Pupu v Kupo [2020] PGNC 272; N8572 (9 October 2020)

N8572

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 615 OF 2003

BETWEEN:
BUKA PUPU
Plaintiff

AND:
JOSEPH KUPO, as Commissioner of Police
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Wabag: Makail J.
2020: 9^th October

PRACTICE & PROCEDURE – Motion to re-open case –Grounds of – Absence of counsel – Attendance to sick child – Trial completed – Decision reserved – National Court Rules – Order 10, rule 10(12)

Cases Cited:

Martha Loke Tiltov. Qantas Airways Limited (1998) SC541
Vanimo Forest Products Limited v. Ossima Resources Limited (2013) SC1275

Counsel:

Mr. D. Piam, for the Plaintiff
Ms. N. Balen, for the Defendants

RULING ON MOTION TO RE-OPEN CASE

9^thOctober 2020

1. MAKAIL J: The trial of this matter including final submissions on liability and assessment of damages was completed on Monday 5^th October 2020 partly in the absence and partly in the presence of defence counsel.
   
2. Decision on liability and assessment of damages was reserved until Friday 9^th October 2020 at 9:30 am.
   
3. Pursuant to a notice of motion filed 6^th October 2020, the Defence moved the Court for an order to re-open the case and that it be allowed to tender its evidence to oppose the claim. The application is brought pursuant to Order 10, rule 11 of the National Court Rules.This is not the correct rule to re-open a case. The correct provision is Order 10, rule 12 of the National Court Rules. It states:
   

“12. Absence of party. (34/5)

(1) If, when a trial is called on, any party is absent, the Court may, on terms—

(a) order that the trial be not held unless the proceedings are again set down for trial, or unless such other steps are taken as the Court may direct; or

(b) proceed with the trial generally or so far as concerns any claim for relief in the proceedings; or

(c) adjourn the trial.

(2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial a verdict is given or a finding or assessment is made, the Court, on motion by that party, may, on terms, set aside or vary the verdict, finding or assessment, and may give directions for the further conduct of the proceedings.

(3) A motion under Sub-rule (2) must be made on notice and the notice must be filed and served not more than seven days after the giving of the verdict or the making of the finding or assessment.”

4. The reasons as offered by Ms Balen of counsel for the Defence in her affidavit in support filed 6^th October 2020 are:
   
   • She took her sick child to Sopas Hospital earlier that morning and did not make it back in time for the start of the Court hearing.
   • She made phone calls to the Plaintiff’s counsel to advise him of her running late but due to lack of network coverage, was not able to get through to the Plaintiff’s counsel.
   • She is the lone lawyer based at the Solicitor General’s office in Wabag and had no-one to brief to appear and seek an adjournment.
     

5. I accept her explanation that she took her sick child to the hospital that morning. The clinic book record she attached to her affidavit corroborated her reason for being absent for the good part of the morning of the trial. By the time she arrived, the Plaintiff’s counsel was almost completing his final submissions to the Court.

6. I put it down to a bad judgment call by counsel. Trying to attend to a sick child and at the same time attend trial of this matter will not blead together. There were number of options available to her which, if taken, would have avoided the situation she finds herself in.

7. This is where the Plaintiff’s counsel’s submissions must be upheld:

• She could and should have attended Court and sought an adjournment. Whether it will be granted or not is another matter.
• She could and should have briefed another counsel, possibly private counsel in town to appear and apply for an adjournment.
  

8. Added to that:

• Counsel for the Plaintiff, being an out of town counsel, had to travel in for the trial.
• The matter was fixed for trial by the Deputy Chief Justice on 2^nd September 2020, that is a month ago.
• ADR or mediation failed as the Defendants contested the claim, thus forcing the Plaintiff to go to trial.
  

9. I also add:

• Counsel did not inform the Assistant Registrar or Judge’s Associate of her attendance to the sick child by way of common courtesy.
• This is a long outstanding matter going back to 2002/2003 compounded by a tight civil court list schedule for this month if the case were to be revisited and the future listing of the matter looks uncertain and not promising for the parties. A further delay is likely and it would mean further delay to the Plaintiff.

10. Finally, the Defence appears to be undecided and unprepared in so far as to whether its two witnesses will be required for cross-examination.

11. This is not a case where the Defence was not informed of the trial date or made on error in advice of the trial date as was in the case of Martha Loke Tiltov. Qantas Airways Limited (1998) SC541. This is a case of lost opportunity, that the opportunity to be heard was given to the Defence but it failed to take it up: See Vanimo Forest Products Limited v. Ossima ResourcesLimited (2013) SC1275.

12. The case must move on. The motion to re-open the cases is declined with costs.

Ruling and orders accordingly.

________________________________________________________________
Dowa and Piam Lawyers: Lawyers for the Plaintiff
T. Tanuvasa, Solicitor General: Lawyers for the Defendants