Marshall v Australia & New Zealand Banking Group (PNG) Ltd [2012] PGNC 209; N4799 (19 September 2012)

N4799

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1710 OF 2006

BETWEEN:

ROBERT MARSHALL
First Plaintiff

AND:

AESHA MARSHALL
Second Plaintiff

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP (PNG) LIMITED
First Defendant

AND:

SOUTH PACIFIC BREWERY LIMITED
Second Defendant

AND:

JOHN BRAY trading as Aitsi Bray Lawyers
Third Defendant

AND:

RICHARD HILL & ASSOCIATES
Fourth Defendant

AND:

LAWRENCE ACANUFA trading as ACANUFA & ASSOCIATES
Fifth Defendant

Kainantu & Goroka: Ipang AJ
2012: 24 August
19 September

CIVIL LAW – Motion to dismiss proceedings in its entirety for want of prosecution – National Court Rules (NCR) – Order 10 Rule 5.

PRACTICE & PROCEDURE – Want of Prosecution – Principles to be satisfied – Plaintiff's default is intentional or is allowing for an inordinate or inexcusable delay in prosecution of his claim – there is no reasonable explanation given by the plaintiff for the delay and that that delay has caused injustice or prejudice to the Defendant – Court should look at the Conduct take in to consideration plaintiff's delay to give consideration to the dispensation of justice under s.158(2) of the Constitution.

Cases Cited

Seravo v Bahafo (2001) N2078
John Niale v Sepik Coffee Produces Limited & Ors (2004) N2637
Kai Ulo & 2 Ors v State [1981] PNGLR 55
Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Stanley Miam v Joe Dai (2009) N3699
Ahmadiyaa Muslim Mission v Bank South Pacific Limited [2005] N2845

Counsel

No Appearances for First & Second Plaintiffs
Mr. D.A.Umba, (agent for O'Briens Lawyers) for the First Defendant
No Appearance for the Second Defendant
No Appearance for the Third Defendant
No Appearance for the Fourth Defendant
No Appearance for the Fifth Defendant
No Appearance for the Sixth Defendant
No Appearance for the Seventh Defendant
No Appearance for the Eighth Defendant

RULING

19, September, 2012

1. IPANG AJ: The first Defendant seeks the following orders in its Notice of Motion filed on the 6th of March, 2012:

1. The Plaintiff's case be dismissed in its entirety pursuant to Order 10, Rule 5 of the National Court Rules and all other rules enabling.
   
2. The First Defendants costs of this Application and incidental to this action be borne by the Plaintiffs.
   
3. Time be abridged to the time sealing of these orders to the Registrar which shall take place forthwith.
   
4. Such others that this Honourable Court deems meet.
   
2. This application is made pursuant to Order 10, Rule 5 of the National Court Rules (NCR). The Order 10 Rule 5 provides:
   

"Want of Prosecution

Where a Plaintiff does not, within six (6) weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by other party may on terms dismiss the proceedings or make such other Orders as the Court thinks fit."

3. In support of this motion, the First Defendant relies on the Affidavit of Goodwin George Poole sworn on the 5th of March, 2012 and filed on the 6th of March, 2012.
   
4. In order to fully appreciate the facts giving rise to the First Defendant filing and moving this application, I will state Chronological order of the events since filling of the Writ.
   
   1. This action was commenced on the 27th of November, 2006 under the proceedings WS. No.1710 of 2006, and it is a claim against the Defendants for a variety of legal issues, however the claim against the First Defendant is for breach of care and conversion of funds.
      
   2. On the 9th of February, 2012, O'Brien's lawyers filed a Notice of Intention to Defend.
      
   3. The Defence and the Cross Claim for the First defendant was never filed because the first Plaintiff has left the Country and the Writ did not have an address for service.
      
   4. On the 14th of April, 2008, the Court ordered that various proceedings instituted by the First Plaintiff, one of which is this current action before the Court i.e WS. No. 1710 of 2006 be discontinued and the Court made orders in the following terms:
      
   5. The Registrar of the National Court is to forward to Goroka Registry as soon as possible the file and documents therein of proceedings WS No. 1581 of 2000 to the National Court, Goroka.
      
   6. The Plaintiff to file Notice of Discontinuance in the proceedings: WS No. 1625 of 2006; WS 1710 of 2006, WS No 1581 of 2000, within 14 days from today.
      
   7. Once all the Notice of Discontinuance in the above are filed, the First and Second Defendants in WS No. 1581 of 2000 are given leave to file an Amended Cross Claim in WS No. 1581 of 2000 within 14 days.
      
   8. All motions of the First and Second Defendants and the First and Second Cross claimants in WS No. 1581 of 2000 are withdrawn. The question of costs is adjourned to be argued at a later date once parties have been served with a copy of the Notice of Motion dated d8 February, 2008 in WS No. 1710 of 2006 and this Order.
      
   9. The orders sought in paragraph 1,2,3 and 18 are adjourned to a later date together with a question of costs on the discontinuance of the four other proceedings referred to above, and withdrawal of the Notice of Motion on the First and Second Defendants/Cross Claimants in WS No 1581 of 2000. Once all of the other parties in WS No 1581 of 2000 and four other proceedings referred to in the above have been served with the Notice of motion dated 8th February, 2008 in WS No 1710 of 2006, and copies of these orders, a date of the hearing of the outstanding Motion and Orders sought can begin
      
   10. Following the filing and service of the Amended Cross Claim in WS No. 1581 of 2000, the Cross Defendants must comply with the time limits prescribed in the National court rules for filing Notice of Intention to Defend and Defences.
       
   11. Within 14 days of the new close of pleadings, the Plaintiff in WS. No. 1581 of 2000 shall forward to the Defendants a proposed Statement of Agreed and Disputed Facts and issues for trial and the Cross Claimant shall forward to the Cross Defendant a proposed Statement of Agreed and Disputed facts and Issues for trial.
       
   12. The Defendants and Cross Claimants are to reply to the Statements within 14 days.
       
   13. The Plaintiffs and the Cross Claimants are to settle and file their statements within a further 14 days.
       
   14. Any Notice of discovery are to be given by the parties to each other within 14 days.
       
   15. Discovery and inspection of documents is to be completed within one month of the Notices of Discovery being given.
       
   16. All Interlocutory Applications are to be filed and served within 3 months of today's date.
       
   17. The matter WS No 1581 of 2000 is adjourned to the August sittings of Goroka National Court for a Directions Hearing and for appropriate trial dates to be allocated."
       

5. From perusing the Court File it has been recorded that the Plaintiff Robert Marshall appeared in person before the Court. That means the Plaintiff is aware of the Court Order dated 14 April, 2008. The Court Order of 14th April, 2008 made directions for all parties to comply within the prescribed time limits.

6. Since filing of the Writ of Summons on the 27th November, 2006, First Plaintiff has filed a Notice of Discontinuance on the 15th of April, 2008, but the Second Plaintiff has not taken any step in the action since the filing of the Writ of Summons. First Defendant therefore submitted that the Plaintiffs have abandoned Notice of Discontinuance for the First Plaintiff on the 15th April, 2008 and the filing of the Writ of Summons for the Second Plaintiff on the 27th November, 2006 and that there is an inordinate delay in the prosecution of this claim. First Defendant therefore seeks orders in the terms as contained in the motion arising from the plaintiffs failure and inordinate delay in the prosecution of the claim.
The Applicable Law
7. The Order 10 Rule 5 of the National Court Rules provides:

"Want of Prosecution

Where a Plaintiff does not, within 6 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. In Staley Miam v Joe Dai (2009) N3699, David, J stated that the general provision dealing with dismissal for want of prosecution of proceedings commenced by Originating Summons is Order 4, Rule 36 of the National Court Rules. By comparision, Order 10 Rule 5 of the National Court Rules deals with dismissal for want of prosecution of proceedings commenced by Writ of Summons. His Honour went on further to say this:

"There is no significant difference between these two (2) rules. What both rules deal with is the power of the court to dismiss proceedings on the ground of want of prosecution which 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 55."

9. In Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, the defendant applied to the National Court under Order 4 Rule 36 for an order that the proceedings be dismissed for want of prosecution. It was held:

"The power of the Court to dismiss proceedings for want of prosecution should be exercised only where the plaintiffs default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyers part, given rise to a substantial risk that a fair trial will b=not be possible or to serious prejudice to the defendant."

Where there has been a long delay in bringing the proceedings to trial, a balance must be struck as between the plaintiff and the defendant and in the end the Court must decide whether or not, in the balance, justice demands that the proceedings should be dismissed."

10. In Ahmadiyaa Muslim Mission v Bank South Pacific Limited (2005) N2845 His Honour Cannings, J sets out 5 considerations for a Court to consider when dealing with an application under Order 4 Rule 36 and Order 10 Rule 5. This case deals with Order 10 Rule 5 however Cannings, J at p.5 stated:
    

"There is no material difference between Order4, Rule 36 and Order 10 Rule 5 they both deal with the power of the Court to dismiss proceedings on a ground of want of prosecution. The general principle to apply in deciding both sorts of application are, if not the same, very similar."

11. In Seravo v Bahafo (2001) N2078, Kandakasi J summarised the matters to be taken in to account when dealing with applications to dismiss for want of prosecution. His Honour Kandakasi, J stated at p.4:
    

" It is now clear law especially in the context of the National Court Rules that an application for dismissal for want of prosecution may be granted if:

1. The Plaintiff's default is intentional or is allowing for an in ordinate or inexcusable delay in prosecution of his claim;
   
2. There is no reasonable explanation given by the plaintiff for the delay;
   
3. That the delay has caused injustice or prejudice to the Defendant."
   

12. In John Niale v Sepik Coffee Producers Limited & Ors (2004) N2637, the Court expanded the issues to be taken in to consideration and stated:
    

"The Court should look at the conduct of the parties and their lawyers."

13. In the same case John Niale v Sepik Coffee Producers Limited & Ors (supra) Cannings, J also added another factor to be considered and that is;
    

"...the Court should always have regard to the conduct of the parties and, to some extent, their lawyers."

Application of laws to the facts

14. From discussing the above laws, it is correct to say there are 5 requirements to be ascertained whether the Plaintiffs have delayed the prosecution of the claim against the First Defendant or Defendants generally.
    

Whether Plaintiff's default is intentional or is creating an inordinate and inexcusable delay in the prosecution of his claim.

15. Plaintiffs commenced proceedings on the 27th November, 2006 under WS. No. 1710 of 2006, and since then the First Plaintiff has filed a Notice of Discontinuance on the 15th April, 2008, no steps have been taken to progress this matter to trial.
    

Whether there is no reasonable explanation given by the Plaintiffs for the delay.

16. Plaintiff has not provided a reasonable explanation for the period during which there was no legal activity from 15 April, 2008 when it filed a Notice of Discontinuance. It is well over 4 year since the last activity on the file. The First Plaintiff has since left the country and from skimming through the file, there is no recent record of correspondence on file, from the Plaintiff, and moreso no Affidavit in Reply to the First Defendant's Application to Dismiss for Want of Prosecution.
    
17. The Supreme Court in Kai Ulo & 2 Ors v The State (supra) pointed out that the onus is on the applicant to establish a primie facie case for the delay and the onus then shifts to the respondent to give a satisfactory explanation for the delay. Plaintiff in this instant case has not satisfied to the Court that there is a reasonable explanation for the delay in prosecuting his claim.
    

Whether the delay has caused injustice to the Defendants

18. Considering the chronological events since the filing of the Writ, this matter has not progressed for well over 3 years or almost 4 years. This in itself, in my view has caused injustice to the Defendants. The Defendants continue to wait on the Plaintiffs to prosecute the claim. In Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd (supra), the Court dealt with a lengthy delay in processing the matter to trial and held that a balance must be struck between the Plaintiff and Defendant and in the end the Court must decide whether justice demands that the proceedings should be dismissed.
    

Whether Court should look at the conduct of the parties and their lawyers.

19. Plaintiffs have apparently abandoned the claim against the Defendants. There is no reasonable explanation for the inordinate delay in bringing the matter to trial, and the Court is entitle to confer from that there is no reasonable explanation. Refer to Jones v Dunkel (1959) 101 CLR 620 adopted by the Court in Burns Philip v Maxine George [1983] PNGLR 55.
    
20. The interest of justice lies in favour of relieving the Defendants of this burden and dismiss the proceedings because of the Plaintiffs unreasonable delay in prosecuting these proceedings. This is also to the over-all public benefit of bringing litigation to finality. See Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd (supra)
    
21. Because of the foregoing reasons, I grant the orders sought in the motion by the First Defendant.

_________________________________________________________

Lawyer for the Plaintiff: No Appearance
O'Briens Lawyers: Lawyer for the First Defendant