N3664

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 397 OF 2004

BETWEEN

KENNE KAMBIA
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 Applicant
Mr M. Thoke, for the Respondent

RULING ON MOTION

1	YALO, AJ: The Defendant/Applicant (Applicant) sought to have the whole proceedings dismissed under Order 10 rule 5 of the National Court Rules (NCR) for want of prosecution. The Applicant sought alternative remedy that the entire proceedings be summarily determined pursuant to Order 15 rules 1(a) and 2 (a) of the Listings Rules 2005. The Plaintiff/Respondent (Respondent) commenced proceedings claiming damages for injuries he sustained from a motor traffic accident. The Respondent argued that the application should be dismissed because it is misconceived. Should this court dismiss the proceedings or alternatively summarily determine the proceedings under the relevant court rules?

APPLICANT’S SUBMISSIONS

2	The Applicant submitted that the Respondent filed his Writ of Summons on 21 April 2004. On 6 August 2004 the Defendant filed its Defence. On 11 November 2004 the Plaintiff filed a Reply. On 21 August 2006 an Amended Defence was filed by the Defendant. On 23 October 2006 the Plaintiff 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 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 September 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to liaise with the Court Registry to find out when the civil call-over may be and have the matter listed for listing for allocation of trial dates. On or about 7 December 2007 they again 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 17 July 2008 the Respondent and his Lawyers have not responded to their letters. In addition they have not taken any further step to progress the matter to trial since the close of pleadings in October 2006. The last activity on the file is the filing of the Notice to Set Down for Trial on 12 December 2006.

5	Finally, the Applicant argued that 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

6	The Respondent’s Counsel submitted that his client sustained serious injuries in a motor vehicle accident on 2 March 2003 along the Surinki/Laiagam road in the Enga Province. The chronology of what has transpired from the date of the filing of the writ to the date of this application are similar to those provided by the Applicant, except that the Respondent’s Counsel submitted that on 18 August 2006 they consented to the Applicant to file an amended defence out of time. They then filed their Reply and on 12 December 2006 both parties endorsed and filed a Notice to Set Down for Trial.

7	The Respondent submitted through his Counsel that on 12 July 2007 they wrote to the Assistant Registrar at Wabag and enquired about the next civil call-over dates for 2007. On 26 July 2007 they again wrote a letter to the Assistant Registrar at Wabag enclosing the Notice to Set Down for Trial for sealing. Mr Kunai has failed to provide genuine signed copies of these letters annexed to his affidavit. I had the pleasure of labouring to search for them and was fortunate to find signed copies in the files relating to W.S. No 398 of 2004 Lazarus Timongon v MVIL and W.S. No 870 of 2004 Tom Kandaki v MVIL. They had not heard from the Assistant Registrar in relation to the call-over dates in Wabag for the remainder of 2007 and early 2008. Then on 25 September 2008 they were informed that the next call-over would be held on 6 October 2008. This is the same date when the National Court in Mount Hagen conducted Directions hearing.

8	The Respondent argued that the Applicant has proceeded to file the application to dismiss the entire proceedings for want of prosecution. The Respondent’s Counsel submitted that on 7 August 2008 they wrote to the defendant’s Lawyers advising them why they were not able to obtain trial dates for this matter and that they should consider withdrawing their applications with costs. The Respondent’s Lawyers 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	On 4 September 2008 the Respondent’s Lawyers wrote to the Applicant’s Lawyers advising them that since the proceedings were set down for trial both parties have not filed any of their witnesses’ affidavits and they again requested the Applicant’s Lawyers to withdraw their application with costs and allow the matters to go for directions hearing first before being listed. This request was refused. The Respondent’s Counsel submitted that in 2007 the National Court in Wabag did not conduct regular civil sittings where some of these matters could have been dealt with. In early December 2007 the resident Judge then Justice Jalina died and no proceedings could be conducted during the Court vacation that year until early 2008.

10	Finally 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 12 December 2006. 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 their witnesses’ affidavits before it can be set down for trial. Taking into account all of the above reasons we request the Court to refuse the Applicant’s application with costs on the grounds that it is misconceived.

RELEVANT LAW

11	Order 10 rule 5 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: 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; and Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) N1807

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	I accept the Respondent’s argument that they did on 12 July 2007 write to the Court Registry highlighting that this matter including W.S. No 398 of 2004 Lazarus Timongon v MVIL and W.S. No 870 Tom Kandaki v MVIL which had notices to set down for trial been filed. They enquired when the Court might next conduct a civil call over so that they would obtain trial dates. Whilst a copy of this letter is not in the file it is found in the file relating to Lazarus Timongon’s claim. With respect I find it odd that the Respondent’s Lawyers writing to the Court in relation to a matter before the Court did not extend the courtesy to copy their letters to the opposing party and its Lawyers. It is a matter of practice and common decency that parties writing to each other in relation to a matter before the Court ought to copy their correspondence to the Court; and a party writing to the Court in relation to a matter before the Court ought to copy their correspondence to the other party and his Lawyers so that all stakeholders are kept abreast of the movement or the progress or otherwise of the case. I am aware that that is how the world operates so far as communication and conduct of business is concerned. It is the Respondent’s Lawyers lack of business sense and lack of professional courtesy that invited the Applicant to file this application. It is only just that they and not their client be held accountable one way or another.

15	Since the commencement of these proceedings on 21 April 2004 it was first mentioned on 7 August 2006. The Court record shows no further mention of this matter until 13 August 2008. It appears to me that the Court did not conduct any civil call-over after 7 August 2006. The Respondent’s Lawyers’ letter to the Court Registry enquiring about the next civil call-over date in 2007 received no response. There is evidence on record that the Court allocated its time mostly to criminal matters and little or no time to civil matters. In that regard it fell short of its obligation under the Constitution to give equal attention to civil litigants and their matters before the Court. In this regard I adopt the comments I made earlier today in the matter W.S. No 1390 of 2004 Cecilia James v MVIL (Unpublished) and Unreported). In summary my comment was that in the administration of justice this Court has an obligation to balance its time and resources and give equal or fair attention to civil matters as it does criminal matters. It follows that it will be unjust to hold the Respondent responsible for the delay. This is not an instance where the Plaintiff has delayed the matter inexcusably or intentionally or has been contumelious which the established authorities speak about. In conducting the balancing act enunciated in Smugglers Inn Hotel (supra) I add the Court to the equation and find wanting its attention to civil matters over a prolonged period since these proceedings were commenced. 

ORDERS

1.	I refuse the application.

2.	Respondent’s Lawyers, and not the Respondent, shall bear the costs of this application for the reasons I have set out above. 

3.	This matter is adjourned to 5 October 2009.

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