N10824
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 25 OF 2023 (IECMS)

BETWEEN:
ROBERT SALMON MINAK
-Plaintiff-

AND
JAMES JOSHUA
-First Defendant-

AND
HON. JAMES MARAPE, MP, PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
-Second Defendant-

AND
NATIONAL EXECUTIVE COUNCIL
-Third Defendant-

AND
SECURITIES COMMISSION OF PAPUA NEW GUINEA
-Fourth Defendant-

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fifth Defendant-

Waigani: Dowa J
2024:   7th & 13th May
PRACTICE AND PROCEDURE –judicial review– notice of motion – service requirements – application to dismiss proceedings – want of prosecution – National Court Rules – Order 16, Rules 13 (2) -Court’s discretion – relevant considerations – having met the requirements for dismissal -proceedings dismissed.

Case Cited:
Seravo v Bahafo (2001) N2078
John Naile v Sepik Coffee Producers Ltd (2004) N2637

Counsel:

No appearance by Plaintiff
J. Berem for the First & Fourth Defendants
K. Kipongi for the second, third and fifth Defendants

RULING

 13th May 2024	

1.     DOWA J.	This is a ruling on the first and fourth Defendants’ application for dismissal of proceedings for want of prosecution.

2.     By Notice of Motion filed 12th April 2024, the first and fourth Defendants apply for the following orders: 

(1)	Pursuant to Order 16, Rule 13(2) b.(a) of the National Court Rules, the entire proceeding be summarily determined and dismissed for want of prosecution generally.

(2)	Costs of the application and the entire proceeding be awarded in favour of the First and Fourth Respondents.

(3)	Time for the entry of these Orders be abridged forthwith.

Background Facts

3.     The Plaintiff was appointed General Counsel of the Fourth Defendant, the Securities Commission of Papua New Guinea, on 2nd June 2019. He was then appointed Acting Chairman of the Fourth Defendant on 21st May 2021, which appointment was renewed until 21st November 2022 when his term expired. On 2nd December 2022, the Third Defendant (NEC) appointed the first defendant, James Joshua, as the Acting Chairman of the Fourth Defendant which appointment was renewed for a further term of three months on 23rd March 2023.

4.     Meanwhile, the National Executive Council directed the Acting Chairman and the Securities Commission of Papua New Guinea to investigate the conduct of the Plaintiff of certain improprieties and financial mismanagement allegedly committed by the Plaintiff during his tenure as Acting Commissioner.

5.    Aggrieved by the decision of the third defendant, the Plaintiff commenced these proceedings seeking leave for judicial review. Leave was granted on 19th April 2023. After the grant of leave, the Plaintiff applied for the stay of the decision. The Court refused the application for the stay of the decision on 6th June 2023. 

6.     The first and fourth Defendants allege that since the last Court activity on the file, the Plaintiff has not taken any further steps to prosecute the matter and the delay has caused prejudice to the Defendants.  The Defendants are now seeking dismissal of the proceedings for want of prosecution.

Hearing

7.    The application was heard on 7th May 2024. The Plaintiff and his lawyers did not appear. The Court granted leave to the Defendants to proceed with the hearing after being satisfied that the Plaintiff was served with the Notice of Motion and the supporting documents on the Plaintiff and the Plaintiff’s lawyers office both physically and electronically.

Documents before the Court

8.     The Plaintiff relies on the following documents:

a. Affidavit of Search of Terry Berem, filed 12.04.2024, 			
b. Notice of Motion, filed 12.04.2024, 			
c. Affidavit in Support - James Joshua, filed 12.04.2024, 			
d. Affidavit of Forewarning - Tery Berem, filed 12.04.2024, 			
e. Affidavit of Service - Louisah V D, filed 29.04.2024, 			
f. Affidavit - Tony K, filed 29.04.2024, 			
g. Additional Affidavit - James Joshua, filed 29.04.2024, 
h. Affidavit of Richard Maru, filed 26th April 2024

Submissions of Counsel

9.     Mr. Berem, counsel for the first and fourth Defendants, submits that the Plaintiff failed to prosecute his judicial review application with due diligence. The delay has caused prejudice to the first and fourth Defendants especially where the Plaintiff has now been employed by Niusky Pacific Limited since June 2023. Mr. Berem submits that the Plaintiff made no attempts to prosecute the matter despite being warned. The Plaintiff made no attempt to attend Court to defend the application despite being served the Notice of Motion and urges the Court to dismiss the proceedings for want of prosecution. 

10.     Mr. Kipongi, counsel for the second and third Defendants, supports the application for dismissal for want of prosecution.

ISSUES ISSUE

11.     The issue before the Court is whether the matter should be dismissed for   failure to prosecute the matter with due diligence.
 
Law

12.     The relevant rules relied on in the application are Order 16 Rule 13 (2) (a) & (b) of the National Court Rules. These rules read:  

“(2) Summary disposal 
a.	Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
b.	The Court may summarily determine a matter:
(i) on application by a party; or
(ii) on the Court’s own initiative; or
(iii) upon referral by the Registrar…” 
13.     The principles governing dismissal for want of prosecution are well settled in this jurisdiction as summarised in the cases Seravo v Bahafo (2001) N2078, and John Naile v Sepik Coffee Producers Ltd (2004) N2637 and they are:

1)	The Plaintiffs default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim.
2)	There is no reasonable explanation given by the Plaintiff for the delay.
3)	That the delay has caused injustice or prejudice to the Defendant.
4)	The conduct of the Parties and their lawyers
5)	Interest of justice

Consideration

14.     The proceedings were filed on 31st March 2023. Leave for judicial review was granted on 19th April 2023. The substantive Notice of Motion for judicial review was filed on 2nd May 2023. The last activity on the file was on 6th June 2023 when the Court delivered a ruling on an interim application for the stay of the decision the subject of review. The matter was fixed for directions on 8th June 2023. Since then, no further action has been taken in prosecuting the matter.

1)	Is the Plaintiff’s default intentional or is allowing for inordinate and inexcusable delay in prosecuting his claim.

15.     The delay is about 10 months. While this period does not appear to be an inordinate delay, it is nevertheless an inexcusable delay. The matter was specifically fixed for directions on 8th June 2023. The Plaintiff provided no explanation why he did not attend the hearing and take such other steps to prosecute the application with due dispatch. The Plaintiff was warned that if no steps were taken to prosecute the matter an application would be filed for the dismissal of the proceedings for want of prosecution. Again, the Plaintiff did not respond. In the absence of an explanation, I find there is an inexcusable delay.

2)	Did the Plaintiff provide any explanation for the delay.

16.     The Plaintiff was warned and served notice of the application for dismissal. Despite being notified, the Plaintiff did not provide an explanation, let alone a reasonable explanation for the delay. 

3) Has the delay caused injustice or prejudice to the Defendants

17.   The Plaintiff challenged the third and fourth Defendants’ decision in appointing the first Defendant to the position he held prior to him being replaced. The Plaintiff has since sought employment elsewhere and is currently employed by Niusky Pacific Ltd. He has demonstrated by his conduct that he is not concerned with the prosecution of the judicial review he filed in Court against the Defendants. Should the Defendants continue to wait for him. Order 16 Rule 4 of the National Court Rules provides that where there is undue delay in making an application for judicial review, the Court has the discretion to refuse the relief sought if it considers the grant of the relief would cause substantial hardship or would be detrimental to good administration. The Court is of the view that the delay would cause prejudice to the fourth Defendant with the uncertainties created by the proceedings. The NEC has decided that the first Defendant head the fourth Defendant and need to move on under his leadership. A further delay in the proceedings is detrimental to good administration of the fourth Defendant and is prejudicial to the Defendants, especially where the Plaintiff has taken up employment with a different state enterprise.

4)	Conduct of the parties and his lawyers

18.    The Court can look into the conduct of the Plaintiff and his lawyers to determine the fate of this proceeding. On 6th June 2023, the matter was adjourned to 8th June 2023 for directions. The file shows no activity on the file since 6th June 2023. The Plaintiff and his lawyers provided no explanation. They did not appear in Court to defend the application. The evidence shows, the Plaintiff has taken up employment elsewhere and seems to have moved on. The conduct of the Plaintiff and his lawyers clearly show they have no interest in pursuing this matter further.

19.    It is also important to observe that the Plaintiffs term as Commissioner has long expired in November 2022 and it is unlikely for the substantive relief sought would be granted.

Conclusion

20.    Based on the reasons given, the Court is satisfied that the Defendants have successfully established a case for dismissal of proceedings for want of prosecution. The Court will therefore dismiss the entire proceeding for want of prosecution.

21.     As to the issue of cost, the Defendants have asked for costs which shall be granted in the exercise of the Court’s discretion.

ORDERS

22.      The Court orders that:
           
1)	The first and fourth Defendants’ application is granted.

2)	The Plaintiff’s application for judicial review is dismissed for want of prosecution.

3)	The Defendants’ cost of the proceeding shall be paid by the Plaintiff which costs shall be taxed, if not agreed. 

4)	Time be abridged.
_______________________________________________________________
Robert Salmon-Minak:	Plaintiff in Person 
Berem Lawyers:	Lawyer for the First & Fourth Defendants
 Solicitor General:	Lawyers for the Second, Third & Fifth Defendants