Benard v Alex Aipa (trading as Aipa Trading) [2021] PGNC 122; N8891 (30 June 2021)

N8891

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1619 OF 2015

BETWEEN:
JOYCE BENARD, BETTY MAUA, AGNESS JACOB, JENNY EPI, ESTER KEMAPU, MARY GORDON, KAI BOLA, OXY LES, AKITA ALBERT AND EVERLYN GIYA
Plaintiff/First Cross Defendant

V

ALEX TIRI AIPA trading as AIPA TRADING
First Defendant

AND
OUR REAL ESTATE LIMITED
Second Defendant

AND
OUR REAL ESTATE LIMITED
Third Defendant/Cross Claimant

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Second Cross Defendant

Waigani: Anis J
2021: 16^th & 30^th June

NOTICE OF MOTION – seeking part of the relief – relief for dismissal of proceeding for want of prosecution – Order 4 Rule 36 and Order 10 Rule 5 – National Court Rules – consideration – whether there was delay and who is responsible – cross-claim – whether the duty to prosecute with due dispatch or diligently rests with just a plaintiff or equally as well to a cross-claimant – exercise of discretion

Cases Cited:

Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Viviso Seravo v. Jack Bahofa (2001) N2078
Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637

Counsel:

Mr T Tape with counsel assisting Mr E Lako and Ms G Joel, for the Plaintiff/First Cross-Defendant
No appearance by the first defendant
Mr A Waira, for the Second defendant
Mr M Philip, for the Third Defendant/Cross-Claimant
Ms C Malala, for the Second Cross-Defendant

RULING

30^th June, 2021

1. ANIS J: I heard part of the third defendant’s notice of motion on 16 June 2021. The application also sought to dismiss the proceeding for want of prosecution. It was contested and after the hearing, I reserved my decision to a date to be advised.

2. Parties have been notified of today’s hearing so I will rule on it now.

BACKGROUND

3. The plaintiffs sell clothing or second-hand items on a piece of land with other vendors. They claim that they began trading there since 1993. The land in question is next to the Waigani Market in Port Moresby in the Nation’s Capital. The land area used to be owned by the second cross-defendant at that time. It is claimed that the second-cross defendant had an arrangement with the plaintiffs where they had allowed the plaintiffs to do their marketing on the land. The land in question has since been transferred, consolidated and re-issued with a new title. It is currently owned by the third defendant/cross-claimant. The title to the land is described as allotment 36, section 137, Hohola (Waigani), NCD (the land).

4. In 2015, the plaintiffs filed this proceeding. They complain and allege fraud against the first, second and third defendants. They argue that the land had been fraudulently acquired and they seek various relief.

5. The third defendant denies the claim. It says it purchased the land in 2014, and that despite that, it has been having difficulties trying to develop the area because the land has been and continues to be occupied by the plaintiffs. It also files a crossclaim against the plaintiff and the second cross-defendant.

NOTICE OF MOTION

6. Relief 1(i) in the third defendant’s notice of motion reads, The proceedings against the First, Second and the Third Defendant/Cross Claimant be dismissed for want of prosecution. The third defendant relies on Order 4 Rule 36 and Order 10 Rule 5 of the National Court Rules.

7. The plaintiffs question the third defendant’s reliance on Order 4 Rule 36. Counsel submits that the rule is relevant in regard to proceedings that are commenced under an originating summons. I heard arguments from the parties on the matter. My view is this. I find the plaintiff’s argument unsustainable. Although I uphold the plaintiff’s submission that Order 4 Rule 36 applies to proceedings that are commenced under originating summons, the third defendant also cites Order 10 Rule 5 which is an appropriate source that may be relied upon to seek to dismiss proceeding commenced under writ of summons and statement of claim. As such, I am able to and will hear the notice of motion on the basis that it is moved pursuant Order 10 Rule 5 of the National Court Rules.

ISSUE

8. To me, the main issue is this. Whether there was undue delay in prosecuting the matter, and if so, who is to be blamed for that.

LAW

9. The Court’s power to consider this application is discretionary. Order 10 Rule 5 states, and I quote:

5. Want of prosecution. (33/6)

Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.

10. The case law has identified considerations that the Court may have regard to before reaching its decision. Some of them include, (i), intentional default or inordinate or inexcusable delay in prosecuting the plaintiff's claim, (ii), no reasonable explanation for the delay, (iii), defendant is suffering injustice or prejudice by the delay, and (iv), the conduct of the plaintiff is such that the proceeding has not been properly progressed. See cases: Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, Vivisio Seravo v. Jack Bahofa (2001) N2078, and Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637.

11. These are of course valuable considerations. But on the same token, I will make this remark. A disadvantage of creating or expounding on what should be or should not be the relevant considerations in a matter where a court is bestowed with discretionary powers can sometimes make it a tiresome or complex exercise in something that may require hands-on or straight forward considerations. And that can sometimes lead to lengthy and unnecessary use of the Court’s time such as adjournments, directional hearings, and status conferences, to name a few. I think a better approach, where a judge is faced with such situation, is to see what the rule or law concern expressly requires as is stated, and exercise discretion accordingly. In the present case for example, Order 10 Rule 5 states 2 main considerations, namely, (i), whether 6 weeks had lapsed after the close of pleadings, and if so, (ii), whether the plaintiff did not set the matter down for trial. I would consider these in the present case, in addition other factors that may be relevant as I see fit which may or may not include considerations that are prescribed in the case law. In regard to the 6 weeks requirement to set down a matter for hearing, I will say this. If parties are prepared well in advance, as they should before filing any Court proceedings, the requirement for setting matters down for trial within 6 weeks after the close of pleadings should not be a difficult or an unrealistic target or timeline to work towards.

DELAY

12. For the present case, pleadings closed on or about 31 March 2016 which was the date when the cross-defendant filed its Defence to the Cross-Claim. There is a delay of about 5 years. The matter is not yet ready to be set down for trial.

13. But the delay is obvious, and there is not much to it in terms of arguing against it. The real issue, in my view, is whether it is failure solely on the part of the plaintiffs. I would answer in the negative. This case is not solely commenced by the plaintiffs. The applicant or the third defendant has also filed a crossclaim against the plaintiff and the cross-defendant in this same proceeding. The crossclaim was filed on 30 December 2015. Pleadings closed on or about 31 March 2016. In my view, the third defendant who is also the cross-claimant, also has the same responsibility or duty to ensure that the proceedings are set down for trial. The issues raised by the plaintiff and the cross-claimant are related, and they ought to be tried together in the manner as they have been pleaded.

14. I have considered the evidence of all the parties. I refer in particular to the affidavit of Bhulye Gias filed on 4 May 2021, the affidavit of Moses Philip filed on 11 June 2021, and the affidavit of Betty Maua filed on 5 May 2021. These evidence address relief 1 of the present notice of motion. They, amongst others, essentially demonstrate failures on the part of the parties towards setting the matter down for trial. None of the evidence shows that the parties have filed a Notice to Set Down for Trial. That, in my view, ought to have been the main factor or consideration which the parties should have attended to. However, that has not been done in this case. And to me, it is pointless, at this interlocutory process, to point to or discuss in detail the failures of each of the parties or the steps or want of steps or actions that had been or had not been complied with, by the parties. If the responsibility falls only or squarely upon for example the plaintiffs, then I may consider in detail the evidence. This is not the case here. Both parties have their causes of action to pursue and therefore the delay in my view should be considered to their disadvantages, that is, in view of the 2 requirements under Order 10 Rule 5 of the National Court Rules.

EXERCISE OF DISCRETION

15. For these reasons, I will refuse term 1 of the relief sought in the third defendant’s notice of motion, that is, the one filed on 4 May 2021. I find that given the nature of the proceeding where both the plaintiffs and the third defendant have claims that are pending, that they both have equal responsibilities to ensure that the matter is duly progressed to trial without delay or immediately after or within 6 weeks after the close of pleadings. In this case, pleadings closed in 2016, and the parties had failed to set the matter down for trial then or in 2016, and the delay has not been rectified.

16. As such, I do not think that it is fair or would be fair administration of justice, that the Court should punish just one party namely the plaintiffs by granting the relief that is sought by the third defendant.

COST

17. An order for cost is discretionary. As I have only dealt with and dismissed the first relief sought in the third defendant’s notice of motion, I will reserve my ruling on costs until I hear and determine the balance of this notice of motion and the plaintiffs’ notice of motion for leave to file their defence out of time which is also pending, on a date and time to be appointed after this.

ORDERS OF THE COURT

18. I make the following orders:

1. Relief 1 in the third defendant/cross-claimant’s notice of motion filed on 4 May 2021 is refused.
   
2. The balance of the said notice of motion and the plaintiffs’ notice of motion for leave to file their defence out of time, shall be set down, if not otherwise settled, for hearing on a date and time to be appointed.
   
3. Costs, in relation to the hearing of relief 1 of the notice of motion of 4 May 2021, is reserved to the pending applications.
   
4. Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly
________________________________________________________________
Kandawayn: Lawyers for the Plaintiff
Anthony Waira: Lawyers for the Second Defendant
Korerua & Associates: Lawyers for the Third Defendant/Cross-Claimant
In-house Counsel: Lawyer the Second Cross-Claimant