N2078

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 581 of 2000

Between:

VIVISIO SERAVO
(Plaintiff)

And:

JACK BAHAFO
(Defendant)

GOROKA: KANDAKASI, J
2001: 16th & 21st

APPEALS – Application for extension of time to lodge – No reasonable explanation for delay – No reasonable case for appeal and lack of prejudice shown – Application dismissed – District Courts Act (Chp. 40) s. 231.

NATIONAL COURT – PRACTICE & PROCEDURE – Application to for extension of time to lodge appeal to – Delay in prosecuting application – Lack of satisfactory explanation for delay and demonstration of no prejudice to defendant – Principles governing want of prosecution under O.10 r.5 of the National Court Rules apply to O.4. r. 36 applications - Case of want of prosecution made out – Application dismissed – National Court Rules (Chp. 38) O. 4. r. 36.

Cases cited:
Ronald Nicholas v. Commonwealth Niugini Timbers Pty Ltd (1986) PNGLR 133
Umbu Waik and Anor v. Motor Vehicles Insurance (PNG) Trust and the State (Unreported National Court judgement delivered on 15th August 1997) N1630
Motor Vehicle Insurance (PNG) Trust v. Viel Kampa (Unreported Supreme Court decision delivered 29th October 1998) SC587
The Application of Sir Kepa Pupu (Unreported National Court Judgment delivered 19 June 1992) N1077.

Counsel:
Mr D. Umba for the Plaintiff
Defendant in person

21st March 2001

KANDAKASI, J.: The plaintiff is applying for an extension of time pursuant to s. 231 of the District Courts Act (Chp. 40) (hereinafter " DCA") to lodge an appeal against a decision of the Goroka District Court outside the time period prescribed by the DCA. The decision was made on the 11th of April 2000. Also before me is an application for dismissal of the proceedings for want of prosecution by the defendant. I heard both the application to dismiss the proceedings for want of prosecution and the substantive application for extension of time on the 16th March 2001. I then reserved a ruling to today.

The Relevant Facts

On the 18th December 1998 the defendant took out a Complaint and Summons against the plaintiff claiming a sum of K10, 000.00. That was allegedly for conversion of the defendant’s vehicle, a Toyota corolla registered. No. ADF 147 for which he was arrested and placed in the police cells and release upon his promising to pay the defendant a sum of K10, 000.00. 

The summons was returnable initially on the 17th February 1999 and was subsequently adjourned to the 21st April 1999. According to a Proof of Service deposed to by a police officer on the 2nd March 1999, the plaintiff was served with the defendant’s Complaint and Summons on the 2nd March 1999 at Waigani, National Capital District. That was before the return of the Complaint and Summons. Notwithstanding that, the plaintiff claims that he was not served with the Complaint and Summons. 

It is not clear what happened on the 14th April 1999. It is however clear that, on the 23rd June 1999, judgment against the plaintiff was entered. When the plaintiff became aware of the orders he instructed Patterson Lawyers to apply for a set aside of the orders of the District Court made on the 23rd June 1999. It seems an application seeking a set aside of those orders was filed and was eventually dismissed by the District Court on the 11th April 2000. The plaintiff claims he became aware of that in May 2000, when the Police in Goroka informed him of a warranted of execution on the judgment when he was on one of his electorate duties. Upon learning of that, he says he instructed Maladinas Lawyers to apply for an extension of time to lodge an appeal against the decision dismissing his application to set aside. Mr. Arnold Amet Jnr, an employee of Maladinas Lawyers has deposed to an affidavit on the 28th November 2000, saying amongst others that, the plaintiff instructed the firm of Maladinas on or about June 2000. Thereafter, the plaintiff did not go back to them with his further instructions. Their own attempts to receive full instructions from him were unsuccessful. At times they met briefly with the plaintiff but no specific and or detailed instructions were given. At paragraph 23 and 24 of his affidavit, Mr Arnold Amet Jnr deposes that: 

23.	The delay in bringing this proceedings has been our inability to secure complete instructions from the plaintiff, which instruction would otherwise have allowed for us to complete at a much earlier stage, the documentation necessary for the purposes of making the necessary application to the court, on the basis of the plaintiff’s instructions.

24.	The plaintiff’s busy parliamentary schedule has hindered us from making what he had otherwise anticipated would have been an earlier expedited application.

These proceedings were eventually filed on the 27th September 2000, which was 2 months after Maladinas Lawyers were instructed and 3 months after the plaintiff became aware of the orders. A notice of motion was filed by the plaintiff seeking the substantive relief. The motion was set down for hearing on the 20th of October 2000. Mr. A. Furigi of counsel for the plaintiff, appeared and the court directed that a further affidavit be filed in respect of the plaintiffs delay and the matter was stood over generally.

The matter was mentioned on the 8th December 2000 and stood over to the 15th December for hearing in Kundiawa at the request of the plaintiff’s lawyers. Despite having made a request for the listing of the matter for hearing in Kundiawa, the plaintiff’s lawyers failed to appear and proceed with the hearing. The matter was therefore, generally stood over and eventually came before me on the 16th March 2001. That was upon a notice of motion filed by the defendant which was made returnable on the 16th March 2001. In that motion, the defendant seeks orders dismissing the proceedings for want of prosecution. Hence, the hearing of the substantive matter as well as that motion on the 16th March 2001.

I consider it appropriate that the application to dismiss the proceedings should be dealt with first. This is because, if I decided to grant the application to dismiss the proceedings it would be unnecessary to consider the application for extension of time.

Want of Prosecution

Order 4. r. 36(1) of the National Court Rules (hereinafter "the NCRs"), provide for want of prosecution for proceedings commenced by originating summons and it reads:

Where a plaintiff makes default in complying with any order or direction as to the conduct of proceedings, or does not prosecute the proceedings with due dispatch, the court may stay or dismiss the proceedings. 

It is now clear law especially in the context of O.10 r.5 of the NCRs that an application for a dismissal of proceedings for want of prosecution may be granted if:

1.	The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

2.	There is no reasonable explanation given by the plaintiff for the delay; and

3.	That the delay has cause injustice or prejudice to the defendant. 

This is apparent from cases like that of Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133 which has been followed in a number of other cases such as Umbu Waink & Anor v Motor Vehicles Insurance (PNG) Trust and The State (15/08/97) N1630. I consider those principles relevant and therefore they apply in the context of O.4. r.36(1), in the absence of any authority to the contrary. 

The plaintiff’s claim is for an extension of time under s. 231 of the DCA to file and serve an appeal out of time. That as of necessity meant that his application for extension of time had to be pursued as a matter of urgency and with due diligence. The records however, do not show that the plaintiff has been diligent in the prosecution of this claim. Since the issue of the proceedings on the 27th September 2000, a period of almost six months has passed. The matter was last listed for hearing before the National Court circuit sitting on the 15th December 2000 at the request of the plaintiff. Neither the plaintiff nor his lawyer turned up in Court on that date to proceed with the hearing. Earlier on in June 2000, the plaintiff's lawyers requested the matter to be listed for hearing in Kundiawa. It seems they did not appear in Kundiawa despite their request for a hearing of the matter. In a letter dated 15th June 2000 forwarded by fax to the associate to His Honour Mr. Justice Kirriwom, the plaintiff’s lawyers sought to explain the failure in these terms:

We confirm, we have been unable to travel up to Goroka and Kundiawa to make the application for leave to appeal out of time and an application to stay the execution of the judgment of the District Court, due to the fact that our client has been heavily committed to his parliamentary responsibilities and consequently has not been able to finalise with us, documentation intended to be filed in support of the two applications.

Following the lack of any further action, the plaintiff filed a notice of motion on the 23rd February 2001 seeking a dismissal of the proceedings for want of prosecution. That is the motion that was made returnable on the 16th March 2001. 

When the matter was called for hearing on the 16th of March 2001, Mr. Umba of counsel for the plaintiff acting on instructions from Maladinas Lawyers sought to further adjourn the proceedings. Noting that the defendant was not legally represented and was not a lawyer, I inquired as to why the matter should be adjourned. I did that having regard to the fact that a substantial period of time had lapsed since the filing of the proceedings and more so in the light of the application to dismiss the proceedings for want of prosecution. Mr. Umba responded by saying he was proceeding with the hearing of the substantive application. Clearly therefore, if it was not for the defendant's motion plaintiff was not prepared to proceed with the hearing of his application on the 16th March 2001. 

There is no doubt that the plaintiff has not shown any interest in having this matter dealt with expeditiously. It seems he was more worried about his parliamentary responsibilities even at a time when parliament was and is not in active sittings. Further, I fail to see how the plaintiff could ignore such a substantial liability against him and seek to come under the protection of a supposed busy parliamentary schedule. There was nothing much or substantial required of the plaintiff in respect of his application. All that he had to do was to provide an affidavit explaining why he could not lodge his appeal within time and show that, he has a good chance of success on the appeal and that the delay has not caused any prejudice to the defendant. The affidavit of plaintiff himself and Arnold Amet Jnr were filed on the 27th September 2000 for the plaintiff’s affidavit and 28th November 2000 for Mr Arnold Amet Jnr’s affidavit. No new material has been filed and relied upon at that hearing of application on the 16th March 2001. Accordingly, there was no need to delay a hearing of the plaintiff’s application until the 16th March 2001 in the light of the application to dismiss the proceedings for want of prosecution. There is no explanation for the delay since filing the affidavits on behalf of the plaintiff with the latest being that of Arnold Amet Jnr’s on the 28th November 2000.

The defendant in his affidavit, filed on the 23rd February 2001, says he is a subsistence farmer who lives in the village. This case has forced him to get to the township of Goroka, Kainantu and Kundiawa in the hope that the matter will be heard and disposed off promptly but that has not happened. It has cost him substantial time and money to do that. He says that the plaintiff does have the means and is deliberately delaying the process in the hope that, that will force him to abandon his claim. 

I am satisfied that there has been intentional, if not inordinate delay in prosecuting the plaintiff’s application for extension of time. This is critically important given that, the application was for an extension of time to lodge an appeal by the plaintiff after the time period for him to do so had expired. It was therefore, incumbent upon him to take all the steps that need to be taken to proceed with the application promptly and without unnecessary delay. As mentioned above, it was not a difficult thing to do. All that he had to do was to provide an affidavit explaining why the time period for appeal prescribed by the DCA was allowed to expire, show that he as a fair chance of success on appeal with the proposed grounds of appeal and that the making of the application is prompt with no prejudice to the defendant by the delay.

 I do not accept the argument that the plaintiff was busy with his parliamentary commitments that he could not spare the time to give his lawyers complete instructions on a matter that affected him personally. I also do not find that explanation credible especially in the light of his claim that, he was never served with the original District Court Complaint and Summons in the light of the Proof of Service deposed to on the 2nd March 1999 by a policeman. I also find that there is nothing to show that no prejudice has been occasioned to the defendant. Instead I find there is evidence that prejudice, inconvenience time and expenses have been forced upon the defendant by the plaintiff’s failure to prosecute his claim without unnecessary delay. I note that, with the request of the plaintiff this matter has been listed in the National Court circuits in Goroka, Kainantu and Kundiawa. That has caused the defendant to incur transportation cost to an from those places and associated costs such as money spend for food, take up his time which could have been otherwise spend attending to his normal chores. I take this to be substantial prejudice to the defendant given that he is a subsistence dweller and does not have the means to easily afford those expenses and time in pursuing the matter. 

I am therefore, satisfied that the application to dismiss for want of prosecution has been made out and I am minded to grant it.

Application for Extension of Time

Even if there was no application for dismissal of the proceedings for want of prosecution, the substantial application on its own merits could still be dismissed. This is because, the reason advanced by the plaintiff for seeking an extension of time to appeal out of time is the same argument that he was busy with parliamentary commitments that he did not have the time to give complete instructions to his lawyers. There were brief encounters between the plaintiff and his lawyers but did not result in any complete instructions being given to the lawyers. Further, the plaintiff claims that he was not served with the original District Court proceedings and as such he was not aware of the proceedings that led to the judgment against him. I do not accept that argument in light of the Proof of Service and the fact that the plaintiff took a very casual approach to a court process, which affected him personally. 

Further and more importantly, there is no evidence disclosing a reasonable explanation for allowing the time period for appeal under s. 220 of the DCA to expire, show a reasonable chance of success on the proposed appeal with the proposed grounds of appeal and show that, the delay has not caused any prejudice to the defendant. 

Counsel for the plaintiff was not able to assist me with any case on point. My limited research also fails to come up with any case directly on point. There is however a large number or body of case law in relation to extension of time to give notice of one’s intention to make a claim against the Motor Vehicles Insurance Trust from which cases the following principles emerge:

1.	There must be a reasonable explanation for the delay in coming within the time period prescribed by the Motor Vehicles (Third Party Insurance) Act Ch. 295;

2.	Disclose a cause of action to be pursued against the defendant; and

3.	No prejudice has or will be occasioned by the delay and not coming within the time period prescribed by the Act.

For a detailed look at this, see the Supreme Court decision in Motor Vehicles Insurance (PNG) Trust v Viel Kampu (Unreported Supreme Court decision delivered on 29th October 1998) SC587 as well as The Application of Sir Kepa Puipu (Unreported National Court judgment delivered on 19th June 1992) N1077. With appropriate modifications in my view, those principles should apply to and govern an application for extension of time to comply with conditions precedent to an appeal pursuant to s. 231 of the DCA. In the absence of any authority to the contrary I adopt and apply these principles to the case before me.

Applying the above principles, I find that the plaintiff has not given any reasonable explanation for allowing the time period for appeal under s. 220 of the DCA to expire. I also find that the plaintiff has failed to depose to in his affidavit and disclose the proposed grounds of appeal and show that he has a reasonable chance of success. That should include a disclosure of a defence on the merits. I note there is a draft defence attached to the affidavit of the plaintiff but it does not set out the facts from which that defence has been extracted. He even fails to verify that draft defence in his affidavit. Finally, the plaintiff has failed to depose to in his affidavit or that of his lawyer that no prejudice has been occasioned or will be occasioned to the defendant by the delay in coming within the time period prescribed by the DCA. I would therefore have no hesitation in dismissing the substantive application for extension of time by the plaintiff.

Ultimately therefore, I dismiss the plaintiff’s action for want of prosecution and also on the basis that the plaintiff has failed to make out a case for a grant of the orders sought for the reasons give above. The plaintiff is ordered to pay the defendant’s costs of the proceedings, which shall be agreed within fourteen (14) days, and failing that taxation. Further, if there has been a stay of an execution of the judgment against the plaintiff out of the District Court orders the subject of these proceedings on the basis of these proceedings, I order that the orders of the District Court be enforced forthwith.
_____________________________________________________________________
Lawyer for the Plaintiff:			Acanufa & Associates
Lawyer for the Defendant:			Nil Defendant in person.