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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1701 OF 2001 & WS NO. 384 OF 2003
(Consolidated)
BETWEEN:
GOLOBADANA NO. 35 LIMITED
Plaintiff
V
BANK SOUTH PACIFIC LIMITED formerly trading as PAPUA NEW GUINEA BANKING CORPORATION
First Defendant
AND:
PORT MORESBY RUGBY LEAGUE INC
Second Defendant
Waigani: Anis J
2022: 11th & 17th March
SUMMARY DETERMINATION – Referral upon request by party and by the Court pursuant to Order 10 Rule 9A(15)(1)(a) & (b) and (2) – National Court Rules – whether explanation by plaintiff’s counsel sufficient – if not, whether the Court should exercise its discretion and summarily determine the matter – other considerations including interest of justice – whether court should only consider explanation for non-attendance by lawyer or whether plaintiff should answer to all the grounds under Order 10 Rule 9A(15)(2) of the National Court Rules – revisiting the earlier directions - exercise of discretion
Cases Cited:
Aisi Luma Bore v. Clement Malaisa (2013) N5274
Telikom PNG Ltd v. ICCC (2008) SC906
Counsel:
W. Bigi, for the Plaintiff in both matters
M. Tusais, for the First Defendant in both matters
RULING
17th March, 2022
1. ANIS J: I heard submissions from the parties on 11 March 2022 and reserved my ruling. This was after I had on 17 February 2022 ordered the plaintiff to appear and show cause why the matter should not be summarily dismissed pursuant to Order 10 Rule 9A(15)(1)(a) & (b) and (2) of the National Court Rules (NCR).
2. This is my ruling.
BACKGROUND
3. The consolidated claims are about 20 years old and have a very long history. But in summary, the first defendant provided financial assistance to the second defendant. The second defendant, in return, mortgaged its property to the first defendant as security. The property is described as allotment 1, section 97, Boroko, NCD (property). The plaintiff was later engaged by the first defendant to manage the property on its behalf on 1 July 1999, that is, after or upon default by the second defendant to the loan facility. Shortly after that or on 31 July 1999, the first defendant and the plaintiff entered into a commercial lease agreement whereby part of the property was leased to the plaintiff. The relationship between the first defendant and the plaintiff later turned sour, and the 2 proceedings stem from these arrangements.
4. But briefly, in WS 1701 of 2001, the plaintiff is seeking declaratory orders, injunctions against the first defendant from terminating the management agreement and selling the property, damages for costs of maintenance and improvements to the leased part of the property (described as Clubhouse), and loss of profits and revenue in regard to these 2 arrangements that it had had with the first defendant. In WS 384 of 2003, the plaintiff is seeking fees which it claims were owed to it by the first defendant for services that were rendered under the management agreement of 1 July 1999. The first defendant has filed a defence and crossclaim in response.
5. The proceedings remain pending at this time.
REFFERAL UNDER ORDER 10 RULE 9A(15)(1)(2)
6. The matter returned to Court for Directions Hearing on 17 February 2022. Counsel for the plaintiff failed to appear on that day. Upon request by the first defendant and on the Court’s own volition, the matter was adjourned to 1:30pm on 11 March 2022 and listed for summary determination. I also issued this order, The plaintiff to show cause by filing evidence to say why these matters should not be summarily determined Under Order 10 Rule 9A(15)(1)(a) & (b) and (2) of the National Court Rules.
7. The exact term of the said order was somewhat confusing because the file endorsement showed or included sub-rules (2)(a) & (b) of Order 10 Rule 9A(15). Ms Tusais in response submitted that according to her notes, the order did not include sub-paragraphs (a) & (b) of subrule (2) but rather that the orders only referred to sub-rule (2) in general, so the final reference to the rules by the Court, Ms Tusais submitted, were Order 10 Rule 9A(15)(1)(a)(b) and (2). That had caused me to consult with my handwritten notes in my Judicial Notebook of the hearing of 17 February 2022. My notes concurred with Ms Tusais’s submission on the point of concern. With that clarified, I then proceeded to hear submissions from the parties.
ISSUES
8. The main issues, in my view, are (i), whether the plaintiff was only required to give his reasons for his failure in not appearing in Court on 17 February 2022 (preliminary), (ii), if so, (ii), whether counsel has given a good or satisfactory reason for his non-attendance, (iii), if not, whether the Court should exercise its discretion and dismiss the matter, or whether other considerations should also be taken into account on whether to summarily dismiss the proceeding.
PURPOSE OF REFERRAL FOR SUMMARY DETERMINATION
9. The first defendant made submissions supporting that the matter should be summarily dismissed. Counsel, in her submissions, covered most of the grounds under sub-rule 2 of Order 10 Rule 9A(15). Counsel submitted that as it was a general referral under the said sub-rule without any specific references to the sub-clauses, the Court should hear all the arguments and make a determination whether to summarily dismiss the proceeding. Counsel submitted that her request for the referral was also based on delay generally and want of compliances by the plaintiff of the earlier Court directions which included failure to settle on a revised statement of agreed and disputed facts and legal issues.
10. Mr Bigi submits to the contrary. Counsel submits that he was of the view that the matter was referred to for summary determination only on the basis that he would appear and provide his explanation as to why he was not present in Court on 17 February 2022. He submits that he is present now and has filed his evidence to do just that. Counsel submits that it would be unfair on his part for the Court to also question him on the other matters including earlier directional orders that had been issued last year. He suggests that these may be addressed at a different time but not at present.
11. I have heard arguments for and against on this issue. In consideration, I note the following. The matter returned for further directions on 17 February 2022 as per the Court’s earlier order of 12 November 2021. Both counsel were present on 12 November 2021 when directional orders were issued. The directions were in relation to settling and filing of a statement of agreed and disputed facts and legal issue and settling and filing of a pleadings book. Parties were to attend Court on 17 February 2022 and, amongst other things, report on whether the directional orders have been complied with. However, because the plaintiff’s counsel was not present, the directional hearing could not proceed, and instead, the matter was referred to summary determination. The plaintiff was ordered to appear to explain itself. The first defendant submitted inactions and failures, on the part of the plaintiff to progress the matter to trial as well as adhere to the earlier directions. Counsel has also made submissions in relation to the long delay of the matter and why it should be summarily dismissed. I acknowledge the detailed written submission of the first defendant.
12. In my view, the logical way forward, even if I am minded to consider the full argument of the first defendant, would be to firstly, consider the explanation given by Mr Bigi for his non-appearance in Court on 17 February 2022. In my view and from recollection, that was the primary reason why the matter was referred to for summary determination. If I am not satisfied and accept the first defendant’s submissions on the issue, that will be the end of the matter. If I am satisfied, then the next leg would be to conduct a directions hearing to deal with issues such as whether earlier directional orders have been complied with; who was at fault for want of compliance, etc. If a party believes that there is failure by the other side, then that party of course may be at liberty to file an application to address that.
13. For these reasons and for the purpose of the present referral, I am minded to and will only address my mind to and give my ruling on the reason given by counsel for the plaintiff for his failure to appear in Court on 17 February 2022.
EXPLANATION
14. Mr Bigi has filed an affidavit in response. It was filed on 9 March 2022. Mr Bigi does not dispute the background facts and events that have led to the date of the last directional hearing on 12 November 2021. These background facts and information are explained in evidence that were adduced by the first defendant. But for the present purpose, the relevant part of the affidavit of Mr Bigi, begins at paragraph 6 to paragraph 8, where counsel states:
15. I have considered the parties’ submissions on whether the reasons provided were sufficient. Let me remind myself that Mr Bigi was present on 12 November 2021 when I issued the directions which were consented to by the parties. Term 2 of the said directional order reads, The matter is adjourned to 9:30am on Thursday 17 February 2022 for further directions. That is the relevant order that was breached which requires an answer from the plaintiff. I note that I have already made my decision in regard to the other directional orders of 12 November 2021, that is, that they may be raised after the Court considers and determines the reason for non-attendance by counsel Mr Bigi.
16. The case law which I believe is relevant and should be sufficient for this purpose, is Aisi Luma Bore v. Clement Malaisa (2013) N5274. This was a judicial review matter. The 4th defendant applied for summary determination of the matter based on want of compliance with Court directions. Justice Cannings, who presided over the matter, held in part:
(1) The first issue to determine is whether there has been a failure to comply with the Court’s directions.
(2) If there has been a failure to comply, the court has a discretion to exercise. It is not obliged to summarily determine the proceedings. Relevant considerations to take into account are: the nature and extent of the failure to comply, whether there is a good explanation for the failure to comply, the conduct of the proceedings, whether the interests of justice favour summary dismissal.
17. In the present case, it is not disputed that counsel for the plaintiff failed to comply with term 2 of the Court’s direction of 12 November 2021, that is, he failed to appear in Court on 17 February 2022. I will move to the second consideration, and in so doing, ask myself this. Is the explanation given by counsel a good explanation? I think the straight answer to that is “no, it is not a good explanation”. It appears or show carelessness on the part of counsel. Counsel, it seems, had exercised lack of due care and attention towards his diary and Court schedules thus resulted in him failing to appear in Court on 17 February 2022. I move on to consider the nature and extent of the failure to comply. It may be odd but must say that I should give credit where it is due or demonstrated. In this case, I refer to Mr Bigi’s affidavit. I must say that counsel appeared honest and upfront about his action or mistake. Apart from his reason, he also states that it was an honest mistake, and also that he was embarrassed by his actions when he was alerted by counsel for the first defendant of his non-appearance in Court on 17 February 2022. Counsel also deposes in his affidavit that his failure to appear in Court on 17 February 2022 was not deliberate or was an exercise intended to delay the prosecution of this proceeding. I find these as honest admissions and explanations provided by counsel for the plaintiff.
18. The next consideration is conduct of the proceedings. As stated, the proceedings are about 20 years old. They have reached the Supreme Courts twice in the past. The plaintiff has succeeded on both occasions before the Supreme Court. The relevant background for these is sufficiently covered in the affidavits filed by the first defendant, which are the affidavits of Maryanne Tusais and Asher Waffi, both filed on 4 March 2022. The second Supreme Court decision was handed down on 2 October 2020. So, despite these delays, the plaintiff, by its actions, appears very determine to have its day in Court in regard to the substantive matter. I will not say much or anything further here because if I do, I will open up arguments on who is at fault for the length of the delay or in meeting other directional orders, which would be contrary to what I have ruled above, which is to limit myself and only hear and make a determination on the reasons given by counsel for the plaintiff for not turning up in Court on 17 February 2022.
19. The final consideration is interest of justice. I ask myself this. Does interest of justice favour requiring the matter to be summarily determined? Based on the above considerations, I would answer in the negative. In my view, to summarily dismiss these matters now in a case where the plaintiff has fought for, for over 20 years, would be outright unjust and wrong. The level of punishment the Court will impose, in my view, would be harsh, substantive, and disproportionate to the fault that is committed by the plaintiff, or should I say by its lawyers. And I also take into account the fact that there are less severe punishments that may be imposed such as an order for cost against a defaulting party. In the present case, Mr Bigi has also indicated an order for cost, as a form of punishment, that is, instead of dismissing the entire proceedings.
20. In concluding, I would adopt and echo the Supreme Court’s view and caution, that is, in a situation where a judge is considering interest of justice in a case where one seeks to summarily dismiss a proceeding. Injia DCJ, as he then was, in his dissenting decision but in discussing the principle, stated at para 9 in Telikom PNG Ltd v. ICCC (2008) SC906:
9. The trial Court’s decision in an application to dismiss the proceedings on procedural grounds is an exercise of judicial discretion. Whilst this Court in cases before it has recognized the importance of protecting its process from abuse by parties and upheld dismissal of actions for this reason alone, it has also cautioned against rushing to judgment and dismissing proceedings without carefully considering the interest of justice in ensuring that parties are not disadvantaged or prevented from pursuing their rights in the matter. This Court has said that the discretion in favour of summarily dismissing a proceeding for non-compliance with procedural rules should be exercised with restraint, sparingly and in clear cases where good reasons are shown to exist: Niugini Mining Ltd v Joe Bumbandy SC 804 (2005); POSF v Silas Imanakuan (2000) SC 677, PNG Forest Products Ltd v The State [1992] PNGLR 85.
EXERCISE OF DISCRETION
21 When I weigh all these considerations, I must say that I am not inclined to exercise my discretion to summarily dismiss or determine the matter. Instead, I will issue directions for the matter to return on a given date and time for the parties to come prepared to set the matter down for hearing. The directions will include filing of additional affidavits and settling of the draft statement of agreed and disputed facts and legal issues.
COST
22. An award of cost herein is discretionary.
23. I have heard submissions from both counsel on this. I am inclined to award cost against Mr Bigi’s firm Henaos Lawyers. Cost of the application will be paid by the said law firm on a party/party basis which may be taxed if not agreed.
ORDERS OF THE COURT
24. I make the following orders:
The Court orders accordingly
________________________________________________________________
Henaos Lawyers: Lawyer for the Plaintiffs
Dentons PNG: Lawyer for the First Defendants
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