Woyengu v Unas [2020] PGNC 401; N8645 (13 November 2020)

N8645

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 427 OF 2019

BETWEEN:
ANTHONY WOYENGU
Plaintiff

AND:
PAUL M. UNAS GENERAL MANAGER CHIEF EXECUTIVE OFFICER NATIONAL MARITIME SAFETY AUTHORITY
First Defendant

AND:
NATIONAL MARITIME SAFETY AUTHORITY
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 24^th September, 13^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Notice of motion – Dismissal of entire proceedings – Failure to comply with directions Order 16 Rule 13 (13) (2) (a) NCR – Want of Prosecution Order 16 Rule 13 (13) (2) and Order 4 Rule 36 NCR – Summary dismissal – Basis for – prosecution without due diligence – plaintiff of – Adjournment application of– on eve of hearing – no material in support – prejudice of applicant – balance discharged – dismissal of proceedings – costs follow event.

Cases Cited:

Gumanch Muipulg Wampnga Ltd v Samson [2020] PGNC 267; N8490
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Timothy v Marus [2014] PGSC 50; SC1403
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Golobadana No. 35 Ltd v Bank South Pacific Ltd [2015] PGNC 82; N5890
Takori v Yagari [2007] PGSC 48; SC 905

Counsel:

J. Kumura, for Plaintiff
T. Potoura, for First & Second Defendant

RULING

13^th November, 2020

1. MIVIRI, J: This is the ruling of the court on the first and second defendants Notice of motion filed on the 14^th of July 2020 seeking dismissal of the entire proceedings for want of prosecution and also for failing to comply with the direction or orders of Court.
   
2. The application is founded upon Order 16 Rule 13 (13) (2) of the Rules that dismissal of the entire proceedings be granted against the plaintiff.
   
3. And reliance is placed upon the affidavit of Trevor Potoura sworn 23^rd June 2020 filed the 14^th July 2020. He is the Principle Legal officer with the Legal Services of the Second Defendant. He has carriage of this matter and attended court on the 14^th October 2019 before me. And by consent directions were issued for the settlement of the Index to the Review Book (RB). And these were filed by the Registry on the 23^rd October 2019 which were served by the Plaintiff’s lawyer John Kumura of Kumura lawyers on the 16^th October 2019. Included also were the Notice of motion for interim Stay both were filed on the 15^th October 2019 by the plaintiff including his affidavit in support of that motion annexure “A” of his affidavit.
   
4. These consent directions by term 1 directed the plaintiff to file and serve his affidavits by the 21^st October 2019 which was to be responded by the defendants with theirs by the 28^th October 2019. And following would have been for plaintiff to serve his draft statement of Agreed and disputed facts and legal issues on the defendants by the 04^th November 2019. And which was coupled with six other directions to be complied with towards eventual settlement of the Index to the Review book and which order is annexure “B” of his affidavit.
   
5. These were never done as ordered and the defendant did not receive as ordered by the court in fulfilment of order on the 21^st October 2019. On the 21^st October 2019 the plaintiff’s lawyer served a second sealed copy of the Direction Orders of the 23^rd October 2019 on the 24^th October 2019 advising that he would rely on his earlier affidavits filed and served prior to the directions being issued 14^th October 2019 annexure “C”. And this should have been so advised even before the 21^st October 2019. And because of this late advice it left the defendants with one working day 25^th October 2019, a Friday to serve his affidavit in response which was due Monday 28^th October 2019 so effectively the second defendant had a working day and responded with that affidavit on 30^th October 2019 served on that day annexure “D”.
   
6. On 04^th November 2019 plaintiff did not serve his draft statement of Agreed and Disputed Facts and Legal Issues on the Defendants but the Plaintiff’s lawyer informed by letter that he wasn’t able to attend court for the Plaintiff’s interim order application for stay set that day because he had a swollen knee and requested adjournment to another day annexure “E”. On the 11^th November 2019 the plaintiff’s lawyer advised by letter that their application for restraining orders returned for hearing on the 12^th November 2019. And also acknowledged the defendants’ affidavit in reply slightly out of time but he had no objections. Further that the delay was due to the illness of the Lawyer John Kumura from the 03^rd to the 07^th November 2019 but were working on the draft of the statement of Agreed and Disputed Facts and Legal Issues annexure “F”.
   
7. The defendants lawyer responded in a letter dated November 2019 that the cause of the delay was due to the Plaintiff’s lawyer complying with Term 2 of the Directional orders due to the Plaintiff’s late advice on the 24^th October 2019 set out above. And time for compliance of term 3 had lapsed and it would be difficult for the Defendants to continue to comply with the Directions and so it would be proper to go back to court and seek a new order so as to give effect to time in compliance efficiently annexure “G”. On the 12^th November 2019 defendant’s lawyer attended court for the plaintiff’s application for interim restraining orders however Plaintiff’s lawyer adjourned that motion to the 19^th November 2019.
   
8. On 20^th November 2019 the defendants lawyer caused a letter to the Plaintiff annexure “H” that he confirmed his attendance on that day and that the plaintiff’s motion despite undertaking by the lawyer on the 12^th November 2019 to have it heard there and then did not eventuate. And time had lapsed and it made compliance with term 4 difficult for the defendants. And related that compliance with term 5 had already passed. That it was upon the plaintiff to make an application for leave to issue further directions or the defendants would make an application for dismissal of the proceedings. To which the plaintiff’s lawyer responded by letter annexure “I” dated the 25^th November 2019 advising that the interim stay application by their client was listed for hearing on the 28^th November 2019. But disclosed no reason for the delay in the compliance of term 3 of the directional orders. But did advice that application would be filed to extend these directions.
   
9. From that advice there was no progress nor further advice from the plaintiff’s lawyers and on the 16^th March 2020 instruction was given to the new in house lawyer for the defendants Miss Tinmett Toikilik to take carriage of the matter for the first and second defendants under supervision of the deponent and she was made aware of the case and its status. And a letter annexure “J” of that date 16^th March 2020 was caused to the plaintiff the third time that due date for term 3 of the directional orders was in lapse for four (4) months and five (5) days and that the defendants would make an application for the dismissal of the plaintiff’s proceedings. On 19^th March 2020 a search was caused in the court file by one Emmanuel Tagu Senior Lawyer for enforcement of the Second defendants to locate any new filings by the Plaintiff and obtained is details annexure “K” evidencing no new filings since. It was now seven (7) months for the compliance of term 3 of the directional orders of the 04^th November 2019. There was simply no extension neither sought to comply with that order nor was the plaintiff’s own motion moved. Adjournments become the order.
   
10. It is clear even with the further affidavit of Legal officer Tinmett Toikilik that on the 11^th September 2020 at 8.25am instruction were conveyed to driver Ken Manzi to serve on Kumura Lawyers the second defendant’s notice of motion filed 14^th July 2020 two affidavits relied upon in support with a covering letter annexure “A”. That the subject notice of motion was set to be heard on the 17^th September 2020. And email was sent confirming annexure “B” to Kumura lawyers confirming service attaching the documents and the date of the hearing Thursday 17^th September 2020 annexure “C”. The driver Ken Manzi returned and advised he could not effect service on Kumura Lawyers both in the morning and afternoon as John Kumura was not available so he only served the office of the Solicitor General. But agreement was made to follow up on Monday 14^th September 2020 to so effect. And on that day at 3.00pm an email annexure “D” was conveyed to Mr Kumura of this fact that service would be affected on Monday 14^th September 2020.
    
11. On Monday the 14^th September 2020 Boge Lohia second defendant’s administration officer was tasked to call the bemobile and telikom telephone numbers listed on Mr Kumura’s letter head but there was no answer both numbers Telikom was out of service and Bemobile was not answering. Further between 2.40pm and 3.00pm service was affected on a young man that Mr Kumura takes care of like a son who received the documents because he was not there. And the form acknowledging by Garima Kumura is annexure “E”. And a telephone call transferred by Boge Lohia at 3.08pm confirmed by Mr John Kumura that he had indeed received the documents served by the driver. He further advised that 14^th September 2020 he sought an adjournment to Thursday 17^th September 2020 because the motion by the second defendants was set that day.
    
12. On the 15^th September 2020 an email was received from John Kumura annexure “F” confirming receipt of the documents served and that he was unable to access his email earlier. That he wrote to the Registry several times to list the matter for directions and matter came on yesterday for directions he attended had it adjourned to 17^th September 2020 because of the return of the motion of the second defendants. That there are no letters or email received from Mr John Kumura for the Plaintiff nor was there notice of the matter being listed on 14^th September 2020. But the motion of the second defendants is confirmed for the 17^th September 2020.
    
13. This is of 10 months of inactivity on the part of the plaintiff and his lawyer dragging court time, resources and attendance by lawyers for the first and second defendants. This is serious in view of the list of matters pending before the Judicial review and appeals track and the amount of time taken by this particular file and proceedings to maintain it without any real advancement to see out what has been set in court for the discretion of the court. The instituting party the plaintiff has held the court and the parties to ransom by his conduct unbecoming and unprofessional. Even on the date of the hearing there was not even material filed or an extract filed to show professional and genuine tasking as an officer of the court concerned with the cause of the Client instructing.
    
14. The failure was serious because court orders directional orders are meant to be complied with: Gumanch Muipulg Wampnga Ltd v Samson [2020] PGNC 267; N8490 (4 September 2020) and adjournments if any to be made with proper evidence: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) including any orders outstanding not heeded but dwelling on the parties proper directions must always be sought to ensure compliance and dispensation of the orders compelling. That was not the case here in any way or form by the plaintiff’s converse to the defendants set out above.
    
15. In the case of the first and second defendants the material set out above shows compliance and genuine professional discharge of duties to ensure Justice is served to its clients in the matter instituted by the plaintiff. And the Supreme Court in Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014) settles that the jurisdictional basis sought out here is confirmed in order when application is made for dismissal as here. Because judicial review is a very restrictive process and has its own Orders and Rules to dispense Justice. It is not open to all in the world it has set standards for invoking its jurisdiction derived from equity: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 (13 April 1989. The attitude of parties to not comply with court directions and failing to show cause as to why the proceedings should be saved from the impending incumbent of dismissal is not new: Golobadana No. 35 Ltd v Bank South Pacific Ltd [2015] PGNC 82; N5890 (18 February 2015).
    
16. But dismissal ultimately denotes that the litigant is derailed from the judgment seat, here the plaintiff. But is the evidence relied such that there is room to save the action as it were, in my view there is nothing that beats the balance to avoid the impending. It is very clear that the plaintiff had failed to carry out the directions and orders of the court. The court is slow but must protect its process and integrity by proper case demonstrated: Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 (28^th February 2007), where it was held:

“Our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.”

17. On the material before me there is no other reason identifiable or apparent in favour that the motion should be denied as pleaded by the first and second defendants. Rather the contrary has been discharged on the balance of preponderance against the plaintiff that the motion discharges that balance and accordingly it is granted in the terms as pleaded.
    
18. The formal orders of the court are;
    
    • (1) The first and second defendant’s motion for dismissal is granted.
      
    • (2) Costs will follow the event forthwith.

Orders accordingly.
_________________________________________________________________

Kumura Lawyers: Lawyer for the Plaintiff

NMSA In house Lawyers: Lawyer for First & Second Defendants