N5412

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 877 of 2012

BETWEEN:

NIVANI LIMITED
Plaintiff

AND:

CONSORT EXPRESS LINES LIMITED
Defendant

Kokopo: Oli, AJ
2013: 16th August & 9th, 30th September

CIVIL JURISDICTION – PRACTICE & PROCEDURE – Writ Of Summons - Application to dismiss - Proceedings filed statute time barred – And for want of prosecution - Relevant considerations - Whether there has been inordinate delay in prosecuting the proceedings - No evidence or explanation for undue delay. 

CIVIL JURISDICTION – PRACTICE & PROCEDURE – Dismissal for filing out of time – And for want of prosecution – Failure to prosecute proceedings with due diligence - no reasonable explanation given for undue delay to prosecute - Prejudice to defendant - Discretionary considerations - Exercise of discretionary power in favour of defendant - Order 4 Rule 36 National Court Rules

Cases Cited:

Kai Ulo & 2 Or v The State [1981] PNGLR 148.
Burns Philip (New Guinea) Limited v Maxine George [1983] PNGLR 55.
Viviso Seravo v Jack Bahafo (2001) N2078 
John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637
Ahmadiyya Muslim Mission v Bank of South Pacific (2005) N2845 
Sweden Tani v Motor Vehicle Insurance Ltd (2005) N3984

Legislations Referred to:

Constitution of PNG
Sea-carriage of Goods Act
National Court Rules

Counsel: 

Mr. Bernard Eluida, for the Plaintiff
Mr. Noel Kera, for the Defendant

RULING

30th September 2013

1.	OLI, AJ: The defendant files an application before this court to dismiss the proceedings in its entirety on two fronts. Firstly, on the grounds of legal time barred by the said enabling Act to wit; Sea-carriage of Goods Act, in that the Plaintiff filed the law suit against the defendant outside of the required legal time period of twelve months stipulated and allowed under Article (iii) (6) of Sea-carriage of Goods Act (chapter 261). And secondly, in the alternative the matter should be dismiss for want of prosecution under Order 10, rule 5 and Order 12, rule 1 of the National Court Rules. 

The parties presumably would have completed their pleadings in this matter in December 2012 and the matter would have been listed for hearing soon after the notice for trial date was sought by the plaintiff. However, this was not the case, in this case and so defendant counsel in the alternative sought second relief, in the event that if the Court rules that it does have jurisdiction to hear the matter, the law suit should be dismissed for want of prosecution under Order 10 Rule 5 of the National Court Rules.

BACKGROUND 

2.	The plaintiff filed an action against the defendant on 20th August 2012 by way of Writ of Summons claiming damages occasioned to the goods namely cement bags contained in four (4) twenty (20) foot containers. The Plaintiff Company now sues the Defendant Company for negligence with rights to claim pursuant to the Sea-Carriage of Goods Act (chapter 261).The plaintiff claimed compensation for damages due to loss of goods to the value of K24, 446.40 against the defendant. The defendant from the outset denied liability, hence this recovery action against the defendant now before this court.

3.	On 12th August 2011, the plaintiff company entered into a contract, to wit; a Bill of Lading No. LRU10800700 through PNG Taiheiyo Cement (hereinafter referred to as the "Shipper") and the plaintiff being the consignee. The Bill of Lading was for the shipment of four (4) twenty (20) foot containers each containing approximately five hundred (500) bags of cement (herein referred to as "goods"). The shipper packed the goods into four (4) containers respectively described as CELU3012150, CELU3014507, CELU3011703 AND CELU3015183 and loaded in Lae as a consignment on the Defendant 's carrier Niugini Coast on voyage 108N (herein referred to as "vessel") with an estimated arrival in Rabaul on 15th August 2011.

4.	On or about 17th August 2011 the Defendant's vessel arrived in Rabaul with the goods and the Plaintiff's stevedores' supervisor, a representative from the Defendant's company and others were present when the goods were offloaded, delivered and inspected. It was there that the combined inspection revealed that the goods in containers CELU3011703 and CELU3015186 (herein referred to as "damaged containers") were damaged completely.

It was during the combine inspection that the Plaintiff realised the damaged containers seemed to have been submerged under water where it was kept. The damaged containers had visible marks of rust from the outside that clearly indicated that it was kept in the area of the vessel where water had flooded. The plaintiff indicated their initial interest to file for damages suffered and may sue for damages. Since, the filing of the law suit the defendants from the outset denies the law suit to claim damages filed by the plaintiff.

NOTICE OF INTENTION TO DEFEND

5.	The defence counsel filed a notice of intention to defend the law suit against the defendant on 14th September 2012 and also filed particularised defence on the same date and served on the plaintiff thereafter. The defendant Counsel also filed affidavits in support of the defendant's particularised defence sworn on 22nd November 2012 and filed on 13th December 2012 respectively. The defendant rely on amongst other legal defence as provided in the Hague Visby Rules where schedules from this Rules are incorporated in the Sea-carriage of Goods Act, and basically the defendant's legal defence hinges on the premise, that the proceedings herein are time-barred by Statute, and therefore the Court lacks jurisdiction to deal with the matter. 

MOTION TO DISMISS THE PROCEEDINGS

6.	The law on motion to dismiss the proceeding is well settled in this jurisdiction. The defendant filed the motion to dismiss the proceedings under Order 10, Rule 5, and Order 12, Rule 1, of the National Court Rules was filed on 21st December 2012. In support of this motion the defendants rely on the defence counsels affidavit filed on 22nd November 2012. The 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 proceedings commenced by Originating Summons to the extent and with such modification as the Court may direct (O.10 r. 1 (2)), made reference to proceedings commenced by Originating Summons and it states:

"This Division applies to proceedings commenced by Originating Summons to such extent and with such modification as the Court direct."

7.	However, the Order 10, Rule 5, makes a specific reference to a proceeding commenced by Originating Summons that unless it is prosecuted within six weeks after all the pleadings are closed the defendant has the right to terminate the case for want of prosecution under Order 10, r, 5 of the National Court Rules where it states in no uncertain terms and reads:

"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 order as the Court deems fit."

And;

"General Relief Order 12, Rule 1, (40/1) states:-

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process."

DEFENCE AND REPLY

8.	The defendants counsel filed a Notice of Intention to defend with particularised particulars of defence with supporting affidavit to defend the plaintiff's law suit. The plaintiff's counsel in reply made no formal response to the defendant's particularised defence and did not make any written submission in support of the plaintiffs' claim. Instead, the plaintiff's counsel made verbal response and counter representation to the motion on foot by the defendant to dismiss the law suit for want of prosecution. The defendant's counsel filed a meritous defence to challenge or put notice on the plaintiff's counsel to give notice of a trial date to test the validity or lack thereof of the meritous defence as pleaded through the inter- party trial process. The plaintiff's counsel not only failed to file any supporting affidavit to support the claim but also failed to secure a trial date after the parties had completed their pleadings after six weeks and so the defendant's counsel filed for dismissal for want of prosecution under Order 10, r 5 of the National Court Rules.

ISSUES

9.	There appears to be two pertinent issues for determination by the Court. They are:

(i)	whether the matter should be dismissed for filing the action outside of the time limitation required under Article iii (6) of Sea-carriage of Goods Act (Chapter 261), and;

(ii)	whether the defendant has established a case for the dismissal of the proceedings for want of prosecution. 

The Issue No: 1. Whether the matter should be dismissed for filing the action outside of the time limitation period required under Sea-carriage of Goods Act (Chapter 261).

10.	The relevant provision under Article iii (6) of the Sea-carriage of Goods Act (Chapter 261) requires that the person who is aggrieved under the contract entered into under Sea-carriage of Goods Act must file for recovery action against the defendants within one year or twelve months from the date the damaged cargo has been delivered. 

11.	In this case the plaintiff entered into a contract of carriage of goods by sea as evidence by a Bill of Lading, and that the cargo was discharged from the defendants' vessel on 17th August 2011 at Rabaul port of discharge of goods from Lae. The said contract of carriage of goods between the parties was subject to the terms of the said Bill of Lading and the Hague Rules as contained in the schedule of the Sea-Carriage of Goods Act. The said Bill of Lading and the Hague Rules provide, inter alia, "that any proceedings for damage to cargo must be commenced within one year of the date of discharge of the cargo. The plaintiff alleges in its Statement of Claim that the cargo was discharged on 17th August 2011 in Rabaul from Lae". In the said premise any proceedings arising out of any such damage had to be commenced against the defendant within one year from 17th August 2011, the date of discharge at Rabaul. This effectively means that the plaintiff has 12 calendar months to commence legal proceedings for damaged cargo before or on 17th August 2012 respectively. In this case the proceedings were not commenced against the defendant until 20th August 2012, three clear days is too late, therefore renders the action time barred by statute. 

12.	The brief historical facts surrounding the circumstances in respect to the first leg of the defendant's motion to dismiss the proceedings is on the premise that the action filed by the plaintiff is time barred by statute. 

13.	The defendant's counsel on 6th September 2012 caused a letter to be written to the plaintiff's lawyers, giving notice that the proceedings were time barred, and requested their consent through a Notice of Discontinuance of Proceedings by both parties concerned. This request was not responded to by the plaintiff's lawyers. 

14.	The defence counsel on 14th September 2011 files Notice of Intention to defend the action. On 4th October 2011 the defence counsel caused another letter to plaintiff's lawyers and pointed out the statute time limitation period in respect to their claim that it was filed outside of 12 months legal time limitation requirement period under Article iii (6) of Sea-carriage of Goods Act, therefore the law suit was statute time barred. 

15.	There was still no formal response from the plaintiff's lawyer. The defendant's counsel caused another letter dated 8th November 2011 and advised the plaintiff's lawyers that since there is no response forth coming except deafening silence received on the request by the defendant's counsel for discontinuance of the proceedings by consent, the defence counsel will file a motion for dismissal of the entire proceedings as action filed is statute barred and for want of prosecution. There was still no formal response to the last letter by the plaintiff's lawyer as well, to this date.

16.	The plaintiff's counsel on the hearing of this motion offered no credible explanations as to his non response attitude and unprofessional conduct to those letters except to inform the court during the hearing of this application that his ability to respond to the number of defendant's counsel's letters was unfortunate but greatly affected by his inability to secure proper instructions from his client, hence the plaintiff's counsel was not able to file response to Notice of Discontinuance by Consent on the premise of filing the law suit after one year legal time limitation period hence, rendering the proceedings time barred by statute. I restate the said provisions as follows:

Under Article III (6) of Sea-Carriage of Goods Act states:

Article iii (b) states:

"Unless notice of loss or damage and of the general nature of the loss or damage is given in writing to the carrier or his agent at the port of discharge before or at the of removal of the goods into the custody of the person entitled to delivery under the contract of carriage, or, if the loss or damage be not apparent, within three days, the removal is prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.

In any event the carrier and the ship are discharge from all liability in respect of loss of damage unless a suit is brought within one year after the delivery of the goods or the date the goods should have been delivered.(italic emphasis is mine)

In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all the reasonable facilities to each other for inspecting and tallying the goods."

17.	The legislature's intention is very clear on one year or twelve (12) months time period limitation under Article iii (6) of Sea-carriage of Goods Act for recovery of damages suffered for breach of contract under Bill of Lading under the said Sea-carriage of Goods Act. The aggrieved party is required by law to file an action for recovery of damages before a Court of competent jurisdiction within one year from the date the damage is alleged to have been committed during the shipment and notice on the date of delivery at the port of discharge at Rabaul. This is the legal position of the law and the plaintiff in this case is required to comply with this legal requirements. 

18.	In this case the plaintiff learns of the damages occasioned by the defendant on and including 17th August 2011 upon delivery of goods as per the Bill of Lading at Rabaul the Port of discharge from Lae. The plaintiff's counsel files an action for recovery of damages on behalf of the plaintiff on 20th August 2012 and the simple question to ask is whether the plaintiff's counsel filed recovery action for damages within the statute time limitation period of one year from 17th August 2011.

19.	My simple mathematical calculation confirms that the plaintiff filed the action for recovery of damages after 17th August 2012, three days late on 20th August 2012, as required under the legislative mandated time limitation period of one year. This effectively means that filing must occur within one year, and the dead line for filing for recovery action ought to be done on 17th August 2012 and no later in order to find the carrier the ship owner liable for damages complained of and claimed in the law suit.

20.	The plaintiff is require by law to file action for Notice of Damages before or on 17th August 2012 to comply with the Statute time limitation period of one year for purpose of recovery action under article iii (6) of Sea-carriage of Goods Act. I do not think that specific express provision on statute time limitation of one year under article iii (6) of Sea-carriage of Goods Act can be read and understood in any other way except the way it is express and stipulated in the said Act. This means that recovery action by aggrieved party must be file within one year and not thereafter from the date of delivery of the goods by the carrier. The plaintiff counsel did offer some administrative explanation for filing recovery action for damages some three days too late on 20th August 2012 was due to delay in receiving proper instructions from his client. 

21.	But plaintiff's counsel, however, did confirm in his explanation that the filing fees was purchased on the 17th August 2012 from BMS Finance cash office, and this was indeed the last day to file the plaintiff's law suit for Notice of Damages against the defendant. As it turn out this opportunity went begging because the plaintiff's law suit was not formally registered on 17th August 2012. However, the plaintiff's counsel tried to explain that though the Writ of Summons was ready but it was put on hold because normally the WS. NO of a case must be obtained from Waigani Central Registry and this was done on Monday 20th August 2012 that registered the matter as WS NO 877 of 2012.

22.	I appreciate the plaintiff's counsel's brief reference to in passing that the registration of recovery action is the prerogative of the Registrar's Office in Waigani Central Registry Office to obtain a WS numbers. But the plaintiff's counsel failed to offer any reasonable legal explanation as to why he lodged the Writ of Summons, in this case on Friday 17th August 2012 and not before, knowing very well the normal legal registration requirements at the Kokopo National Court registry. It is indeed a well known local knowledge to all Court users here in Kokopo. I do not think that the plaintiff's counsel cannot say nor pretend that he did not know about the Kokopo National Court's ground rules or requirements of registration of matters in Court in respect to ascertaining the WS or OS numbers upon filing from Waigani Central Registry. As a seasoned local lawyer or private practitioner in Kokopo and leaving the filing to the last day as per the legal time limitation of one year as per the enabling Act in this matter leaves much to be desired of. 

23.	It is with great interest to note why the plaintiff's counsel did not lodge the court process some two weeks before or may be could have filed the action on the same date, when he purchased the filing fees on 17th August 2012, at BMS Finance cash office. I say this from the outset that when counsel took instructions to act for the plaintiff, it is incumbent on him as a learned prudent seasoned private practicing lawyer to take very serious note of the one year statute time limitation period to file recovery action provided in the enabling Act. Any justification for filing after twelve months due to any internal administrative inconvenience or excuses advanced by the plaintiff's counsel has no legal basis, and therefore runs the risk to face the serious consequence of non-compliance that amount to nothing less than the matter having to be dismissed by the Court for lack of jurisdiction. This simply means that the court having no jurisdiction to deal with the matter because the action is filed after one year is statutory time barred under the said Act. Thus, it renders the action filed by the plaintiff to be time barred for the court to invoke its jurisdiction.

24.	The normal recovery action for filing protocol ground rules at Kokopo National Court Registry is a foreseeable event in any court proceedings and the plaintiff's counsel ought to have known better and made no simple mistake such as in this case by filing three days late outside of one year time limitation required under the Act. Whilst registration after three days may seem to be a minor issue, but the principle behind having specific time line expressed and entrenched in the enabling legislation is quite serious, because it entail serious consequences in the event of breach or for non-compliance. 

25.	The specific time limitation expressed in the Act determines whether the Court should invoke its jurisdiction to be seized of the matter to determine the plaintiff's cause of action at law provided under Article iii (6) of Sea-carriage of Goods Act. Without which the Court would lack jurisdiction to deal with the matter due to plaintiff's non-compliance with the strict time limitation provisions provided under Article iii (6) of Sea-carriage of Goods Act. I could not apply the liberal interpretation rule of thumb to give wider meaning of the said provision in the said Act, as this option is not available to me to explore in this case, though I am mindful of the National Courts inherent powers provided under s. 155 (4) of the Constitution. 

26.	I therefore apply the literal or strict interpretation rule and apply the legislature's intention as specifically expressed and provided in the enabling Act, in that the action for recovery of damages must be filed by aggrieved party within one year from the date of delivery at the port of discharge. It is my view, that the filing was not done within one year from the date of delivery at the port of discharge of damage goods and therefore grants the defendant's motion forthwith.

Issue No: 2. 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

27.	The Order 10, rule 5 of National Court Rules deals with dismissal for want of prosecution for proceedings commence 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 order as the Court deems fit."

28.	The power of the Court to dismiss proceedings on the ground of want of prosecution is a discretionary matter. The discretion is to be exercised having regard to all the circumstances of a case and this was alluded to in this cases re: Kai Ulo & 2 Or v The State [1981] PNGLR 148 and Burns Philip (New Guinea) Limited v Maxine George [1983] PNGLR 55.

29.	 The principles governing the dismissal of proceedings for want of prosecution are well established in this jurisdiction. The circumstances refer to in the above cases were further expanded and articulated and are summarised by His Honour, Justice Kandakasi in Viviso Seravo v Jack Bahafo (2001) N2078 and followed in Ahmadiyya Muslim Mission v Bank of South Pacific (2005) N2845 and John Niale v Sepik Coffee Producers Ltd & Ors (2004) N2637. However, additional principles were suggested by His Honour, Justice Cannings. These legal considerations were also applied by His Honour Justice David in the case of Sweden Tani – V – Motor Vehicle Insurance Ltd (2005) N3984, where His honour restated the importance of the circumstances that ought to be given due consideration when an application for a dismissal of proceedings for want of prosecution may therefore be granted; and I apply the same considerations in the circumstances of this case that if:

1.	The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim;

2.	There is no reasonable explanation given by the plaintiff for the delay;

3.	The delay has caused injustice or prejudice to the defendant;

4.	The conduct of the parties and their lawyers warrants the granting of this application;

5.	Is it in the interests of justice? 

30.	 The applications for considerations are dealt with individually and are further expounded in the order they appear as follows:

Is the plaintiff's default intentional or has allowed for an inordinate and inexcusable delay in a prosecution of his claim?

31.	The plaintiff files Writ of Summons No.877 of 2012 on 20th August 2012 against the defendant with particularised Statement of Claim and served on the defendants on 10th September 2012 at its corporate registered office on second floor at MMI Building, Allotment 2, Section 8, Corner Champion Parade & Hunter Street, Port Moresby, National Capital District. The plaintiff since filing the recovery action from 20th August 2012 has not filed any supporting affidavit until 15th August 2013 by Laurie Lau, a Price Controller and Purchasing Officer with the plaintiff company. 

32.	The plaintiff's counsel causes to file the only affidavit in support of the plaintiff's claim some eleven (11) months and fifteen (15) days later. The defendants' counsel did file a Notice of Intention to Defend on 14th September 2012 and also filed particularised defence on the same day. The defence counsel having learned of the time limitation period required under Article iii (6) of Sea-carriage of Goods Act, did cause a normal administrative letter dated 6th September 2012 to the defendant's lawyers to formally draw his attention and request to consider filling a combine Consent Order by Parties for Notice of Discontinuance of Proceedings by the plaintiff against the defendant. The premise for this is based squarely on the plaintiff filing recovery action outside of one year time limitation period as allowed and required under the said enabling Act. The plaintiff's counsel caused a formal response by a letter dated 2nd October 2012 and refused the offer and maintained that the recovery action was filed within one year according to the time limitation provision provided in the enabling Act in this case.

33.	The plaintiff's counsel however, further elaborated the fact that the matter was lodged at the Kokopo National Court Registry but could not be registered on 19th August 2012, because it was Sunday and no WS or OS case numbers could be obtained from Waigani Central Registry. However, WS NO: 877 of 2012 was obtained for this case on Monday 20th August 2012 and the court documents were uplifted by plaintiffs' lawyer from the Kokopo National Court Registry thereafter to be served on the defendant, and the service was effected on 4th September 2012 by Frank Avea, Claims Supervisor with Plaintiff company Nivani Ltd.

34.	The plaintiff's counsel was served with the Notice of Intention to Defend and also with the particularised defence on 14th September 2012 and further request by defence counsel by a letter to discontinue the proceedings by consent by both parties. The plaintiff's counsel refuses to enter into consent order to discontinue the proceedings. The plaintiff's counsel thereafter failed to give notice to the defendant to have the matter set down for trial after pleadings by parties supposedly would have been effectively closed after six weeks or thereafter on 6th October 2012 after service of the Writ of Summons on the defendant on 4th September 2012. This did not take place to progress the matter further to a trial due to lack of procedural initiative by the plaintiff's counsel.

35.	The defence counsel filed Notice of Motion to dismiss the entire proceedings for lack of jurisdiction and for want of prosecution on 4th December 2012. The plaintiff's counsel still did not give notice to set down the matter for trial to this date for reasons only best known to himself. The plaintiff's counsel did file an affidavit in response to the Notice of Motion filed by the defence counsel to dismiss the entire proceedings for lack of jurisdiction due to statute time barred under Article iii (6) of Sea-carriage of Goods Act and for want of prosecution under Order 10, r 5, and Order 12, r 1, of National Court Rules. The plaintiff's counsel though acknowledging receipt of the Notice of Motion to dismiss the entire proceedings for want of prosecution provided no real substantive challenge to the particularised defence provided by the defence counsel but the plaintiff's counsel filed only witness affidavit by Laurie Lau who merely restated the contract per se as per the Bill of Lading in accordance with the Sea-carriage of Goods Act between the parties and the damaged goods complained of in the law suit were discharged and delivered on 17th August 2011. The witness in passing made reference to the fact that the filing was done within one year but failed to articulate how and why when in fact he confirmed that the delivery of goods was discharged on 17th August 2011 at Rabaul Port of discharge. It is very obvious from witness Laurie Lau's affidavit that the witness failed to realise that the filing was done on 20th August 2012, a three (3) clear days too late and still believes that the filing for recovery was done within one year, a clear demonstration of a mistaken belief by witness Laurie Lau for plaintiff. 

36.	The present application by the defendant's counsel to dismiss the entire proceedings filed on 4th December 2012 to this date is about not less than six months and the plaintiff's counsel has still not filed any affidavit in support except the only affidavit by Laurie Lau filed on 15th August 2013. Since then the plaintiff's counsel did not request through the pre-trial status conference to set down the matter for a trial date so that the matter could be heard and determined. I am satisfied that at the time of filing the present application, there has been an inordinate and inexcusable delay in prosecuting these proceedings by the plaintiff. This consideration favours the defendant.

Is there a reasonable explanation given by the plaintiff for the delay?

37.	In the present application, the plaintiff's counsel filed an affidavit by Laurie Lau, Price Controller and Purchasing Officer with the plaintiff company on 15th August 2012, some eleven (11) months and fifteen (15) days later in support of the plaintiff's claim. It is apparent and clear from the plaintiff and plaintiff's counsel's conduct as demonstrated by the lapse of time to file the only affidavit in support of the plaintiff's claim some eleven months later leaves much to be desired of. The procedural legal requirements under O 10, r 5 of the National Court Rules are quite clear. The parties are required to complete pleadings after six weeks from the date of filing the recovery action and the plaintiff is legally required to file a Notice to set down the matter to a Trial Date on the next return date after a pre-trial status conference. The pleadings by parties presumably would have been closed after six weeks from the date the matter was formally served on the defendant on 4th September 2012. 

38.	The plaintiff's counsel in response to this application in respect to undue delay provided an unacceptable explanation, and appears to shift the blame to his client for the unprecedented delay in not responding to the defendant's particularized defence. The plaintiff's counsel referred to it as largely due to lack of appropriate instructions forth coming from his client. Hence, the plaintiff's counsel was put in a very awkward position that he could do very little to comply with the procedural legal time line requirement as stipulated under Order 10, Rule 5, of the National Court Rules. The witness Laurie Lau's affidavit filed by plaintiff's counsel sworn and filed on 15th August 2013, the return date for hearing of this application inter- party, the witness Laurie Lau merely reaffirmed the contract per se as between the parties and further stated that the recovery action was filed within one year in compliance with Article iii (6) of Sea-carriage of Goods Act, I am not convinced and satisfied by the plaintiff's counsel's explanations to the unprecedented delay and rule that this consideration favours the defendant.

Has the delay caused injustice or prejudice to the defendant?

39.	In view of this particular consideration, I accept that the defendant has been prejudiced in defending these proceeding by the plaintiff's failure to diligently prosecute its claim within one year because; firstly, the defendant discharged its legal duties and obligation under the Sea-carriage of Goods Act from Lae to Rabaul on the 17th August 2011 at port of discharge at Rabaul as per the Bill of Lading. On 17th August 2011, the date the goods were delivered and discharged at Rabaul port by the defendant and the combined joint inspection of the goods by representatives of both parties reveal that the plaintiff's goods were damaged during the transit from Lae to Rabaul. 

40.	This being the case the plaintiff is at liberty to file law suit for recovery of damages against the defendant within one year from the date of discharge and the delivery of goods at Rabaul port on 17th August 2011. The plaintiff is required by law to file law suit to recover damaged goods before or on 17th August 2012. In this case the plaintiff filed the law suit to recover for damages for the goods against the defendants on 20th August 2012, some 12 months and three days late, which amounts to statutory time barred. The defendant's counsel became aware of the one year time limitation period to file a law suit for recovery action for damages against the defendants and wrote to the plaintiff's counsel to seek a consent order for Discontinuance of the Proceedings by parties because the law suit by the plaintiff was statute time barred. 

41.	The plaintiff's counsel did not respond nor take the matter to the next level to proceed to trial by filing a Notice to set down the matter for trial the date during a pre-trial status conference in early December 2011 or thereafter was to no avail even to this date. The defendant's counsel did file Notice of Intention to Defend and provided particulars of defence and affidavit in support of the particularised defence after receipt of the originating process, the Writ of Summons NO 877 of 2012. 

42.	The plaintiff's counsel did take a positive step in the matter, since filing the action on 20th August 2012, and filed the only affidavit by witness Laurie Lau in support of the plaintiff's law suit for damages against the defendant. But the plaintiff's counsel failed to offer any reasonable explanation as to the delay from the date of discharge to the date of filing the law suit; why it was not filed within one year. The plaintiff's counsel's inability to file a notice to set down the matter for trial through a pre-trial status conference also contributed to the undue delay in prosecuting the matter. This consideration in my view favours the defendant.

Do the parties' conduct and their lawyers warrant the grant of this application?

43.	The defendant's counsel sent a letter to the plaintiff's counsel to consider the option to have the matter discontinued through a combined consent order. This is because the law suit was filed in court after one year of the legal time limitation period as required under Article iii (6) of Sea-carriage of Goods Act. 

44.	 This invitation letter by the defendant's counsel to the plaintiff's counsel to discontinue the proceedings through a combined consent order was an offer to settle out of court. The invitation was a self motivated initiative by the defendant's counsel and in itself is a cost effective move and one that parties may have amicably settled out of court with agreed settlement package between the parties with win/win outcome. However, as it turned out that the invitation did not appeal to the plaintiff's counsel to explore the alternative option, hence this application to dismiss the proceedings in its entirety for want of prosecution. 

45.	The plaintiff's counsel's explanation as to his non active participatory role on behalf of his client by not responding to the defendant's counsel's letters and lack of filing of a Notice of Intention to Defend and the particularised defence were largely due to lack of proper and effective communication between himself and his client. This is an in-house administrative issue that the plaintiff's counsel has some degree of control over and he must have himself to blame. As a seasoned professionally competent lawyer he cannot shift the blame to his client as he has control over the pace of his client case and not his client.

46.	The plaintiff's counsel also further fails to take upon himself to set the matter down to a trial date through the pre-trial status conference since December 2011. The conduct by the plaintiff's counsel is most unsatisfactory and unacceptable to say the least in that the delay caused injustice or prejudice to the defendant. This consideration favours the defendant. 

Is it in the interest of justice to grant this application?

47.	 In the circumstances of the instant application, I find there has been inordinate and inexcusable delay in prosecuting this claim. There is no reasonable explanation given as to why there has been a slight delay in instituting the law suit on time within one year but instead filed after one year three days. There is also no reasonable explanation given by the plaintiff's counsel why the plaintiff and his counsel could not give notice to set the matter down for trial before the hearing of this application. 

48.	The court having heard the plaintiff's counsel's explanation on the progress of this case in respect to its undue delay, it is not satisfied with the explanations given by plaintiff's counsel Mr. Eluida. In that such delay was inordinate and cannot be excused taking into account the element of paramount consideration of dispensation of justice required in this case. No reasonable explanation was given to this court on the hearing of the application to dismiss, why the application should not be granted. This consideration favours the defendant as well.

CONCLUSION
 
49.	The court having considered the above foregoing five considerations hold in favour of the defendant. The defendant has established a case for dismissal of the proceedings for want of prosecution and also for filing the recovery action against the defendant out of time. Justice of the case so requires and demands that in the exercise of my discretion, the defendant's application is granted in all the circumstances of this case.

ORDER 

50.	The Court makes the following Orders:

1.	That this proceeding is dismissed in its entirety for filing out of time and for want of prosecution.

2.	That the Plaintiff is to pay the Defendant's costs of and incidental to this action to be taxed, if not agreed.

_____________________________________________________________
In House Lawyer: Lawyer for the Plaintiff
Young & Williams Lawyer: Lawyer for the Defendants