Abaga v Tonefa [2012] PGNC 173; N4864 (31 October 2012)

N4864

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1016 OF 2011

JAMAIKA ABAGA
Plaintiff

V

SINGO TONEFA - Managing Director
AIYUTA AIYAKO - Chairman
JOJO NAGISA Deputy - Chairman
SAMSON TONTAFA - Director
SOPI TUENI -Treasurer
TANIS TESERA - Secretary
ALLAN SAMUAH - Director
LABI LABANOIYA - Director
MASIO ERAO - Director
STEVEN NEHAYA - Director
TOM OMOI - Director
NELSON NEGE - Director
First Defendants

AND

KAINANTU LOCAL CONTRACTORS ASSOCIATION INC
Second Defendant

Goroka: Ipang AJ
2012: 5 & 31 October

CIVIL – Amended Motion seeking to have Defendants' Defence struck off and judgment entered against the Defendants – Order 12 Rule 1 of the National Court Rules and Rule 15 (2) (c) of the Listings Rules 2005.

Cases Cited

Papua New Guinean Cases

Yap v Tan & Ors [1987] PNGLR 277
Dr. Allan Kulunga v Western Highlands Provincial Government (2006) SC 859
Philip Takori & Ors v Simon Yagari PGSC 3; SC 903 (29 February 2009)

Overseas Cases

Chuck v Cremer [1846] Eng R 924; 47 ER 820
Witham v Holloway (1995) 183 CLR 525

Counsel
Mr. D. A. Umba, for the Plaintiff
Mr. K. Pilisa, for the Defendants

RULING

31 October, 2012

1. IPANG AJ: The Plaintiff has this motion on foot before this Court. The Defendants through their counsel Mr. Pilisa knew that the motion will be heard today but made no appearance. Court grants leave to the Plaintiff to proceed ex parte. The Plaintiff Jamaika Abaga seeks through his Amended motion filed on the 20th of September, 2012 the following orders:
   
   1. Defendants' Defence filed on the 14th November, 2011 be struck off and judgement be entered against the Defendants pursuant to Rule 15 (2) (c) of the Listings Rules, 2005 and Order 12 Rule 1 of the National Court Rules.
      
   2. The issue of damages shall be determined at a later date agreed to by both parties.
      
   3. Cost is entered against the Defendants.
      
2. The Rule 15 (2) (c) of the Listings Rules 2005 states:
   

"15. SUNMARY DISPOSAL

(2) The Court may summarily dispose of a matter in the following situations;

(c) For non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.

3. The Order 12 Rule 1 of the National Court Rules states:
   

"1, General relief (40/1)

The Court may, at any stage of any proceedings, on application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process."

4. In support of the Plaintiff's Amended motion, is the Affidavit of Mr. D. Umba sworn and filed on the 17th of August, 2012.
   
5. Basically, what Mr. Umba deposed in his affidavit is that on the 06th of July, 2012, the Court made an order granting leave to the Defendants to file and serve their verified List of Documents within 7 days. He said on the 06th of August, 2012, he conducted a File Search on File WS. 1016 of 2011 at the National Court Registry. He said his search revealed that the Defendants have not filed their Verified List of Documents within the 7 days as ordered by the Court. This has prompted the Plaintiff to file this motion to summarily dispose this matter for non-compliance.
   
6. When the Court order of 6th July, 2012 was issued giving 7 days for the Defendants to file and serve their verified List of Documents, evidence showed they have not complied. In Yap v Tan & Ors [1987] PNGLR 277; also Chuck v Cremer [1846] Eng R 924; 47 ER 820 it was held that it is the obligation of every person against whom an order is made that it be obeyed unless and until the order is discharged.
   
7. This is better expressed by Brennan, Deane, Toohey and Gaudron, JJ in Withan v Holloway (1995) 183 CLR 525 at pp 533 -534 in the following statement:
   

"Even when proceedings are taken by the individual to secure benefits of an order or undertaking that has not been complied with, there is a public interest aspect in the sense that the proceedings also vindicate the Court's authority."

8. The Court went on and further emphasised:
   

"Moreover, the public interest in the administration of justice requires compliance with all court orders and undertakings, whether or not compliance also serves individual or private interest. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or simply, procedural orders, are made in the interests of justice. Non compliance necessarily constitutes and interference with the administration of justice even if the position be remedied as between the parties".

9. In Dr. Allan Kulunga v Western Highlands Provincial Government (2006) SC 859, the Supreme Court in the context of failure to comply with Court Order held that where there is a failure to comply with a Court Order or direction, the defaulting party must show by appropriate evidence three (3) things:
   
   • (i) A reasonable explanation for allowing time period to expire,
     
   • (ii) The facts and circumstances that perverted the time period to expire, and
     
   • (iii) The application for extension was made without unnecessary and undue delay.
     
10. Though the principles in Kulunga case (supra) relates to Order 7 Rule 56 of the Supreme Court Rules, the principles are very much relevant and applicable in this case.
    
11. In considering the principles in Kulunga case (supra) to the circumstances of the present case, it is obvious; the Defendants have not satisfied all the three (3) requirements. To make it worse, the Defendant's counsel fully aware that this matter was set for hearing of the motion did not make attendance. The notations on the Court File revealed that Mr. Pilisa of counsel for the Defendants made no appearances on the 14.09.12, 05.10.12, 19.10.12 and 26.10.12. It is such conduct of the Defendant's lawyer that is contributing to the delay in the progress of this case.
    
12. The Supreme Court in Philip Takori & Ors v Simon Yagari PGSC 3; SC 903 (29 February 2009) in the context of granting orders from interlocutory applications made it very clear:
    

"The National Court of hears a lot of application and readily grants orders aimed at correcting the kind of deficiencies we speak of or order compelling a plaintiff (or defendant) to take corrective measures. These kinds of orders are made with a view to doing justice on the substantive merits of the case at less costs and delay to the parties. Hence, the practice of the National Court that we are aware of is, often one of slow to finally shutting out a party except in the clearest of cases where there is deliberate and inexcusable failure to comply with Court Orders or Rules of the Court only as the last resort and only if no measure of amendments will do."

13. Given the above circumstances, there are a number of options available for me to take. The first option is to enter judgment in favour of the plaintiff; the second option is to cite the Defendants or their lawyer for contempt on the basis that they disobeyed the Order of the Court and the third option is to extend the time to enable compliance.
    
14. Due to the Defendants and their lawyer's non-attendance in Court thus offering no satisfactory explanations and meeting the requirements in Kulunga case (supra), I have decided to take the First Option that is to grant orders the plaintiff has sought in the Notice of Motion dated 20 September, 2012 in the following:
    
    1. Defendants' Defence filed on the 14th November, 2011 is struck out
    2. Judgment entered against the Defendants
    3. Damages to be assessed on a later date
    4. Defendants to meet Plaintiff's costs. Costs to be agreed if not to be taxed.
       

Umba Lawyers: Lawyer for the Plaintiff
Pilisa Lawyers: Lawyers for the Defendant