N9063
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 833 OF 2019

BETWEEN:
UNIVERSITY OF PAPUA NEW GUINEA
Plaintiff

AND:
HON JOHN ROSSO MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

AND:
OSWALD TOLOPA ACTING SECRETARY FOR LANDS AND PHYSICAL PLANNING
Second Defendant

AND:
BENJAMIN SAMSON AS REGISTRAR OF TITLES
Third Defendant

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Fourth Defendant

AND:
HELIOS NO. 67 LIMITED TRADING AS PORT MORESBY NATURE PARK
Fifth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2021: 03rd, 06th & 13th August

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Application for Dismissal – Abuse of Process – Breach of Directional Orders –Order 16 Rule 13 (13) (2) (a) NCR – Summary determination – Materials discharge balance – proceedings dismissed as abuse of process – cost follow the event.

Cases Cited:
Kalinoe v Kereme [2017] PGSC 26; SC1631 
Seravo v Bahafo [2001] PGNC 122; N2078 
Niale v Sepik Coffee Producers Ltd [2004] PGNC 125; N2637 
Pipoi v Seravo, National Minister for Lands [2001] PGNC 97; N2120 
Lawi v Lalie [2020] PGNC 460; N8775 
Takori v Yagari [2007] PGSC 48; SC905 
Counsel:

D. Kamen, for Plaintiff
M. Tukulyia, for First, Second, Third & Sixth Defendants
D. Herold, for Fourth Defendant
L. Wangi, for Fifth Defendant
					
RULING 
 13th August, 2021
1.	MIVIRI, J: This is the Ruling on the fifth defendant’s application by notice of motion of the 05th July 2021 invoking Order 16 Rule 13 (13) (2) (a) of the National Court Rules to dismiss the proceeding for want of prosecution.

2.	He relies on the affidavit of Luke Wangi sworn and filed of the 05th July 2021. He is the lawyer who has carriage of this matter employed by the firm Leahy Lewin Lowing Sullivan Lawyers who act for the fifth defendant. On the 07th February 2020, the Court adjourned the matter to 09th March 2020 for directions hearing. In attendance then were the plaintiff’s lawyers, with Mr Russel Uware for the first, second, third and sixth defendants. Where the consent countersigned directions by all the parties was endorsed by the Court. By that fact it required all the plaintiffs as well as the defendants together to comply with it. Agreement was made for the return of the matter on the 1st June 2020.

3.	The consent directional orders of the 09th March 2020 where in the following terms:	

1.	The Defendants to file and serve affidavits by the 11th March 2020.	2.	Plaintiff to file any further affidavits by 06th April 2020.
3.	The plaintiff to serve the draft Statement of Agreed and Disputed Facts and Legal Issues on the Defendants by the 13th April 2020.
4.	The defendants to return draft statement of Agreed and Disputed Facts and Legal Issues by 20th April 2020.
5.	The plaintiff to file settled Statement of Agreed and Disputed Facts and Legal Issues by the 27th April 2020.
6.	The Plaintiff to serve draft Index to Review book on the Defendants by 04th May 2020.
7.	The defendants to return draft Index to Review book by 11th May 2020.
8.	The Plaintiff to file and serve settled Index to Review book by 18th May 2020.
9.	The matter to return to Court on 1st June 2020 for further directions.

4.	The Covid19 outbreak in March 2020 prompted shut down of the Courts on 23rd March 2020. It meant that each of the parties did not comply with the directions so all were of the view that extension would be sought when Court resumed. On the 1st June 2020 the plaintiff’s lawyers did not appear. They also failed to circulate the consent directions. The matter was adjourned to the registry. Between the 1st of June and the 09th November 2020 the matter was listed three times for directions. The plaintiffs’ lawyers did not appear on those dates.

5.	On the 09th November 2020 the matter returned for directional hearing at which time the parties handed a counter signed consent directions which was endorsed by the Court. That was issued in the following terms:

1.	The previous directions issued by the Court are extended.
2.	The plaintiff to serve the draft Statement of Agreed and Disputed Facts and Legal Issues on the Defendants by the 13th November 2020.
3.	The Defendants to return draft Statement of Agreed and Disputed Facts and Legal Issues by 20th November 2020.
4.	Plaintiff to file Settled Statement of Agreed and Disputed Facts and Legal Issues by 27th November 2020.
5.	The Plaintiff to serve the draft Index to the Review Book on the Defendants by 04th December 2020.
6.	The Defendants to return draft Index to Review Book by 11th December 2020.
7.	The Plaintiff to file and serve settled index to Review Book by 18th December 2020.
8.	The Plaintiff to serve Draft Review Book on the Defendants 05th February 2021.
9.	The Defendants to return Draft Review Book by 12th February 2021.
10.	The Plaintiff to file and serve settled Index to Review Book by 19th February 2021.
11.	The matter to return to Court on 22nd February 2021 for allocation of a trial date or further directions.

6.	 There is no review book now since and the file is lumped with directions to no avail on the part of the plaintiff who saw fit to institute this proceedings. But has not with the same vigour sought to bring this matter to expedited hearing bearing in mind Order 16 Rule 4 as to the institution of judicial review within four (4) months, it begs whether the plaintiff is genuine or not? It was ordered of the 9th November 2020 entered 11th November 2020. The consent orders basically agreed to the extension of time for parties to comply with the previous orders issued on the 09th March 2020. It was further rescheduled to return on the 22nd February 2021 for allocation of a trial date. On the 11th November 2020, in compliance with term 2 of the Consent Directions the plaintiff’s lawyers caused an email, to the defendants containing a draft statement of agreed and disputed facts and legal issues (SADFLI).

7.	On the 20th November 2020 the fourth defendant in compliance with term three (3) of the consent directions endorsed and reverted to the plaintiff with a draft SADFLI with their comments. In subsequent email exchanges the plaintiff and the fourth defendant could not agree on certain terms therein. On the 27th November 2020 the plaintiff’s lawyers undertook by email to revise the SADFLI and to circulate the final version to the defendants. That has not taken place including compliance with term four (4) of the Consent directions. The effect is that plaintiff has failed to comply with terms two and four of the Consent directions of the 09th November 2020. It has frustrated the progress of this proceeding and has inhibited the defendant’s ability to comply with the remaining terms of the Consent directions.

8.	Consent directions set out above are orders of the Court. And as such are binding on the parties to be executed. There are obligations imposed in each case and whereas here it is alleged that the Plaintiff has defaulted in compliance it is serious and would be viewed sternly. Order 16 Rule 13 (13) (2) (a) of the National Court Rules pleaded here by the fifth defendant addresses that very fact. It is a ground for the dismissal of proceedings. And the Supreme Court has vehemently voiced, “There is nothing in our reading of the rules of court found in O 16 r 11 or O 16 r 13 (a) and b (b) of the National Court Rules which operates to fetter the learned Judge’s discretion. Indeed, those provisions give the Court the jurisdiction and a wide discretion to summarily determine and dismiss a proceeding simply on the grounds stated therein. For instance, a failure by the plaintiff or his counsel to appear at the hearing per se, without more, is sufficient to warrant dismissal of the proceedings. This is particularly the case with those types of proceedings where time is of essence and the rules of court provide strict timelines by which proceedings are to be conducted and finality reached in an expedited manner. Judicial review proceedings come under those types of cases and O 16 r 11 and O 16 r 13 are designed to achieve that objective. In simple terms, it is of no consequence that the learned Judge may not have taken the questions of prejudice and interests of justice into account or sufficient account in exercising her discretion. The same can be said of other questions such as the merits of the case or the substantive interests of the parties at stake in the proceedings. Those supposed omissions are not sufficient to render erroneous the exercise of her discretion in the way she did, Kalinoe v Kereme [2017] PGSC 26; SC1631 (3 November 2017). 

9.	The facts here are applicable in the case of summary disposal pursuant to Order 16 Rule 13 (13) (2) (a) of the Rules. It is inexcusable where the default by the plaintiff is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of the Claim; and which is aggravated when there is no reasonable explanation given by the Plaintiff for the delay; and that the delay has caused injustice or prejudice to the defendant, Seravo v Bahafo [2001] PGNC 122; N2078 (21 March 2001). The present sees no material on record to explain why the delay. It has not occurred to the plaintiff the gravity not to explain by material the delay or the breach experienced here. Extended in this regard he has neither sought leave nor has he seen the need for leave to vary and extend which would entail affidavit material to explain. That has not been the case. And Counsel has seen no urgency in compliance. That is with abhorrence and draws negatively on the part of the party portraying, Niale v Sepik Coffee Producers Ltd [2004] PGNC 125; N2637 (24 August 2004). Because the conduct of the party and their lawyers bear as to how the case is conducted as the duty of the Court to dispense justice will come if the parties see as paramount that fact. 

10.	And this is particularly clear from the affidavit that is deposed to by Daryl Kamen which is as to matters before the 09th November 2020. But as to whether or not there is compliance of the orders after the 09th November 2020 the plaintiff has placed no material to deviate or explain. Seeking directions and which are accorded do not become stale from non-compliance, but have the effect of dismissing the proceedings by the rules pleaded by the fifth defendant, if there is inordinate inexcusable delay, Pipoi v Seravo, National Minister for Lands [2001] PGNC 97; N2120 (1 June 2001). The facts here lean toward that position given.

11.	Similarly, by Order 12 Rule 40 (1) (a) & (b) of the National Court Rules where abuse of process there has led to dismissal, Lawi v Lalie [2020] PGNC 460; N8775 (18 December 2020). The principles are the same though the rules maybe different but they attain the same given their facts. Here is judicial review proceedings but the theme of Order 16 Rule 13 (13) (2) (a) is the same as in the above order set out. The common and difficult bar is that it is not a light matter to dismiss a litigant from the seat of Judgment, Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007), because denying justice is not vitiated for the plaintiffs. That is not the case by the facts and the law set out above either apparent or identifiable. The room to move is that this application bears merit and discharges the balance over preponderance in favour because it has been want for prosecution. Accordingly, the motion is granted in the terms of the notice of motion pleaded. Cost will follow the event forthwith.

12.	The formal orders of the court granted in accordance with Order 16 Rule 13 (13) (2) (a) of the National Court Rules are:

(1)	The application for dismissal is granted accordingly.
(2)	Costs will follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
Kamen Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyer for the First, Second, Third & Sixth Defendants
Legal Division NCDC: Lawyer for the Fourth Defendant
Leahy Lewin Lowing Sullivan Lawyer: Lawyer for the Fifth Defendant