Penny v Department of Correctional Institute [2021] PGNC 680; N10167 (24 November 2021)

N10167

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 32 OF 2015

DARIUS PENNY
Plaintiff

V

DEPARTMENT OF CORRECTIONAL INSTITUTE
First Defendant

AND
THE PAROLE BOARD OF PAPUA NEW GUINEA
Second Defendant

Wewak: Thoke, AJ
2021: 24^th November

PRACTICE & PROCEDURE – Want of Prosecution- Non-compliance of Conditional Court Order- Invoking Order 10 and Rule15 (1) & (2), No appearance of Plaintiff- Prisoner escaped from Prison and is still at large- No action taken to progress the matter to trial- summarily disposed.

Cases Cited:

Anor v Motor Vehicles Insurance Trust and the State [1997] PGNC 98; N1630
Baing & the State v PNG National Stevedores PTY Ltd and BSP Limited (2000) SC627
Kalang Advertising Limited v Visvanathan Kuppusamy (2008) SC924
Niale v Sepik Coffee Producers Ltd [2004] PGNC 125 N2637
Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133
Serevo v Bahafo [2001] PGNC 122; N2078

Legislations Cited:

National Court Rules

Counsel:

No appearance, for the Plaintiff
Mr. Enoch Manihambu, for the Defendants

RULING

24^th November, 2021

1. THOKE AJ: This is a matter that is in relation to an application for human rights enforcement filed by the Applicant, Mr. Darius Penny of Hilahita village, Maprik District of East Sepik Province, who had been sentenced to 16 years and 3 days imprisonment in 2008 for sexual penetration.
   
2. He stated in his application that he was eligible for parole release, but the two defendants failed to consider his application for early release from Boram Correctional Institute (CIS), Wewak East Sepik Province.
   
3. He further claimed, he was being unlawfully detained against his Human Rights Parole eligibility and that the two defendants were in breach of section 37 of the Constitution.
   
4. He filed application on the 17^th of August 2015. While his application was pending hearing, he sought a weekend ‘leave of absence’ to visit his family. Upon release for weekend leave, he left and never returned since then. Now he is no longer locked up at Boram Correctional Institute, Wewak, East Sepik province.
   
5. When the matter first came for mention on the 9^th of March 2016, he did not appear. Since then he did not appear. According to Court records, he did not appear in numerous call overs, presided by three (3) different judges of this Honourable Court for the last 6 years.
   
6. 0n 20^th September 2021, the matter came before His Honour Justice Frank at Wewak National Court Call Over, whereby he did not appear as expected. His Honour correctly issued a conditional order for him to appear at 9.30 am on 24 November 2021 and explain and why this case should not be dismissed for want of prosecution.
   
7. On the 24^th of November 2021, the matter came before me for the first time, I perused his file and conditional order issued by His Honour Frank J and confirmed that the plaintiff had not taken any steps to progress the matter to trial.
   
8. I consequently dismissed the case for non-compliance of the conditional order dated 20^th September 2021, made by His Honour Frank J.
   
9. The Conditional Order reads as follows:
   

“1. This proceeding is adjourned to the 24^th of November 2021 at 9:30am, when it will be dismissed for want of prosecution, unless Plaintiff appears in person or by a lawyer on 24/11/21 to proceed this proceeding before that date, takes all steps to progress this proceeding to trial.

2. The Assistant Registrar shall;

(a.) Within 7 days inform the Plaintiff of these Orders in writing to be posted to plaintiffs last known address on the court file, and

(b) before 24^th November 2021 file proof of compliance with this Order.”

LAW ON WANT OF PROSECUTION & SUMMARY DISPOSAL

10. Order 10 Rule 15, explicitly gives powers to this Court to dispose cases summarily and set out process involved in applying the principle of natural justice, which must be complied by the Assistant Registrar of the prescribed National Court before dismissing a case for want of prosecution or summarily disposing a matter. I quote the full rule for ease of reference:
    

“Order 10, Rule 15

(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 is issued by the Court in any of the listing processes.

4. Under any of the grounds relating to non-compliance with the National Court Rules or any other relevant rules of Court.
   

(3) Where the Registrar refers a matter for summary determination, the following procedure shall be followed:

1. A Notice in the form in Schedule “D” is issued by the Registrar which give notice to the parties if his intention to refer the matter to the judge for summary determination on the ground(s) stated in the letter. The letter will also give the parties thirty (30) days to respond and fix a return date and time for the matter to come before the judge. In appropriate case the Registrar may publish the notice letter in the media.
2. If the Registrar received a response, either in writing or verbal, he must place on the file the written response or a note of the verbal response and advise the parties to appear to court on the date fixed.

100. Upon expiry of 30 days’ the Registrar shall forward the file to the judge.

4. The judge may determine the proceedings summarily based on the response received and any further representations made by the parties in court or give such directions as may seem necessary for the future conduct of the proceedings.
5. If the parties are unrepresented, the Registrar shall draft the Court Order, enter it and forward sealed copies to the parties.
6. The file is closed and forward to Archive for storage.”
   

REASONS FOR RULING

11. There are two issues to solve to reach an appropriate ruling on this matter:
    
    • (i) Whether His Honour Frank J erred in making the conditional order?
      

(ii) Whether the Wewak National Court Assistant Register had complied to term 2 of the Listing Judge, Frank J’s conditional order, and correctly served the order accordingly on the applicant to attend this Court on the 24^th November 2021 at 9.30am and explain why his case should not be dismissed for Want of Prosecution.

12. Pertaining to the first issue, His honour Frank J, rightfully and correctly exercised his discretion pursuant to Order 10, Rule 15(1) & (2) in issuing the conditional order. This issue will be further expounded later in my ruling.
    
13. In relation to the second issue, the conditional order had been served on the applicant or the plaintiff. The terms of the conditional order 2 (a) & (b) above are to be complied by the Wewak National Court Assistant Registerer, as to serve the court order on the plaintiff within 7 days before 24^th November 2021.
    
14. The Wewak National Court Assistant Registrar, Mr. Fabian Yehilomo had correctly served the conditional order via the Plaintiff’s Wewak Post Office box with a cover letter dated 23^rd September 2021, informing Mr. Darius Penny and other plaintiffs who were issued similar conditional orders by the Court to appear at the Wewak National Court on the 24^th November 2021 at 9.00am. The Wewak Post Office received the letter and attached it with the order and delivered it accordingly to his last updated Post Office Box at Wewak. An officer of Wewak Post Office returned acknowledgement of service to the Wewak National Court Registry for filing.
    
15. This takes us back to the first issue on determining whether His Honour Justice Frank erred in making the conditional order. The Supreme court case of Kalang Advertising Limited v Visvanathan Kuppusamy (2008) SC924, sets clear guidelines of Law pursuant to Order 10 Rule 15(1) and (2).
    
16. In that case, the Supreme Court held that the appellant failed to appear before the Listing Judge of National Court, as such, the Court made conditional orders and adjourned the matter for appellant to comply. The appellant appeared on the day appointed and explained his reasons for non-appearance without filing a supporting affidavit, thus was consequently rejected by the listing judge. The court then struck out the defence and entered judgment against the defendant. The appellant appealed to the Supreme Court, arguing that the Judge erred in making both the conditional order and the order for summary judgment. The Supreme Court held, and I quote:
    
    1. The conditional order is proper exercise of judicial discretion.
       

(2) Order 10 Rule 15 of Listing Rule 2005 permits the National Court to summarily determine a matter on its own initiative if a party or their Lawyers fail to appear at a directional hearing.

(3) The Lawyer’s explanation for not appearing was not supported by affidavit and oral explanation was unsatisfactory, as such, did not suffice.

17. I further quote paragraph 14 and 15 of the judgment of Kalang Advertising Limited v Visvanathan Kuppusamy (2008) SC924 for further understanding on why the Appellant failed in this case, especially when a conditional order was issued as to give him ample time to provide explanation on his non-appearance and long delay to progress the matter:

“14. This means that the Listings Judge could have, on the day of the directions hearing, 11 May, made the orders that he actually made on 23^rd May. However, his Honour did not summarily determine the matter on 11 May. He gave the party that failed to appear, Kalang, a right to be heard, by making a conditional order, i.e., an order the terms of which were conditional upon the happening of some even in the future; the event being their failure to provide the explanation required by the Court. The order of 11 May was not a self-executing order, as it made provision for the exercise of a further judicial function later. The function being,; the determination of whether Kalang gave satisfactory explanation.

15. Conditional order of this nature are a proper exercise of judicial power (Baing and the State v PNG National Stevedores PTY Ltd and BSP Limited (2000) SC627). His Honour did not err in law on 11 May, by making the order on his own initiative; and we are satisfied that the failure of Kalangs’s lawyer to appear that day was a good enough reason to make the order.”

18. In light of the above cases, it is suffice to say, the conditional order by Frank J was correctly entered.
    
19. Order 10 Rule 15 (1, 2 &3), specifically states that this Court may summarily determine and dispose a matter on application by a party or one’s own initiative or upon referral by the Registrar.
    
20. Further, it is evident that the Applicant only filed the application and did not take any step to prosecute his claim against Boram Correctional Institution Services and the State. It appears he deliberately avoided pursuing this case because he had unlawfully escaped from Boram CIS imprisonment on his own will.
    
21. The applicants Counsel Mr. Alex Kana from Public Solicitors Office, Wewak, appeared four times in between 2019 and 2020, however, he did not appear on the 24^th November 2021, 9.30am, before me to provide reasons as to why this court should not dismiss this case for want of prosecution.
    
22. The Counsel for the Defendants, Mr. Enoch Manihambu appeared and asked this Honourable Court to dismiss this case for want of prosecution with costs. Mr. Manihambu has been faithfully attending most of those Court sittings since the commencement of this case.
    
23. The Plaintiff, who is now an escapee- prisoner of Boram Correctional Institute, has deliberately avoided attendance and will not appear in this Court to prosecute this case. I infer that he has already achieved the relief he sought in his application from this Court through unlawful means, thus is expected to continue hiding in his village in Maprik District, East Sepik Province for the rest of his life.
    
24. This court cannot continue to sit and adjourn continuously expecting the plaintiff/applicant will attend or appear in court to explain his reasons for non- appearance.
    
25. He did not appear in person since first sitting on the 9^th of March 2016. He did not even have the courtesy to instruct his Counsel to file discontinuance of the application. The long delay by the applicant is inexcusable. The law in relation to long delay in prosecuting a claim is clearly enunciated in numerous cases such as Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133, Umbu Waink & Anor v Motor Vehicles Insurance Trust and the State [1997] PGNC 98;N1630, and also in the case of Serevo v Bahafo [2001] PGNC 122;N2078. The principles derived from these have been summarised by His Honour Justice Cannings in the Niale v Sepik Coffee Producers Ltd [2004] PGNC 125 N2637, as follows:
    
    1. The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim.
    2. There is no reasonable explanation given by the plaintiff for the delay;
3. The delay has caused injustice or prejudice to the Defendant;
4. The conduct of the parties and their Lawyers warrants;
5. It is in the interests of justice.
   
26. Taking into account the above, and the continual adjournments which has accumulated cost and time not only on the Defendants, but also this Court; this case is bound to be dismissed for want of prosecution to preserve the interest of justice.
    
27. Accordingly, I dismiss this case for want of prosecution and non-compliance of conditional orders made by this Honourable Court of Justice.
    
28. The formal orders of this Court are:
    
    1. The Defendant’s application to dismiss this matter for Want of Prosecution is granted.
    2. The matter is dismissed for want of prosecution.
    3. The Plaintiff shall pay the cost of the Defendant to be taxed, if not agreed.
       

No appearance: Lawyer for the Plaintiff
Office of the Public Solicitor: Lawyer for the Defendants (Respondents)