Kisa v Talok [2010] PGNC 159; N4019 (19 May 2010)

N4019

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 259 OF 2001

BETWEEN

SAMSON KISA
Plaintiff

AND

SERGEANT MAJOR JAMES TALOK
SURINIKI POLICE STATION, ENGA PROVINCE
First Defendant

AND

JOHN WAKON
POLICE COMMISSIONER OF PAPUA NEW GUINEA
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Makail, J
2010: 19th May

PRACTICE & PROCEDURE - Application to vacate trial - Reasons of - Late service of affidavits by opposing party - Application granted.

Cases cited:

Michael Yona -v- Wamp Nga Enterprises Ltd (2009) N3644

Counsel:

Mr P. Dowa, for the Plaintiff
Ms J. Tindiwi, for Defendants

INTERLOCUTORY RULING

19th May, 2010

1. MAKAIL, J: This is belated application by the defendants for vacation of trial today and have the matter adjourned to the next National Court civil call over. The application is opposed by the plaintiff.

2. Two grounds were advanced by Ms Tindiwi, counsel for the defendants:

1. The first defendant is deceased and time is needed to obtain instructions from the policemen who are still alive in relation to the circumstances giving rise to the claim; and
   
2. The plaintiff's lawyers have served two affidavits, one by the plaintiff and one by a Dr John Mckup on counsel yesterday, hence insufficient time to prepare for trial.
   

3. The plaintiff through his counsel Mr Dowa objected to the application on the basis that sufficient time has been given to the defendants to prepare for trial and that the two affidavits were served on the defendants in good time; the plaintiff's affidavit was served in 2009 and Dr Mckup's on 10th May 2010. Mr Dowa, however was unable to produce an affidavit of service to verify his assertion.

4. I must go on record first that, it is very disappointing to discover at the start of the trial that the defendants seek vacation of trial and adjournment of the matter, especially when the matter was listed for trial today by the Court on 4th February 2010, some three months earlier. Not only that but, according to the endorsement of the Court file, on 7th July 2008, the Court issued directions for all parties to file and serve on each other affidavits by 25th July 2008 and notices to cross examine witnesses by or before 25th July 2008.

5. It is clear to me that none of the parties complied with these directions by 25th July 2008. In my view, that is the very reason or cause for the unsatisfactory state of affairs leading to the present application today. I have said in the past and will repeat today that Mount Hagen National Court has seen the establishment of directions hearing in 2008. It is a process whereby the Court supervises parties and their lawyers to prepare their cases for trial. Matters such as filing of affidavits, notices to cross examine witnesses and so forth are done through this process. The objective of this process is to ensure that matters fixed for trial will proceed uninterrupted on the trial date(s): see my ruling in Michael Yona -v- Wamp Nga Enterprises Ltd (2009) N3644.

6. It is clear to me that this matter cannot proceed today because there is no evidence of service of the two affidavits to be relied upon by the plaintiff on the defendants. But I dismiss Ms Tindiwi's submission that she needed time to get further instructions to prepare affidavits from police witnesses in place of the first defendant who is deceased. There is no evidence before me that the first defendant is deceased; for example a medical certificate of death, so I do not know if he has died. Further, counsel had more than sufficient time to prepare evidence for the defence case for trial since the proceeding commenced some 9 years ago, in 2001, or even after Court issued directions on 7th July 2008. In my view, those two reasons offered by counsel are unacceptable. They are not even supported by evidence, either an affidavit from counsel or one of the defendants, hence they are mere assertions from the bar table which I reject.

7. Had there been proof of service of the affidavits to be relied upon by the plaintiff in this case, I would not have hesitated to refuse the defendants' application in this instance. In the absence of proof of service of the two affidavits on the defendants earlier than yesterday, I will accede to the defendants' application.

8. I intimated to Ms Tindiwai why costs should not be personally paid by her should the defendants' application succeed and she responded that costs is a discretionary matter for the Court to decide and on that basis it should not be awarded against her personally. This is because, she recently inherited the office file on this matter and it would be unfair to her to be penalized with costs. I have heard no submissions from Mr Dowa on this issue.

9. It is true that cost is a discretionary matter. The general rule is that it is awarded by the Court to the successful party be it at the interlocutory or final stage of the proceeding. In this case, the defendants have been successful in their application for vacation of trial and adjournment and costs would usually be awarded to them. But there is no doubt in my mind that the lawyers having conduct of this matter for the defendants including Ms Tindiwi have failed miserably in preparing the defence case for trial. Why should costs be awarded against the plaintiff? In cases where the reasons given for the awarding of costs are unsatisfactory, why should costs be awarded against the defendants including the State and not lawyers for the Solicitor Generals office who are charged with the duty to represent and protect the interest of the State?

10. I have decided not to order costs to be borne personally by Ms Tindiwi in the end because I am of the view that the plaintiff and his lawyers have partly contributed to the situation we are all in today. I order that:

1. The application for adjournment is granted.
   
2. Trial is vacated.
   
3. Matter is adjourned for directions hearing on Monday 31st May 2010 at 9.30 am.
   
4. Costs shall be in the cause.
   
5. Time abridged.
   

____________________________________

Paulus Dowa Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants