Tani v Motor Vehicles Insurance Ltd [2010] PGNC 96; N3984 (12 April 2010)

N3984

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1983 OF 2005

SWEDEN TANI
Plaintiff

AND:

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Mt Hagen: David, J
2009: 21 August
2010: 12 April

PRACTICE & PROCEDURE – application to dismiss proceedings for want of prosecution – National Court Rules, O.10 r.5 and O.12 r.1 – exercise of court's discretion – relevant considerations – exercise of discretion in favour of defendant – application granted.

Cases cited:

Kai Ulo & 2 Ors v The State [1981] PNGLR 148
Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55
Vivisio Seravo v. Jack Bahafo (2001) N2078
John Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637
Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845

Counsel:

P. Kunai, for the Plaintiff
S. Nepel, for the Defendant

RULING ON MOTION

12 April, 2010

1. DAVID, J: INTRODUCTION: The application on notice to dismiss these proceedings for want of prosecution under O.10 r.5 and O.12 r.1 of the National Court Rules was filed by the Defendant on 2 March 2009.

2. The Defendant relies on the Affidavit of Royale Thomson sworn on 24 February 2009 and filed on 2 March 2009; and the Affidavit of Service by Post of Haho Marjen sworn on 11 March 2009 and filed on 18 March 2009.

3. The application is contested. The Plaintiff relies on the Affidavit of Paulus Kunai sworn on 8 May 2009 and filed on 19 May 2009 in response.

BACKGROUND

The Plaintiff's allegations

4. On 22 December 2005, the Plaintiff commenced these proceedings by filing his writ of summons and statement of claim (the writ). He claims to have been injured in an accident whilst a passenger on a Mitsubishi truck bearing registration number P754S (the motor vehicle) which occurred along the Dei road in the Western Highlands Province at about 08:00 am on or about 5 March 2003. He claims that the motor vehicle collided with another vehicle particulars of which are unknown (the unidentified vehicle) when the driver of the unidentified vehicle negligently drove it on to the lane that the motor vehicle was being driven on resulting in him suffering a closed fracture of both the left radius and ulna.

5. The Plaintiff further claims that the owner of the motor vehicle had a third party insurance cover issued by the Defendant in respect of the motor vehicle and therefore the Defendant was liable to pay him damages under the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 for the injuries sustained.

Notice of Intention to Defend

6. The Defendant's Notice of Intention to Defend was filed on 30 June 2006.

Defence and Reply

7. The Defendant's defence was filed on 11 July 2006. It basically denies liability. However, if the Plaintiff were injured as alleged, which the Defendant does not admit, the Defendant states that it was caused by the negligence of the driver of the unidentified vehicle for which the Plaintiff has made no due enquiry and search pursuant to s.54 of the Motor Vehicles (Third Party Insurance) Act.

8. The Plaintiff's reply was filed on 31 July 2006. He adopted the admissions made in the Defendant's defence and joined issue with the denials.

THE DEFENDANT'S SUBMISSIONS

9. Ms. Nepel of counsel for the Defendant submitted that these proceedings should be dismissed for want of prosecution on the strength of the Affidavit evidence produced for and on behalf of the Defendant before the Court which she said was sufficient to satisfy all the necessary requirements.

10. Counsel further submitted that since the pleadings closed in 2006, no Notice to Set Down for Trial endorsed by the parties has been filed nor has the Plaintiff taken any other steps to have the matter set down for trial. That has been the case even after the first application to dismiss the proceedings for want of prosecution filed on 3 July 2008 was withdrawn by consent on the written request of the Plaintiff's lawyers received by her firm on 6 August 2008.

11. Counsel submitted that notice of this application was given to the Plaintiff's lawyers in November 2008.

12. Counsel submitted that whilst the Plaintiff relies on an Affidavit that has been filed in response to the Defendant's application in an attempt to provide an explanation for the delay in prosecuting these proceedings, no reasonable explanation has actually been given by the Plaintiff for the delay because of the mere fact that the explanation should have been provided by the Plaintiff himself and not by his lawyer or the explanation given was totally unsatisfactory.

13. A case for the dismissal of the proceedings for want of prosecution has been established counsel said.

THE PLAINTIFF'S SUBMISSIONS

14. Mr Kunai of counsel for the Plaintiff on the other hand submitted that the delay in setting the matter down for trial was not intentional nor was the Plaintiff sitting on the matter and doing nothing about it as was suggested by the Defendant, but rather it was due to several factors which he highlights in his Affidavit. Counsel said that they include, inter alia,; that the previous practice for listing matters for trial was according to the age of the matter on the call-over list, i.e. older matters were given priority over most recent matters irrespective of whether all parties attended at the call-over or not; that compared with other matters, this was not an old matter on the call-over list; that a different practice has been adopted and applied by my Court here now where I allow matters to be fixed for trial if all parties were in attendance at call-overs; that the Defendant's lawyers have not been attending the call-overs until late 2008 and onwards and for that reason the matter could not be given a date for trial; and that with the implementation of the Listings Rules, 2005 here now, the parties should progress the matter to trial in accordance with those rules.

ISSUE

15. The pertinent issue for determination by the Court is whether the Defendant has established a case for the dismissal of the proceedings for want of prosecution.

THE LAW ON DISMISSAL FOR WANT OF PROSECUTION

16. Order 10 rule 5 of the National Court Rules deals with dismissal for want of prosecution for proceedings commenced by writ of summons (O.10 r.1 (1)) and also to proceedings commenced by originating summons to the extent and with such modifications as the Court may direct (O.10 r.1 (2)). It states:

"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."

17. The power of the Court to dismiss proceedings on the ground of want of prosecution is discretionary. The discretion is to be exercised having regard to all the circumstances of a case: Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55.

18. The principles governing the dismissal of proceedings for want of prosecution are well established in this jurisdiction. They are summarised by His Honour, Justice Kandakasi in Vivisio Seravo v. Jack Bahafo (2001) N2078 and followed in Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845 and John Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637 where additional principles were suggested by His Honour, Justice Cannings. An application for a dismissal of proceedings for want of prosecution may therefore be granted if:-

1. the plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

2. there is no reasonable explanation given by the plaintiff for the delay;

3. the delay has caused injustice or prejudice to the defendant;

4. the conduct of the parties and their lawyers warrants;

5. it is in the interests of justice.
   

APPLICATION OF CONSIDERATIONS

Is the Plaintiff's default intentional or is allowing for an inordinate and inexcusable delay in the prosecution of their claim?

19. The pleadings closed in 2006, but the Plaintiff has failed to file and serve a Notice to Set Down for Trial even after the first application by the Defendant to dismiss these proceedings for want of prosecution was formally withdrawn by consent at the request of the Plaintiff's lawyers on 5 September 2008.

20. The present application was filed over three years and two months following the filing of the writ and about two years and six months after the pleadings closed. I am satisfied that at the time of filing the present application, there has been an inordinate and inexcusable delay in prosecuting these proceedings.

21. This consideration favours the Defendant.

Is there a reasonable explanation given by the Plaintiff for the delay?

22. In the present application, I will allow the use of the Affidavit of Mr. Kunai as he basically deposes to matters within his knowledge as the lawyer having the carriage and conduct of this matter on behalf of the Plaintiff in his firm.

23. Mr. Kunai deposes in his Affidavit that prior to the implementation of the Listings Rules 2005 here, the practice I adopted and applied to fix matters for trial differed from the previous practice adopted and applied by Justice Injia (as he then was) and the late Justice Hinchliffe. That is not totally true and misleading I might say. This is because in my Court, I generally list matters according to the age of matters as well, i.e. older ones have priority, but with the consent of the parties and that they must all be in attendance.

24. The Defendant's first application to dismiss the proceedings for want of prosecution filed on 3 July 2008 was withdrawn by consent at the request of the Plaintiff's lawyers by their letter to the Defendant's lawyers dated 6 August 2008: annexure "A", Royale Thompson's Affidavit. Under cover of that letter, the Plaintiff served his Reply filed on 31 July 2006. The reason the Plaintiff's lawyers proffered for the delay in filing and serving their client's Reply was that they were trying to obtain further instructions from him to verify certain aspects of his claim. By that letter, the Plaintiff's lawyers also advised that they would shortly furnish to the Defendant's lawyers a Notice to Set Down for Trial. On 6 August 2008, the Defendant's lawyers wrote to the Plaintiff's lawyers confirming their agreement to withdraw their motion upon payment of their costs and at the same time enclosing a draft order in those terms endorsed with their consent and requesting them to endorse their consent, have it filed and then sent to them a sealed copy of that order with a Notice to Set Down for Trial: annexure "B", Royale Thompson's Affidavit.

25. On 3 September 2008, the Defendant's lawyers wrote a follow up letter to the Plaintiff's lawyers requesting for a sealed copy of the consent order in respect of the withdrawal of the first application and a Notice to Set Down for Trial to be sent to them: annexure "C", Royale Thompson's Affidavit and annexure "D", Paulus Kunai's Affidavit. On 10 September 2008, the Defendant's lawyers received from the Plaintiff's lawyers a letter saying that they would be forwarding to them a Notice to Set Down for Trial for their endorsement: annexure "C", Paulus Kunai's Affidavit. On 12 September 2008, the Defendant's lawyers wrote to the Plaintiff's lawyers requesting that they send to them a sealed copy of the consent order together with a Notice to Set Down for Trial: annexure "E", Paulus Kunai's Affidavit.

26. On 17 September 2008, the Defendant's lawyers wrote to the Plaintiff's lawyers making an offer to settle the matter on a without prejudice basis by payment of K5,000.00 inclusive of costs: annexure "F", Paulus Kunai's Affidavit. On 15 October 2008, the Plaintiff's lawyers wrote to the Defendant's lawyers advising, inter alia, that they would revert to them once they received instructions to the offer made: annexure "G", Paulus Kunai's Affidavit.

27. On 27 November 2008, the Defendant's lawyers wrote to the Plaintiff's lawyers requesting them to advise whether or not they had received any response from their client in respect of the Defendant's offer: annexure "D", Royale Thompson's Affidavit. By that letter, the Defendant's lawyers advised that in the event that the matter was not finalised before the end of the National Court vacation, they anticipated being instructed to make another application to dismiss these proceedings for want of prosecution.

28. Ms. Thompson deposes in her Affidavit that as at the date of swearing it (24 February 2009), she still had not received any response from the Plaintiff or his lawyer.

29. It can be inferred from the conduct of the Defendant through its lawyers that it has been ready to have this matter set down for trial since the pleadings closed, but for the failure or neglect on the part of the Plaintiff to furnish to it a Notice to Set Down for Trial for its endorsement.

30. I reject Mr. Kunai's submission on the Plaintiff's failure to set this matter down for trial in the light of his admission that his firm had erred in not filing a Notice to Set Down for Trial, the document which prompts the Registrar through the Assistant Registrar here to have the matter listed for mention, directions hearing and subsequently for a trial date or dates to be fixed: see O.10 rr.4, 6, 7 and 9A (6)(7)(8) and (9) of the National Court Rules.

31. I am satisfied therefore that the Plaintiff has not provided any reasonable explanation for the delay despite being given the opportunity by the Defendant to get his act in order.

32. This consideration favours the Defendant.

Has the delay caused injustice or prejudice to the defendant?

33. I accept that the Defendant has been prejudiced in defending these proceedings by the Plaintiff's failure to diligently prosecute his claim because; firstly, the particulars of the unidentified vehicle allegedly involved in a collision with the motor vehicle on 5 March 2003 are lacking; and secondly, it is possible that the passage of time since the alleged accident occurred will have an impact on witnesses to give credible evidence on the identity of the unidentified vehicle.

34. This consideration favours the Defendant.

Do the parties' conduct and their lawyers warrant the grant of this application?

35. As I have alluded to earlier, Mr Kunai has admitted that his firm had erred in failing to file a Notice to Set Down for Trial. However, neither he nor the Plaintiff personally has advanced any reason why that was the case when he or his firm had been in communication with the Defendant's lawyers over a period of time on that matter even after the latter by their letter of 27 November 2008 had put the Plaintiff on notice of the impending application if settlement were not achieved before the end of the 2008 National Court vacation. As I have alluded to already, it can be inferred from the conduct of the Defendant through its lawyers that it has been ready to have this matter set down for trial since the pleadings closed, but for the failure or neglect on the part of the Plaintiff to furnish to it a Notice to Set Down for Trial for its endorsement.

36. This consideration favours the Plaintiff.

Is it in the interests of justice to grant this application?

37. The Defendant made a proposal for settlement on a "without prejudice" basis by payment of K5,000.00 inclusive of costs by its letter to the Plaintiff's lawyers on 17 September 2008. The Defendant put the Plaintiff on notice by the Defendant's lawyer's letter of 27 November 2008 that if the matter were not finalised before the end of the 2008 court vacation, another application would be made to dismiss the proceedings for want of prosecution. As I have alluded to already, Ms. Thompson deposes in her Affidavit that as at the date of swearing it (24 February 2009), she still had not received any response from the Plaintiff or his lawyer. I think it can be inferred again from the conduct of the Defendant through its lawyers that it has been somewhat fair to the Plaintiff either in trying to have this matter finalised or to have the matter set down for trial since pleadings closed.

38. This consideration favours the Plaintiff.

CONCLUSION

39. All the five considerations are in favour of the Defendant. The Defendant has established a case for the dismissal of the proceedings for want of prosecution. Justice therefore demands and in the exercise of my discretion that the Defendant's application be granted in all the circumstances of this case.

ORDER

40. The formal orders of the Court are:-

1. these proceedings are dismissed for want of prosecution;
   
2. the Plaintiff is to pay the Defendant's costs of and incidental to this application to be taxed if not agreed.
   

__________________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiff
Young & Williams: Lawyers for the Defendants