Peter v Motor Vehicle Insurance Ltd [2020] PGNC 455; N8728 (23 October 2020)

N8728

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 622 OF 2016

BETWEEN:
ANNA PETER
Plaintiff

AND:
MOTOR VEHICLE INSURANCE LIMITED
Defendant

Lae: Dowa AJ
2020: 06^th October & 23^rd October

PRACTICE AND PROCEDURE – two applications by both plaintiff and defendant – plaintiff seeks orders to substitute plaintiff as party to the proceedings due to the death of the initial plaintiff – defendant seeks orders for dismissal of proceedings on the basis that plaintiff has failed to prosecute his claim with due dispatch – parties affidavit evidence considered – plaintiff has failed to file motion to substitute as plaintiff within 3 months as per Order 5 rule 12 (1)(b) National Court Rules – plaintiffs motion refused – Defendants motion granted – proceedings dismissed

Cases Cited:

Akap v Korakali (2012) SC1179
Seravo v Bahafo (2001) N2078
Tipar v Malpo (2007) N3141

Counsel:

S. Toggo, for the Plaintiff
B. Wak, for the Defendant

RULING

23^rd October, 2020

1. DOWA AJ: This is a decision on two applications by the parties. The first application is filed by one Peter Luke, seeking to substitute the Plaintiff who is now deceased. The second application is by the Defendant, seeking to dismiss the proceedings for want of prosecution and for frivolity.

2. I heard the applications together on 6^th October 2020 and reserved my ruling which I now deliver.

FACTS

3. The Plaintiff alleges she sustained injuries in a motor vehicle accident on 26^th August 2011 near the Lae Football Association, Lae city. The motor vehicle involved was a Toyota Landcruiser Reg. No. MAD 377 driven by Johnson Manase.

4. As a result of the accident she sustained injuries to various parts of her body.
   
5. She alleges, the accident was caused by the negligent driving of the insured driver, and therefore she instituted proceedings against the Defendant pursuant to Section 54 of the Motor Vehicles (Third Party Insurance) Act.
   
6. The Plaintiff filed the current proceedings on 10^th June 2016. The Defendant, filed a Defence on 9^th August 2016, denying liability. The Plaintiff is said to have passed away in February 2019. There is little activity on file until the current applications.
   

Issues

7. The issues before the court are:
   
   1. Whether or not the Plaintiff can be substituted by Luke Peter as Personal representative of the Deceased Estate.
   2. Whether or not the proceedings are liable to be dismissed for want of prosecution and for frivolity.
      

1. The Plaintiffs Application for Substitution
   

8. The Plaintiffs representative, Luke Peter applied to the Court to substitute the Plaintiff. He deposes he is the husband of the Plaintiff, late Anna Peter who died on 2^nd February 2019. The Plaintiff applies for substitution under Order 5 Rule 10 of the National Court Rules. Rule 10 reads:

“Death, transmission, etc. (8/10)

(1) Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.

(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the proceedings.

(3) The Court may act under Sub-rule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.”

9. In support of the application the Plaintiff relies on the Affidavit of Peter Luke filed 31^st August 2020. I set out below the contents of Peter Luke’s affidavit:
   

“1. I am the Applicant in this matter and swear this affidavit in that capacity.

2. I got married to Anna Peter, the Plaintiff herein in 2000.
3. She is from Kerowagi District, Chimbu Province and I am from Sari Village, Wabag District, Enga Province.
4. My wife was run over by a motor vehicle and she sustained injury.
5. She continue to experience pain and suffering from the injuries she suffered and eventually died on 2^nd February 2019. Annexed hereto and marked with letter “A” is the copy of the Medical Certificate of Death.
6. I seek to replace my deceased wife as the Plaintiff in this matter.”
   

Application for Dismissal for Want of Prosecution

10. The Defendant by Notice of Motion filed 31^st August 2020 seeks the following orders:
    

“1. That the entire proceedings be dismissed for want of prosecution pursuant to Order 10 Rule 9A (15)(1)(a) of the National Court Rules and Order 12 rule 1 of the National Court Rules.

2. Alternatively, that the proceedings be dismissed for being incompetent and abuse of the Court process for failure to comply with Order 5 Rule 10 and 12 of the National Court rules and Order 12 Rule 40 (1)(c) of the National Court Rules.
   
3. Costs of the application and the proceedings to be paid by the Plaintiff.
   
4. Any other orders that the court deems fit and proper.”
   
11. The Defendant relies on the affidavit of Baffinu Bradley Wak filed 31^st August 2020. Mr Wak deposes that the Plaintiff has not diligently prosecuted the claim since the filing of the proceedings. Secondly, the Plaintiff’s relatives have not promptly applied to the Court for substitution immediately after the death of the deceased.
    

Law

12. The relevant rule of the National Court Rules is Order 10 Rule 9A (15)(1) & (2); and I quote:
    

”(1) The Court may summarily determine a matter:

1. On application by a party; or
2. On its own initiative; or

100. Upon referral by the Registrar under (3) below.

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

1. for want of prosecution since filing the proceedings or since the last activity on the file; or
2. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or

100. for non-compliance of any order or directions previously made or issued by the Court any of the listing processes.

4. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.
5. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.”
   

13. The next relevant rule is Order 12 Rule (1)....
    

“ General relief. (40/1)

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”

14. The third relevant rule relied on by the defendant is Order 5, rule 12 which provides:

"12. Failure to proceed after death of party. (8/12)

(1) Where –

(a) a party dies but a cause of action in the proceedings survives his death; and

(b) an order under Rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death,

the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with Sub-rule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.

........”

Reasons for Decision

15. I will deal with the applications together. I have considered the applications, evidence in support and submissions of counsel.
    
16. The facts are not disputed. The Writ of Summons was filed on 10 June 2016. A Defence was filed on 9^th August 2016. A reply was filed on 28^th October 2016. The matter was not set down for Trial, after the close of pleadings in October 2016, which is a period of four (4) years. The Plaintiff has not filed any affidavit on the merits of the case. I find, there is inordinate and inexcusable delay in the prosecution of the claim.
    
17. The evidence filed by Luke Peter shows, the Plaintiff died on 2^nd February 2019. Apart from the evidence of death of Plaintiff, Mr Luke has not provided an explanation for the delay. In the absence of an explanation it is difficult to ascertain whether the Plaintiff wanted to pursue the matter further.
    
18. Mr Peter says he is the husband, and he applies to have the deceased Plaintiff substituted. Again, He has not provided any evidence or explanation why he did not make this application early. Order 5 Rule 12 of the National Court Rules provides that an application for substitution be made within 3 months after death.
    
19. Although the Rules prescribe a time period within which an application for substitution can be made, the Court has a discretion to grant an order beyond the 3 months provided the application is made within a reasonable time with an explanation for the delay and the claim is an appropriate one for substitution.
    
20. In Tipar v Malpo (2007) N3141, Hartshorn J after hearing an application for substitution of parties said this at paragraphs 8 and 10 of the judgment:

“8. The second application for the plaintiffs is for 3 of the plaintiffs who are now deceased to be substituted by 3 of their relatives pursuant to Order 5 Rule 10 and 11(1) of the National Court Rules.

9. The defendants oppose this application as;

a. the deceased plaintiffs died over 10, 3 and almost 2 years ago.

This is significantly in excess of the 3 months period mentioned in Order 5 Rule 12 National Court Rules after which the Court may order the cause of action by a deceased plaintiff dismissed if an application for substitution has not been made,

2. they contend that they are prejudiced by the availability of witnesses and lack of evidence as to facts in relation to matters in issue,

100. they contend that the applications are barred by s.44 Wills, Probate and Administration Act Ch 291 as the property of a deceased vests in the Public Curator until probate or administration is granted.

10. 10. As to (a), that the deceased died significantly more than 3 months ago.
    1. it is settled law that an application for substitution does not have to be made within 3 months, POSF v. Silas Imanakuan (2001) SC 677, Lepanding Singut v. Kelly Kinamun (2003) N2499.
       
    2. the defendants have not made any attempt to apply to dismiss the causes of action of the 3 deceased plaintiffs under Order 5 Rule 12. In addition, they have also not applied to have the whole of the proceeding struck out for want of prosecution
       

In my view the defendants’ submission carries little weight when they have not availed themselves of the specific remedies open to them.”

21. In Akap v Korakali (2012) SC 1179 the Supreme Court at paragraghs 36-40 of the judgment said:
    

“36. This rule has been a subject of judicial consideration on a number of occasions. In commenting on the effect of O 5, r 12, Injia, J (as he then was) in Thomas Kaidiman -v- Papua New Guinea Electricity Commission (2002) N2343 said at p 4:

"In my view, whilst Rule 10 & 12 do not expressly stipulate that an application under Rule 10 must be made within 3 months of the death of a party, it is implicit in Rule 12(1)(b) that a person who has an interest in the deceased's estate is entitled to make such an application within 3 months of the death but it is made outside the 3 months, then the Court may still entertain the application and make an order substituting a party but subject to certain conditions stipulated in rule 12(1)."

37. His Honour went on at p 5:

"An order under rule 12(1) is discretionary and it is exercised on proper grounds. In the present case, I am satisfied that the applicant is an heir to the estate of the late plaintiff, that she has a direct interest in the proceedings on behalf of the estate of the late plaintiff and that she has acted promptly in making this application after being advised of her legal rights. I am also satisfied that the nature of the claim is such that proof of the claim is substantially based on documentary evidence in the form of records of employment which records should be readily available to both parties and that the action may be prosecuted without any great difficulty."

38. We accept that the Court has discretion to consider applications of this nature outside 3 months: see Thomas Kaidiman (supra) and POSFB -v- Sailas Imanakuan (2001) SC677.
39. On our part, we consider in cases where a party dies but the cause of action in the proceedings survives his death and an application for substitution of the deceased party is not made within 3 months of death, the proceedings may be dismissed as being incompetent and an abuse of process: O 5, r 12 & O 12, r 40 of the National Court Rules.
40. In other words, an application for substitution may be made after 3 months has expired, however, the party making the application must provide a reasonable explanation for the delay in making the application. In a case where no attempts are made or the explanation is unsatisfactory, the application may be refused.”
22. I adopt the reasonings in the above cases and apply them in the present case. The deceased died on 2^nd February 2019, about 19 months ago. The Plaintiff has not provided an explanation why he did not make the application early. I note the application was filed after the Defendant filed the application for dismissal for want of prosecution. As I said, in the absence of any explanation, I am not inclined to grant the application sought for substitution.
    
23. Secondly, in my view this is not an appropriate case where a party can be easily substituted. The Plaintiff’s case is seeking damages for personal injuries. The cause of action is based on negligence of the insured driver. There is no primary evidence being filed by the Plaintiff. I am of the view that it is unlikely for any substituting party to establish liability and prove damages in the face of denial by the Defendant. Apart from the Plaintiff, it is unlikely for the applicant to give primary evidence on both issues of liability and for injuries and residual disabilities for purposes of any assessment. The proceedings may turn out to be frivolous.
    
24. For these reasons, I am reluctant to grant the application for substitution to avoid further cost in litigation.
    
25. I now turn to the Defendant’s application for dismissal of proceedings for want of prosecution and for failing to apply for substitution within 3 months. Firstly, as I have refused the Plaintiff’s application for substitution, it follows as a matter of course, that the defendant’s application be granted for the same reasons. That the proceedings be dismissed as per the defendant’s Notice of Motion under Order 5 Rule10 of the National Court Rules.
    
    26. The second leg of the defendant’s application is for dismissal of proceedings for want of prosecution. The principles governing dismissal for want of prosecution are well settled in this jurisdiction in many decided cases, led by 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.
           

27. I apply these principles to the present case. The accident took place on 26^th August 2011, nine years ago. The proceedings were commenced in June 2016, five (5) years ago. Even up to the time of these applications, the Plaintiff has not filed her primary evidence on liability and the necessary medical evidence.

28. In my view, the conduct of the Plaintiff and her lawyer are found wanting. They have not followed the court process, with due diligence. I note from the file, that instead of ensuring a Notice to Set Down for trial was filed promptly they chose to relax. Under Order 4 Rule 36 of the National Court Rules, the Plaintiff should have filed his Notice of Set down for trial within 6 weeks from date of close of pleadings. The Plaintiff and her lawyer were aware that liability was denied. They should have taken steps in filing their evidence on liability as well as damages in preparation for trial. As I have found, the Plaintiff has not provided any explanation for the delay in prosecuting the proceedings.
    

29. The delay is likely to prejudice the Defendant. I accept the submissions of the defense counsel that relevant witnesses for the defense might not become available when the matter is finally set for trial, whenever that maybe.

30. I am of the view that, there is basis for dismissal of proceedings for want of prosecution. For all the reasons given above, I will dismiss the proceedings for want of prosecution and for frivolity.
    
31. As for cost I note the Plaintiff has passed on and having refused the application for substitution it is just that each party bear their own costs.
    

Orders

32. I make the following orders:

1. The Plaintiffs application for substitution is refused.
2. The Plaintiffs entire proceedings is dismissed.

100. Each party bear their own cost.

4. Time be abridged.

________________________________________________________________
Daniels & Associates Lawyers: Lawyers for the Plaintiff
Bradley Wak Lawyers: Lawyers for the Defendant