N3351

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 825 OF 2006

BETWEEN

ASSAYTECH (PNG) LTD
Plaintiff

AND

ABCO TRANSPORT LTD
Defendant

Lae: Kirriwom, J
2007: 21 September
2008: 24 April

PRACTICE & PROCEDURE – Civil – Application to dismiss for Want of Prosecution - Need to show inordinate and inexcusable delay- Reasonable explanation for delay.

PRACTICE & PROCEDURE – Civil – Application to dismiss – Defendant not properly named – Name and status changed but entity remained – Not a ground for dismissal of action – Appropriate case for amendment by Court direction on its own volition – Plaintiff ordered to effect amendment to writ and Statement of Claim. 

Cases cited:

Roland Nicholas v. Commonwealth New Guinea Timbers P/L [1986] 
 PNGLR 133
Marscal Ltd & Ors v. MRDC & Ors [1999] PNGLR 52

Counsel:

M. R. Mugarenang, for the Plaintiff/Respondent 
K. Aisi, for the Defendant/Applicant

RULING

24 April, 2008

1.	KIRRIWOM, J: This is an application by notice of motion for dismissal of the substantive proceedings in this matter on two grounds, namely, first, for want of prosecution and second, the Defendant named herein is a non-legal entity, hence, not a proper party to the proceeding. The motion for dismissal of the proceedings was filed 29th August 2007. And I must also note for the record as I will be returning to this later, that only two days after the Defendant filed this motion, the Plaintiff also filed his motion seeking to amend the writ by deleting the party named as Defendant and substituting it with the name ‘Mainland Holdings Ltd trading as ABCO Transport’. This motion was not heard as it came later in time but is now dependent on the outcome of this application for dismissal.

2.	The Plaintiff filed this writ on 19th June 2006 claiming value of loss of imported mining and exploration products and equipment, loss of profits, damages for loss of business, punitive damages, costs and interests. The Plaintiff states in its statement of claim that it is a company incorporated in Papua New Guinea involved in the business of importing and supplying mining and exploration equipment and products in the country. Between 1998 and 1999, the Plaintiff imported various mining and exploration equipment and products which it stored at its warehouse at Malahang Industrial Centre, Lae for its customers. But those goods were removed from its warehouse between September 2000 and December 2000 by the Defendant without prior notice or permission of the Plaintiff and as a result the Plaintiff suffered loss.

3.	The Plaintiff’s claim is one of substantial value which is not even two (2) years old. The Defence filed appears to be pleading the general issue so it is hard to know what the Defendant’s true defence is. The application is supported by affidavit sworn 14th August 2007 by Kenneth Aisi who deposes to search carried out at the National Court Registry Lae where it was noted that since the filing of the writ on 19th June 2006 and the Defendant giving notice of intention to defend and filing of its defence on 6th July 2006, the Plaintiff had not taken any positive steps to prosecute the matter to its completion. Consequently the Defendant has been forced to incur legal costs in continuing to defend the proceeding that has become stale. He therefore says that there has been undue delay that caused prejudice to the Defendant.

4.	The Plaintiff also filed an affidavit sworn by its sole director and shareholder Tagan Tukiki on 19th September, 2007 deposing to various matters that contributed to his inability to progress the matter since commencement of the proceeding including his absence from Lae for close to a year in the mountains of Bainings in East New Britain on full employment with Niugini Mining Limited without easy access to telephone, change of lawyers from Morobe Provincial Government Legal Services Unit to Momoru Lawyers and the need to pay deposit on legal fees which he failed to do based on misunderstanding and upon his return to Lae in June 2007 becoming aware of the Defendant’s change of identity as a result of on-going amalgamation process instigated by its mother company, Mainland Holdings Limited and the delay associated with that process thereby depriving his lawyers access to right information to effect necessary name change to the Defendant’s identity. He said there was therefore no intentional delay on his part in the prosecution of the matter.

5.	The law as stated in the various cases authorities cited to me by Mr. Aisi for the Defendant is quite clear. The delay must be intentional and inexcusable. That is what is stated in Roland Nicholas v Commonwealth New Guinea Timbers P/L [1986] PNGLR 133 and Marscal Ltd & Ors v MRDC & Ors [1999] PNGLR 52. The court said that the power of the court to dismiss proceedings for want of prosecution should be exercised only where the plaintiff’s delay has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyers part giving rise to a substantial risk that a fair trial will not be possible or to the serious detriment of the Defendant.

6.	The issue here is whether there was an inordinate and inexcusable delay in the prosecution of this case?

7.	In considering this issue in the light of the evidence before me, I also have the benefit of perusing M.R. Mugarenang’s affidavit sworn 19th September, 2007. He is the principal of Muromu Lawyers who initially obtained instructions from the Plaintiff before the latter left for Rabaul in June 2006. He deposed to the difficulties he faced trying to contact the Plaintiff in Rabaul through Kokopo Office of the company that the Plaintiff was working with only to be advised that the Plaintiff was in the bush and out of communication. Consequently he could not get the Plaintiff to pay some deposit into his trust account and furthermore he could not advise him of the defence filed by the Defendant who disputed the name under which it was sued. He also expressed concerns in the delay in obtaining the correct name of the Defendant which was affected by the on-going restructure of the Defendant’s mother company that also impacted on it as a separate legal entity, thereby necessitating change of its name. He stated that the records of the amalgamation with IPA were not available until August 2007.

8.	I have perused the evidence and the submissions on behalf of the parties. As I pointed out earlier that the proceeding was commenced in June 2006 and soon thereafter the Plaintiff left for Rabaul. Meanwhile a number of events intervened which included effective client-solicitor communication being maintained and in that same period, the Defendant too was undergoing a restructure in its establishment with its parent company so it cannot be confidently concluded that there has been an inordinate delay by the Plaintiff. The Defendant’s change of identity also brought about the need to change the name in the proceeding consistent with the events that occurred. 

9.	Therefore as far as delay is concerned, I am not satisfied that there was an inordinate delay. In so far as the Defendant not being a legal entity to be sued in that name and style, I have read the affidavit of M.R. Mugarenang sworn 21st August 2007 and filed in support of the Plaintiff’s application for leave to amend the writ alluded to at the outset of this judgment. That affidavit annexes his search results of the IPA records on the Defendant and it is plain to see that the party named as Defendant did exist as a corporate legal entity until the recent change in its status which reduced it to a business name only rather than being a subsidiary company of the parent company, Mainland Holdings Limited. This amalgamation or change of status of the Defendant did not remove its existence as an entity capable of suing and being sued albeit under a different name and style but adding its own name at the tail end to continue to maintain its distinct existence and corporate identity. 

10.	In my view, the Plaintiff had properly commenced this action in the name that the Defendant was then known and registered. If that status had changed, that should not be a basis to dismiss a case and deprive a party of his right to seek redress on such technicality. In appropriate cases, the Court must exercise its discretion, being as fair as possible, in affording even playing field to the parties, by directing on its own volition, the necessary steps to be taken by the party placed at a disadvantage to remedy the defect in the pleading so that the case can proceed unimpeded by technicalities for real justice to be achieved when all the issues are fully addressed in court. 

11.	In this case, I am mindful of the Plaintiff’s motion awaiting hearing subject to the ruling on this motion to achieve that very end that I have alluded to above. As it is obvious from what I have stated above, I am not going to dismiss this proceeding on the basis of wrong or incorrect name being used to describe the Defendant. That to me is a technical glitch that the court in its overall supervisory jurisdiction can direct rectification of and I am hereby ordering that the Plaintiff will forthwith take appropriate steps to amend the Writ of Summons and the Statement of Claim by deleting the name ‘ABCO Transport Limited’ wherever it occurs and substituting it with its correct name as it should be known vis-à-vis ‘Mainland Holdings Limited trading as ABCO Transport’.

12.	The orders of the court are therefore as follows:

1. The Defendant’s motion is dismissed;

2. The Plaintiff must take immediate steps to amend the Writ of Summons and the Statement of Claim by deleting the words ‘ABCO Transport Limited’ wherever it appears and substitute it with "Mainland Holdings Limited trading as ABCO Transport" and serve the amended writ and statement of claim on the Defendant or it’s lawyers as named.

3. Defendant pays the Plaintiff’s costs of this application, if not agreed then, to be taxed.

_______________________________________

Muromu Lawyers: Lawyers for the Plaintiff
Steeles Lawyers: Lawyers for the Defendant