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Timongon v Motor Vehicle Trust Ltd [2009] PGNC 73; N3663 (17 June 2009)

N3663

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 398 OF 2004

BETWEEN

LAZARUS TIMONGON
Plaintiff

AND

MOTOR VEHICLE TRUST LIMITED
Defendant

Wabag: Yalo, AJ

2008: 22 October
2009: 17 June

Cases cited

Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133
Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) N1630
Umbu Waink v MVIT [1997] PNGLR 390 Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) N1807
Smugglers Inn Resort Hotel Ltd v Papua new Guinea Banking Corporation (2006) N3062

Counsels

Mr J. Poponawa, for the Defendant/Applicant
Mr M. Thoke, for the Plaintiff/Respondent

RULING ON NOTICE OF MOTION

1 YALO AJ: The Defendant/Applicant (hereafter Applicant) seeks to dismiss the entire proceedings pursuant to Order 10 rule 5 of the National Court Rules (NCR). Alternatively the Applicant seeks to summarily determine the whole proceedings pursuant to Order 15 rules 1(a) and 2 (a) of the Listings Rules 2005. The Plaintiff/Respondent (hereafter Respondent) commenced proceedings claiming damages from the Respondent for injuries he sustained when a motor vehicle he was travelling in involved in an accident. He asked the court to refuse the application for being misconceived. Should I dismiss the entire substantive proceedings under Order 10 rule 5 NCR for want of prosecution?

APPLICANT’S SUBMISSION

2 The Applicant submitted through its Counsel that the Respondent filed his Writ of Summons on 21 April 2004. The Applicant filed its Defence on 28 July 2004. On 28 October 2004 the Respondent filed a Reply. On 21 August 2006 the Applicant filed an Amended Defence. On 27 October 2006 the Respondent filed a Reply to the Amended Defence. On 12 December 2006 both parties endorsed and filed a Notice to Set Down for Trial.

3 On 20 June 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to liaise with the National Court Registry at Wabag to place the matter on the civil call-over list for possible listing. The Respondent’s Lawyers did not respond to the letter. On 27 June 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to confirm if they had liaised with the registry to list the matter on the civil call-over list for possible listing. They did not respond to this letter. On or about 7 December 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers giving them notice of their intention to file an application seeking to dismiss the claim for want of prosecution.

4 The Applicant submitted that as at July 2008 when it filed this application and since the close of pleadings in October 2006 the Respondent’s Lawyers have neither responded to their letters nor taken any step to progress the matter to trial. The last activity on the file is the filing of the Notice to Set Down for Trial on 12 December 2006. The Respondent’s Lawyers’ actions clearly show that they are not keen in prosecuting the matter. Therefore the matter should be dismissed for want of prosecution.

RESPONDENT’S SUBMISSIONS

5 The Applicant submitted through his Counsel that he sustained injuries on 3 March 2003 following a motor vehicle accident along the Surinki/Laiagam road in the Enga Province. So far as the chronology of the steps taken to progress this matter is concerned the Respondent provided similar facts to the one provided by the Applicant, except where the Respondent provided that two separate Notices to Set Down for Trial were filed. The first of this was on 14 April 2005 and the second on 12 December 2006.

6 On 18 June 2006 the Respondent’s Lawyers forwarded to the Applicant’s Lawyers a sealed copy of the Notice to Set Down for Trial. On 20 June 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers advising that they take steps to have the matter placed on the Call-over list for listing.

7 On 12 July 2007 the Respondent’s Lawyers wrote to the Assistant Registrar for the National Court in Wabag advising that their matter had already been set down for trial and further enquired about the next call-over date. They did not receive any response from the National Court Registry in Wabag.

8 The Applicant’s Lawyers were under the impression that they were not taking any further step to progress the matter to trial so on 7 December 2007 they wrote advising that they would file applications to dismiss the entire proceedings for want of prosecution. The Applicant proceeded to file this application in July 2008. On 7 August 2008 the Respondent’s Lawyers wrote to the Applicant’s Lawyers advising them why they were not able to obtain trial dates for this matter and that they should consider withdrawing the applications with costs. They enclosed a copy of a letter from Michael Thoke Lawyers who are their town agents who explained the reasons why there were no regular call-overs in Wabag in 2007. On 26 August 2008 the Applicant’s Lawyers responded to the letter advising that they had instructions to proceed with their application.

9 Counsel submitted that on 4 September 2008 they wrote to the Applicant’s Lawyers advising that since the proceedings were set down for trial both parties have not filed their witnesses’ affidavits and they again requested the Applicant’s Lawyers to withdraw their applications with costs and allow the matters to go for directions hearing first as required under the new rules before being listed for trial. They refused the request and proceeded with moving their applications.

10 The Respondent further submitted that the National Court at Wabag did not conduct regular sittings where some of these civil matters could have been heard. In early December 2007 the resident Judge then, Justice Jalina passed away leaving the cases unattended until early 2008 when a new Judge was appointed. The Respondent argued that this is not a case where he has done nothing to progress the matter to trial since it was set down for trial on 25 June 2007. The matter is now on the call-over list and it should be allowed to go for directions hearing first to enable the parties to file the affidavits of their witnesses before it can be set down for trial. He argued that the Applicant is being unreasonable in bringing this application to dismiss the entire proceedings for want of prosecution because there is no serious default or failure on his part to progress the matter to trial. Taking into account all of the above reasons the Respondent submitted that the Court should refuse the application with costs on the grounds that it is misconceived.

RULING

11 Order 10 rule of the National Court Rules states:

5. Want of prosecution. (33/6)

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 other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.

12 This particular rule has been applied by this Court on many previous occasions. For instance in Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133, the court held that the power of the court to dismiss for want of prosecution pursuant to Order 10 rule 5 NCR should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been long and inexcusable delay. In Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) N1630, Lenalia, J said:

"The Law in relation to dismissal for want of prosecution is quite clear. This is evident from the wording of O.10, r.5 of the Rule. Rule 5 of Order 10 requires that within six (6) weeks after the pleadings are closed, the plaintiff is entitle to set the matter down for trial. The court has power to dismiss proceedings for want of prosecution on Motion by the other party where there has been a long delay and default or where there has been inordinate and inexcusable delay on the part of the party who instituted the proceedings."

This statement was later reiterated in 1997 by this Court that Order 10 rule 5 are in plain English and ‘are self explanatory’: Umbu Waink v MVIT [1997] PNGLR 390. In Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) N1807, Sevua, J said:

"In my view a plaintiff, who institutes a law suit has an obligation to prosecute it without unnecessary delay. He has a duty to comply with any court order relative to the law suit; he has a duty to comply with the rule of the court to ensure that prosecution of the suit reaches finality without inordinate delay, and without causing prejudice to the defendant. A party cannot just ignore court process, if he does, he does so at his peril."

13 In the case of Smugglers Inn Resort Hotel Ltd v Papua new Guinea Banking Corporation (2006) N3062, the National Court stated:

"where there is a long delay a balance must be struck as between the Plaintiff and the Defendant and decide in the end whether the balance and justice demands that the action be dismissed".

14 Since the filing of the writ on 21 April 2004 this matter came before the Court once on 9 August 2006 when the Applicant was granted leave to file an amended defence. There had been no mention of this matter again until 13 August and 8 October 2008.

15 I agree with the Respondent that this Court did not give adequate attention to civil matters in Wabag as can be seen clearly from the Court records. In respect of the Court’s obligations it is important that I reiterate the comments I made in another case today, namely W.S. No 1390 of 2004 Cecilia James v MIVL (Unpublished and Unreported).

"What is the Court’s role? In my humble view the equation in the balancing act set down in the Smugglers Inn Hotel (supra) case should also include the Court where it is appropriate to do so. Where the parties fail to take the necessary steps to bring the matter to trial expeditiously it can step in to issue appropriate directions to parties to take those steps necessary to progress the matter to trial. It also has a number of broad powers and discretion to exercise under the rules. For instance, where notice to set down for trial has been filed, but the Court considers that the proceedings are not ready for trial, the Court may give directions as to the steps to be taken to make the proceedings ready for trial (Order 10 rule 6 Directions before setting down); or where appropriate, order proceedings to be set aside for irregularity (Order 1 rule 8); or determine the proceedings where the Defendant defaults (Order 12 Division 3 Default judgment); or where the plaintiff does not appear to show interest in pursuing his claim or where it sees fit to do so summarily determine any proceedings (Order 12 Division 4 Summary Determination).

The Respondent argued that this court has over the years since 2004 and up till 2007 given little or no attention to civil matters filed in Wabag. With the greatest respect, and sadly, I have found this to be true since I was posted here in April 2008. This is why I stated above that where appropriate the Court must be included in the balancing equation enunciated in Smugglers Inn Hotel (supra) case. And this is one such case. I cannot speculate on the possible or probable reasons for the court’s lack of attention to civil matters in general because this happened before my appointment to the bench and prior to my transfer to this location. Where the parties have complied with the procedural rules of the court and have taken steps to progress the matter to trial the Court ought to endeavour to hear and determine the substantive issues within a reasonable time. With respect, it should not take a casual approach or it should not leave such matters unattended for a long time for reasons known only to the Court itself or for reasons that are not of the parties’ making. When it comes to its obligations to discharge matters in a timely manner the Court should remind itself of the National Goals and Directive Principles laid down in the Constitution. The National Goal No 2 (Equality and Participation) and in particular Directive Principle (4) states:

2. Equality and participation

We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.

WE ACCORDINGLY CALL FOR –

...........

(4) equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations; and... [My emphasis]

So far as it relates to us as a nation achieving this goal, that is, every citizen having equal access to legal services and may I add, to assert their rights or seek protection of the law or otherwise, the National Court has an obligation to ensure that in its administration of justice and within its resource constraints, it must aim to give equal attention to all manner of people that enter its door and into the realm of justice seeking justice. Whilst the initial provision of and the distribution and equalization of legal services throughout the country is the role of the executive arm of the national government, the obligation to ensure that the public have not just equal access to legal processes but also that equal attention is given to them and their cases, at venues (the higher courts) that are presently available to them is the role of the judiciary. In this context I humbly believe that the proper construction of the broad guiding directive principle number (4) I have quoted above means that every civil litigant from any part of this country has the equal right as an accused, a remandee or a prisoner in a criminal process to have his case heard and resolved by this court with due dispatch within a reasonable time. If the court at its own choosing gives more attention to criminal matters only and pays less than equal attention or no attention at all to civil matters for a prolonged period it falls short of its obligations under the Constitution. Civil litigants may feel and are indeed entitled to feel discriminated by the Court, although unintended. Suspects, remandees and prisoners have no higher right under the law than civil litigants or vice versa. Where it relates to citizen civil litigants in particular, I refer to Section 55 of the Constitution to amplify this argument. Section 55 states:

55. EQUALITY OF CITIZENS.

(1) Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

This provision is expressed in plain language. Just as a person (e.g. a citizen) who is charged with an offence has a right under the Constitution[1] to be afforded a fair hearing by the Court within a reasonable time, so has a citizen civil litigant. The Court has equal obligation to hear and determine a civil litigant’s matter within a reasonable time, all else considered. This Court ought to appreciate that civil matters in rural centres such as Wabag, and indeed civil matters in general, affect the rural economy and therefore the national economy. The People’s aspirations to prosper economically and thus their endeavour to contribute meaningfully to the national economy must be encouraged. Quite unlike other constitutions of the world ours contain the National Goals and the Directive Principles right at the beginning and so they must mean something and they should not be regarded merely as a part of the preamble. They should not be overlooked or ignored just because Section 25(1) of the Constitution states that the National Goals and Directive Principles are non-justiciable. No, my comments have basis in law because Section 25(3) of the Constitution gives impetus to the National Goals and Directive Principles. This Subsection states that where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative of other kind), can reasonably be understood, applied exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a manner as to give to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.

This Court’s role under our Constitution involves more than the daily hearing of and determination of cases brought before it. The Constitution has apportioned to it its own unique share of role to play to achieve the broad national goals stipulated under the Preamble of the Constitution. Just as every player in a game of football or rugby league has a part to play to ensure that the ball is carried toward the opposite end of the try line to score points and win the game so has this Court and all other players under our Constitution to play their unique roles without fail to achieve our national goals. The comments I have made here are necessary and are not meant to disrespect the Court or to criticize or blame anyone in particular. Rather given the circumstances surrounding this particular application before me this Court is merely reminding itself of its own obligations under the Constitution and the public’s expectation that these obligations are discharged to the full measure in a timely manner and within its resource limitations".

16 This is a clear case where the Court has fallen short of meeting its obligations under the law. It is also a clear case where the Respondent and her Lawyers have failed to take steps necessary, to for instance file and serve on the Applicant their affidavits, notwithstanding the fact that there were nil or irregular civil circuits since the filing of the writ. This application was caused by the Respondent’s Lawyers silence to the Applicant’s Lawyers’ numerous correspondences asking about the progress of this matter to trial. I do not accept the Respondent’s arguments that this application is unreasonable and misconceived. It is their argument that is unreasonable and misconceived. I find their habitual inaction and silence professionally unethical and discourteous and lacking business sense. Whilst this application is not misconceived and was warranted I refuse it on the basis that it would be unjust to grant it given the fact that this Court has over a more than three years period fallen short of its obligation to give adequate attention to civil matters. Since the Respondent’s Lawyers’ silence to the Applicant’s Lawyer’s correspondences have invited the Applicant to bring this application they, and not their client, shall bear the costs of this application.

ORDERS

1. Application is refused.
   
2. Respondent’s Lawyers, and not their client, shall bear the costs.
   
3. Matter is adjourned to 5 October 2009.
   

__________________________________________
Mirupasi Lawyers: Applicant’s Lawyers
Kunai & Co Lawyers: Respondent’s Lawyers

^[1] Section 37(3) Constitution, “A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court”.