N2885

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

WS 1371 of 2003

BETWEEN:

KERE DOGOLIV
(Plaintiff)

AND:

INSPECTOR JOE LAHO
(First Defendant)

&

DEPARTMENT OF POLLICE
(Second Defendant)

&

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
(Third Defendant)

MADANG : SAWONG, J.
2004 : 24th NOVEMBER
2005 : 19th JULY

PRACTICE & PROCEDURE – Claim for damages - Default in setting down matter for trial – Order 10 r. 5 NCR - Proceedings Dismissed.

CASES CITED:
Minato v Philip Kumo & The State (WS 823 of 1997 (H) and 1768;
Daniel Hewale v PNG Police Force & The State (2002) N2233;
John Bokin v The State (2001) N2111;
Olympic Stationery Limited v The State (2001) N2194;
Paul & Mary Bal v Kenny Taiba (2003) N2481;
Paul Tohian, Minister for Police & The State -v- Tau Liu (Supreme Court Judgment) SC566.

COUNSEL:
L. VAVA, for the Defendants/Applicants
NO APPEARANCE, for the Plaintiffs

DECISION

19th July, 2005

SAWONG, J: This is an application by way of an amended Notice of Motion filed on the 15th October, 2004 seeking the following orders:

(a)	Dismissal of proceedings for want of prosecution pursuant to O.10 r.5 of the NCR.
(b)	Dismissal of proceedings for disclosing no reasonable cause of action pursuant to O.12 r.40 of the NCR.
(c)	Removal of the second defendant as a party to the proceedings pursuant to O.5 r.9 of the NCR. 

The brief background to this is that the plaintiffs filed proceedings claiming damages for loss of business arising out of the alleged negligence of the defendants as well as for breaches of his constitution rights and freedom. The plaintiff’s claim basically arises from an alleged impounding of a vehicle by the first defendant which they used for construction work. The alleged incident occurred sometime in July 2003 at the Vanimo Police Station. The defendants’ had filed a Notice of Intention to Defend and an amended defence denying the loss suffered by the plaintiff. 

In support of this application, the applicant relied on the evidence contained in the affidavits of Luke Vava Jnr. sworn on the 30th July, 2004 and filed on the 9th of August, 2004 and the supplementary affidavit of Luke Vava sworn and filed on the 15th October, 2004.

The issues for determination are:

(1)	Whether the plaintiff has defaulted in setting the matter down for trial within the meaning of O.10 r.5 of the National Court Rules (NCR) and if so, should the proceedings be dismissed for want of prosecution.
(2)	Whether or not the pleadings disclose a reasonable cause of action.
(3)	Whether or not the second defendant has legal capacity to be joined as a party to these proceedings.

Mr Vava, counsel for the applicant relies on his written submissions filed on the 9th of November, 2004. He also made brief oral submissions.

At this juncture I should say something about the non-appearance of the counsel for the plaintiffs. Originally, the Motion was set for hearing on the 10th of November, 2004. However, on that day before the Motion could be heard, Mr Mambe wrote to counsel for the applicants and requesting that the Motion be adjourned. Mr Vava agreed and the Motion was adjourned to the 24th November, 2004 for hearing. On the 24th of November, 2004 there was no appearance by Mr Mambe. Mr Vava informed the Court that he had written to Mr Mambe on two occasions informing him of the fact that the Motion had been adjourned to the 24th of November, 2004 for hearing. He informed the Court that despite writing to Mr Mambe, Mr Mambe had not responded. I therefore granted leave to Mr Vava to proceed ex parte.

I now consider the issues. The first issue to consider and determine is whether the proceedings ought to be dismissed for want of prosecution pursuant to O.10 r.5 of the NCR. Order 10 r.5 of the NCR creates an obligation on the part of the plaintiff to set the proceedings down for trial within 6 weeks from the date of the close of pleadings. It reads:

"Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on Motion by any party, may, on terms, dismiss the proceedings or make such other orders as the Court thinks fit."

Before I discuss this particular rule, I think it would be relevant and appropriate to make some reference to the other rules immediately preceding r.5. Order 10 r.4 of the NCR provides that after pleadings have closed, a party may file a Notice to Set Down for Trial which is in effect a request for the proceedings to be set down for trial. A notice of that has to be given to the other party or parties to the proceedings. Then r.7 provides that, once a Notice to Set Down for Trial has been filed, the Registrar shall place the matter on the list of matters for hearing at the next sittings of the Court. Once a date has been allocated, r.9 requires a notice of that to be given in Form 41 to a party who has an address for service and who was not present or represented when the proceedings were set down for trial. Rule 5 then provides that, a failure to set the proceedings down for trial by a plaintiff within six weeks after the pleadings had closed, has the risk of the proceedings being dismissed for want of prosecution.

Order 10 r.5 creates an obligation on the part of the plaintiff to set down the proceedings for trial within 6 weeks from the date of the close of pleadings. This is a discretionary rule. Thus, if a breach of this rule occurs, it does not automatically result in the dismissal of proceedings. The rule however, does give a defendant a right to apply for dismissal of the proceedings and the court has a discretionary power to dismiss the proceedings under this rule in the appropriate circumstances. These circumstances where the courts have dismissed proceedings for failing to set down the proceedings for trial under O.10 r.5 include the following authorities:

Markskal Limited & Robert Needham v Mineral Resources Development Co. Limited, Masket Iangalio & Ors (N1807), Martin Sambai v Motor Vehicles Insurance (PNG Trust) & Ors (1991) Unreported Judgment of the National Court No. N1630, Singali Mundo v The State (Unnumbered and unreported judgment of the National Court dated 31st August, 2004 delivered in Madang by Sawong J.)

The practice now is that, no Notice to Set Down for Trial will be filed unless it is endorsed or consented to by both parties. This is to ensure that both parties have agreed that the matter is ready for trial after the completion for pleadings and interlocutrices. If a party unnecessarily and without good reasons withholds consent to the Notice to set down for trial, an application may be made to the Court for a dispensation of the required consent.

A perusal of the Court files indicates that a defence was filed on the 17th of December, 2003. No reply was filed by the plaintiffs. Accordingly, the pleadings were deemed to have closed. Thereafter the plaintiff did not set down the matter for trial of the proceedings as required by O.10 r.5 of the NCR. I am satisfied on the evidence that the plaintiff has not complied with his obligations pursuant to O.10 r.5 of the NCR. 

There is no other evidence apart from the evidence in support of this application. Neither the plaintiff nor his lawyers filed any affidavit, despite being given notice, offering any reasons or reasonable reasons for not setting the matter down for trial. Dismissing a plaintiff’s claim is a serious matter. But where a plaintiff has not done anything including not complying with its obligations under the rules, then the Court is left with limited options but to exercise its discretion in favour of an applicant who seeks to invoke its discretion to dismiss a proceedings. 

In the present case as I have said earlier, since the pleadings closed, no further actions have been taken by the plaintiff to set down the matter for trial. I find that the plaintiff has not set down the matter for trial within 6 weeks after the pleadings were closed. The plaintiff has offered no explanations and has provided no reasons to counter the applicant’s contention. There has been no explanation given by the plaintiff as to why the matter was not set down for trial within 6 weeks as required by O.10 r.5. In the absence of any explanation from the plaintiff, the court is left with no other option other than to accept the application by the defendants.

In the circumstances I accept the application and order that the entire proceedings be dismissed for failing to comply with O.10 r.5 of the NCR.

In view of my conclusions I do not propose to consider the other grounds advanced. My formal orders are therefore as follows:

(1)	The entire proceedings be dismissed.

(2)	The plaintiff pays the defendants costs, to be agreed if not to be taxed.

___________________________________________________________________
LAWYERS FOR THE DEFENDANT/APPLICANT: PARAKA LAWYERS
LAWYERS FOR THE PLAINTIFF : MAMBEI LAWYERS