N4865

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1055 OF 2007

BERTHA AMAKA
Plaintiff

V

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Goroka: Ipang AJ
2012: 26 & 31 October

CIVIL MOTION - Seeking to dismiss proceedings pursuant to Order 10 Rule 5 of the National Court Rules – dismissal of proceedings commenced by Writ of Summons. 

Cases Cited

Ronald Nicholas –v- Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Alumadiyaa Muslim Mission –v- Bank South Pacific limited (2005) N2845
Seravo –v- Bahafo (2001) N2078
John Niale –v- Sepik Coffee Producers Limited & Ors [2004] N2647
Kai Ulo & 2 Ors –v- The State [1981] PNGLR 55

Counsel

Mr. Nema, for the Plaintiff 
Mr. K. Peri, for the Defendant

RULING

31 October, 2012

1.	IPANG AJ: The Defendant Motor Vehicles Insurance Limited (MVIL) applies to this Court by way of motion dated 24th May, 2012 seeking the following relief: 

1.	The proceedings be dismissed for want of prosecution pursuant to Order 10 Rule 5 of the National Court Rules.
2.	The Plaintiff be ordered to pay the cost of the proceeding.
3.	Any other further orders. 

2.	Defendant in moving this motion relies on the Affidavit of one Mr. K.Peri sworn on the 24th May, 2012 and filed on the 8th June, 2012. Also in support of the motion is the Defendants Written Submission filed on the 19th of October, 2012. Ms. Nema of Counsel for the Plaintiff gave oral rebuttal to the application and undertook to produce a written submission later. 

3.	Mr. Peri deposed in his affidavit that on the 20th of September, 2007 the Plaintiff commenced these proceedings in relation to an alleged motor vehicle accident which occurred on or about 2nd March, 2005 when the Plaintiff who was a passenger on a Toyota Stout motor vehicle accident was allegedly injured.

4.	On the 6th of September, 2007 A Notice of Intention to Defend and Defence were filed. The matter was since then ready for trial.

5.	The Public Solicitor's office took over the carriage of this matter. On the 28th of October, 2008, the Counsel from Public Solicitor's office filed a Notice of Motion for leave to file an Amended Statement of Claim. That application was granted on the 13th of February, 2009. On the 13th of July, 2009 an Amended Statement of Claim was filed.

6.	On the 19th of September, 2011 the Defendant's lawyers received a correspondence from Public Solicitor's office which was a Notice to Set Down for Trial for Defendants Counsel endorsement. The Defendant's lawyer signed and returned the Notice to Set Down for Trial on that even date. 

7.	There were several correspondences sent to the Plaintiff's lawyers on the 5th October, 2011, 31st January, 2012, 11th April, 2012 the Defendant's letter sent to Plaintiff's lawyer advised that if the Defendant's lawyers do not receive from the Plaintiff's lawyers the Pleading Book by 23rd May, 2012, the Defendant will file an application to have this matter dismissed. 

8.	The Defendant through Counsel Mr. Peri advised that as of 24th May, 2012 he has not received a Pleading Book from the Plaintiff's lawyer. Mr. Peri of Counsel for the Defendant submitted that the third party scheme in this country is fault based, in that Defendant can be held liable if its insured driver was at fault. Thus, the Defense Counsel asked that, how does the Plaintiff expect the Defendant to locate witnesses 7 years after the alleged motor vehicle accident? He further argued that even if the driver and other witnesses are located, their memories of the events that occurred some 7 years ago will fade with the passing of time. As such, Counsel said the Defendants case will be at serious risk. 

9.	Ms. Nema of counsel for the Plaintiff said that of the period where there was no legal activity was because the Office of Public Solicitor was short of staff. On the face of it, this is not a good enough reason. Courts can't wait until Office of Public Solicitor is fully staffed to progress its matters. If the Office of Public Solicitor's office is under staff, the most honorable approach is to advise the Plaintiff to seek services of a lawyer somewhere else. 

Applicable Law

10.	The Defendant had invoked its jurisdiction under Order 10 Rule 5 of the National Court Rules. The Order 10 Rule 1 is stated in the following words: 

"5. Want of Prosecution

Where a Plaintiff does not, within six (60 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 Orders as the Court thinks fit."

11.	In Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, the Defendant applied to the National Court under Order 4 Rule 36 for an order that the proceedings be dismissed for want of prosecution. It was held:

"The power of the Court to dismiss proceedings for want of prosecution should be exercised only where the Plaintiffs' default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyers' part, giving rise to a substantial risk that a fair trial will not be possible or to serious prejudice to the defendant.

Where there has been a long delay in bringing 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."

12.	In Alumadiyaa Muslim Mission v Bank South Pacific Limited (2005) N2845 Cannings, J set out 5 considerations for a court to consider when dealing with an application under Order 4, Rule 36 and Order 10 Rule 5. This case specifically dealt with Order 5 Rule 5, however Cannings, J remarked:

"There is no material difference between Order 4, rule 36 and Order 10, rule 5 they both deal with the power of the court to dismiss proceedings on a ground of want of prosecution. The general principles to apply in deciding both sorts of application are, if not the same, very similar."

13.	In Seravo v Bahafo (2001) N2078, Kandakasi, J summarized matters to be taken into account when dealing with applications to dismiss proceedings for want of prosecution. His Honour stated:

"It is now clear law especially in the context of the National Court Rules that an Application for Dismissal for want of prosecution may be granted if;

(i)	The plaintiffs' default is intentional or is allowing for an inordinate or inexcusable delay in the prosecution of his claim;

(ii)	There is no reasonable explanation given by the plaintiff for the delay;

(iii)	That delay has caused injustice or prejudice to the Defendant."

14.	It is In John Niale v Sepik Coffee Producers Limited & Ors (2004) N2647 where Cannings, J expanded the issue to be taken into consideration and stated:

"The Court should specifically look at the conduct of the parties and their lawyers."

15.	His Honour Cannings, J added another factor to be taken into consideration and that is;

"The Court take into account of its delay to give paramount consideration to the dispensation of justice under section 158 (2) of the constitution."

16.	To a certain extent the default on the Plaintiff's Counsel is intentional and it is an inexcusable delay. The reason for been short staff is unreasonable as there are better alternatives the Plaintiff's Counsel has avoided rather than not prosecuting the claim. The Defendant through Counsel Mr. Peri has demonstrated the injustice or prejudice caused. It is the Plaintiff's Counsel causing unnecessary delay in prosecuting this matter. 

17.	I grant orders sought in the motion and dismiss the proceedings for want of prosecution with costs. Costs to be agreed if not to be taxed. 

_________________________________

Public Solicitor: Lawyers for the Plaintiffs
Warner Shand Lawyers: Lawyers for the Defendants