wok N2118 where the applicant defendant gave lengthy written notice to the Plaintiff of its intention to make an application under O.10 r.5, which the Plaintiff ignored; and the case of NHC v Yama Security Services N1985 where one (1) year and ten (10) months elapsed with no action by the Plaintiff and no explanation for the delay. The court in that case said "a litigant, especially a plaintiff, who initiated legal proceedings has the obligation to ensure he prosecutes the proceedings without delay".

16 The principles of law established by the authorities I have quoted above are applicable in this instance. Considering the circumstances of this case I have set out earlier the Applicant was entitled to bring this application in light of the Respondent’s Lawyer’s silence. Whilst the Court has not given equal attention to civil matters as it did criminal matters over the last three to four years I find that despite Applicant’s Lawyers’ prompt and warning as late as February 2008 the Respondent’s Lawyers have not taken meaningful steps commencing from April 2008 to bring the proceedings to trial. The Respondent cannot be blamed because she relied on her Lawyers’ qualification, skills and expertise. Under the circumstances it would be unjust to penalise her.

ORDERS

1 The entire proceedings are dismissed under Order 10 rule 5 of the National Court Rules for want of prosecution.

2 I order the Respondent’s Lawyers to bear the costs of the entire proceedings.

_____________________________________________________________________
Mirupasi Lawyers: Lawyers for the Applicant
Thoke Lawyers as Agents for Kunai & Co Lawyers: Lawyers for the Respondent