ASPAC Construction Ltd v Luma [2019] PGNC 409; N8106 (4 September 2019)

N8106

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 336 OF 2012

BETWEEN
ASPAC CONSTRUCTION LIMITED
Plaintiff

AND
JOEL LUMA in his capacity as Secretary for Department of Works
First Defendant

AND
THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Polume-Kiele J
2018: 3^rd March
2019: 4^th September

PRACTICE AND PROCEDURE - Application seeking dismissal of proceedings for want of prosecution

Facts:

The plaintiff entered into a contract with the State on 8 July 2009 for a sum of K29, 851, 552.76 whereby the plaintiff was engaged to carry out works in connection with the re-gravelling and sealing of the 62.8 kilometre stretch of road between the Passam and Angoram Coastal Highway in East Sepik Province.

Held:

The plaintiff’s claim is one for the interest accrued on the overdue payment of the Invoice No. 22 of 22 August 2011 issued for a sum of K2, 390. 894.81, loss of business income, penalty charges and general damages plus interest and costs.

Section 5 notice was given to the State on the 25 January 2012.

The defendants have failed to discharge the onus of establishing a prima facie case of delay on the part of the plaintiff. The plaintiff has given a satisfactory explanation for the delay. The application for dismissal of the entire proceedings for want of prosecution is dismissed.

Counsel:

Mr T Waisi, for the Plaintiff
Mr W Mapiso, for the Defendants

RULING ON MOTION

4^th September, 2019

1. POLUME-KIELE J: On the 20^th of March 2018, the Defendants moved a motion before me, that had been filed on 25^th September, 2017. The motion sought several orders including dismissal of the proceedings in its entirety for want of prosecution.
   
2. Essentially, the motion seeks the dismissal of the entire proceedings on the following grounds:
   
   • (i) The plaintiff’s amended statement of claim filed on 2^nd December 2013 discloses no reasonable cause of action based on a breach of contract; and has a tendency to cause prejudice, embarrassment or delay to the proceedings and that the pleadings are in general terms and thus contrary to Order 8 Rule 28 of the National Court Rules and amounts to an abuse of the process of the Court and be struck out pursuant to Order 12 Rule 1, and Order 8 Rule 27 of the Rules;
     
   • (ii) The plaintiff failed to give s 5 Notice of his intention to make a claim against the State;
     
   • (iii) The plaintiff breached Clause 43 of the subject contract in that these proceedings were instituted prematurely without first exhausting the administrative arbitration procedure, such action amounting to an abuse of the process of the court pursuant to Order 12 Rule 40 (1) (c) of the Rules;
     
   • (iv) The plaintiff lacks standing to bring these proceedings;
     
   • (v) The plaintiff pays security for costs of these proceedings in the sum of K100,000.00 pursuant to s 10 of the Claims Act;
     
   • (vi) The entire proceedings be dismissed for want of prosecution pursuant to Order 10 Rule 9A (15) (1) (a) and (2) (a) of the National Court Rules
     
   • (vii) Costs
     
   • (viii) Abridgement of time
     
3. The plaintiff opposes the application and says that the claim is one for breach of contract and a type of a civil wrong in which a binding agreement is not honoured by one or more of the parties to a contract due to non-performance.
   
4. The alleged breach occurred when the defendants failed to fulfil their obligations as prescribed under the contract. Furthermore, the power of the court to dismiss proceedings on grounds of want of prosecution is a discretionary one, to be exercised having regard to all the circumstances of a case and the plaintiff relied on several case authorities to support its claim (see Kai Ulo & 2 Ors v The State [1981] PNGLR 148; Burns Philip (New Guinea) v Maxine George [1983] PNGLR 55).
   

Issues for determination

5. In order to determine the application, I have been identified one issue only for determination and this is in relation to whether a reasonable cause of action is disclosed against the defendants.
   

Laws

6. The relevant legal principles concerning applications made under Order 12 Rule 1 are clearly set out in cases such as Kiee Toap v The State (2004) N2731; Kerry Lerro v Phillip Stagg & Ors (2006) N3050 and Phillip Takori v Simon Yagari & Ors (2008) SC905 which set out the principle that whenever a person brings a case to court, the originating document must demonstrate that the plaintiff has a cause of action and must clearly set out the legal ingredients or the elements of the claim and the facts that support each element of the claim. Only if the plaintiff’s originating document does that, is there a reasonable cause of action; Tigam Malewo v Keith Faulkner (2009) SC960 and Kiee Toap v The State (supra).
   
7. Here the defendants have relied on Order 8 Rules 27 & 28; Order 12 Rule 1; and Order 8 Rule 28 of the National Court Rules in support of their application. Essentially, the defendants seek to have the entire proceedings dismissed for being an abuse of the process of the Court and be struck out pursuant to Order 12 Rule 1 and Order 8 Rule 27 and 28 of the National Court Rules. In addition, the defendants have also relied on Order 10 Rule 9A (15) (1) (a) & (2) (a) of the National Court Rules for the alternative ground to dismiss.
   

Hearing of the Motion

8. Upon hearing counsels on the application, I am of the view that the appropriate jurisdiction to be invoked in this application should be made pursuant to Order 4 Rule 36 of the National Court Rules. In any event, the principles to apply in deciding applications made under either Order 10 Rule 9A (15) (1) (a) & (2) (a) of the Rules in general are similar. I note that no objections were raised by the plaintiff.
   
9. In this regard, Order 4 Rule 36 gives the Court a discretion to dismiss proceedings that are not prosecuted “with due despatch”. The relevant principles in relation to an application under this Rule are clearly summarised by Kandakasi, J (as he then was) in the case of Vivisio Seravo v. Jack Bahofa (2001) N2078 where His Honour restated that an application for a dismissal of proceedings for want of prosecution may be granted if:
   
   • (1) The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
     
   • (2) There is no reasonable explanation given by the plaintiff for the delay; and
     
   • (3) That the delay has caused injustice or prejudice to the defendant.
     
10. In Kai Ulo & 2 Ors v The State [1981] PNGLR 148, the Supreme Court said that the onus is on an applicant to establish a prima facie case of delay and the onus then shifts to the respondent to give a satisfactory explanation for the delay.
    

Consideration of the application

11. In this regard, whilst I note that Counsel for the defendants did attempt to argue that there have been some delays on the part of the plaintiff to support his submissions on the ground of his application to dismiss, I am not persuaded that no reasonable cause of action is disclosed in this case. This is an action pursuant to a Contract, No. 33-AT-72BS (Upgrading & Sealing of 62.8 KM Section of the Coastal Highland between Passam and Angoram) and the claim is for breach of this contract and for payment of overdue and outstanding invoices claims submitted to the defendants.
    
12. As to the alternative ground for dismissal, again, the jurisdictional basis for this ground is defective. Given that, I also note that there is evidence adduced in the affidavit of Mr T Cooper sworn and filed on the 12 of March 2018 (Document No. 42) on the Court file. In his affidavit, he deposed to having taken steps to have the claim prosecuted. In paragraphs 12 to 15 of his affidavit, he deposes to writing letters (dated 22 November 2016, 14 July 2017, 6 September 2017) to the Registry requesting that the matter be listed for Directions Hearing. Given these enquiries, the last activity on the court file is a letter from the Registry dated 6 September 2017 to the plaintiff advising that the matter was listed for Directions Hearing before the Court on the 11 of September 2017. This was only 9 days prior to the Defendants filing a Notice for Discovery dated 20 September 2017 and Notice of Motion filed on the 25 of September 2017 seeking dismissal for want of prosecution.
    
13. Mr Cooper also acknowledged that the Defendants filed a Notice of Discovery dated 20 September 2017 for which the plaintiff filed and served a Verified List of Documents dated 4 October 2017. Given these matters, I find that there is ample evidence showing that the plaintiff has been diligently pursuing this claim through the registry to have his claim heard and determined. In fact, the evidence shows that the last activity on the Court file is registered on the 11 of September 2017 on Directions Hearing when Mr Cooper appeared for the plaintiff for mention. Apparently, there was no appearance for the defendants on that date and the matter was adjourned to the 18 of September 2017 but then both parties failed to appear. Given those matters, there can be no argument that it is most unwarranted for a party to come to court and say that one party is guilty of delay when there is ample evidence to show otherwise.
    
14. This case was filed in the National Court on 16 April 2012. Whilst I note that various interlocutory applications were filed or dealt with, the proceedings have progressed except for delays within the registry since the matter was first listed before me on 11 of September 2017. I am satisfied that the plaintiff has taken steps to have his claims tried. In any case, it is trite that a plaintiff has the primary obligation to prosecute his case with due diligence or due despatch.
    
15. On the issue of the s 5 Notice, there appears to be evidence of the plaintiff’s compliance with the s 5 Notice requirements as deposed to by the affidavit of Wallace Tawai sworn and filed on 19 March 2018 in which he deposed to personally serving the s 5 Notice at the Office of the Solicitor General on the 26 of January 2012 (Annexure A).
    
16. Given those matters, I have no doubt that the plaintiff has taken reasonable steps to prosecute his claim and that no undue delay or prejudice has been caused to the defendants.
    
17. Consequently, the reliefs sought in the Notice of motion filed on the 25 of September 2017 are declined. The proceedings proceed to trial.
    

Orders of the Court

(1) The application for dismissal of the entire proceedings for want of prosecution is declined.

(2) Costs follow the event.

(3) Costs to be taxed if not otherwise agreed.

_____________________________________________________________
Waisi Lawyers: Lawyers for the Plaintiff
Guardian Legal Services: Lawyers for the Defendants