Magellan Properties Ltd v Tkatchenko [2022] PGNC 130; N9580 (14 February 2022)

N9580

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 692 OF 2018

BETWEEN:
MAGELLAN PROPERTIES LIMITED
Plaintiff

AND:
HON. JUSTIN TKATCHENKO BEM OL, MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Third Defendant

Waigani: Dingake J
2022: 14^th February

PRACTICE AND PROCEDURE: Dismissal of Proceedings for want of Prosecution on account of absence of a party National Court Rules, Order 12 Rule 8(3).

Cases Cited:

Roselyn Inugu v Richard Maru (2019) SC1873
National Superannuation Fund Ltd v Yawenaik Holdings Ltd [2018] PGSC 57

COUNSEL:

Mr. Bill Frizzell, for the Plaintiff
No Appearance for Defenfdants

14^th February, 2022

1. DINGAKE J: INTRODUCTION: This is my ruling with respect to the Notice of Motion filed by the Plaintiff on the 1^st of April, 2022, praying that the Court should set aside Orders made on the 14^th of March, 2022 dismissing these proceedings for want of prosecution in the absence of a party.
   
2. The application is made pursuant to Order 12 Rule 8(3) (a) or (b) of the National Court Rules.
   
3. When the application was moved the Respondents were not in attendance notwithstanding having been duly served.
   
4. Learned Counsel for the Plaintiff, Mr. Bill Frizzell, informed the Court that the Third Respondent does not object to the granting of the Orders being sought.

Background Facts

5. The brief background facts are that on the 14^th of February, 2022, this matter was set down for directions hearing on the 14^th of March, 2022, in the presence of Counsel for the Plaintiff.
   
6. When the matter was called for hearing on the 14^th of March, 2022, there was no appearance for the Plaintiff and the matter was accordingly dismissed for want of prosecution.
   
7. The Affidavit of Joan Goava deposed in support of this application explains the reasons why there was no appearance for the Plaintiff on the 14^th of March, 2022.
   
8. In brief, it would appear that this matter was not in the list published from the National Court website listing. It subsequently, appeared in the amended list which the Plaintiff’s representative did not see on that day. The Plaintiff’s representative, John Gova, who had instructions from Mr. Frizzell to appear on his behalf on the 14^th March, 2022, believing the matter was not on the list proceeded to attend other matters.
   
9. The record suggest that the plaintiff has always attended Court scheduled hearings and diligently prosecuted this matter prior to the 14^th March, 2022.
   
10. Given the record of the Plaintiff aforesaid and the reasons why the Plaintiff’s representative was absent on the 14^th March, 2022, it seems clear that the none appearance was on account of confusing listing and not on account of any fault of the Plaintiff.
    
11. In the circumstances, the reasons advanced by the Plaintiff for non-appearance on the 14^th March, 2022 are reasonable and acceptable.

The Issue

12. The issue that this Court has to determine, is whether it can set aside the Orders made on 14^th March, 2022, dismissing the proceedings for want of prosecution in the absence of the Plaintiff’s representative and or the Plaintiff.

The Law

13. The question whether this Court can set aside an Order dismissing proceedings for want of prosecution seems to be governed by Order 12 Rule 8(3) (a) and (b) for the National Court Rules.
    
14. Order 12 Rule 8(3) (a) and (b) of the NCR provides that:

“(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 (emphasis mine).

(b) where notice of motion for the setting aside or variation is filed before entry of the order.”

15. Although there does not seem to be consensus on whether this Court can set aside an Order dismissing proceedings for want or prosecution, made in the absence of a party, there is a plethora of Supreme Court authorities of respectable lineage that have held that Order 12 Rule 8 (3) empowers the Court to do so. (Roselyn Inugu v Richard Maru (2019) SC1873; National Superannuation Fund Ltd v Yawenaik Holdings Ltd (2018) PGSC 57).
    
16. Having regard to the terms of Order 12 Rule 8(3) (a) of NCR, reproduced earlier, and the authorities cited above, I am satisfied that this Court has jurisdiction to set aside the Orders this Court made on the 14^th March 2022, if satisfied, as indeed I am, that the Plaintiff has shown good cause for same to be set aside.
17. In the result:
    • (a) The Orders made on the 14^th of March, 2022 dismissing these proceedings for want of Prosecution in the absence of a party are hereby set aside.
    • (b) The date for the substantive review by this Court, shall be scheduled or set on the 2^nd of May, 2022 at 9:30am.

_______________________________________________________________

Warner Shand Lawyers: Lawyers for the Plaintiff
Lawyers for the Defendant: No Appearance