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Pyokoal v Enga Provincial Government [1998] PGNC 70; N1821 (24 July 1998)

Unreported National Court Decisions

N1821

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 437 OF 1995
BETWEEN:
PISARA PYOKOAL
- PLAINTIFF -
AND:
ENGA PROVINCIAL GOVERNMENT
- DEFENDANT -

Goroka

Sawong J
10 July 1998
24 July 1998

PRACTICE & PROCEDURE - Application to dismiss an action for want of Prosecution

Counsel

K. Peri, for the Plaintiff

M. Zimike, for the Defendant

24 July 1998

SAWONG J: This was an application by the Applicant/Defendant to have the whole of the proceedings dismissed for want of prosecution. The application was made pursuant to O. 4 R. 36 of the National Court Rules (NCR). This provision is in the following terms:

“O.4 R. 36 Want of Prosecution

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.

(2) Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.”

It is quite clear that this provision gives a wide discretion to the Court as to whether to dismiss a proceedings for want of prosecution. But it is in my view equally clear that the exercise of this discretionary power must be exercised on proper principles and on these very clearest of facts or circumstances.

Both parties have filed affidavits. The applicant relies on the affidavit of Mr Peri sworn on 18 and filed on 25 May 1998. The respondent relies on the affidavit of Mr Dowa sworn on 7 July 1998.

From these affidavits, I find that the chronology of events are as follows;

· On 9th September 1996, the matter was set down for trial on 17 October 1996.

· On 17 October 1996, the trial date was vacated and the matter was put back on the civil list for a call over

· On 6 February 1997, the matter was fixed for trial on 18 April 1997.

· On 18 April 1997 the trial date was vacated. The matter was then fixed for trial on 8 July 1997.

· On 8 July 1997 the matter did not proceed to trial and was adjourned to 19 August 1997 for trial.

· On 19 August 1997 the trial did not proceed to trial and was fixed for trial on 19 November 1997.

· On 19 November 1997, the trial did not proceed. Various reasons are given in the affidavits as to why the matters did not proceed to trial. On the 19 November 1997, due to the views expressed by the judge regarding the pleadings, the matter did not proceed.

· Consequently on 28 November 1997, the applicants lawyers sought further and better particulars of the claims from the respondent and his lawyers.

· On 17 December 1997, the respondents lawyers wrote to the applicants lawyers to allow the 60 days to provide the particulars.

· On 22 December 1997, the applicants lawyers wrote to the respondents giving them until 5 January 1998 to provide those particulars.

· On 8 January 1998 the respondents lawyers again wrote seeking a further 60 days extension.

· On 16 January 1998 the applicant’s lawyers wrote to the respondents lawyers, inter alia, informing the said lawyers that no further extensions would be granted.

· There then followed some correspondences between the parties.

· On 19 January 1998, the respondent lawyers advised the applicant lawyers that as they were having difficulties, the applicants lawyers could proceed with the application to dismiss the proceedings.

· On 5 April 1998, the applicants lawyers wrote to the respondents lawyers advising them:

a) that they were given until end of April to provide the particulars,

b) that if at the end of April no such particulars were provided, they would proceed with this application to dismiss for want of prosecution.

· On 8th April 1998, the lawyers for the respondent wrote to the lawyers for the applicant advising that “despite numerous reminder letters to this client”, they had not received any instructions and that they could proceed with this application.

The facts and evidence shown clearly that the respondent has not acted promptly and diligently. In fact he has not acted or done anything at all to prosecute this matter expeditiously. In the circumstances I accept the submission made by the applicant.

I therefore Order that;

1. The entire proceedings be dismissed.

2. That the plaintiff/Respondent pay the costs of the Applicant/Defendants.

Lawyers for the Applicant: Warner Shand

Lawyers for the Respondent: Paulus Dowa Lawyers