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Iewago v Nambawan Super Ltd [2011] PGNC 9; N4214 (15 February 2011)

N4214

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 870 OF 2008
BETWEEN:

CES EDWARD IEWAGO
Plaintiff

AND:

NAMBAWAN SUPER LIMITED
First Defendant

AND:

HONOURABLE PATRICK PRUAITCH MP,
MINISTER FOR FINANCE AND TREASURY
Second Defendant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Waigani: Sawong,
2011: 14 & 15 February

PRACTICE AND PROCEDURE – application to dismiss proceedings for failure by plaintiff to comply with previous court orders - five (5) situations the proof of one or more which may give rise to dismissal of proceedings discussed – application made on two grounds – that the proceedings should be dismissed for want of prosecution - that the proceedings should be dismissed for non-Compliance of the Court orders or directions – applicants affidavit uncontested - application upheld – proceedings against first defendant dismissed - Order 10A Rule 25 National Court (Commercial List) Rules 2005, Rules 15 (1)(2) Listing Rules, Order 4 Rule 36(1) of the National Court Rules

Cases Cited
No cases cited in this Ruling.
Counsel
Mr. A. Daniels, for the Plaintiff
Mr. G. Koi, for the 1st Defendant

RULING

15th February, 2011

1. SAWONG, J: The First Defendant makes application to dismiss the proceedings for a failure by the Plaintiff to comply with previous orders of this Court, pursuant to Order 10A Rule 25 of the National Court (Commercial List) Rules 2005 and/or Order 4 Rule 36(1) of the National Court Rules. It relies on the affidavit of Mr. G. Koi sworn and filed on 9th February 2011.
   
2. Order 10 A Rule 25 of the National Court (Commercial List) Rules 2005 reads:
   

"Summary Disposal

25. The summary disposal procedure set out in Rule 16 of the Listing Rules 2005 is adopted and shall apply to matters on the Commercial List."

3. The reference to Rule 16 in Order 10A Rule 25 of Commercial List Rules 2005 is a mistake as Rule 16 of the Listing Rules refers to Motions. Rule 15 of the Listing Rules is the correct rule that refers to Summary Disposal.
   
4. Rule 15 of the Listing Rules reads:
   

15. SUMMARY DISPOSAL

(1) The Court may summarily determine a matter:

a. on application by a party; or

b. on its own initiative; or

c. upon referral by the Registrar under (3) below.

(2) The Court may summarily dispose of a matter in the following situations:

a. for want of prosecution since filing the proceedings or since the last activity on the file; or

b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or

c. for non - compliance of any order or directions previously made or issued by the Court at any of the listing processes.

d. under any of the grounds set out in Order 12 rule 40 and Order 8 Rule 27 of the National Court Rules.

e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.

(3) Where the Registrar refers a matter for summary determination, the following procedure shall be followed:

a. A notice in the form in Schedule "D" is issued by the Registrar which gives notice to the parties of his intention to refer the matter to the judge for summary determination on the ground(s) stated in the letter. The letter will also give the parties thirty (30) days to respond and fix a return date and time for the matter to come before the judge. In appropriate cases, the Registrar may publish the notice letter in the media.

b. If the Registrar receives a response, either in writing or verbal, he must place on the file the written response or a note of the verbal response and advise the parties to appear in Court on the date fixed.

c. Upon expiry of 30 days, the Registrar shall forward the file to the judge.

d. The judge may determine the proceedings summarily based on the response received and any further representations made by the parties in Court or give such directions as may seem necessary for the future conduct of the proceedings.

e. If the parties are unrepresented, the Registrar shall draft the Court Order, enter it and forward sealed copies to the parties.

f. The file is closed and forwarded to Archives for storage.

5. Rule 15(3) is not relevant nor applicable in the present case as the matter was not referred to the Court by the Registrar. The relevant provisions are Rules 15(1) and (2). Of particular importance is Rule 15(2). This particular rule sets out five (5) situations the proof of one or more which may give rise to a proceeding being dismissed.
   
6. In the present case, as I understood, the application was made on two grounds. First is that, the proceedings should be dismissed for want of prosecution, in that since the last activity the Plaintiff has not taken any active steps to prosecute the matter diligently. Secondly the proceedings should be dismissed for non-Compliance of the Court orders or directions of 8th March, 2010.
   
7. No material was properly put before the Court in response to the Affidavit material relied on behalf of the First Defendant. In the circumstances the Court is left with uncontested affidavit evidence from the First Defendant.
   
8. In the circumstance, I accept the evidence relied on by the Applicant. I am satisfied that the Plaintiff has not prosecuted the matter diligently nor indeed complied with the Court's orders of 8th March 2010. In the circumstance, the Application is upheld. I make the following orders:
   
   1. The proceedings against the First Defendant is dismissed.
      
   2. The Plaintiff shall pay the First Defendant's costs of the proceedings, to be agreed, if not taxed.
      

____________________________________________________

Warner Shand Lawyers: Lawyer for the Plaintiff
Nambawan Super Limited: Lawyer for the First Defendant