Ibali v Fleming [2023] PGNC 207; N10289 (6 June 2023)

N10289

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 221 OF 2022 (IECM)

BETWEEN
JOHN IBALI
First Plaintiff

AND
OUTSIDE MINE IMPACTED AREA ASSOCIATION INC
Second Plaintiff

AND
ROBIN FLEMING - CHIEF EXECUTIVE OFFICER
First Defendant

AND
BANK OF SOUTH PACIFIC FINANCIAL GROUP LIMITED
Second Defendant

Waigani: Linge AJ
2023: 29^th May

PRACTICE AND PROCEDURE – Failure by plaintiff to prosecute its case power of Court to control its proceeding – dismissal for want of prosecution.

Cases Cited:
Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PGNC 39

Counsel:
No appearance
Ms. Hillary Masiria, for the First & Second Defendants

RULING

6^th June, 2023

1. LINGE AJ: On the 28 October 2022 the plaintiffs filed their Originating Summons seeking orders and declarations. Also filed on the 28 October 2022 were the Notice of Motion and supporting Affidavit.
   
2. On the 12 December 2022 I dismissed the Notice of Motion for failure to prosecute within one (1) month after filing pursuant to Order 4 Rule 49 (17) of the Motion (Amendment) Rules 2005.
   
3. Proceeding was then adjourned to 7 February 2023 for direction and listing which did not take place due to unavailability of a judge and matter was adjourned to 19 May 2023 for mention. Directions was given to the defendant who appeared to notify the plaintiff.
   
4. When the matter came before me on the 19 May 2023 the plaintiff did not make appearance. The second defendant counsel appeared and tendered a sealed copy of affidavit of service upon the plaintiffs. The Court noted this non-appearance but then further adjourned to the 26 May 2023; again directions given to second defendant to serve and file Notice of Hearing.
   
5. The plaintiff again failed to appear on the 26 May 2002. The Court noted the sealed affidavit of the second defendant verifying notification by letter and email on the plaintiff’s last known address and mobile phone number. I adjourned the hearing to the Chamber so I can peruse the hard file and to make appropriate Chamber orders or directions.
   
6. I am satisfied that the plaintiff had all the opportunity to prosecute its case. They failed to do so, and more alarming is the lack of action or activity on the file by plaintiff since filing of the proceedings.
   
7. The Court has a duty to control the proceeding and bring it to an end. In this case the Court ability to control the proceeding is hampered by the plaintiffs’ lack of attention to their case. Clearly the plaintiffs are not interested in prosecuting their case. I consider the plaintiffs’ default to be intentional and contumelious. The Court must not allow this to continue.
   
8. The second defendant is unduly dragged unto this proceeding, and I note that it had filed its Notice of Intention to defend and had been appearing in Court. It is their position that it has no interest in the matter.
   
9. I invoke the inherent power of the Court to do justice to the case: Section 155 (4) of the Constitution and Order 4 rule 36 of the National Court Rules. Proper notices have been given to the plaintiff even though it is their case to prosecute. They failed to prosecute their case and this evidential: Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PGNC 39.
   
10. I also consider the cause of action to be vague and defective ab initio. It pleads the 9^th defendant where there is no such in the proceeding and the other claims are vague. The proceeding is clearly an abuse of the court process.
    
11. The mode of filing the proceeding as an originating summons lacks sufficient particulars which would need to be converted into a claim. However, that is not possible without the plaintiffs making an appearance to indicate an interest in prosecuting the claim.
    
12. In the circumstances I will grant the following orders:
    
    1. The entire proceeding is dismissed for want of prosecution.
    2. File is closed.
    3. I award no costs.
    4. Time is abridged.
       

Ordered Accordingly
__________________________________________________________________
BSP Financial Group Limited – In-house Lawyers: Lawyers for Second Defendant