N9294
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 105 OF 2019

BETWEEN
WILLIAM POKO
Plaintiff

AND
JOY MANUEL AND BONNY MANUEL trading as LUPA GUE(edited)ST HOUSE
Defendants

Waigani:  Linge A J
2021:  23rd October, 9th November

PRACTICE AND PROCEDURE - Application for dismissal of proceeding - Failure to set proceedings for Trial – No service of Notice of Motion 
Cases Cited:
Anopari v Motor Vehicle Insurance (PNG) Ltd (2009) PGNC 95; N3697 
Ahmadiyya Muslim Mission v Bank South Pacific (2005) N2845
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Viviso Seravo v Jack Bahapo (2001) N2078

Counsel:
Mr. J. Aisale, for the Plaintiff
No appearance, for the Defendant

DECISION

9th November, 2021
1.	LINGE A J: This is a Decision on a Notice of Motion filed by the Defendant on the 17 September 2021, pursuant to Order 10 Rule 5, National Court Rules.

2.	Order 10 Rule 5 reads:

	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
Facts
3.	On or around 14 October 2014 the Plaintiff whilst employed by the Defendants as a labourer to work on the Defendants’ Komal Apartment in Wabag, Enga Province slipped and fell from the first floor of the building and injured his right leg. 

4.	At the time of the accident the Plaintiff was 56 years old and into his third week of work.

5.	The Plaintiff sustained injury and was hospitalized at Wabag Hospital and during his hospitalization for 7 weeks the Defendant paid K4000.00 to him made up of K500.00 per fortnight and the medical bills and medicine.

6.	The alleged injury occasioned on the plaintiff include severe injuries to his left thigh and hip and incurred loss and damage. 

7.	 After his hospitalization the defendant did not return to work and on the 13 February 2016 during a public mediation at White Corner, Wabag Town the Defendants paid compensation in cash money in the amount of K 24,000.00 as full and final settlement to the Plaintiff.
 
This Proceeding
8.	The Plaintiff issued the Writ of Summons in Waigani on the 14 February 2019. He subsequently filed an Amended Writ of Summons on the 7 March 2019.

9.	Defendants filed Notice of Intention to defend on the 6 May 2019 and Defence on the 10 May 2019.

10.	The Plaintiff filed Notice of Motion on the 10 May 2019 and 20 May 2019 for default judgement and striking out of the Defendants’ defence.

11.	On the 13 June 2019 the Court refused the order sought by the plaintiff and instead granted leave to the defendant to file defence out of time and ordered that time for filing of defence was extended to time of filing being the 10 May 2019.

12.	On the 24 June 2019 the Defendants filed Notice of Discovery. In response the Plaintiff filed List of Documents on the 4 July 2019.

13.	Following close of pleading on or about 4 July 2019 the plaintiff did not undertake steps to set the matter down for trial.
This Application

14.	The Defendants Notice of Motion filed on the 17 September 2021 came before me on the 23 September 2021. 

15.	It is 26 months to the time of filing this Notice of Motion from the close of pleadings. 

Issue
16.	Whether the Defendants are entitled to the orders sought in the Notice of Motion?

Evidence
17.	The Defendants relies on the affidavit in support of Justin Issac filed on the 17 September 2021 who deposes that the plaintiff had not taken any steps to set the matter down for trial since the close of pleadings on the 4 July 2019.

18.	Further, the Defendants rely on the following affidavits:

	(i)	Sepik Tenge filed on the 22 August 2019.
	(ii)	Simon Waigi filed on the 22 August 2019.
	(iii)	Eric James filed on the 22 August 2019.
	(iv)	Turakaur Elizah filed 22 August 2019.
	(v)	Ene Karape filed 22 August 2019.
	(vi)	Thomas Angaun filed 22 August 2019.
	(vii)	Jack Kopyo filed 22 August 2019.
	(viii)	Simon Jack filed 22 August 2021. 

19.	All eight (8) deponents attest to a public mediation on the 13 February 2016 at White Corner, Wabag Town where the Defendants paid compensation in cash money totaling K 24,000.00, on top of the K 4,000.00 paid by the Defendants to the Plaintiff during the plaintiff’s hospitalization, as full and final settlement to the Plaintiff.

20.	The Plaintiff did not file any affidavit evidence in support of his claim apart from his Statement of claim in the Amended Writ.  

The Law
21.	The law in relation to or in the context of Order 10 Rule 5, National Court Rules where a party is seeking dismissal for want of prosecution, is clear.

22.    It is a discretionary power vested in the Court and that the Court may on terms dismiss or make such other order as it thinks fit.
23. The Courts in this jurisdiction have established several criteria or considerations that the court takes into account in an application for dismissal of proceedings for want of prosecution.

24.   These considerations are highlighted in Anopari v Motor Vehicle Insurance (PNG) Ltd (2009) PGNC 95; N3697 which followed earlier cases of Ahmadiyya Muslim Mission v Bank South Pacific (2005) N2845 and John Niale v Sepik Coffee Producers Ltd (2004) N2637 and Viviso 	Seravo v Jack Bahafo (2001) N2078. These considerations are:

(1)	Is the plaintiff’s default intentional or is allowing for an inordinate and inexcusable delay in prosecution of his claim?
(2)	Is there a reasonable explanation given by the plaintiff for the delay?
(3)		Has the delay caused injustice or prejudice to the defendant?
(4)	The general conduct of the parties and their lawyers. 
(5)	The duty of the court to give paramount consideration to the dispensation of justice.

Consideration

25.	Is the plaintiff’s default intentional or is allowing for an inordinate and inexcusable delay in prosecution of his claim?

(a)	In respect of the first criteria, on the face of it there is clearly default on the part of the plaintiff to set the proceedings down for trial and to progress the matter after pleadings closed on the 4 July 2019.

(b)	The default in setting the proceedings down for hearing remained until the Defendant filed this Notice of Motion on the 17 September 2021.

(c)	The period within which a plaintiff must set the proceedings for trial is six (6) weeks. The period of default for not setting the matter for trial here is 26 months 14 days.
26.	Is there a reasonable explanation given by the plaintiff for the delay? 
(a)	After the 4 July 2019 filing of the List of Documents by the plaintiff through his lawyers, Yandaken Lawyers there was no further activity on file that may give hint of any reasonable explanation.
(b)	On the 21 October 2019 the Public Solicitor filed the Notice of Change of Lawyers for the Plaintiff, three (3) months after the filing of the List of Documents by Yandeken Lawyers, but still other than that filing, no notice to set down and no affidavit filed which may provide reasonable explanation for the delay.  
(c)	I deduced that there is no reasonable explanation given by the plaintiff for the delay.
27.	Has the delay caused injustice or prejudice to the defendant? 
	There is no evidence before me that point to any injustice or prejudice on 	the part of the defendant. The defendant did nothing for 28 months and 	appeared to be content in letting the matter undisturbed for that lengthy 	period.   
28.	The general conduct of the parties and their lawyers.
	(a)	The record shows that Yandeken Lawyers were the lawyers on 	record until the Public Solicitor filed the Notice of Change of 	Lawyers for the Plaintiff on the 21 October 2019. 
	(b)	However, the Public Solicitor had not undertaken any activity for 	the plaintiff since their filing of Notice of Change of Lawyers as 	aforesaid.
	(c)	Yandeken Lawyers filed their Notice of Ceasing to Act on the 23 	September 2021 after they were served with this Notice of Motion 	by the Defendant on the 20 September 2021. 
(d)	I find it intriguing that Lawama Lawyers for the Defendants did a File Search on the 10 September 2021, Doc. 33 but did not discover the Notice of Change of Lawyers by the Public Solicitor filed on the 21 October 2019, Doc.32.
(e)	The Defendant and his lawyer could have set the matter down and get consent of the plaintiff or his lawyer but did nothing for a period of over 2 years. Did the Defendant acquiesce in the delay?
29.	The duty of the court to give paramount consideration to the dispensation of justice.
(a)	The plaintiff filed proceedings claiming damages for injuries he sustained while actually working as a labourer on site at a property owned by the Defendants in Wabag, Enga. 
(b)	The Defendants have not denied this but they say he was duly compensated in the total sum of K 28,000.00.
(b)	The issue which I am required to deal with is basically one of compliance or lack of Order 10 Rule 5, National Court Rules and to consider all the circumstances and decide whether to dismiss the proceedings or refuse the application taking into consideration my duty to dispense justice.
30.	In summary I find as follows:	1. 	Yes
						2.	Yes
						3.	Yes
						4.	unsatisfactory
						5.	No
Findings
31.	On the balance it is clear that the Plaintiff has breached Order 5 Rule 10 of the National Court Rules.   He failed in his legal obligation to set the proceedings for trial within 6 weeks from the close of pleadings. That legal obligation runs from the 10 May 2019.

32.	Default in setting the matter for trial already occurred when the Public Solicitor filed the Notice of Change of Lawyers on the 21 October 2019. 

33.	Even then, no application was made by the Plaintiff or his lawyer to extend the time required to set the matter down for trial.

34.	On or about 22 August 2019 the Defendants caused to be filed 8 supporting affidavits verifying payment of K 24,000.00 made by the Defendants to the Plaintiff at White Corner in Wabag Town.

35.	The 8 affidavits were never served on the Plaintiff and there are no evidence of the Plaintiff filing any affidavit in response. Hence the Defendant cannot rely on the 8 affidavits for the purported payment of K 24,000.00. 
 
36.	The failure by the Plaintiff to set down for trial and to respond to the claim of full settlement by the Defendants is a clear sign that he is not interested in prosecuting his cause of action.

37.	However, there are some aspects of the case that bothers me:

(a)	the failure by the Defendant and their counsel to serve this Notice of Motion on the Plaintiff or the Public Solicitor who are lawyers on record as per Document 33.
(b)	This Notice of Motion is filed 2 years 4 months from close of pleading.
(c)	Failure by the Defendant to serve the 8 affidavits on the Plaintiff.
38.	In the final analysis when considering my duty in giving paramount consideration to the dispensation of justice, I must weigh the clear default by the Plaintiff and his failure to give reasonable explanation of the delay against the unsatisfactory conduct of both lawyers and lack of proper service of this Notice of Motion and affidavits on the Plaintiff. 

39.	Just as failure to set the matter for trial is crucial to a person seeking dismissal of proceeding in terms of Order 10 Rule 5 of the National Court Rules, the failure to serve the Notice of Motion and the affidavit evidence to be relied on pursuant to Order 4 Rules 38 and 42 and Order 11 Rule 27, National Court Rules, to seek the order is also crucial.

Order

40.	In exercising my discretion and in giving paramount consideration to the interest of justice, I grant the following Orders: 

	1.	The application by the Defendants is refused.
	2.	The Plaintiff shall set the matter down for trial within 14 days from 		the date of this order. 
	3.	Any party is at liberty to file application within 3 days’ notice.
	4.	Cost be in the cause.
______________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Lawama Lawyers: Lawyer for the Defendants