Kepo v Dowa [2011] PGNC 309; N4228 (21 February 2011)

N4228

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 320 OF 2010

BETWEEN

KOMBIL KEPO
Plaintiff

AND

PAULUS MAPA DOWA trading as PAULUS MAPA DOWA LAWYERS
Defendant

Mount Hagen: Makail, J
2011: 18th & 21st February

PRACTICE & PROCEDURE - Application to dismiss claim - Fraud - Negligence - Defence of - Pleading of - Performance - Release - Estoppel - Particulars of - Reply - General denial - Denial by necessary implication - No admissions - Traversing of defence - Application refused - National Court Rules - Order 8, rules 8, rule 5, 14, 27.

No cases cited

Counsel:

No appearance, for Plaintiff
Defendant in person

RULING

21st February, 2011

1. MAKAIL, J: By a notice of motion filed on 24th November 2010, the defendant moves the Court to dismiss the proceedings based on two grounds:

1. for being frivolous and vexatious, and abuse of process pursuant to Order 8, rules 5, 14, 27 and Order 12, rule 40 of the National Court Rules,

2. alternatively, for want of prosecution pursuant to Order 4, rule 36 and Order 10, rule 5 of the National Court Rules, and

2. He also seeks judgment to be entered in his favour in the sum of K8,682.08 pursuant to Order 22, rule 27 of the National Court Rules.

3. In support of the application, the defendant relies on his affidavit sworn and filed on 24th November 2010. From the perusal of the affidavit, the uncontested facts are, the plaintiff sued the defendant for fraudulently and negligently converting monies in the sum of K106,750.00 to the use of another. The defendant acted for the plaintiff in a claim for compensation against the Motor Vehicle Insurance Limited following injuries sustained by the plaintiff in a motor vehicle accident on 23rd September 2003. She was rendered a paraplegic. The Motor Vehicle Insurance Limited paid the monies to the defendant and the defendant subsequently disbursed it to the plaintiff through an agent, who was her half brother.

4. The plaintiff alleged although she had authorised the agent to pursue the claim on her behalf, she had not authorised him to collect the monies from the defendant in the event the claim is settled and that the defendant conspired with the agent to defraud her of the monies when he raised two separate cheques in the name of the agent and gave them to him without her knowledge and authority. When this was discovered, the plaintiff's daughter attended and requested the defendant to verify the claim and was refused. She persisted and was eventually given copies of the two cheques written out to the agent.

5. The defendant filed a defence. It denied any fraud or negligence. He raised the defence of performance, release and estoppel on the basis that the plaintiff had authorised the agent to represent her interest in the claim against the Motor Vehicle Insurance Limited and that authority included collecting the monies on her behalf in the event the claim is settled by the Motor Vehicle Insurance Limited. Secondly, the plaintiff signed a deed of release with the Motor Vehicle Insurance Limited and had received and passed on the monies to the plaintiff through her agent.

6. Finally, the defendant acted in good faith when it released the monies to the agent and had expected the agent to pass on the monies to the plaintiff. If there was any dispute in relation to the disbursement of the monies by the agent, it was a matter between the plaintiff and the agent.

Failure to file reply to defence

7. Under the first ground of the application to dismiss the proceedings, it was argued that since the defendant raised the defence of performance, release and estoppel, these were specific defences that required the plaintiff to reply to them by filing a reply. He relied on Order 8, rules 5, 14, 27 of the National Court Rules to ground his application.

8. He says the plaintiff was required to reply to them because he had given particulars of these defences to the plaintiff in his defence as required by Order 8, rule 29 of the National Court Rules. As the plaintiff has failed to file a reply to these defences to either deny or traverse them, his defences stand admitted by the plaintiff. Therefore, there is no basis for the plaintiff' claim to proceed any further. It should be dismissed at this stage.

9. Order 8, rule 5 states:

"Reply

(1) Where a defendant serves a defence on a plaintiff and a reply is needed for compliance with Rule 14 or Rule 87 (defamation), the plaintiff shall file and serve the reply in Form 17 before the expiry of 14 days after the date of service on him of the defence.

(2) Where a defendant files both a reply and a defence and cross-claim in Form 18, he shall put them in one document."

10. Order 8, rule 14 states:

"Matters for specific pleading

In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality -

(a) which he alleges makes any claim, defence or other case of the opposite party not maintainable; or

(b) which, if not pleaded specifically, may take the opposite party by surprise; or

(c) which raises matters of fact not arising out of the preceding pleadings."

11. It is accepted the defendant had given particulars of his defence to the plaintiff in his defence as required by Order 8, rule 29 of the National Court Rules. However, despite his claim that the plaintiff had failed to file a reply to specifically deny or traverse his defences, there is a reply filed by the plaintiff on 18th June 2010.

12. In cases where it is necessary to reply by denying or traversing pleadings of the other party, Order 8, rule 21 states:

"21. Admissions and traverse. (15/20)

(1) Subject to Sub-rule (3), an allegation of fact made by a party in his pleading shall stand admitted by any opposite party required to plead to that pleading unless it is traversed by that opposite party in his pleading or a joinder of issue under Rule 22 operates as a denial of it.

(2) A traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation.

(3) Where a pleading makes an allegation of the suffering of damage, or an allegation of an amount of damages, a pleading to that pleading by an opposite party shall be taken to traverse the allegation, unless the allegation is specifically admitted."

13. According to rule 21(1) of Order 8, admissions are made when an opposite party who is required to plead in response does not plead to that pleading. The opposite of that is, there are no admissions if the opposite party traverses or joins issue with the pleading. In other words, the allegation raised in the pleading is denied by the opposite party and according to rule 21(2) of Order 8, "[a] traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation."

14. From perusing the reply of the plaintiff, I am satisfied the plaintiff has denied or traversed the defendant's defences. By necessary implication and generally, the plaintiff has pleaded in the reply, which is permissible according to Order 8, rule 21(2) above, that despite the defendant's performance of the contract to represent her interest in the claim for compensation against the Motor Vehicle Insurance Limited, the defendant either acted fraudulently or negligently when he released the monies to her agent without her knowledge and authority. The monies were released to the agent in the form of two cheques in his name: see paragraphs 1-5 of the reply.

15. Further, despite his defence that the plaintiff released the defendant by signing a deed of release and is estopped from denying it, it is clear from the reply that the plaintiff has denied the defence by pleading that she had not authorised the agent to collect her monies from the defendant.

16. For these reasons, I am not satisfied the proceeding is frivolous and vexatious, and an abuse of process that it should be dismissed at this stage. On the other hand, the proceedings must be allowed to proceed. The application to dismiss the proceeding under this ground is therefore dismissed.

Want of prosecution

17. Under the second ground of the application to dismiss the proceedings, the defendant argues the plaintiff has failed to diligently prosecute the proceedings since it was commenced on 26th March 2010. He says following the filing of the defence on 27th April 2010, the plaintiff has failed to set the matter down or listed on the directions hearing list for directions and eventually call over/listings. There is a delay of eight months since the close of pleadings.

18. Having considered the arguments of the defendant, I am not satisfied that the delay is inordinate or the plaintiff has failed to diligently prosecute the proceedings. It is clear that there had been a number of interlocutory applications between the close of pleadings and the filing of this application on 24th November 2010. There was the application of the plaintiff to strike out the defendants' defence and enter judgment and then the application to transfer the proceedings from Waigani National Court to Mt Mt Hagen National Court.

19. In my view, these were the reasons for the delay and the plaintiff could not be said to have been solely responsible for the delay in the prosecution of the matter. The defendant also contributed to the delay because he had filed an application to transfer the proceedings to Mt Hagen National Court which had to be heard before the proceedings had to be set down for trial. For these reasons, the application to dismiss the proceedings for want of prosecution is declined.

Entry of judgment on costs

20. The final application is for entry of judgment on costs. There is clear evidence before the Court that the plaintiff was ordered to pay the defendant's costs of an unsuccessful interlocutory application. The defendant filed a bill of costs in taxable form and was taxed by the Taxing Officer. On 15th September 2010, an amount of K8,682.08 was certified as taxed costs. A copy of the certificate of taxation was sent to the plaintiff's lawyers for payment and despite a number of reminders to settle it, the plaintiff had failed to settle it. I am satisfied the defendant has made out the application and enter judgment on the certified costs of K8,682.08.

21. In conclusion, the orders I make are:

1. The application to dismiss the proceeding for being frivolous and vexatious, and an abuse of process is refused.

2. The application to dismiss the proceeding for want of prosecution is refused.

3. Judgment is entered in favour of the defendant on the taxed costs of K8,682.08.

4. Costs of the various applications be in the cause.

5. Time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

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PNG Legal Services Lawyers: Lawyers for Plaintiff
Defendant in person