N4278

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 1269 OF 2004

BETWEEN:

LUKE KYOKAL NIAP
Plaintiff/Cross Defendant

AND:

PAPUA NEW GUINEA HARBOURS LIMITED
First Defendant/Cross Claimant

AND:

INDEPENDENT PUBLIC BUSINESS CORPORATION
Second Defendant

Waigani: Hartshorn J.
2010: 9th September,
: 3rd November

Application to dismiss proceeding for want of prosecution

Facts:

The plaintiff/cross defendant was employed as the General Manager of Papua New Guinea Harbours Board in October 2001. His employment was purportedly terminated in July 2004 by the Board's successor, Papua New Guinea Harbours Ltd, the first defendant (PNGHL). The plaintiff commenced this proceeding seeking damages alleging that PNGHL had repudiated or breached his employment agreement. PNGHL now applies to dismiss the proceeding for want of prosecution.

Held:

There has been inordinate delay with no reasonable explanation. PNGHL has and continues to suffer prejudice and the conduct of Mr. Niap is not the conduct that this court expects of a plaintiff who properly prosecutes his claim. It is in the interests of justice, and the balance of convenience favours, that this proceeding be dismissed for want of prosecution.

Cases cited:
 
Obadia Buka v. Jude Baisi & Anor (2004) N2602
Ahmadiyya Muslim Mission v. Bank South Pacific Ltd (2005) N2845
Goma Ermake v. MVIL (2009) N3719
Jain Anopari v. MVIL (2009) N3697 
Thomas Rangip & Anor v. Peter Loko & Anor (2009) N3714

Counsel:
 
Mr. D. Kaima, for the Plaintiff
Mr. J. Brooks, for the First Defendant

3rd November 2010

1. HARTSHORN J: Mr. Niap was employed as the General Manager of the Papua New Guinea Harbours Board commencing in October 2001. His employment was purportedly terminated in July 2004 by the successor to the Harbours Board, Papua New Guinea Harbours Ltd, the first defendant (PNGHL). Mr. Niap commenced this proceeding seeking damages alleging that PNGHL had repudiated or breached his employment agreement.

2. PNGHL now applies to dismiss the proceeding for want of prosecution:

a) as there has been inordinate delay in prosecuting the proceeding,

b) the delay is prejudicial to PNGHL,

c) because of the conduct of Mr. Niap in his prosecution of the proceeding,

d) as it is in the interests of justice.

3. Mr. Niap opposes the application:

a) on jurisdictional grounds,

b) as there has not been intentional default or inordinate or inexcusable delay by Mr. Niap and that there is a reasonable explanation for any delay,

c) as PNGHL has not satisfied the court that it has suffered any prejudice or injustice

d) as Mr. Niap's conduct in progressing the proceeding has been reasonable

e) as it is not in the interests of justice that the proceeding be dismissed.

Jurisdiction

4. I consider the jurisdictional question first. PNGHL relies upon Order 10 Rule 5, Order 4 Rule 36, and Order 12 Rule 1 National Court Rules to dismiss the proceeding. Mr. Niap takes issue with PNGHL relying upon Order 4 Rule 36 and Order 12 Rule 1 National Court Rules but concedes that Order 10 Rule 5 does confer jurisdiction upon this court to dismiss proceedings commenced by writ of summons, for want of prosecution. Given this, it is not necessary to consider Mr. Niap's objections concerning Order 4 Rule 36 and Order 12 Rule 1 National Court Rules.

Order 10 Rule 5 – law

5. Mr. Niap submits that the jurisdiction of this court under Order 10 Rule 5 National Court Rules can only be exercised in favour of an applicant seeking an order for dismissal if the applicant establishes:

a) an intentional default or inordinate or inexcusable delay in prosecuting the plaintiff's claim,

b) that there is no reasonable explanation for the delay,

c) that the defendant is suffering injustice or prejudice by the delay,

d) that the conduct of the plaintiff is such that the proceeding has not been properly progressed.

6. Mr. Niap relies upon the cases of Ahmadiyya Muslim Mission v. Bank South Pacific Ltd (2005) N2845, Goma Ermake v. MVIL (2009) N3719 and Jain Anopari v. MVIL (2009) N3697. 

7. The requirements for a successful dismissal application and the relevant principles contained in the above cases cited are similar to numerous other decisions in this jurisdiction on the question of when a proceeding ought to be dismissed for want of prosecution.

Delay

8. PNGHL submits that the conduct of Mr. Niap clearly indicates inordinate delay and that the proceeding has not been prosecuted with due diligence as:

a) Mr. Niap initially delayed in the settlement negotiations and PNGHL was forced to file a Cross Claim;

b) Mr. Niap did nothing at all for approximately 15 months;

c) The matter was listed of the court's own volition in 2007 on the Commercial List;

d) Mr. Niap failed to attend at least five separate listings of the proceeding in the Commercial List despite being advised repeatedly by PNGHL and the court;

e) The first hearing date in June 2008 was vacated because Mr. Niap had not filed any evidence or complied with the set timetable;

f) Mr. Niap again failed to attend the next pre-trial conference on 12th June 2008;

g) In the later part of 2008 the parties filed significant affidavit material, prepared for hearing and a new trial date was set for November 2008;

h) PNGHL prepared fully for hearing in November 2008;

i) Six days before the new hearing date Mr. Niap advised of his intention to seek to significantly amend the nature of his claim;

j) As a result, the second hearing date had to be vacated;

k) Interlocutory applications were heard on 18th November 2008. PNGHL was successful and had costs awarded to it. Despite requests, Mr. Niap has never responded to enquiries in relation to those costs;

l) There was a further delay of approximately 10 months throughout 2009;

m) In September 2009 further directions were issued for preparation for trial but when the matter was listed for a pre-trial conference in November 2009, at Mr. Niap's request the matter was adjourned to the Registry;

n) When the matter came before the court in April 2010, PNGHL wanted a trial date but once again Mr. Niap indicated that he did not want a hearing date and the matter was adjourned to the Registry;

o) in April 2010 PNGHL wrote to Mr. Niap in a final effort to resolve the dispute and put Mr. Niap on notice of its intention to dismiss the proceeding;

p) Mr. Niap did not respond for approximately 3 months and not until PNGHL had prepared this application but could not file the application as the Registry could not locate the court file.

9. PNGHL further submits that Mr. Niap has not provided any reasonable explanation for his failure to progress the proceeding and the inordinate and repeated delays, and that there is no explanation available to Mr. Niap for the continual and repeated delay. PNGHL also submits that it has given several warnings to Mr. Niap that have not been heeded.

10. Mr. Niap submits that:

a) instances of his alleged failure to progress the proceeding referred to by PNGHL which date back to 2006, have been superseded by intervening events,

b) PNGHL has contributed to recent delays by failing to comply with certain directions and court orders. And as such this constitutes a reasonable explanation for the delays and the proceeding being prolonged.

11. As to whether there has been inordinate delay, I am mindful that the proceeding was commenced in September 2004, there was a delay of about 15 months between 2006 and 2007, two trial dates were vacated in 2008 and there has been a further delay of about two years since the last trial date when proposed substantial amendments to the statement of claim were refused, thus not necessitating further major preparation for trial.

12. The explanation given for the delays by Mr. Niap, that PNGHL contributed to the delays, is not in my view reasonable, especially when regard is had to the fact that the onus is on the plaintiff to prosecute his claim. It is the responsibility of a plaintiff to prosecute his action with due diligence and it is the plaintiff who has to take the next step in proceedings to have a matter made ready for trial: Obadia Buka v. Jude Baisi & Anor (2004) N2602, referred to in Thomas Rangip & Anor v. Peter Loko & Anor (2009) N3714. If a defendant is remiss in complying with a direction or order, the responsibility is upon the plaintiff to make the appropriate application to progress matters as part of the onus upon him of prosecuting his claim. Similarly, if settlement negotiations occur, they do not remove the onus upon the plaintiff to prosecute the proceeding, unless the express consent of the defendant is obtained: Rangip v. Loko (supra).

13. Following a consideration of the evidence and submissions of counsel, I am satisfied that there has been inordinate delay in prosecuting the proceeding and that Mr. Niap has not given a reasonable explanation for the inordinate delay.

Injustice or prejudice

14. Mr. Niap submits that PNGHL has not shown any specific instance of prejudice or injustice caused to it by the delay in the prosecution of the proceeding.

15. PNGHL relies amongst others upon the evidence of Mr. Jerome Peniasi. He deposes that PNGHL is unable to respond to many of the factual allegations made by Mr. Niap, as since the time of Mr. Niap's employment, there have been massive structural changes associated with the transition of a public body moving to become a private corporation, with most of the former management personnel no longer being employed. Consequently the availability of appropriate witnesses to be called on behalf of PNGHL has been compromised, and also because of the length of time, between 6 to 8 years, that has passed, since the events referred to by Mr. Niap. PNGHL is therefore severely prejudiced by not being able to meet factual allegations.

16. Given the above, I am satisfied that PNGHL has and continues to suffer prejudice because of the delay in the prosecution of the proceeding.

Conduct of Mr. Niap

17. Mr. Niap submits that he and his lawyers have made reasonable and due efforts to progress the proceeding after 2006 and that it was, "only (PNGHL's) failure to comply with the orders to ready the matter for trial which contributed to the slow progress of moving the matter to trial". Further, Mr. Niap submits that he also responded to a settlement offer in April 2010 within a reasonable time.

18. PNGHL submits that:

a) The conduct of Mr. Niap has been completely devoid of "clean hands" and is indicative of an attempt to misuse the processes of the court and in a sense to mislead the court;

b) Mr. Niap has in essence ignored PNGHL's attempts to recover costs orders made against Mr. Niap;

c) PNGHL has attended court and advised Mr. Niap of new court dates in his continued absence;

d) PNGHL has consented to adjournments at the request of Mr. Niap in an effort to extend professional courtesy and because of Mr. Niap's lawyers' claims that they could not get instructions;

e) PNGHL has been prompt and proper in all aspects of its conduct.

19. Following a perusal of the evidence, I am not satisfied that the conduct of Mr. Niap can be considered to be the conduct that the court expects of a plaintiff who properly prosecutes his case. His conduct does not appear to be reasonable in the circumstances. The evidence is that this proceeding has been driven by PNGHL rather than Mr. Niap. The explanation given by Mr. Niap that it is PNGHL's non-compliance that has contributed to the delay is to my mind, not supported by the evidence. As mentioned before, the onus is upon a plaintiff to prosecute his case. Mr. Niap's conduct is not that of a plaintiff who is interested in pursuing his case, particularly since the amendments sought to his statement of claim were refused.

Interest of justice - balance of convenience

20. Mr. Niap submits that in the circumstances, this court is duty bound to give paramount consideration to the dispensation of justice pursuant to s. 158 (2) Constitution and allow the matter to proceed to trial. Further, it is submitted that PNGHL has not clearly satisfied this court as to the considerations required to enable the court to exercise its discretion and grant the orders sought.

21. PNGHL submits that:

a) P
NGHL's financial resources have been sorely stretched by this proceeding;

b) PNGHL has done all it can to comply with its legal obligations;

c) This court should not allow a plaintiff to proceed with a claim when it has quite clearly taken no interest in prosecuting its claim, has abandoned trial dates and has taken no genuine steps to deal with the matter;

d) PNGHL submits that the balance of convenience clearly favours dismissal of the proceeding.

22. As to the dispensation of justice as submitted by Mr. Niap, all parties are entitled to its dispensation by the courts of Papua New Guinea. When regard is had to the circumstances of this case, my findings that there has been inordinate delay with no reasonable explanation, that PNGHL has and continues to suffer prejudice and that the conduct of Mr. Niap is not the conduct that this court expects of a plaintiff who properly prosecutes his claim, I am of the view that it is in the interests of justice, and the balance of convenience favours, that this proceeding be dismissed for want of prosecution.

Orders

23. The orders of the Court are:

a) The proceeding is dismissed;

b) The plaintiff shall pay the costs of the first defendant of and incidental to this proceeding including the costs of and incidental to the notice of motion of the first defendant filed 21st July 2010, to the first defendant;

c) Time is abridged.
____________________________________________________________
Steeles Lawyers: Lawyers for the Plaintiff 
Gadens Lawyers: Lawyers for the First Defendant