Tayanda v Gigira Development Corporation Ltd [2017] PGNC 121; N6756 (31 May 2017)

N6756

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO: 462 OF 2014

BETWEEN:
EKAWI TAYANDA
Plaintiff

AND:
GIGIRA DEVELOPMENT CORPORATION LIMITED
First Defendant

AND:
PETERSON PIPI
Second Defendant

AND:
MATHEW IRUKA
Third Defendant

Waigani: Shepherd J
2017: 30 & 31 May

PRACTICE AND PROCEDURE – National Court – Dismissal for want of prosecution – Court’s own motion for dismissal under O.10 r.9A(15(1)(b)) of National Court Rules – Principles applicable - no reasonable explanation for delay – Proceeding dismissed.

Held:

1. The Court may summarily dismiss a proceeding under O.10 r.9A(15(1)(b)) of the National Court Rules for want of prosecution and non-compliance with prior interlocutory orders or directions of the Court in circumstances where the plaintiff’s lawyer on the record has failed for almost 6 months to progress the matter to substantive hearing and no reasonable explanation for that failure has been given other than that an employed lawyer who had previously appeared as counsel for the plaintiff has resigned from the law firm having carriage of the matter for the plaintiff.
   
2. In the exercise of its discretion to dismiss a proceeding for want of prosecution under O.10 r.9A(15(1)(b)) of the National Court Rules, the Court may take into account the degree of prejudice which a defendant will sustain if interim injunctions previously granted in the proceeding were to remain in operation.

Cases cited:

Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Niale v Sepik Coffee Producers Ltd (2004) N2637
Seravo v Bahafo (2001) N2078

Counsel:

Ms F. Yandi, for the Plaintiff
Mr K. Pato, for the Defendants

DECISION
31 May, 2017

1. SHEPHERD J: This matter comes before the Court for consideration for summary determination pursuant to the Court’s own motion under Order 10 Rule 9A(15(1)(b)) of the National Court Rules (NCR). That sub-rule provides:

15. SUMMARY DISPOSAL

(1) The Court may summarily determine a matter:

...
(b) on its own initiative

2. Formal notice dated 12 April 2017 of the Court’s motion was served by Court staff on the office of the plaintiff’s lawyers, Greg Manda Lawyers, on 13 April 2017. A copy of that notice was served the same day by Court staff on the office of the defendants’ lawyers, Posman Kua Aisi Lawyers.

3. The notice stated:

TAKE NOTICE that OS No. 462 of 2014 is listed for summary determination ... pursuant to Order 10 Rule 9A(15(1)(b)) of the National Court Rules at the National Court at Waigani on Tuesday 25 April 2017 at 9.30 am.

The grounds or reasons are:

1. The failure of the Plaintiff to fully comply with prior Orders and Directions of the Court, including the failure of the Plaintiff to liaise with the Defendant to settle and file a Statement of Agreed and Disputed Facts and Legal Issues; and/or
   
2. The failure of the Plaintiff to progress this case to a hearing of the substantive issues identified at the Court-annexed mediation conducted on 1 & 2 August 2016.
   

4. For reasons beyond the Court’s control, the Court’s motion could not proceed on 25 April 2017. The plaintiff’s lawyers and the defendants’ lawyers were informed of this by my Associate Mr Numana KilaVanwa Jnr by e-mail on 21 April 2017. The respective law firms were then notified by letters dated 27 April 2017 signed by my Associate and hand-delivered by Court staff on 28 April 2017 that the Court’s motion was now set down for 30 May 2017 at 9.30 am. Acknowledgements of delivery of those letters signed by staff of the two law firms are on the Court’s file.

ADJOURNMENT APPLICATION

5. When the Court’s motion came on for hearing on the morning of 30 May 2017, Ms Fiona Yandi of Greg Manda Lawyers appeared for the plaintiff. Ms Yandi by oral application sought an adjournment of the motion on the ground that the lawyer at the office of Greg Manda Lawyers who previously had the carriage of this case for the plaintiff, Ms Alice Kimbu, had resigned on short notice and that the matter had yet to be briefed out. No further explanation for the adjournment was given by Ms Yandi, other than that she had only just received her law firm’s file for the case.

6. Counsel for the defendants, Mr Kent Pato, opposed Ms Yandi’s application for an adjournment. Mr Pato then addressed the Court as to the defendants’ reasons why the application for adjournment should be refused and why the Court’s motion for summary determination should be granted.

7. The current law firm on the record for the plaintiff is the office of Greg Manda Lawyers. A Notice of Change of Lawyers dated 31 September 2015 filed by Greg Manda Lawyers on 8 September 2015 states that the firm holds instructions to act for the plaintiff in this proceeding. No further notification to the Court of any change of lawyer or lawyers for the plaintiff has been filed in OS No. 462 of 2014 to date.

8. Order 4 Rule 49(18) NCR which regulates the adjournment of motions is clear in its terms:

(1) A Motion shall not be adjourned generally, but to a fixed date and time.

(2) With the exception of winding up petitions, a Motion will not be adjourned twice, except with leave of the Court. ...

(3) A motion may be adjourned by consent of the parties by completing the form in Schedule A herein. The completed form may be presented to the Court or given to the Clerk responsible for Motion matters or the Judge’s Associate before the hearing. If counsel for the applicant is resident out of town, then he or she must brief counsel in a law firm in town to appear for him/her to seek the adjournments.

(4) No Motion will be adjourned by correspondence addressed to or copied to the Registrar, Clerk or Judge’s Associate.

9. The law firms representing the parties were on full notice as from 28 April 2017, the date on which the Associate’s letter dated 27 April 2017 was delivered to each law firm, that the Court’s motion, having been adjourned on 25 April 2017, was set down as a special fixture for hearing on 30 May 2017 at 9.30 am. The Court’s motion could therefore only have been adjourned, in view of Order 4 Rule 49(18) NCR, with leave of the Court. No application for adjournment by Greg Manda Lawyers was filed prior to the special fixture date of 30 May 2017.

10. It is well settled practice of the Court that any application for adjournment should be on reasonable prior notice to all other parties. If the adjournment will not be consented to by all affected parties, then the application should be promptly made by the filing of a formal motion supported by affidavit material setting out cogent reasons as to why the applicant is seeking the adjournment. In this instance no notice of intention to apply for an adjournment was given by Greg Manda Lawyers to Posman Kua Aisi and no motion seeking an adjournment and affidavit material in support were filed by Greg Manda Lawyers prior to the special fixture date of 30 May 2017. When Mr Pato appeared for the defendants at the hearing of the motion, he had received no forewarning that an application for an adjournment would be made by counsel from Greg Manda Lawyers appearing for the plaintiff. The law firms on the record for the parties had each had more than one full month to prepare for the hearing of the Court’s motion on 30 May 2017. Mr Pato from Posman Kua Aisi came ready to make submissions in connection with the Court’s motion. Ms Yandi did not. It is not sufficient for a law firm, when confronted with the departure of an employed lawyer, to simply send another employed lawyer to seek by oral application in open court an adjournment of a motion set down as a special fixture on the day of the hearing of that motion. Greg Manda Lawyers should have notified Mr Pato of Posman Kua Aisi of intention to apply for an adjournment at least a week before the special fixture date, and then followed up with the filing and service of a motion and affidavit material in support had Mr Pato made it known to Greg Manda Lawyers that the defendants would not be consenting to any application for adjournment of the Court’s motion.

11. Order 14 Rule 2 NCR provides:

(2) Where the lawyer having carriage of the matter instructs another lawyer to appear, the lawyer must be fully briefed.

12. In this instance, when Ms Alice Kimbu resigned from the office of Greg Manda Lawyers, responsibility for the carriage of this case for the plaintiff still remained with the principal of that law firm Mr Greg Manda, not Ms Kimbu and not Ms Yandi. As already noted, no motion to adjourn was filed by Greg Manda Lawyers prior to the special fixture date of 30 May 2017. The oral application for adjournment made by Ms Yandi on behalf of the law firm acting for the plaintiff at the commencement of the hearing of the special fixture of the Court’s motion on 30 May 2017 is accordingly refused.

FACTS RELEVANT TO THE COURT’S MOTION

13. The facts relevant to the Court’s motion is as follows:

Date	Event	Description/Effect
30 July 2014	Originating Summons filed by Plaintiff	Plaintiff seeks: 1. Judicial declaration that his suspension as chairman of the board of directors of the First Defendant on 24 March 2014 was invalid - and related declarations. 2. Injunctions to restrain Defendants: a) from taking action to remove or appoint directors or shareholders pending determination of substantive matter; b) from causing any changes to be made to company register of directors of First Defendant
2 September 2014	Order	Parties directed to resolve the matter, failing which the matter to be ordered to mediation.
6 October 2015	Order – interim injunction	All parties restrained from taking any step/action forecast in a pending motion.
9 March 2016	Order – interim injunction	First Defendant restrained from taking any major decisions affecting its operations.
16 March 2016	Mediation Order (preliminary)	Parties ordered to mediation. Parties to agree on terms of comprehensive Mediation Order.
21 March 2016	Mediation Order	Comprehensive Mediation Order made by consent. Justice Kandakasi appointed by parties as mediator.
1 & 2 August 2016	Mediation conducted by accredited mediator Justice Kandakasi at Nogoli Hides	Mediation was not successful but core legal issues were identified if case to go forward to substantive hearing. The mediator directed the parties to settle and have a Statement of Agreed and Disputed Facts and Issues (SADFI) for trial filed. The case to proceed to hearing before another judge.
6 October 2016	Order	Parties to settle SADFI. Adjourned to 20 October 2016.
20 October 2016	Order	Parties’ lawyers to forward relevant facts and issues presented at Mediation to Chambers of Justice Kandakasi. Adjourned to 2 November 2016.
2 November 2016	Order	Parties to settle SADFI. Failure of parties to agree on settled terms of SADFI will mean settlement of SADFI with Justice Kandakasi at ADR Centre. Adjourned to 3 November 2016.
3 November 2016	Order	Parties’ lawyers to return to Court with SADFI and matter to be referred to another judge. Adjourned to 8 November 2016.
8 November 2016	Order	Parties’ lawyers must finalize terms of SADFI. Adjourned to 24 November 2016. If no settlement on part of plaintiff, Court shall accept draft circulated by defendants’ lawyers. Adjourned to 24 November 2016.
24 November 2016	Order	Parties’ lawyers to meet with Justice Kandakasi at ADR Centre to settle SADFI. Adjourned to 25 November 2016.
25 November 2016	Order	Direction to progress to trial. Adjourned to 16 December 2016.
16 December 2016	Order	Adjournment to 20 December 2016 to enable plaintiff’s lawyers to agree to terms of draft SADFI circulated by defendants’ lawyers. No more adjournments to be allowed.
20 December 2016	Matter not reached.	Relisted for 25 January 2017.
25 January 2017	Matter not listed.	Adjourned to 8 February 2017
9 February 2017	Order	Parties to fully comply with all previous Orders and Directions of Court. Adjourned to 7 March 2017/
7 March 2017	Order	Defendant at liberty to file motion seeking to dismiss the proceedings for failure of plaintiff to comply with Orders and Directions of the Court. Proceedings referred to Justice Shepherd to confirm a date for hearing of this matter. Adjourned to 6 April 2017.
12 April 2017	Notice of Court’s motion	Matter listed by Justice Shepherd for summary determination on 25 April 2017. Notices served by Court staff on offices of Greg Manda Lawyers and Posman Kua Aisi on 13 April 2017.
21 April 2017	Notice of deferral of Court’s motion to date to be notified to parties’ lawyers	Email from Associate of Justice Shepherd to parties’ lawyers advising of deferral to special fixture date to be advised.
27 April 2017	Notice of special fixture date of 30 May 2017 for hearing of Court’s motion.	Email and letter dated 27 April 2017 from Associate of Justice Shepherd to parties’ lawyers notifying special fixture date of 30 May 2017 at 9.30 am for hearing of Court’s motion. Letter giving this notice served by Court staff on offices of Greg Manda Lawyers and Posman Kua Aisi on 28 April 2017.

COURT’S MOTION FOR SUMMARY DETERMINATION

14. Order 10 Rule 9A(15)(2)) NCR states:

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

(a) for want of prosecution since filing the proceedings or since the last activity on the file; or

(b) for a failure to appear at any of the listing or directions hearing by a party or his lawyer, or

(c) for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.
(d) under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

(e) on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.

15. In the present case the plaintiff’s lawyers have had ample opportunity to confer with the defendants’ lawyers to settle the terms of the SADFI. The plaintiff’s lawyers have failed to progress this matter to trial subsequent to the many Orders which were made by Justice Kandakasi commencing on 20 October 2016. That failure has persisted down to the present time. No affidavit material has been filed by the plaintiff’s lawyers explaining why the terms of the SADFI have not been able to be settled on behalf of the plaintiff after a draft had been given to it by the defendants’ lawyers following the mediation which was conducted on 1 and 2 August 2016. I am satisfied that this failure has seriously prejudiced the defendants, especially because of the continuing interim injunctions which were granted by the Court on 6 October 2015 and 9 March 2016 restraining the First Defendant from taking various actions.

16. It is well settled law that the power of the Court to dismiss proceedings for want of prosecution should be exercised only where the plaintiff’s default has been intentional or contumelious or where there has been inordinate or inexcusable delay on the part of the plaintiff or the lawyer acting for the plaintiff giving rise to a substantial risk that a fair trial will not be possible or that there has been or will be serious prejudice to the defendant: Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, Woods J. See also: Niale v Sepik Coffee Producers Ltd [2004] PGNC 125; N2637, Cannings J; Seravo v Bahafo [2001] PGNC 122; N2078, Kandakasi J.

17. No reasonable explanation has been given by the plaintiff’s lawyers for the inordinate delay in settling the SADFI or for not having progressed this matter to trial. The proceedings are accordingly dismissed pursuant to the discretion and powers of the Court under Order 10 Rule 9A(15(1)(b)) NCR.

ORDER

18. For the reasons set out above, the Court orders that:

1. All interim injunctions granted in this proceeding are dissolved.
2. The plaintiff’s proceeding against the defendants is dismissed pursuant to Order 10 Rule 9A(15(1)(b)) of the National Court Rules on the ground of want of prosecution.
3. Subject to existing interim orders as to costs, the plaintiff shall pay the defendants’ costs of this proceeding, such costs to be taxed if not agreed.
   

_______________________________________________________________
Greg Manda Lawyers: Lawyers for the Plaintiff
Posman Kua Aisi Lawyers: Lawyers for the Defendants