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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. No. 652 OF 2003
BETWEEN:
JAIN ANOPARI
Plaintiff
AND:
MOTOR VEHICLES INSURANCE LIMITED
Defendant
Mt Hagen: David, J
2009: 17 & 21 July
PRACTICE & PROCEDURE – writ of summons – notice of motion – application to dismiss proceedings – want of prosecution – National Court Rules, O.10 r.5 – exercise of court’s discretion – relevant considerations – delay of 5 years and 5 months after close of pleadings – no reasonable explanation – prejudice to the defendant – conduct of plaintiff and his lawyers to request for x-ray unfavourable to plaintiff - interests of justice against dismissal – x-ray requested by defendant’s lawyers for inspection to establish genuineness of claim – discovery not available to personal injury claim – refusal by defendant’s lawyers to endorse notice to set down for trial until x-ray produced for inspection – no application filed to dispense with consent to file notice to set down for trial - forewarning prior to filing application good practice - no forewarning letter – exercise of discretion in favour of plaintiff – application refused.
Cases cited:
Kai Ulo & 2 Ors v. The State [1981] PNGLR 148
Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55
Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Mapmakers Pty Ltd v. Broken Hill Proprietary Company Ltd [1987] PNGLR 78
Vivisio Seravo v. Jack Bahofa (2001) N2078
John Niale v. Sepik Coffee Producers Ltd & ors (2004) N2637;
PNG Water Board v. Gabriel M. Kama (2005) SC821
Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845
Island Helicopter Services Ltd v. Wilson Sagati (2008) N3340
Hilary Singat v. Commissioner of Police (2008) SC910
Counsel:
Edward Wamp, for the Plaintiff
Ginia Topa, for the Defendant
RULING ON MOTION
21 July, 2009
1. DAVID, J: INTRODUCTION: This is an application on notice to dismiss the proceedings for want of prosecution pursuant to O.10 r.5 and O.12 r.1 of the National Court Rules.
2. The Defendant moves its application pursuant to its Notice of Motion filed on 14 January 2009 and it is supported by the Affidavit of Royale Thompson sworn on 6 January 2009 and filed on 14 January 2009.
3. The Plaintiff contests the application. He relies on an Affidavit of Paulus Koim Kunai which has been filed in response to the Defendant’s application. Two copies of the Affidavit were filed. The first one was sworn on 19 March 2009 and filed on 20 March 2009. The second one was sworn on 20 March 2009 and filed on 7 April 2009. Mr. Wamp of counsel for the Plaintiff did not specify which particular Affidavit he relied on. Because the content of both Affidavits are the same, I think it will suffice for me to make reference to the second one which was filed last in time.
4. I ruled against the dismissal of the proceedings. At the time of handing down my ruling, I undertook to provide a written judgment with the full reasons for my ruling later. This I now do.
BRIEF BACKGROUND AND FACTS
The Plaintiff’s allegations
5. On 22 May 2003, the Plaintiff commenced these proceedings by filing his writ of summons and statement of claim. He claims to have been injured in an accident whilst a passenger on a Toyota Land Cruiser bearing registration number GAD650 (the motor vehicle) which occurred along the Wimbun/Goroka road, a section of the Okuk Highway at about 06:00 pm on or about 25 December 1999. He also claims to have been thrown out of the motor vehicle when it collided with a big stone which was left in the middle of the road and suffered severe injuries to his body in particular the one to his left shoulder as a result. The accident was caused by the negligence of the driver he says.
6. The Plaintiff further claims that the owner of the motor vehicle had a third party insurance cover issued by the Defendant in respect of the motor vehicle and therefore the Defendant was liable to pay him damages under the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 (the Third Party Insurance Act) for the injuries sustained.
Notice of Intention to Defend
7. The Defendant’s Notice of Intention to Defend was filed and served on 7 August 2003.
Defence and Reply
8. The Defendant’s Defence was filed and served on 7 August 2003. It basically denies liability. However, if the Plaintiff were injured as alleged, which the Defendant does not admit, the Defendant states that it was caused by or alternatively contributed to by his own negligence.
The Defendant also avers in its defence that the Plaintiff could not enforce any claim against it because no notice of intention to make a claim against it was given within a period of 6 months after the date of the alleged accident contrary to s.54 (6) of the Third Party Insurance Act.
9. The Plaintiff’s Reply was filed on 28 August 2003. He adopted the admissions made in the Defendant’s defence and joined issue with the denials.
THE DEFENDANT’S SUBMISSIONS
10. Ms. Topa of counsel for the Defendant submitted that whilst pleadings closed in August 2003 and about 6 years on, the Plaintiff and his lawyers have failed to diligently prosecute his claim and take the steps necessary to enable the matter to be set down for trial. Therefore the entire proceedings should be dismissed she said.
13. Counsel conceded that the Plaintiff’s lawyers have actually forwarded to the Defendant’s lawyers Notices to Set Down for Trial for their endorsement, but they have refused to sign as according to them interlocutory matters are yet to be completed.
THE PLAINTIFF’S SUBMISSIONS
14. Mr. Wamp submitted that the x-ray the subject of the Defendant’s lawyer’s request through numerous letters was evidence to be led and tendered at trial proper and therefore the delay attributed to the Plaintiff’s failure to produce the x-ray to the Defendant’s lawyers should not justify the determination of the proceedings summarily. The Plaintiff’s position was that the case was actually ready for trial, but the Defendant has failed or neglected to endorse and return the Notice to Set Down for Trial, counsel said. Notwithstanding the Defendant’s refusal to endorse the Notice to Set Down for Trial based on the non-production of the x-ray, the Defendant has filed this application which amounts to an abuse of process, counsel said.
15. Counsel also contended that the Defendant could have invoked the discovery process under the National Court Rules to request for the production of the x-ray and having failed to do that, the request was improper.
16. Counsel suggested that the proper course to take now was to ask the Court to issue directions in respect of the further conduct of the proceedings including the; endorsement by the parties of the Notice to Set Down for Trial, filing of Affidavits; and that the matter be listed for a date to be fixed for trial.
17. Counsel also submitted that the Defendant through its lawyers was guilty of failing to forewarn the Plaintiff about its intention to file this application and for that reason alone the Court should refuse the application.
THE ISSUE
18. The major issue is whether the Defendant has established a case for the dismissal of the proceedings for want of prosecution.
THE LAW ON DISMISSAL FOR WANT OF PROSECUTION
19. Order 10 rule 5 of the National Court Rules deals with dismissal for want of prosecution for proceedings commenced by writ of summons (O.10 r.1 (1)) and also to proceedings commenced by originating summons to the extent and with such modifications as the Court may direct (O.10 r.1 (2)). It states:
"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."
20. According to O.10 r.4, a party may, after the pleadings are closed, file a Notice to Set Down for Trial requesting that the proceedings be set down for trial. Once that is done, the matter is listed (O.10 rr.7 and 9A (5)(2)) and pre-trialling directions start so that the matter is readied for a date to be fixed for hearing: see O.10 r.9A (7) (Mentions), (8) (Directions Hearing), (9) (Pre-Trial Conference) and (10) (Status Conference); Practice Direction No.1/1992, Setting Down for Trial – Waigani, issued on 7 December 1992; Practice Direction No.1/1993, Setting Down for Trial in Waigani – Supplementary Matters, issued on 13 March 1993 and Practice Direction No. 3/1997, Requirements for the Call Overs and Listings – Notice to Set Down for Trial, etc, issued on 12 August 1997.
21. Order 10 rule 5 provides that the proceedings be set down for trial within 6 weeks after the pleadings are closed otherwise there is a risk of the matter being dismissed on motion by a party on terms. However, O.10 r.9A (6)(1) (Listings Rules 2005-Notice to Set Down for Trial) provides that the notice may be filed after a lapse of 6 weeks from the close of the pleadings, but only after all interlocutory processes are completed and all parties endorse the notice. There is an apparent inconsistency as to when the notice may be filed. Is it within 6 weeks or after the lapse of 6 weeks from the close of the pleadings? I think O.10 r.9A (6)(1) being the latter promulgation, it is a basic rule of statutory interpretation that it will have the effect of repealing the previous inconsistent provision. The Plaintiff was therefore required to file a Notice to Set Down for Trial after the lapse of 6 weeks from the close of the pleadings and upon completion of all interlocutory processes.
22. Where the defendant refuses to endorse the Notice to Set Down for Trial and notifies the plaintiff in writing or by letter that the matter is not ready to be set down for trial, the plaintiff is at liberty to make application by motion (O.10 r.9A (16) to the Court (Listings Judge) for leave to file the Notice to Set Down for Trial without the endorsement of the defendant (O.10 r.9A (6)(3) or any other orders as may seem appropriate. Contrary to O.10 r.9A (6)(3), it should be noted that O.10 r.4 does not specifically require the consent of the Defendant to file a Notice to Set Down for Trial. Practice Direction No.1/1993 which was intended specifically to apply to proceedings filed in Waigani and Practice Direction No. 3/1997 introduced that requirement.
23. Practice Direction No.1/1993 which is nearly in similar terms as O.10 r.9A (6) reads:-
"CONSENT TO SET DOWN FOR TRIAL
Where a Plaintiff wishes to file a Notice to Set Down for Trial he may do so after a lapse of 6 weeks from the close of pleadings (after all interlocutory processes have been completed) he shall first write to the other parties to notify them that he is going to do this. Such letter can be sent at any time after pleadings are closed.
The other party or parties may then do any of the following:-
"I agree that the matter is ready to proceed, pleading are closed and there are no further interlocutory steps to complete prior to the next call over day after the Notice to Set Down for Trial (or such Notice as is appropriate) is filed".
It is to be signed to by a principal in the firm of lawyers (or the party – if in person) and bear the name of the firm and the date signed; or
If the Plaintiff wishes to set down a matter where the Defendant says (in writing or by not sending a letter) the matter is not ready, he may not less than 21 days after the letter has been mailed at a Post Office or sent by Fax or has been delivered apply on Motion for directions to the Senior Civil Judge for leave to be given to file a Notice to Set Down for Trial, or for such order as may seem appropriate.
Where consent is given it is to be endorsed on the Notice to Set Down for Trial."
24. Practice Direction No.3/1997 reads:-
"No file is to be placed on the call over list unless a Notice to Set Down for Trial signed by both parties or by both lawyers representing the parties is filed before or during the call over..."
25. So at the time of filing these proceedings in 2003 and thereafter, there has existed the requirement for all parties to sign a Notice to Set Down for Trial before the matter is listed on the call over list after which a date could be fixed for hearing. Where the defendant did not consent, an application to dispense with that requirement could be made pursuant to Practice Direction No.1/1993 for proceedings filed in Waigani and O.1 r.7. For non-Waigani matters, O.1 r.7 would have to be invoked to make an application prior to the Listings Rules 2005 coming into operation in 2006: see Bank of South Pacific Limited v. Nathan Piari (2005) N3245.
26. Returning to O.10 r.5, the power of the Court to dismiss proceedings on the ground of want of prosecution is discretionary. The discretion is to be exercised having regard to all the circumstances of a case: see Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55.
27. A long line of cases have discussed the law from which emerge a number of well-established principles. These principles were succinctly summarised by His Honour, Justice Kandakasi in the case of Vivisio Seravo v Jack Bahofa (2001) N2078. There, His Honour said:
"It is now clear law especially in the context of O.10 r.5 of the NCRs that an application for a dismissal of proceedings for want of prosecution may be granted if:
1. The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
2. There is no reasonable explanation given by the plaintiff for the delay; and
3. That the delay has caused injustice or prejudice to the defendant.
This is apparent from cases like that of Ronald Nicholas v. Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133 which has been followed in a number of other cases such as Umbu Waink & Anor v. Motor Vehicles Insurance (PNG) Trust and The State (15/08/97) N1630. I consider those principles relevant and therefore they apply in the context of O.4. r.36 (1), in the absence of any authority to the contrary."
28. In Kai Ulo, the Supreme Court said that the onus is on an applicant to establish a prima facie case of delay and the onus then shifts to the respondent to give a satisfactory explanation for the delay.
29. Matters relevant to determining whether there was inordinate or undue delay or whether satisfactory explanation for the delay had been established were suggested by the late Justice Kapi (as he then was) in Kai Ulo and by the Supreme Court in Burns Philp (New Guinea) Limited. These are:
30. Other factors to be used as guides are:-
31. In Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, it was said that where there was a long delay in progressing the proceedings to trial, a balance must be struck as between the plaintiff and the defendant and in the end the Court must decide whether or not in the balance, justice demands that the proceedings should be dismissed.
32. I adopt the above considerations and apply them to the present case below.
APPLICATION OF CONSIDERATIONS
Is the plaintiff's default intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim?
33. There is a lengthy delay in prosecuting this matter. The Plaintiff’s writ was filed more than 6 years ago on 22 May 2003. The pleadings closed towards the end of August 2003. The Plaintiff should have filed a Notice to Set Down for Trial by the end of September 2003.
34. The evidence before the Court show that the Plaintiff’s lawyers forwarded to the Defendant’s lawyers a Notice to Set Down for Trial on 2 occasions. The first one was on 30 October 2003 and the other on 5 June 2008. On each occasion, the Defendant’s lawyers refused to endorse the Notice to Set Down for Trial. They advised the Plaintiff’s lawyers in writing that the matter was not ready for trial and until the x-ray was received to ascertain the genuineness of the Plaintiff’s claim which they undertook to return after inspection, they would not endorse the Notice to Set Down for Trial. The position taken has been maintained all along.
35. The Plaintiff has not availed himself of the procedure in O.1 r.7 and O.10 r.9A (6)(3) and (16) to dispense with the requirement to obtain the consent of the Defendant. The end result is that he has inordinately not taken steps to set the matter down for trial culminating in the filing of this application. The Plaintiff’s action is dilatory. The delay in not setting the matter down for trial since the pleadings closed up to the time of filing this application on 14 January 2009 is about 5 years and 5 months. This consideration favours the Defendant.
Is there a reasonable explanation given by the plaintiff for the delay?
36. My remarks at paragraphs 33 to 35 above are also relevant. They are adopted and will be applied with my other remarks below towards the determination of this consideration.
37. Mr. Wamp argues that because the Defendant failed to invoke the discovery process under O.9, the request for the production of the x-ray was improper. That argument is untenable and has no legal basis because O.9 r.1 (3) expressly excludes discovery in claims for damages arising from, the death of or bodily injury to, any person: see also s.53 (3) Motor Vehicles (Third Party Insurance) Act.
38. Mr. Wamp also argues that the x-ray was a matter that the Plaintiff intended leading evidence on and then tendering at the trial proper and the Plaintiff was entitled not to produce it to the Defendant beforehand. This is a sudden turn around from the previous undertaking of the Plaintiff’s lawyers. The Defendant’s lawyers first requested the production of the x-ray by their letter to the Plaintiff’s lawyers dated 29 July 2003 under cover of which they forwarded to the Plaintiff’s lawyers signed copies of the Defendant’s Notice of Intention to Defend, Defence and Notice to Plead Facts. The reason given for their request was that the Defendant denied liability suspecting that the claim was fraudulent. By their letter dated 29 July 2003, the Defendant’s lawyers undertook to; serve sealed copies of those documents once they were returned to them from the Court; and return the x-ray after inspection. Ms Thompson deposes in her Affidavit that the Notice of Intention to Defend, Defence and Notice to Plead Facts were actually filed on 7 August 2003 and subsequently served on the Plaintiff’s lawyers.
39. The brief details of the exchange of correspondence between the lawyers for the parties in respect of the request and undertaking to produce the x-ray and the request and refusal to endorse the Notice to Set Down for Trial are set out at paragraphs 6 to 11 of Ms. Thompson’s Affidavit and paragraphs 3 to 7 of Mr. Kunai’s Affidavit. Ms. Thompson deposes at paragraph 7 of her Affidavit that on 9 October 2003, the Plaintiff’s lawyers responded by saying that they would forward the x-ray to the Defendant’s lawyers when it was received from the Plaintiff. By their letter to the Defendant’s lawyers of 5 June 2008, the Plaintiff’s lawyers said they would forward a copy of the x-ray once they received it from the Plaintiff. By their letter dated 13 October 2008 (Exhibit "E", Ms. Thompson’s Affidavit), the last of the letters written by the Defendant’s lawyers to the Plaintiff’s lawyers requesting the production of the x-ray prior to the filing of this application was sent. Ms. Thompson deposes that no response had been received at the date of swearing her Affidavit. Mr. Kunai on the other hand deposes at paragraph 5 of his Affidavit that they have sought instructions from their client to provide the x-ray, but were still waiting for those instructions.
40. Over 5 years and 5 months have lapsed since the request was first made by the Defendant’s lawyers for the x-ray to be made available for inspection. The Plaintiff’s lawyers say that they have yet to receive instructions in respect of the request. I think the Defendant’s request was reasonable given the x-ray is relied on by the Plaintiff to establish that he in fact received an injury during the alleged accident. Certainly the inspection of the x-ray will enable the Defendant to assess whether the claim was genuine or not or generally the strength or weakness of its case against the Plaintiff. The need for production for inspection the x-ray is even made more significant in the light of; Ms. Thompson’s evidence that some medical reports suggested that the alleged accident may have occurred on 25 October 1999 and not on 25 December 1999 as was pleaded in the statement of claim; and the Police Report was only prepared in May 2000. The x-ray in my view is no different to other medical reports and should be produced if it is in the possession of the Plaintiff or its lawyers. The only reason advanced by the Plaintiff’s lawyers for not forwarding the x-ray was because they were still waiting for further instructions. No other reason was given. The argument proffered belatedly by counsel now not to furnish the x-ray before trial has never been put to the Defendant’s lawyers. When did counsel obtain instructions might I ask when Mr. Kunai’s evidence is that he is still awaiting further instructions.
41. The uniqueness of making claims against the Defendant under the provisions of the Motor Vehicles (Third Party Insurance) Act requires some measure of cooperation from claimants. The process starts when a notice of intention to make a claim is served pursuant to s.54 (6). The onus I think is on the claimant to supply all documents necessary to establish his/her claim. Withholding documents that relate to the claim does not assist the Defendant in deciding the genuineness or not of the claim or to assess the strength and weaknesses of the cases of the parties. If it is established from documents made available to the Defendant that the claim is genuine, then the type of offer it is prepared to make to settle will also be affected by those documents. Of course, the onus and standard of proof that is required in civil cases must be borne in mind always.
Has the delay caused injustice or prejudice to the defendant?
43. The proceedings were commenced in May 2003 to pursue a claim in respect of an accident which allegedly occurred on 25 December 1999, more than 9 years ago. Over 6 years on since filing of the writ and over 5 years and 5 months on since the pleadings closed, no meaningful steps have been taken to set the matter down for trial. The unresolved dispute still hangs over the head of the Defendant. I accept the reason advanced by Ms. Thompson at paragraph 13 of her Affidavit that the Defendant has been prejudiced by the Plaintiff’s long delay and will continue to be prejudiced as the years go by. This consideration favours the Defendant.
Conduct of the parties and their lawyers
44. My remarks at paragraphs 33 to 43 above are also relevant. They are adopted and will be applied with my other remarks below towards the determination of this consideration.
Duty of the court to give paramount consideration to the dispensation of justice under s 158 (2) of the Constitution
46. Mr. Wamp submits that the Defendant’s lawyers failed to forewarn his firm before filing this application. The decision in Mapmakers Pty Ltd v. Broken Hill Proprietary Company Ltd [1987] PNGLR 78 was the basis upon which Practice Direction No. 1/1987 was issued. That Practice Direction required lawyers to forewarn lawyers on the opposing side where a notice of intention to defend has been filed before applying to enter default judgment. The Supreme Court in Hilary Singat v. Commissioner of Police (2008) SC910 remarked on the importance of that practice in the following terms:-
"The aim of the forewarning letter is thus, to give a defendant who might have inadvertently overlooked the need for filing and serving its defence within the prescribed time limits the opportunity to do so. This ties in well with the Courts usual desire to do justice on the substantive merits of a case as opposed to a judgment based purely on technicalities and deficiencies or defaults in compliance with the rules of the Court, which are only a means to an end and not an end in them. At the same time, the requirement also ensures that, a defendant is not taken by surprise by a default judgment and thereby avoids the possibility of an application to set aside a default judgment, with the associated costs and the Court’s time issues."
47. Whilst that practice applies to applications for the entry of default judgments which has now been adopted and incorporated into the National Court Rules by the Motions (Amendment) Rules 2005 (O.4 r.49 sub-rule 19 (3)(a)(i)(4)), the practice of forewarning lawyers on opposing sides in other aspects of civil litigation is a good one and should be a relevant factor to be considered when the exercise of Court’s discretion is required: see PNG Water Board v. Gabriel M. Kama (2005) SC821 and Island Helicopter Services Ltd v Wilson Sagati (2008) N3340. I also adopt part of the reasoning of the Supreme Court in Hilary Singat that ‘[t]his ties in well with the Courts usual desire to do justice on the substantive merits of a case as opposed to a judgment based purely on technicalities and deficiencies or defaults in compliance with the rules of the Court, which are only a means to an end and not an end in them.’ I have also adopted and applied that practice here.
48. Whilst the Defendant’s lawyers continued to pursue their request for the Plaintiff’s lawyers to furnish them the x-ray since 29 July 2003, there is no evidence that they gave any written notice forewarning the Plaintiff’s lawyers of their intention to file this application in the event that the Plaintiff’s lawyers failed to comply with their request within a given time. This consideration favours the Plaintiff.
CONCLUSION
49. Although 4 of the 5 considerations favour the Defendant, it does not necessarily mean that a case for the dismissal of the proceedings for want of prosecution has been established and the application should be granted as a matter of course. The Court still has a considerable discretion. Justice demands that the Defendant’s application for dismissal for want of prosecution should not be granted in the circumstances of this case.
ORDER
50. These are the formal orders of the Court:-
1. The Defendant’s application is refused.
2. The Defendant is not totally to be blamed for making this application. The Plaintiff has contributed to that. In fairness, each party shall bear its own costs.
________________________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiff
Young & Williams Lawyers: Lawyers for the Defendant
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