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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 OF SOUTH PACIFIC LIMITED formally trading as PAPUA NEW GUINEA BANKING CORPORATION
First Defendant
AND
PORT MORESBY RUGBY LEAGUE INC.
Second Defendant
Waigani: Anis J
2022: 11th & 14th November
NOTICE OF MOTION X2 – application seeking to adjourn hearing – Order 10 Rule 9A(13) – National Court Rules – application seeking to summarily dismiss the entire proceedings – Order 10 Rule 9A (15)(1)(a) and (2)(a) and (c) – National Court Rules - discretion – considerations – ruling
Cases Cited:
Golobadana No. 35 Limited v BSP and Port Moresby Rugby League Inc - WS No. 1701 and WS No. 348 of 2003 (Consolidated) (2022) N9493
OK Tedi Mining Ltd v Niugini Insurance Corporation (No 1) [1988-89] PNGLR 355
PNG Deep Sea Fishing v Hon Luke Critten & Ors (2013) SC1126
Counsel:
W Bigi, for the Plaintiffs
M Tusais, for the First Defendants
DECISION
14th November, 2022
1. ANIS J: On 11 November 2022, I heard two applications, one was by the plaintiffs in both proceedings (plaintiff) to adjourn the hearing of the matters (matter), and the second was by the first defendants in both proceedings (first defendant) to dismiss the proceedings for want of prosecution. After the hearing, I reserved my ruling to today at 9:30am.
2. This is my ruling
BACKGROUND
3. The background of the matter is stated at [3] and [4] in my earlier decision in WS No. 1701 and WS No. 348 of 2003 (Consolidated) – Golobadana No. 35 Limited v BSP and Port Moresby Rugby League Inc (2022) N9493 as follows:
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.
STATUS
4. On 8 September 2022, the matter was set down for trial by consent for 2 days commencing at 9:30am on Monday 14 November 2022, which is today. The plaintiff had indicated then that it wanted to file an additional affidavit. As such, an additional order was made, and I quote, The plaintiff to file and serve any additional affidavits that they intend to rely on at trial before or by Thursday 22 September 2022.
5. However, recently on 9 November 2022, the first defendant urgently requested for the matter to be relisted for directions. The matter was relisted for directions the next day at 9:30am on Thursday 10 November 2022. On that day, the first defendant informed the Court that the plaintiff had, in short notice, served on it a notice to cross-examine one of its witnesses who was based overseas in New Zealand. The first defendant then requested for an order that the hearing be conducted via video link to enable its witness to be cross-examined by the plaintiff. The situation was confirmed by counsel for the plaintiff. Orders were then made to accommodate this, that is, I ordered the trial to be conducted in court room no. 9 via video link. Orders were also directed at the Court IT personnel to assist with the preparations for the use of the video link facility.
6. Before the matter could be adjourned, the plaintiff also brought to the Court’s attention that it had filed a notice of motion and the plaintiff requested that the said motion should be heard as an urgent matter. The notice of motion was filed on 9 November 2022 (plaintiff’s NoM). The motion seeks to adjourn the trial dates set for 14 & 15 November 2022 to a direction hearing date for allocation of new trial dates. The first defendant in response, also informed the Court that it had filed a cross-motion to summarily dismiss the proceeding for want of prosecution. The first defendant’s notice of motion was filed on 10 November 2022 (first defendant’s NoM).
7. I then issued orders for the 2 notices of motion to be set down for hearing on the next day which was on Friday 11 November 2022.
APPLICATIONS
8. Term 1 of the plaintiff’s NoM reads:
“Pursuant to Order 10 Rule 9A(13) of the National Court Rules, leave be granted for the trial of this proceeding on 14 November 2022 be adjourned to the next available directions hearing date for a new date to be given.”
9. Term 1 the first defendant’s NoM reads:
“That pursuant to Order 10 Rule 9A(15)(1)(a) and (2)(a)(b) & (c) of the National Court Rules, and under the inherent jurisdiction of the Court, the consolidated proceedings be dismissed for want of prosecution.”
SOURCES
10. The cited source in the plaintiff’s NoM, namely, Order 9 Rule 10A(13) of the NCR states:
“13. ADJOURNMENTS.
(1) A trial once fixed shall not be adjourned except by leave of the Court upon sufficient cause being shown.
(2) Where the Court decides to adjourn the trial, it shall be adjourned to a fixed date within the circuit month or to the earliest available Directions Hearing or Pre-trial conference as the trial judge may consider appropriate.” [Underlining mine]
11. And as for the first defendant’s NoM, its cited source is Order 10 Rule 9A(15)(1)(a) and (2)(a)(b) & (c) of the NCR, which states:
“15. SUMMARY DISPOSAL.
(1) The Court may summarily determine a matter:
......
(2) The Court may summarily dispose of a matter in the following situations:
12. The first defendant has abandoned ground (b) under sub-rule (2) so I will not consider that for this purpose.
13. Both parties did not take issue with the sources, and as such, I will proceed on that basis. But regardless, I find them to be in order.
ISSUES
14. The main issues in my view are, (i), whether the plaintiff has established sufficient cause to warrant the Court to adjourn the hearing dates, (ii), if not, whether the plaintiff is actually ready for hearing, and (iii), subject to the above, whether the matter should be summarily dismissed for want of prosecution.
SUFFICIENT CAUSE
15. I refer to the case law. The relevant authority for this purpose, in my view, is the case of OK Tedi Mining Ltd v Niugini Insurance Corporation (No 1) [1988-89] PNGLR 355. Kapi DCJ, as he then was, stated:
“It is clear from the common law principles as well as from O 10, r 11, of the National Court Rules that this Court has jurisdiction to grant or refuse the applications for adjournment. No local authorities have been cited. I take the law to be applicable in this area as set out in O 10, r 11, of the National Court Rules. The common law cases are helpful in the interpretation and in the application of the terms of this rule. I simply set out the common law cases as a reference to the sources of common law: Halsbury's Laws of England (4th ed), vol 37, par 508 at 384-385, Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32, Watson v Watson (1968) 70 SR (NSW) 203 and Walker v Walker [1967] 1 WLR 327.
The principles that may be applied under O 10, r 11, may be stated as follows. Where a date has been fixed well ahead of time, the matter should proceed on that date. The reason is obvious: all parties would make arrangements towards the commencement of the trial on that date. Therefore, the onus is on the applicant to show why an adjournment should be granted. Or, to put the matter differently, the applicant must show why a refusal to adjourn would result in injustice to him. In considering the interest of the applicant, the court must also weigh the interest of the respondent. The question arises whether to grant an adjournment would result in injustice to the respondent. The applicant must show actual prejudice and not merely speculative prejudice. That is to say, the applicant must demonstrate from evidence the nature of the prejudice. A party whose interest may be prejudiced by the trial going ahead on the date of the hearing must make the application for adjournment promptly. This is important not only or the opposing party but also important for the court to readjust its calendar should the application be successful.”
16. These considerations were also stated by the Supreme Court in PNG Deep Sea Fishing v Hon Luke Critten & Ors (2013) SC1126.
17. The plaintiff’s reason for seeking adjournment of the trial is this. Counsel submits that their brief out counsel Mr Leahy had indicated at the very last minute that he would not be appearing at the trial. Mr Bigi relies on 2 affidavits that he filed in support of the plaintiff’s NoM, that is, the first filed on 9 November 2022 and the second filed on 10 November 2022. The plaintiff’s evidence on point is this. After the matter was set down for trial, the plaintiff inquired with counsel Ian Molloy to brief counsel to appear. Mr Molloy, according to Mr Bigi, informed them that he would not be available in November. The plaintiff then, according to Mr Bigi, briefed out Herman Leahy to act as counsel in the matter. On 9 November 2022, upon being advised by Mr Leahy that he would not act, the plaintiff notified the first defendant and filed their application.
18. I note the submissions from the parties.
19. I make these observations. Firstly, I note that the matter has been fixed for hearing on 8 September 2022, for 2 days from 14 November 2022 to 15 November 2022. If I compute time, the trial date was set 2 months and 6 days ago. For this reason alone, case law dictates that the trial date should proceed as scheduled without any adjournment given the ample time that had been allowed for the parties to prepare. This brings me to the question of sufficient cause within the requirement of Order 9 Rule 10A(13) of the NCR. Was sufficient cause shown by the plaintiff that should warrant me to exercise my discretion? To answer that, I note the following factors:
(1) I observe that the plaintiff should be the one giving evidence on this serious matter or request and not its lawyers;
(2) I observe that, except for what is deposed by Mr Bigi, there is no correspondence of request been made to Mr Molloy to engage his services that are adduced in evidence; there is also nothing to say when the request was made and when Mr Molloy had declined;
(3) I observe that, except for cut and paste copies of what’s up text messages, there is also no evidence of formal correspondence or email requests that had been made to Mr Leahy to engage his services;
(4) Also, and most revealing is this. The what’s up messages of purported engagement requests made to Mr Leahy occurred as of 8 November 2022, that is, 4 working days before the trial date which is set for the 14th of November 2022;
(5) Further, I observe in the what’s up messages of 8 November 2022 that, as of that time, Mr Leahy was waiting for instructions or confirmation of instructions from the plaintiff’s Arthur Smedly;
(6) And on 9 November 2022, Mr Leahy informed Mr Bigi that he will not act because his schedule was fully booked for the balance of the year;
(7) Then on 10 November 2022, Mr Leahy further informed Mr Bigi that he had conflict of interest and therefore would not act for the plaintiff.
20. The main argument by the plaintiff is premised on briefing counsel ‘pulling out’ at the last minute. However, evidence shows that Mr Leahy was asked to act as at 8 November 2022. Even at that time, he had not been formally engaged by the plaintiff’s Mr Smedly. But then on 9 November 2022, Mr Leahy informed Mr Bigi that he was fully committed and could not act in the matter.
21. My views are as follows. The plaintiff had more than 2 months to prepare for trial. The plaintiff has lawyers acting for it. They have been its lawyers for many years in regard to the matter and are well vested with it. So, representation is not an issue. Engagement of brief outs is an internal or private matter for the plaintiff. A party may engage as many or less lawyers as it may please including brief outs, which is not for the Court or anyone to say. However, whilst I acknowledge this, they are irrelevant in my view. Again, I say this because the plaintiff is represented and is fully well aware of the trial dates. The plaintiff has lawyers acting for it at all material times. What the plaintiff is attempting to do is to dictate or subject the Court to its internal dealings with its brief outs or perhaps its internal preference of lawyers. That is a path which I will not go down to or take.
22. The matter has been set down by both counsel 2 months and 6 days ago. The parties have had ample time to prepare with legal counsel acting for them. Internal brief-outs in practice are obtained prior to a matter being set down for hearing. In the present case, the evidence shows that the plaintiff had attempted to brief out the matter at the very last minute. I reject Mr Bigi’s evidence that his client had attempted to brief Mr Molloy to appear. There is nothing to support this evidence or claim by Mr Bigi, either by himself or his client with supportive documentations. The actions of Mr Bigi and his client are unacceptable and, with respect, show gross incompetence on their path. The plaintiff’s action also attempts to dictate to the Court to conform to its internal preference of lawyers when the Court already knows that both parties have lawyers who act for them in the matter. Perhaps most importantly, the plaintiff does not adduce evidence to say why it prefers external lawyers, or evidence to say why its present lawyers are incapable of dealing with the matter; or of the complexity of the case and why it would therefore require a special counsel other than its lawyers who have been acting for it for all these years, to act at the trial of the matter.
23. The next question I ask is this. Will the refusal to adjourn cause prejudice or injustice to the plaintiff? I repeat the same reason I give above herein. The plaintiff has been represented all the time. Mr Bigi or Henaos Lawyers has always been the lawyer on record. And there is no evidence at all adduced by the plaintiff to say why its present lawyers are incapable of acting for them. It appears clearly to be a matter of choice, but this is presented as submission by counsel and not directly from the plaintiff. And again, brief-outs are internal decisions that a party may make which is beyond the control of the Court. However, when such a decision is made whether it be at a last minute or otherwise, it should not be a valid reason to stop a hearing especially when the matter is fixed for trial well in advance or in good time and where the parties continue to have lawyers acting for them.
24. I do not find any prejudice or injustice that may be caused to the plaintiff based on its stated reason (i.e., briefed out counsel not available) if I refuse to grant the adjournment. The plaintiff has always had and continues to have capable lawyers acting for it in the matter.
25. Did the plaintiff make the application for adjournment promptly? The application was filed within 2 working days before the trial date. I will repeat the reasons I give above. The plaintiff already has lawyers acting for it. Its internal decision to brief out counsel was a personal matter, and it should have been sought before the hearing dates were secured which is the practice. However, it seems that such was ignored by the plaintiff. In fact, the issue of whether the plaintiff had applied promptly does not apply because of the mere fact that the plaintiff is represented and in the normal course, its lawyers are expected to act for it at the hearing. If the plaintiff’s lawyers knew that they would not be acting at the trial, then steps should have been taken earlier to ensure that whoever is acting is briefed out either before the matter is set down for trial or immediately after that. The evidence that have been adduced herein have shown otherwise.
26. Before I make any final ruling on the plaintiff’s NoM, I wish to deal with this next issued.
WHETHER THE PLAINTIFF IS READY FOR TRIAL
27. I turn to the second issue and ask myself this. Is the plaintiff ready for trial in the matter?
28. I had posed this question directly to Mr Bigi, and counsel responded that the plaintiff was not ready for trial. The primary reason given is that the plaintiff prefers to brief out external lawyers or a lawyer other than Henaos Lawyers, to attend to the actual trial of the matter. I follow counsel on that; that lawyers can only act upon instructions so I can understand Mr Bigi’s position.
29. But I remind myself as I have found earlier that the plaintiff does not give any direct evidence to say why Mr Bigi or Henaos Lawyers are incapable of acting for it in the matter. In the absence of that, I find that the plaintiff has competent lawyers who are able to act for it in the matter. Again, the plaintiff’s preference is noted but as I have stated above, it cannot dictate or be a good reason for an adjournment or to say that the matter is not ready. It therefore can be regarded as a baseless reason to use to seek an adjournment or say that the matter is not ready to be heard.
30. There is another reason that is obvious to say why the plaintiff is not ready for the trial on 14 and 15 November 2022. The plaintiff has expressly admitted in its evidence, as deposed to by Mr Bigi, that its witnesses will not be available to give evidence on the 14th or the 15th of November 2022.
31. In summary, I find that the plaintiff is not ready for trial for this matter thus is asking for an adjournment.
WHETHER THE MATTER SHOULD BE SUMMARILY DISMISSED
32. I turn to the final issue, which is this. Whether I should exercise my discretionary or inherent jurisdiction and summarily dismiss the matter.
33. I note the submissions of the parties on this matter.
34. The first basis argued by the first defendants is want of prosecution. I would uphold this ground based on my findings in rejecting the reasons for an adjournment as sought by the plaintiff. Failure to prosecute the matter by being not ready for the trial when the matter was set down for trial more than 2 months ago, in my view, constitutes want of prosecution.
35. The second reason is this. This matter is more than 20 years old. This fact alone is very significant and cannot be ignored. To me, such delay is gross and must not be condoned by the Court with continued delays or adjournments. I note that recently as 17 March 2022, I refused to summarily dismiss the matter despite failure by the plaintiff to adhere to Court directions. The Court’s power in that instance and here, is discretionary. On 17 March 2022, I decided not to shut out the plaintiff from pursuing its claims. This discretion, however, and in my view, may not be exercised in favour of the plaintiff at this time. A main consideration given earlier was the long delay itself of 20 years and I had considered that it would be prudent that the matter should not be dismissed but rather should be progressed to trial without further delays. And now, when the matter is finally set down for trial, the plaintiff is not ready. I refer to Mr Bigi’s affidavits, and Shirley Charlie’s affidavit (filed on 10 November 2022). These evidence show that the plaintiff wanted more time to file additional affidavits. This was despite the fact that at the time when the matter was set down for hearing on 8 September 2022, the Court had ordered for the filing of additional affidavits before or by 22 September 2022. I also take into account the first defendants’ other supporting affidavit, which is the affidavit of Ms Tusais filed on 4 March 2022, which points to the history and delay of the matter.
36. The first defendant’s second reason is this. It submits the plaintiff has failed to comply with Court issued directions or orders. I note the submissions of the parties. However, I have no difficulty in upholding the submission of the first defendant. This Court has set down the matter for trial on 8 September 2022. Given my findings above in refusing to allow adjournment of the trial, what it means is that the plaintiff has failed to or has breached the terms of the Court Order of 8 September 2022 in getting ready for trial. Term 2 of the Court Order of 8 September 2022 required the plaintiff to file any further affidavits before or by 22 September 2022. Evidence adduced, and in particular at annexure SC1 to Ms Shirly Charlie’s affidavit, shows that the plaintiff was already in breach of term 2 of the Court Order of 8 September 2022 and counsel Mr Bigi had indicated his client’s intention to apply to the Court to seek an extension of the said order to allow his client to file additional affidavits.
37. Finally, I note that the delay has caused prejudice to the first defendant. Despite that, the first defendant is ready for hearing. Even at the very last minute when it had received notice to cross-examine one of its witnesses who is based in New Zealand, it had applied for and on 10 November 2022, the Court granted permission for the said witness to be available for cross-examination by video link and for the trial to be conducted in Court room 9.
38. However, given the situation of the plaintiff, the trial cannot now proceed.
SUMMARY
39. In summary, I refuse the plaintiff’s NoM and in so doing, I grant the first defendant’s NoM. These proceedings must be dismissed in their entirety with costs.
COST
40. An order for cost is discretionary. I am minded to award cost on a party/party basis to be taxed if not agreed. I refuse to order cost on a solicitor/client basis. The matter has a very long history. It could have been handled differently or efficiently by the parties. Whatever the reasons were, it has come to this.
ORDERS OF THE COURT
41. I make the following orders:
The Court orders accordingly
________________________________________________________________
Henaos Lawyers: Lawyers for the Plaintiff
Dentons Lawyers: Lawyers for the Defendants
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