DC416

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1626 OF 2004

BETWEEN

Robert Kare Koreropa
Complainant

V

Michael Kare
First Defendant

Edward Kae
Second Defendant

Port Moresby: Bidar, Pm
2005: 1st & 9th June.

District Court - Practice and Procedure - Notice of Motion by Second Defendant to strike out proceedings for want of prosecution - Second Defendant to have his costs on solicitor / client basis -

Counsel
Grace Misina for Applicant / Second defendant.
David Keta for Complainant / Respondent.

RULING

9th June, 2005.

BIDAR PM: The Second Defendant (Applicant) moves on a Notice of Motion which he filed through his lawyers on 30th March 2005 for the following Orders:-

"1. The whole proceedings be struck out for want of prosecution.

2. The Second Defendant (Applicant) have his costs on a solicitor / client basis to be paid by Complainant or his lawyer.

3. Time be abridged to the time of settlement with the Registrar which shall take place forthwith.

4. Any further Orders this Honourable Court deems fit".

To appreciate the orders sought it is necessarily to state the background to this matter which leads to seeking of these Orders:

On 29th April 2004, the Complainant filed Default Summons on a complaint for a civil debt against the defendants which was returnable on 18th May 2004. On 18th May 2004 the matter was adjourned for mention on 8th June 2004. On 8th June 2004 the matter was further adjourned to 23rd June 2004, no appearances by both parties and matter was again adjourned to 15th July 2004. On 15th July 2004 Mr. Griffin appeared for defendant and complainant appeared in person, and the matter adjourned on 19th August 2004 for hearing at 10:00am.

On 19th August 2004 Mr. Griffin for 2nd defendant and complainant appeared in person but trial did not eventuate and was adjourned to 6th September 2004 at 9:30am for Mention. I find no reasons given why trial did not take place. Again on 6th September 2004 Mr. Griffin for 2nd defendant, complainant appeared in person and was adjourned again to 20th September 2004 at 9:30am for Mention.

The matter was called again on 29th September 2005. Mr. Griffin appeared for defendant and complainant in person and again was adjourned to 7th October 2004 at 9:30am for Mention. On 7th October 2004 complainant appeared. No appearance by defendant’s lawyer and was again adjourned to 21st October 2004. On 21st October 2004 complainant appeared in person and Mr. Griffin for defendant. This time case was adjourned to 11th November 2004 at 10:00am for Trial. 

Trial did not eventuate on 11th November 2004 and matter was adjourned again to 7th December 2004 before Mr. Gauli which Mr. Griffin appeared for 2nd defendant, and Mr. Keta for complainant. Matter was adjourned to 21st December 2005 at 9:30am for Mention and parties were directed to file their affidavits. On 21st December 2004 Mr. Griffin appeared for 2nd Defendant and Mr. Keta for Complainant. Court was told that complainant was hospitalized, and medical certificate was tendered and so the matter was adjourned to 7th January 2005 and further directed parties to file their affidavits.

On 7th January 2005 complainant sought further adjourned as his counsel was unavailable and matter was adjourned again to 17th January 2005. Again on 17th January 2005 complainant’s counsel Mr. Keta was not available and Mr. Griffin appeared for 2nd Defendant. Case was adjourned again to 28th January 2005. Complainant was directed to file his affidavit.

On 28th January 2005 both counsel appeared and Mr. Keta for Complainant sought further adjournment which was granted and the matter was adjourned to 18th February 2005.

On 18th February 2005 the matter went before Mr. Tapat and due to issue of jurisdiction of the presiding magistrate, matter was transferred to Grade IV magistrate and was adjourned to 22nd March 2005.

On 22nd March 2005 the matter went before Mr. Tapat again and since he had transferred the matter previously, he adjourned the matter for Mention before Grade IV magistrate on 30th March 2005.

On 30th March 2005 the matter came before me; when Mr. Keta appeared and sought directions from Court. He informed Court that the motion filed would not be pursued. He informed further that matter was ready and only required one other affidavit to be filed.

Court gave the following directions:-

(1) Complainant to file and serve his affidavits by 14th April 2005.
(2) Defendants file and served their answering affidavits by 20th April 2005.
(3) Appropriate notices be given to cross-examine deponents.
(4) Matter set down for trial on 22nd April 2005 at 1:30pm. I note it was on the same day, the second defendant filed this motion.

On 22nd April 2005, Mr. Keta appeared in Court Room One and informed Court that, defendant had motion to move in Court Room 5 before Mr. Tapat and it was appropriate to deal with the motion first so the matter was adjourned to 29th April 2005 at 9:30am.

A short time later, Miss Misina appeared for Second Defendant. In the meantime the matter before Mr. Tapat was adjourned to 29th April 2005 and transferred to Court Room One. Court informed Miss Misina of this situation and she informed Court that she was ready to proceed with 2nd Defendant’s motion. She moved on the motion and after listening to her, the Court adjourned for ruling on 29th April 2005 at 9:30am.

On 29th April 2005, Mr. Keta for Complainant and Miss Misina for 2nd Defendant appeared. Court informed Mr. Keta as to what transpired on 22nd April 2005. Mr. Keta informed Court that there was confusion, he was in Court Room 5 while Miss Misina was in Court Room 1 and that motion by 2nd Defendant not served on Complainant. The issue was that of substantial delay. Mr. Keta intimated that he needed to respond to 2nd Defendant’s motion.

Court directed counsel for 2nd Defendant to serve copy of motion to Mr. Keta, which she did in Court. Matter was adjourned to 13th May 2005 at 9:30am. Complainant’s counsel was directed to file reply to the motion.

On 13th May 2005 both counsel appeared. There were in fact two motions. One filed by Complainant earlier and one by 2nd Defendant on 30th March 2005. Mr. Keta then sought withdrawal of his client’s motion which was granted. Having heard both counsel Court adjourned the matter to 1st June 2005 at 9:30am and ordered withdrawal of motion by complainant to complainant’s counsel was directed to file response to motion by 2ndDefendant by 27th June 2005.

On 1st June 2005 both counsel appeared and Mr. Keta informed Court that submissions had been filed in response to 2nd Defendant’s motion, and depending on Court’s ruling, affidavits would be filed and served on Complainant being a layman did everything himself initially. In fact, he had filed his own affidavit previously. He submitted finally that Court should refuse the motion by 2nd Defendant.

Since filing of these proceedings to date is a period of over one year. The case should have been dealt with sometime last year but for various reasons some of which are not ascertainable, remained on foot until it came before me. From the chronology of events since the proceedings were filed it is difficult to place blame on anyone party. The blame could be on the part of Court as well, for engaging in numerous adjournments for no reasons at all. The only sensible reason may have been that of jurisdiction.

I have heard both counsel on this motion and upon perusal of the chronology of events of this case, as well as the submissions as I alluded to, it is difficult to place blame on anyone person or party for such an inordinate delay on finalizing this matter. The parties have come this far, and it is my view that they should continue to finality in this proceedings.

In all the circumstances, I would refuse the motion by 2nd Defendant and allow the matter to proceed and to be determined on its merits. One of the main reasons for motion is that Complainant had not filed his affidavits; in fact he had filed his affidavit on 29th April 2004.

D. Keta: Complainant
G. Misina: Defendant