N4730

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1578 OF 2002

BETWEEN

BRENI KORA
Plaintiff

AND

SERGEANT MANUMA TITIMA
First Defendant

AND

SAM INGUBA,
COMMISSIONER OF POLICE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2012: 11th & 13th July

PRACTICE & PROCEDURE - Application to set aside ex-parte order - Ex-parte order summarily dismissing proceedings - Jurisdiction of National Court - Lack of - Application incompetent and dismissed - National Court Rules - O 12, r 8(3).

PRACTICE & PROCEDURE - Application to set aside ex-parte order - Ex-parte order summarily dismissing proceedings - Explanation for default - Delay - Explanation for delay - Unsatisfactory - No arguable case shown - Application dismissed - National Court Rules - O 12, r 8(3).

Cases cited:
Papua New Guinea cases

Peter Malt -v- Dean Queen & Anor (2008) N3577
Robert Kittika -v- Pastor Peter Kapia & Ors (2010) N4051
Thomas Rangip & Foundation Finance Limited -v- Peter Loko & National Capital District (2009) N3714
Rupundu Maku -v- Steven Maliwolo & The State (2012) SC1171

Overseas cases

Donoghue -v- Stevenson [1932] AC 562
Hill -v- Chief Constable of West Yorkshire [1987] UKHL 12 (Hill); [1989] AC 53

Counsel:

Plaintiff in person 
Mr R Puka, for Defendants

RULING ON APPLICATION TO SET ASIDE ORDER OF
DISMISSAL OF PROCEEDINGS

13th July, 2012

1. MAKAIL, J: The plaintiff moves the Court by motion filed on 04th July 2012 to set aside an ex-parte order of the National Court of 06th July 2011 which summarily dismissed the within proceedings for want of prosecution. The application is made pursuant to O 12, r 8(3) of the National Court Rules which provides that:

"(3)The Court may, on terms, set aside or vary an order -

(a)	where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or

(b)	where notice of motion for the setting aside or variation is filed before entry of the order."

2. The application is opposed by the defendants. Based on the affidavit of the plaintiff filed on 04th July 2012, the plaintiff sues the defendants for damages arising from negligent actions and/or omissions by the first defendant and seeks to have the third defendant vicariously liable as the employer of the first defendant. The plaintiff is from Kainantu in the Eastern Highlands Province and lives at Raffle Range settlement in the city of Port Moresby. He alleges that the first defendant was the cause of a tribal fight between him and his people with the Taris from the Southern Highlands Province in May of 2001. His son assaulted a youth from Tari and went into hiding. The relatives of the youth made a complaint to the police at Hohola Police Station. They also demanded K10,000.00 from him. He was asked by the first defendant to turn the son in, and he did. 

3. Instead of charging his son for assault, the first defendant directed that the parties settle the dispute out of Court. He was unable to meet the Taris' demand of K10,000.00 and the Taris retaliated. They went on a rampage. They chased the plaintiff and his people away, destroyed and looted their houses and personal belongings. As a result, he suffered substantial monetary loss.

3. The matter was listed for summary determination on 08th June 2011 before Justice Hartshorn. He appeared and requested for time to secure funds to engage a lawyer to represent him. The plaintiff said that he would be eligible for a loan from Airways Hotel by November and would by then be able to engage a lawyer. Upon this request, instead of adjourning the matter to November, Justice Hartshorn adjourned it to 06th July 2011 and directed that he engage a lawyer and filed an affidavit explaining why the matter should not be summarily dismissed. He did not and arrived late at Court on 06th July 2011. By then, Justice Hartshorn had dismissed the proceedings. His reason for asking the Court to set aside the order for dismissal is that, he is unemployed and has difficulty in finding money to engage a lawyer to prosecute the matter.

4. The defendants object to the application on jurisdictional grounds. They submit that the National Court summarily dismissed the proceedings and that is the end of the matter. The National Court has no jurisdiction to revisit its own order summarily dismissing the proceedings. If the plaintiff is aggrieved by the decision, he should appeal to the Supreme Court. I accept this submission. I am of the view that the proceedings, having been dismissed, had concluded the matter. For, there must be finality to litigation. If the plaintiff is aggrieved by the decision, he should file an appeal to the Supreme Court. Peter Malt -v- Dean Queen & Anor (2008) N3577, Robert Kittika -v- Pastor Peter Kapia & Ors (2010) N4051 contrast with Thomas Rangip & Foundation Finance Limited -v- Peter Loko & National Capital District (2009) N3714.

5. On the evidence, I find the plaintiff was aware since 06th July 2011 that the Court had summarily dismissed the proceedings. He could have lodged an appeal within the statutory period. He did not. As he is out of time, the other option is for him to seek a review of the decision by invoking the review powers of the Supreme Court under section 155(2)(b) of the Constitution. In my view, the application is incompetent and is dismissed.

6. Notwithstanding the above finding, one of the considerations in an application of this nature is that, the plaintiff must explain why the order for dismissal was allowed to be made and the other is whether the application is made promptly. If there is delay, the plaintiff must provide a reasonable explanation for it. The other consideration is whether the plaintiff has an arguable case. 

7. A party who commences proceedings in Court has an obligation to diligently and expeditiously prosecute it. The plaintiff commenced the proceedings in December 2002. The matter was left unattended and was listed for summary determination on 08th June 2011. The plaintiff was well aware of the date for the hearing of the matter when it was adjourned on 08th June 2011. Further, on 08th June 2011, he was granted an adjournment to engage a lawyer and was directed to file an affidavit explaining why the proceedings should not be summarily dismissed. He failed to attend to both of these matters. He does not say what steps he took to secure the loan from Airways Hotel after the matter was adjourned on 08th June 2011. While lack of funds may be the reason for the delay in having this matter prosecuted in good time, I am not satisfied that the plaintiff took serious steps to secure funds and a lawyer to prevent the Court from dismissing the proceedings. 

8. From 06th July 2011 to the date of filing of this application of 04th July 2012 is almost 1 year. This is a long time since the dismissal order was made. Similarly, in my view while lack of funds may be the reason for the delay in filing this application, I am not satisfied the plaintiff took serious steps to promptly apply to set aside the dismissal order. 

9. The plaintiff alleges that the first defendant is a servant of the State and was negligent when he directed the parties to settle the dispute out of Court. The settlement did not eventuate. Instead, a fight broke out. The Taris raided his house and personal belongings. It was not the first defendant or any policemen for that matter. But the plaintiff argues that it was the first defendant who directed that the dispute be settled out of Court and it ended up in an all out war between the parties. As a result, the Taris destroyed and looted his property. Should the State be held liable for the actions of the Taris? 

10. The common law tort of negligence as adopted at Independence on 16th September 1975 encompasses an existence of a duty of care, breach of the duty and damages that flow from the breach. A party who alleges negligence must first establish the existence of a duty of care. This principle of law proceeds from the famous "neighbourhood" principle developed in case of Donoghue -v- Stevenson [1932] AC 562. 

11. In the present case, I am unable to determine the nature of the duty of care allegedly owed by the defendants to the plaintiff. In my view, it is not sufficient to allege that the police were negligent because one of them directed that the dispute between the parties be settled out of Court and that led to a fight and destruction of the plaintiff's property. I find the nexus between the first defendant and the alleged tort is very remote. 

12. It has been recently held by the Supreme Court in Rupundu Maku -v- Steven Maliwolo & The State (2012) SC1171, that at common law, the police owe no duty of care to the public at large. Further, there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation: see also Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53. These cases reaffirmed the common law position that there must be a duty of care for the action in negligence to succeed at trial. In this case, I find none.

13. For these reasons, I am not satisfied that the plaintiff has demonstrated that there is an arguable case. For these reasons, I dismiss the application with costs.

Ruling accordingly.

____________________________________

Solicitor-General: Lawyers for Defendants