Suan v Naime [2016] PGSC 58; SC1540 (11 October 2016)

SC1540
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 129 OF 2013

BETWEEN

JOE SUAN representing the relatives of JOHN POKIA
(Appellant)

AND
FIRST CONSTABLE JIMMY NAIME
(First Respondent)

AND
EMMANUAL HELA, Metropolitan Superintendant
(Second Respondent)

AND
SAM INGUBA, Commissioner of Police
(Third Respondent)

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Fourth Respondent)

Waigani: Salika, DCJ, Makail & Frank, JJ

2016: 28^th June & 11^th October

SUPREME COURT – Appeal against dismissal of proceedings – Proceedings dismissed for want of prosecution – Proceedings dismissed in the absence of appellant – Non-attendance at directions hearing – Setting aside of dismissal order – Jurisdiction of – National Court Rules – Order 12, rule 8

No cases cited:

Counsel:

Mr. M. Boas, for Appellant
Mr. T. Tanuvasa, for Respondents

JUDGMENT

11^th October, 2016

1. BY THE COURT: On 15^th October 2003 the appellant commenced proceedings at Waigani National Court to seek damages for the death of his son who was allegedly shot by members of the Police Force on 13^th April 2003.

2. On 8^th April 2013 the National Court dismissed the proceedings for want of prosecution (“dismissal order”) after parties did not attend directions hearing. This followed the appellant’s lawyers’ appearance before the primary judge on 12^th February for directions hearing and the matter was adjourned to 19^th March.

3. Soon after the directions hearing on 12^th February, a proposal for settlement in a form of a draft order was forwarded to the respondents’ lawyers for consideration. On 7^th March the respondents’ lawyers responded rejecting the settlement proposal for the reason, amongst other reasons, that the appellant was not the father of the deceased. On 19^th March the primary judge did not sit and the appellant’s lawyers were advised that a new date would be given.

4. On 25^th March the matter was listed for directions hearing. The appellant’s lawyers did not attend, apparently due to lack of notice. The Court further adjourned the matter to 8^th April and ordered that if the appellant failed to attend, the matter would stand dismissed. The Associate was directed to advise the parties of the new date.

5. When the appellant and the respondents did not appear on that date apparently due to lack of notice for the second time, the Court dismissed the matter for want of prosecution.

6. After almost three and a half months, on 22^nd July the appellant filed a motion seeking an order to set aside the dismissal order. The motion was given a hearing date of 24^th July. That was two days away.

7. On 24^th July the appellant’s lawyers did not attend and the motion was dismissed for want of prosecution. The appellant gave two reasons for its non-attendance. First, the appellant asserted that the lawyers for the respondents misled his lawyers when they informed his lawyers that the revised date for hearing was 26^th July. Second, counsel who had conduct of the matter was to have travelled on 23^rd July to Lihir to attend to a prior listed matter in the District Court.

8. About two and a half weeks later on 9^th August the appellant’s lawyers filed a second motion, this time seeking first to set aside the order dismissing the first motion and reinstate it and secondly, set aside the dismissal order.

9. The course taken by the appellant appears convoluted because all he had to do was to file a motion to seek an order to have the dismissal order set aside. This was drawn to his lawyers notice by the primary judge when they appeared for hearing on 5^th September.

10. Anyway, the second motion was eventually heard and dismissed on 5^th September. According to the notice of appeal, the appeal is against the dismissal of that motion. However, the effect of that decision was that the proceedings remained dismissed.

11. The appellant appeals against the finding of the primary judge that the Court lacked jurisdiction to set aside the second motion which sought to set aside the dismissal order. This is noted from Grounds 3 (a) to 3 (e) of the notice of appeal. On the other hand, there are no grounds challenging the primary judge’s rejection of the appellant’s explanation for the non-attendance and delay.

12. The jurisdiction issue is raised because one of the reasons the primary judge dismissed the motion was that the Court lacked jurisdiction to set it aside. His reason was that the proceedings was dead and could not be revived.

13. However, what is more significant is that it was not the only reason why the primary judge dismissed the motion. He also found that there had been inordinate or undue delay in bringing the matter to trial for which the appellant’s explanation was unsatisfactory and that the delay of ten years in prosecuting the matter was adverse to the respondents’ defence.

14. These reasons are relevant to the Court’s discretion to set aside ex parte orders under Order 12, rule 8 of the National Court Rules. While the primary judge did find that the Court lacked jurisdiction to set aside the motion seeking to set aside the dismissal order, he did consider the merits of the motion based on the evidence of the appellant. This aspect is pivotal to the appeal and must also be considered.

15. The primary judge explained why he rejected the appellant’s explanation for non-attendance at the directions hearing. As was held by the primary judge which we accept, the appellant had a duty to prosecute the matter. If for one reason or another, his lawyers were unable to attend, they were obliged to check with the Court Registry for the next date for directions hearing.

16. The duty does not shift to the Court just because the judge says that his Associate will advise them of the new date. Parties must be reminded that they are the ones who bring cases to Court for resolution and are expected to ensure that they are dealt with expeditiously. They must demonstrate by evidence that they follow-up on the date for directions hearing and not to simply wait for the Court to inform them.

17. The introduction of directions hearings in our National Court Rules, Order 10, rule 9A (8) was one of the reforms put in place by the Court in 2005 to manage cases and make a shift from “party driven cases” to “judge driven cases” in an effort to effectively and efficiently manage cases. It is all part of case management strategy. It is for this reason that parties are expected to work closely with the Court to bring cases to finality within a reasonable time.

18. With the advent of mobile phones and internet, it helps lawyers to communicate with the Registry staff and judges Associates to confirm or follow up on directions hearing dates. In this case a phone call by the appellant and his lawyers would have saved themselves the misfortune.

19. The primary judge was also not persuaded by the appellant’s reasons for the non-attendance on 24^th July. He rejected the assertion that the date for hearing of the motion was revised to 26^th July based on the advice of the respondents’ lawyers. He found that the hearing date was 24^th July as that was the date written on the blank space in the motion.

20. We uphold this finding. It is consistent with the rules of practice of the Court which requires that a return date be inserted in a motion before it is filed and served. And we are referring to Order 4, rule 40 (1) (a) which states that the notice of motion must state the date, time and place where and when the motion will be moved.

21. If the short length of time before the hearing was an issue, the appellant’s lawyers were obliged to attend the hearing and seek an adjournment of the motion. They did not. If they were not available, a written request for an adjournment to the respondent’s lawyers and to the Court or the engagement of an agent to appear on their behalf were other options which were not availed of.

22. Instead they relied on the advice of the respondents’ lawyers who had no authority to vary the hearing date except by a judge and did not attend. Their non-attendance placed the judge in no position to appreciate their concerns regarding the short length of time before the hearing of the motion.

23. It was open to the primary judge to express a view on the way the appellant’s lawyers handled the appellant’s matter because the evidence of the appellant was that counsel who had the conduct of the matter would not be available on 24^th July when the appellant’s motion was returnable as he was scheduled to travel on 23^rd July to Lihir to attend to a prior listed matter in the District Court on that date.

24. In any case if the Solicitor General’s (respondents’ lawyers) letter did advise that the case was returning before the Court again on 26^th July, a diligent counsel would have enquired of the status of the appellant’s motion to ascertain if the matter was returning to Court for its hearing, which enquiry would have informed the appellant’s lawyer who had carriage of the matter otherwise, that in fact the appellant’s motion was returnable that day, and the need for him to be in Court to deal with it. This did not happen. If, however, he had known before 24^th July, that their motion was returnable on 24^th July, a brief to another counsel in or outside the law firm to attend to it was another option which again, was not availed of.

25. Before leaving this aspect, we should refer to the evidence concerning the advice the appellant’s lawyer purportedly received about the matter returning to Court on 26^th July. We note the appellant’s lawyer said that he was informed on 24^th July in terms of the Solicitor General’s letter dated 22^nd July that the matter will return to Court on 26^th July. However, a copy of that letter does not say so. In fact, it says nothing about the motion or the matter generally returning to Court on 26^th July or on any other date. That assertion was clearly not true.

26. It is further noted that the motion was filed three and a half months after the proceedings was dismissed. There was no explanation for the delay. Even after the motion was dismissed it took another three and a half weeks before the appellant’s lawyers filed a further motion to set aside the dismissal order. No explanation was given for the delay. In the absence of any explanation it was also open to the primary judge to find that there was no reasonable explanation for the delay.

27. The primary judge also found that the delay was adverse to the respondents’ defence. As noted earlier, the appellant brought an action against the respondents for the death of his son who was allegedly shot by the members of the Police Force at Hohola on 13^th April 2003. Ten years on and the matter was still pending trial.

28. Despite the appellant’s assertion that the matter was ready for trial, there was no evidence of affidavits and a pleadings book being filed to support this assertion. There is not even evidence of a notice to set down for trial pursuant to Order 10, rule 9A (6) of the National Court Rules being filed to indicate that the matter was ready for trial.

29. Evidence of these matters would demonstrate to the primary judge that the appellant did meaningfully take steps to prepare for trial and that the matter was ready for trial.

30. The evidence that was before him was to the contrary. Evidence established that a draft direction was forwarded to the respondents’ lawyers in March which included a request by the appellant to amend the statement of claim and the respondents to file an amended defence in response. This evidence quite clearly showed that the appellant intended to revisit the pleadings.

31. It is unclear whether parties were granted leave to amend the pleadings. However, a revisit of the pleadings would only delay the setting down of the matter for trial. Attempts to settle the matter further contributed to the delay. The negative response by the respondents to the settlement proposal should have been an indication that the matter must be resolved by a trial and steps should have been taken to get the matter ready for trial, such as filing of affidavits and so forth.

32. Such is the state of the matter that it can hardly be said it was ready for trial. The lack of proper direction by the appellant coupled with the delay of ten years is unacceptable.

33. These matters sufficiently explained why the primary judge was not persuaded by the appellant’s submission that the matter was ready for trial and he be allowed to progress it to trial. He was concerned that witnesses may be lost, may have died, their recollection of the event may have diminished, and cogency and integrity of their evidence may not be intact after all these years. He found that no evidence was adduced to demonstrate that a fair trial would still be possible or that the respondent would not be prejudiced in its defence of the appellant’s claim despite the delay.

34. These are valid and proper considerations that must be considered by the primary judge when exercising his discretion to set aside the motion seeking to set aside the dismissal order, which he did. He correctly found against the appellant given the long delay.

35. We find that the primary judge gave due consideration to the appellant’s application. No error has been established. Furthermore, the appellant did not appeal against these findings. The appeal must fail. It is dismissed with costs.

Judgment and orders accordingly.

________________________________________________________________
Kuman Lawyers : Lawyers for Appellant
Solicitor-General : Lawyers for Respondents