N8487

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 686 OF 2015

BETWEEN:
TONY LUCAS
Plaintiff

AND
JOHN UNIDO
First Defendant

AND
JIM WALA TAMATE, PUBLIC SOLICITOR
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Lae: Dowa AJ
2020:  31st August & 4th September

PRACTICE AND PROCEDURE – ruling on summary determination – plaintiff failed to prosecute claim with due dispatch – orders granted by court are mandatory - Plaintiff failed to file and serve a Notice of trial – plaintiff ordered by court to file affidavit evidence explaining reasons for default and delay – failure by plaintiff to file affidavit – proceedings dismissed

Cases Cited:

Seravo v Bahafo (2001) N2078
Kave v Yakaso (2014) N5693
Aweto v Tobias (2020) N8480

Counsel:

S. Toggo, for the Plaintiff
B. Tomake, for the Defendants
RULING

4th September, 2020

1.	DOWA AJ:	This is a ruling on summary determination under Order 10 Rule 9A (15) of the National Court Rules for non-compliance of orders, and for want of prosecution.
Background Facts
2.	The matter was fixed for trial on 16th June 2020.  The trial was vacated due to the Plaintiff’s failure to prosecute the trial.  The Plaintiff failed to file and serve a Notice of trial. The Court then fixed the matter for the summary determination on 14th July 2020.  The Court directed the Plaintiff to file an affidavit with an explanation why the matter should not be dismissed summarily.  The Lawyer for the Plaintiff, Mr Toggo was present in Court when the directions were given.

3.	When the matter returned to Court on 14th July 2020, the Plaintiff failed to file an affidavit as directed by Court on 16th June 2020.

4.	Mr Tomake for the Second and Third Defendant submitted that the matter be summarily dismissed. I reserved my ruling until 28th July 2020.

5.	On 28th July 2020, in a written ruling, I made the following orders:

1)	The Defendants application for dismissal of proceedings for want of prosecution is refused.

2)	The orders given on 16th June 2020 are extended for compliance by the Plaintiff.

3)	The Plaintiff shall file and serve an Affidavit explaining why his matter should not be summarily dismissed for want of prosecution by 31st August 2020.

4)	The matter is fixed for summary determination on 31st August 2020 at 9.30 am.

5)	If the Plaintiff fails to comply with the term three (3) of this order, the proceedings shall be dismissed for non-compliance.

6)	The Plaintiff shall pay the Defendant’s cost of the application.

7)	Time be abridged.

6.	On 31st August 2020, the matter returned to court. There was no appearance by the parties, especially the Plaintiff. The matter was specifically fixed for summary determination. Mr Toggo, counsel for the Plaintiff was present when the directions were given. I note from the court file that a minute of the orders of 28th July 2020 was filed by the Defendants and a copy was served on the lawyers for the Plaintiff on 3rd August 2020. Despite the directions of court, the Plaintiff failed to file an Affidavit. The Plaintiff and his lawyers did not attend court on the return date. 

Issue

7.	The issue before the Court is whether the matter should be summarily dismissed for failing to prosecute the matter and for non-compliance of orders of court.

Law

8.	The relevant rules are Order 4 Rule 36, Order and Order 10 Rule 9A (15)(1) and (2) of the National Court Rules which I quote:  

1.	Order 4 Rule 36
“Want of prosecution. (5/12)
1.	Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.
2.	Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.
2.	Order 10 Rule 9A(15)(1) and (2)
“15. 	Summary Disposal

(1)	The Court may summarily determine a matter:

(a)	on application by a party; or
(b)	on its own initiative; or
(c)	upon referral by the Registrar under (3) below.

(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 lawyers; 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.”

9.	The principles governing dismissal for want of prosecution are well settled in this jurisdiction as summarised in the case Seravo v Bahafo (2001) N2078, and they are:

1)	The Plaintiffs default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim.

2)	There is no reasonable explanation given by the Plaintiff for the delay.

3)	That the delay has caused injustice or prejudice to the Defendant.

Reasons for Decision

12.	The Plaintiffs proceedings were commenced on 28th May 2015.  There has been little activity on the file. At the request of the Plaintiff, the matter was fixed for trial on 16th June 2020. The trial was vacated. One of the reasons for the vacation of the trial was that the Plaintiff was not ready for the trial. The court then fixed the matter for summary determination on 14th July 2020. The court directed the Plaintiff to file an Affidavit explaining why the matter should not be summarily determined. When the matter returned to court on 14th July 2020 the Plaintiff has not filed an affidavit. Mr. Toggo requested an extension of time for compliance. On 28th July 2020 the court extended directions of 16th June 2020 and directed the Plaintiff to file his Affidavit, failing which will result in the dismissal of the proceedings. Again, the Plaintiff failed to comply.
13.	The Plaintiff offered no reasons for non-compliance. The Plaintiff provided no explanation for the delay in prosecuting this matter with due diligence.

14.	The First Defendant is now deceased. The Second and Third Defendants success in defending the claim is based on the First Defendant’s defence and evidence which may no longer be available. The Second and third Defendants are likely to suffer prejudice.

15.	In my view, the conduct of the Plaintiff and his lawyers are found wanting.  The Plaintiff failed to conduct the trial when the matter was specifically fixed.  The Plaintiff failed to file an affidavit explaining why the matter should not be dismissed for want of prosecution. Opportunities were given to the Plaintiff to file that affidavit.

16.	Non-compliance of court directions is a serious matter. This is what I said in a similar ruling in the case John Aweto & other -v – Esther Tobias (2020) N8480 at paragraph 18 of my judgment:

“18.	As discussed earlier, one of the reasons for the application for dismissal is for non-compliance of the orders of Court.  It is clear to me the conduct of the Plaintiff and their lawyers show little respect for directions of Court.  A non-compliance of directions of Court, often delays due dispensation of justice by the Courts, and is a serious matter.  See Kave v Yakaso (2014) N5693.  At paragraph 46 of the Judgment, Murray J said this:
	
	“This consideration involves the issue of "where the interest of justice lie". It is not disputed that the Plaintiffs may have a claim (underline mine) against the Defendants. What is being challenged is that this claim is yet to materialise. The alleged cause of action arose in 2008. The proceeding filed in February of 2009. By the time, the application by the defendants was made; the claim had not yet materialized. In my view, ample opportunities were given to the plaintiffs to do that through the orders of the Court, but they let that slip, by their lack of action, resulting in noncompliance of Court orders. Non-Compliance of an order, in my view is a very serious matter and if there is no good explanation for the failure to comply, then, in my view, the interest of justice cannot favour the party who has not complied.”

17.	In my view, this matter can be dismissed under Order 10, Rule 9A(15) of the National Court Rules for non-compliance of directions of Court. In the exercise of my discretion I dismiss the entire proceedings.

18.	In respect of cost, I note there was no appearance by the lawyers for the defendants on 31st August 2020 to ask for same, even though they were aware of the return date. Again, in the exercise of my discretion, I order no cost against the Plaintiff.

ORDERS

19.	The formal orders of the Court are:

a)	The Plaintiffs proceeding is dismissed.
b)	Each party pay their own cost
c)	Time be abridged
__________________________________________________________________
Daniels & Associates Lawyers: 		Lawyers for the Plaintiff
Office of the Solicitor General: 		Lawyers for the Defendant