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Kaupa v Besi [2008] PGNC 95; N3276 (6 March 2008)

N3276

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1445 OF 1999

BETWEEN:

CHAIN KAUPA ON HIS OWN BEHALF AND ON BEHALF OF THE MANEKU CLAN/TRIBE OF CHUAVE, SIMBU PROVINCE
Plaintiffs

AND:

MIRE BESI
First Defendant

AND:

JOHN WAKON – COMMISSIONER FOR PAPUA NEW GUINEA POLICE CONSTABULARY
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Salika, J
2008: 6 March,

NOTICE OF MOTION- Application to set aside decision of the Court to dismiss the entire proceedings- Order 12 Rule 8 of the National Court Rules- Non compliance of Court Orders- Orders of the Court must be complied with.

Counsels:
Mr Cherake, for the Defendants
Mr Parkop, for the Plaintiffs

6 March, 2008

1. SALIKA J: By notice of motion dated 7 September 2006 and filed on 13 September, 2006, the Applicants moved the Court for orders:

1. That the decision of the Court made on the 2nd of August, 2006 to dismiss the proceedings be set aside pursuant to Order 12 Rule 8 of the National Court Rules.

2. Costs be in the Cause.
3. Any other orders sought as the Court desires to make in the circumstance".
   

2. The application is supported by an affidavit of Chain Kaupa, the lead plaintiff in this matter dated 6 September 2006 and filed on 7 September, 2006.

3. The file notes on this matter indicated that the matter was mentioned on 17 July 2006. On 17 July 2006 the matter was adjourned to 1 August 2006. The matter was not mentioned on 1 August 2006 but on 2 August 2006. On that date neither party appeared and the Court dismissed the entire proceedings. There is no way of the Court knowing if the parties turned up on 1 August.

4. It appears that the last time Mr Parkop appeared for the plaintiffs was on 25 May 2006. On 16 May the matter was adjourned to 25 May 2006.

5. I do note that on 2 May 2006 the Court issued certain very important directions. The directions were:-

1. Plaintiff to redraft statement of agreed and disputed facts, specify plaintiff’s damages and facts forming the basis for assessment of damages with legal issues arising out from that, for the Court to determine;
2. Revised statement of agreed and disputed facts with issues for trial served on the State by 5 May, 2006;
3. State to respond by 12 May 2006;
4. Whether or not statement filed on 5 May 2006 with or without agreement of State, provided they have been served;
5. Defendants to pay plaintiffs costs of adjournment today, caused by the failure of the State, fixed at K500.00 inclusive of today which shall be paid before 16 May 2006.
6. Matter fixed for pre-trial conference on 16 May 2006;
7. Parties are to ensure all affidavits to be filed and relevant notice be given under the Evidence Act by 16 May 2006;
8. Time abridged.
   

6. It appears to me just by looking at the file that the directions issued on 2 may 2006 were never complied with. While the matter was set for a pre trial conference on 16 May 2006, the pre trial conference never eventuated. Only Mr Parkop appeared on that day. On 16 May 2006, the Court extended the orders issued on 2 May 2006 and said the extension was final. The matter then was adjourned to 25 May 2006. The matter was mentioned on 25 May 2006. On that day only Mr Parkop appeared for the Plaintiffs. There was no appearance for the defendants.

7. On 25 May 2006, the Court issued certain orders. One of the orders issued on this day was that the matter was returnable on 11 July 2006 for mention and that if the orders made on that day were not complied with the entire proceedings would be dismissed.

8. A very significant order made on 25 May 2006 was that the plaintiff was to file an amended statement of claim by 9 June, 2006, and the amended statement of claim was to be served on the State by 16 June 2006, and the State was to file its defence by 23 June, 2006.

9. There is no record of happenings on the matter on 11 July, 2006. On 17 July 2006 the matter was before the Court. There is no record of any party being present but the Court notation is that the parties were to comply with previous directions and the matter was adjourned to 1 August, 2006.

10. There is no record of happenings on the matter on 1 August 2006, but there is a record of the matter being mentioned on 2 August 2006. On that date neither party appeared. The Court dismissed the entire proceedings on 2nd August 2006.

11. By 17 July 2006, the plaintiffs had not complied with the directions and orders of the Court. They had failed to file their amended statement of claim by 9 June, 2006. As this was a class action, the lead plaintiff was to file the authority given to him by the other plaintiffs that they authorized him to be their leader in these proceedings and that the proceedings were instituted on their behalf. I noted this was not done and by 2 August the Court was left with no option but to dismiss the entire proceedings.

12. The matter of dismissing the proceedings is not only attributed to the non appearance of counsel or parties on the mention date but also the fact that the plaintiffs had not complied with the directions and orders issued by the court earlier.

13. Mr Kaupa’s affidavit addresses the matter of non appearances but it does not address non compliance of the Court direction and orders by him and his lawyers. Court orders and directions are meant to be complied with and if the parties and their lawyers fail to comply with them, they run the risk of their matters being dismissed, as happened in this case.

14. In the circumstances, I refuse to grant the orders sought in the notice of motion filed on 13 September, 2006. Costs of the application are awarded to the defendants.

Parkop Lawyers: Lawyer for the Applicants
Solicitor-General: Lawyers for the Respondent