Kunjil v Dole [2021] PGNC 201; N9053 (20 August 2021)

N9053

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO. 349 OF 2002

BETWEEN:
NAMBA KUNJIL
Plaintiff

AND:
DICK DOLE
First Defendant

AND:
JOSEPH KUPO AS COMMISSIONER OF POLICE
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Anis J
2021: 13^th & 20^th August

NOTICE OF MOTION – seeking to set aside order dismissing the proceeding – Order 12 Rule 8(2)(b) and sub-rule 3(a) – National Court Rules – consideration – whether court lacks jurisdiction on the basis that the dismissal was a final judgment – whether judgment was regularly entered – whether there was unreasonable delay – whether there was reasonable explanation given for the delay - whether the Court should exercise discretion and re-instate the proceeding

Cases Cited:

Thomas Barry v. Joel Luma (2017) SC1695
Wawoi Guavi Timber Company Ltd v. Molu (2016) SC1514
George Kakas v. NHC (2015) SC1611
The State v Colbert [1988] PNGLR 138
Small Business Development Corporation v Danny Totamu (2010) SC1054

Counsel:

A Token, for the Plaintiff
T Mileng, for the Defendants

RULING

20^th August, 2021

1. ANIS J: This was an application to set-aside an earlier Court Order that dismissed the proceeding. I heard the matter on 13 August 2021 and reserved my decision to a date to be advised.

2. I rule on it now.

BACKGROUND

3. The cause of action was in negligence. The plaintiff had alleged that his vehicle, a PMV bus, was damaged in an accident that was caused by a vehicle owned by the Royal Papua New Guinea Constabulary (police/State) on 31 August 2001 at an intersection at Wards Road in Boroko, National Capital District. Judgment was entered in his favour. The Court files, however, do not show when judgment was entered. That aside, the matter was set down for trial on assessment of damages on 18 February 2016. On that day, both parties did not appear, and the Court summarily dismissed the proceeding.

4. The plaintiff now applies to set-aside the said Court Order.

APPLICATION

5. The plaintiff’s notice of motion was filed on 30 July 2020 (NoM). The main relief sought is, and I quote in part, The orders of the 18^th of February, 2016 summarily dismissing or determining this proceeding be set aside pursuant to Order 12 Rule 8(2)(b) and sub rule (3)(d) of the National Court Rules (NCR).

6. The NoM is supported by the plaintiff’s affidavit filed on 30 July 2020.

PRELIMINARY ISSUE

7. The State raised a pre-liminary issue on jurisdiction. It submits that the Court Order of 18 February 2016 was a final Order. As such, it says the proper process should have been to appeal against the decision, and it is therefore an abuse of the Court process, it submits, for the plaintiff to apply in this manner. Counsel also addressed the Court on the varying views of the Supreme Court in regard to whether a judgment may be termed as interlocutory or final. The State urged the Court to follow the Supreme Court’s decision in Thomas Barry v. Joel Luma (2017) SC 1695 and its line of authorities, and not to follow the views by the Supreme Court in Wawoi Guavi Timber Company Ltd v. Molu (2016) SC1514 and the line of authorities following the similar view. The plaintiff on the other hand submits to the contrary and relies on the Supreme Court’s decision in Wawoi Guavi.

8. I note the submissions of the parties.

9. In my view, the focus of this case to address the issue at hand must be on the relevant facts giving rise to and the jurisdiction that is being pleaded by the applicant. So, in this case, the relevant background fact is that the proceeding was dismissed ex parte when both parties failed to appear at trial on 18 February 2016. And the relevant source invoked in the present NoM is Order 12 Rule 8(2)(b) and (3)(a) of the NCR. It reads, and I quote:

(2) The Court may, on terms, set aside or vary a judgement —

.....

(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

......

(3) The Court may, on terms, set aside or vary an order —

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or

10. Sub-rule (2)(b) concerns entry of judgment which has no application here as the concerned order of 18 February 2016 did not enter any judgment, but rather, dismissed the proceeding. Sub-rule (3)(a) on the other hand is relevant. In my view, it is express in that it gives jurisdiction to the National Court to consider and set aside an order, which includes an order that dismisses a proceeding. The court order of 18 February 2016 is an order of a National Court which was made in the absence of the parties who had known of the trial date but had defaulted in their attendances. The factual background of this matter, in my view, meets the requirements of Order 12 Rule 8(3)(a) of the NCR. The Supreme Court in George Kakas v. NHC (2015) SC1611, stated at paragraph 23:

23. The exercise by the Court of powers granted by Order 12 rule 8 to set aside ex parte orders clearly entails the exercise of judicial discretion: Mango v Passismanua Inland Resource Ltd [2009] SC1163 at [5]-[6], Elema v Pacific MMI Insurance Ltd [2007] SC1321 at [13].

11. Justice Makail, in agreement with the majority in Waiwo Guavi, state at paragraph 16:

16. This decision is consistent with the Respondent’s argument that the exercise of power by the primary judge was conferred by Order 12, rule 8 (3), which power to set aside is not confined to interlocutory orders only but extends to final orders as well.

12. I adopt these views. It is without doubt that Order 12 Rule 8 and its provisions particularly sub-rules (2) and (3)(a), confer jurisdiction upon the National Court to set aside or vary orders that may be interlocutory or final. In my view, considerations such as whether the judgment is final, interlocutory, nature of the application made, the order itself or its effect, are irrelevant to applications that are made under Order 12 Rule 8(2) or (3)(a) of the NCR.

13. I therefore dismiss the jurisdiction argument by the State.

ISSUES

14. The main issues in my view, are (i), whether the application was made promptly, (ii), whether there was a reasonable explanation explaining why judgment was allowed to be summarily dismissed, and (iii), whether there is a meritorious case.

DELAY

15. I will address issues (i) and (ii) together. The plaintiff does not deny his delay in filing the NoM. The delay period is 4 years 5 months, that is, from the date of dismissal of the proceeding, to the date of filing the NoM. And the NoM was not moved since its filing on 30 July 2020 until 13 August 2021, so there is further delay since the filing of the NoM of 1 year 12 days.

16. I have heard submissions from both counsel on this issue. I make these observations. Firstly, the plaintiff did not file evidence to explain why the application has taken more than 1 year to move. I find this unacceptable, and I would hold that against the plaintiff. My second observation is this. I note that the plaintiff, by his affidavit, blames his former lawyers for not taking steps to progress the matter and for not informing him of what had transpired after the matter was summarily dismissed in 2016. He also deposes that parties were negotiating settlement at the time when the matter was dismissed. Then he said that he was not aware of the dismissal in 2016 until February of 2020, that is, after he had conducted a search at the National Court Registry. To me, the evidence constitutes an admission by the plaintiff that he showed little or no interest in the matter from 2016 until 2020 before he decided to conduct the search at the National Court. He is the plaintiff, and in my view, he ought to have taken a keen interest in the matter. It appears from his own evidence where he has not demonstrated that. I also note that failure by a lawyer to take steps in a proceeding for a client itself is or cannot be a valid excuse. See cases: The State v Colbert [1988] PNGLR 138, and Small Business Development Corporation v Danny Totamu (2010) SC1054.

17. Therefore, and in my view, I find no valid explanations given by the plaintiff on delay, that is, delay in both filing and moving the NoM. I find against the plaintiff in regard to the first 2 issues.

MERIT

18. In this case, judgment has been entered so the requirement to establish a case on merit does not arise. Even if I may be wrong, I also note that parties did not make proper submissions on this. Does the plaintiff have strong prospects that damages sought are reasonable or foreseeable and that there is a real likelihood of success in that regard? I received no written submissions on that.

OTHER CONSIDERATIONS

19. I also note this consideration. The incident occurred in 2001. Fast forward to today is about 20 years. The proceeding was commenced on 25 March 2002 and had been kept active in the Court Registry for 14 years before it was summarily dismissed in 2016. The matter has since remained closed for 4 years, and now the plaintiff intends to revive it. In my view, the general vast delay itself is contrary to the interest of justice. Interest of justice applies to the role of the Courts and the parties, that is, to ensure that matters that are in Court are heard and determined in a timely manner. In this case, it appears clearly that it is the plaintiff who has failed in his duty or role.

20. I also consider that public policy consideration favours dismissing the NoM. It is, in my view, in the public interest that Courts, which are a public institution, must hear and dispose matters expeditiously or within reasonable time. This duty also, in my view, applies to its duty to summarily determine or dismiss matters that have not progressed or have been unreasonably delayed for a long time. The present matter, in my view, fits into this category, that is, it has been delayed for a very long time, and I see no justifiable reason to overturn the decision of the Court made on 18 February 2016.

EXERCISE OF DISCRETION

21. I refuse to exercise my discretion herein. I will dismiss the NoM.

COST

22. An order for cost is discretionary. I will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

23. I make the following orders

1. The plaintiff’s notice of motion filed on 30 July 2020 is dismissed.
   
2. The plaintiff shall pay the defendants’ costs of the application on a party/party basis which may be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date and time for settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly

________________________________________________________________
Public Solicitors Office: Lawyers for the Plaintiff
Solicitor General’s Office: Lawyers for the Defendant