Yei v Marape [2015] PGNC 289; N6339 (20 April 2015)

N6339

PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE]

OS NO. 116 OF 2013

BETWEEN:

YORI YEI
Plaintiff

AND:
HON. JAMES MARAPE; Minister for Education
First Defendant

AND:
HON. PETER O’NEIL; Chairman National Executive Council
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Gavara-Nanu J.
2015: 16 and 20 April

PRACTICE & PROCEDURE – Directions – Directions issued by the Court – Repeated failures by parties to comply with directions – Plaintiff failing to take appropriate actions to expedite proceeding to trial – In-ordinate delays by the plaintiff – No reasonable explanation by the plaintiff for the delays – National Court Rules, Order 16 – (Judicial Review (Amendment) Rules, 2005) ; Order 16 r 13 (2) (a) and (b).

PRACTICE & PROCEDURE – Directions – Directions issued by the Court - Plaintiff’s failure to comply with directions deliberate and repeated – Failures causing prejudice to defendants – Plaintiff’s conduct dilatory and contumelious – Public interest – Need for the litigation to be brought to finality – Proceeding dismissed.

Cases cited:
Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari (2007) N3295
Gulf Provincial Government v Baimuru Trading Pty Ltd N1794
Joseph Tulapi v Leslie Alu (2011) SC 1177
Katam Lega v. Bank South Pacific Ltd (2012) SC1189
Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2013) SC1230
Louis Medaing v. Minister for Lands & Physical Planning (2008) N952
Luke Kyokal Niap v PNG Harbours Ltd (2010) N4278.
Michael Newell Wilson v. Clement Kuburam trading as CK Valuers and Realtors (2016) SC1489
Monoburn Earth Moving Ltd v The State (No 2) (2008) N3287.
Patrick Basa v. Bob Dadae (2013) N4991

Smugglers Inn Resort Hotel Ltd v. PNG Banking Corporation (2006) N3062

Counsel:
D. Korowa, for the Plaintiff
R. Leo, for the first Defendant
I. Mugugia, for the second and third Defendant

20 April, 2015

1. GAVARA-NANU J: This is an application by the first defendant made pursuant to a notice of motion filed on 6 March, 2015, seeking summary dismissal of the proceeding for the failure by the plaintiff to comply with Court’s directions issued on 17 December, 2014. Alternatively, the proceeding be summarily dismissed for want of prosecution.

2. The application is made under Order 16 r 13 (13) (2) (a) and (b) (a) and Order 4 r 36 of the National Court Rules (NCR).

3. The first defendant claims that the plaintiff’s failure to comply with the Court’s directions has also resulted in the plaintiff not prosecuting the proceeding with due dispatch as required under Order 4 r 36 of the NCR. It is also claimed that as a result, the defendants have been denied a fair hearing and have been seriously prejudiced. It is further claimed that the plaintiff has abused the process of the Court. The first defendant submitted that these are strong grounds for the Court to summarily dismiss the proceeding.

4. Mr Robert Leo of counsel for the first defendant told the Court that the plaintiff was fully aware of the Court’s directions issued on 17 December, 2014, thus the failures were deliberate.

5. Under one of the directions issued on 17 December, 2014, the plaintiff was to have served a draft Statement of Agreed and Disputed Facts and Legal Issues (SADFLI) on the defendants by 23 December, 2014. The direction has not been complied with.

6. It should be noted that above directions were issued after the Court, on 17 December, 2014, dismissed an application by the first defendant to dismiss the proceeding for want of prosecution under Order 4 r 36 of the NCR. Costs of that application were awarded to the plaintiff.

7. It is not disputed that on 17 December, 2014, only Mr. Dick Korowa of counsel for the plaintiff appeared in Court. Mr Leo did not appear.

8. Mr. Korowa has confirmed to the Court that he took note of all the directions issued on 17 December, 2014. He conceded that one of the directions was for his client to serve a draft SADFLI on the defendants by 23 December, 2014.

9. It should be noted that the directions issued on 17 December, 2014, were issued after the parties, especially the plaintiff, failed to comply with the initial directions issued by the Court on 22 April, 2013. It should be further noted that between 22 April, 2013, and 17 December, 2014, the initial directions were varied a number of times to give the parties, especially the plaintiff more time to comply with them.

10. Two of the new directions issued on 17 December, 2014, which have not been complied with were for the duly certified Review Book to be filed by 23 February, 2015 and the matter to return to Court on 3 March, 2015, for a trial date to be given.

11. Mr. Korowa told the Court that his client failed to comply with the Court’s directions issued on 17 December, 2014, because Mr. Leo who was directed by the Court to take out the directions, did not serve the directions on his client until after 3 April, 2015.

12. This case has a long history. The proceeding was issued on 7 March, 2013, and leave was granted on 19 March, 2013. As noted, on 22 April, 2013, the Court issued the initial directions. One of the initial directions was for the duly certified Review Book to be filed and served by 19 June, 2013. However, because the parties failed to comply with the initial directions, when the matter returned to Court on 8 July, 2013, the initial directions were varied and extended to 15 July, 2013, to give the parties more time to comply with them. However, by 15 July, 2013, the parties still had not complied with the amended directions issued on 8 July, 2013. As a result, on 15 July, 2013, the amended directions were further varied and extended to 29 July, 2013, to give the parties further time to comply with the amended directions. By 29 July, 2013, again the parties still had not complied with the amended directions issued on 15 July, 2013. From 29 July, 2013, the case remained dormant until sometime towards the end of 2014, when the first defendant applied for the proceeding to be dismissed for want of prosecution. As noted earlier, that application was dismissed with costs on 17 December, 2014. The dismissal of the application was based on two grounds. First, it was found that the plaintiff had partially complied with some of the previous directions. Second, the application was made ex-parte. In dismissing the application, the Court among other things said:

“However, given that it is now one year nine months since leave was granted and one year eight months since Consent Orders/ Directions were issued, yet not even the Statement of Agreed and Disputed Facts has been filed and served, let alone the Review Book, I have decided that I should give certain directions which should ensure finality of the proceeding quickly.”

13. Three things need to be noted from this ruling. First, there was an inordinate delay by the plaintiff to take appropriate steps to progress the matter to trial. Second, the plaintiff clearly failed to comply fully with most, if not, all of Court’s initial directions which were issued by consent. Third, the Court emphasized the need for litigation to be brought to finality. Fourth, the plaintiff had failed to file and serve the SADFLI.

14. In respect of this application, the Court is again looking at more long delays by the parties to comply with its directions, especially the plaintiff who also has not even served a draft SADFLI on the defendants. Directions regarding SADFLI were varied and extended a number of times to give the plaintiff more time to file it, the last time was on 17 December, 2014, when further amended directions were issued.

15. There is clear evidence of repeated failures mostly by the plaintiff to comply with Court’s directions. Notably, this is not a case of the plaintiff not being aware of Court’s directions. In regard to the directions issued on 17 December, 2014, Mr Korowa was present in Court and took note of all the directions, including the direction to his client to serve a draft SADFLI on the defendants by 23 December, 2014. Mr. Korowa conceded that his client has failed to comply with the Court’s directions but said that the reason was that he was waiting for Mr. Leo to serve the directions on him before he could prepare and serve the SADFLI.

16. I find the explanations given by the plaintiff for not complying with various Court directions insufficient and unreasonable: Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2013) SC1230. I also find the plaintiff’s conduct in this regard dilatory: Michael Newall Wilson v. Clement Kuburam trading as CK Valuers and Realtors (2016) SC1489.

17. It is clear that the failure by the plaintiff to prosecute the proceeding with due dispatch has prejudiced the defendants and denied them a fair hearing. Public interest clearly demands that litigation be brought to finality: Monoburn Earth Moving Ltd v The State (No 2) (2008) N3287, Joseph Tulapi v Leslie Alu (2011) SC 1177 and Katam Lega v. Bank South Pacific Limited (2012) SC1189. The repeated failures by the plaintiff to comply with the Court’s directions amounts to a serious abuse of Court’s process because the requirements of the rules regulating the conduct of the proceeding have also been breached. These are strong grounds for the Court to dismiss the proceeding: Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari (2007) N3295. The onus is on the plaintiff to prosecute the proceeding with due dispatch: Patrick Basa v. Bob Dadae (2013) N4991. The plaintiff has failed to discharge the onus on him: Luke Kyokal Niap v PNG Harbours Ltd (2010) N4278. This is another strong ground for the Court to dismiss the proceeding under Order 4 r 36 of the NCR. In the circumstances, it is clear that if the proceeding is allowed to remain on foot, the defendants would suffer more prejudice. The Court cannot allow the proceeding to continue with such abuse of its processes, and it has a duty to protect its processes from being abused: Gulf Provincial Government v Baimuru Trading Pty Ltd N1794.

18. Under Order 16 r 13 (13) (2) (b) (a) and (b) of the National Court Rules, the Court has power to dismiss a proceeding either on application by a party or on its own initiative at any stage of the proceeding for non- compliance with directions of the Court or relevant statutory requirements or abuse of process: Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (supra) and Louis Medaing v. Minister for Lands & Physical Planning (2008) N952.

19. In this case there is undisputed evidence of unexplained, inordinate and repeated delays and failures by the plaintiff to prosecute the proceeding with due dispatch and to comply with Court’s directions. They amount to serious abuse of process and a clear breach of Order 4 r 36 of the NCR. Thus, it is plain that justice demands that the proceeding be dismissed: Smugglers Inn Resort Hotel Ltd v. PNG Banking Corporation (2006) N3062. It follows that the only appropriate order I am left to make is to grant the relief sought and dismiss the proceeding. The proceeding is therefore dismissed in its entirety.

20. The plaintiff will pay the defendants’ costs of and incidental to the proceeding.

21. Orders accordingly,
__________________________________-------------------_______________________
D. Korowa: Lawyers for the plaintiff
Leo Lawyers: Lawyers for the first defendant
Solicitor General: Lawyers for the second and third defendant