N5945

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1418 of 2010

BETWEEN:

BENJAMIN MESMIN MURLIU
First Plaintiff/Respondent Cross Defendant

AND:

EPITA PAISAT
Second Plaintiff/Respondent Cross Defendant

AND:

NESEREWA MOTUWE trading as MOTUWE LAWYERS
Third Plaintiff/Respondent Cross Defendant

AND:

LUDWICK TALIA
Fourth Plaintiff/Respondent

AND:

PATRICK TALIKA
Fifth Plaintiff/Respondent

AND:

JOSEPH BUIDAL, HENRY PIDI, ROBERT RARAP and
AUGUSTINE MAMALAU
First Defendant/Applicants

AND:

NELSON SAROA (trading as Nelson Lawyers)
Second Defendant/Applicant Cross Claimant

AND:

GIRE GIRE ESTATES LIMITED
Third Defendant/Applicant

Kokopo: Oli, AJ
2014: 14th October
2015: 8th April

CIVIL JURISDICTION - PRACTICE & PROCEDURE - Failure to comply with time limits specified in the National Court Rules –Delay in complying with order and failure to set down for trial – Right of party to apply for dismissal under order 10 Rule 5 of the National court Rules.

CIVIL JURISDICTION - PRACTICE & PROCEDURE - Delay – Close of pleadings – failure to set down for trial – delay of more than 3 years to set down for trial – Considered inordinate delay – Application to dismiss for want of prosecution – Order 10 Rule 5 – delay cause prejudice to the defendants – Application granted.

Cases Cited:

Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11
Markscal Ltd v Mineral Resource Development Company Pty Ltd [1999] PGNC 117
Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130

Counsel:

Mr. Epita Paisat, Lawyer for the Plaintiff/Respondents
Mr. Nelson Saroa, Lawyer for the Defendant/Applicants

RULING

8th April, 2015

1.	OLI AJ: The First Defendants/Respondents with two others filed an application to dismiss the proceedings for want of prosecution under Order 10 Rule 5 of the National Court Rules after pleadings were closed and for failing to set the matter down for trial after six weeks thereafter. The matter has been on the active civil track for little over three years until First Defendant/Applicants and two others filed this application.

2.	The First Plaintiff/Respondent filed the Writ of Summons on the 12th November 2010 and the service was done on 27th July 2011 to all of the Defendant/Applicants respectively. Since the filing of the action on 27th July 2010, the matter was required to have the trial date fixed after six weeks, after due pleadings were closed so that First Plaintiff/Respondent could prosecute the matter to finality as Defence Counsel filed Notice of Defence and particulars of defence to defend the matter on behalf of all the defendant/applicants.

3.	The First Plaintiff/Respondent is a private citizen who resides at Gire Gire Plantation within the Kokopo/Vunamami Local Level Government area. The First Plaintiff/Respondent may sue and/or be sued in his own name and style. The Fourth Plaintiff/Respondent is a citizen who also resides at Gire Gire Plantation, which is located within the Kokopo/Vunamami Local Level Government area and is employed by the First Plaintiff/Respondent as driver of the Red Nissan Bus. He may sue and/or be sued in his own name and style. The Fifth Plaintiff/Respondent is a citizen, who also resides at Gire Gire Plantation, which is located within the Kokopo/Vunamami Local Level Government area. The first plaintiff/respondent is the owner of the vehicles involved in this case and they are:

a)	a Red Nissan Bus, Registration No. P100x (15 seater).
b)	a Blue Nissan Bus, Registration No. P0363E (15 seater)
c)	a Dark Blue Double Cab, 4x4 Utility, Registration No. RAI 664.

4.	Further, the First Plaintiff/Respondent employs the Fourth Plaintiff/Respondent and Fifth Plaintiff/Respondent, who are drivers of the Red Nissan and Blue Nissan Buses mentioned above. The said buses were kept in the Court House car park yard for two (2) days and therefore did not ferry passengers. As a result, the two (2) buses made a loss for two (2) days, when it was kept in the Court House car park yard. The First Plaintiff/Respondent employed Fourth Plaintiff/Respondent as driver of the Blue Nissan Bus, Registration No. P0363E. He may sue and/or be sued in his own name and style.

5.	On the 18th October 2010, the Second Defendant/Applicant Cross Claimant caused to be issued from the National Court Registry (Kokopo) a Writ for Levy of Property which was to use to levy any properties belonging to Barava Limited, the judgment debtor. It is alleged that the said Writ for Levy of Property Order was issued to the First Defendant/Applicants individually and severally with express instructions by Sheriff’s Office here at Kokopo as to how and whose property the Writ for Levy of Property Order was to be executed on to service the outstanding unsatisfied judgment still owing by judgment debtor Barava Ltd. However, as the turn of events unfolded the Writ of Levy of Property, was executed by Police acting on instruction to impound the First Plaintiff/Respondent vehicles as described above.

6.	The Police and the Sheriff of the Kokopo National Court, after receiving the formal Writ of Levy of Property Order, it is alleged that the First Defendant/Applicant, Second Defendant/Applicant and Third Defendant/Applicant, when executing the Writ for Levy of Property was done carelessly, recklessly and with malicious negligence. It is further alleged that Police and Sheriff Office acted upon wrong advice and without ascertaining the true legal ownership of the vehicles as described above, before execution of the Writ for Levy of Property on First Plaintiff/Respondents property.

7.	The First Plaintiff/Respondent further claimed that the First Defendant/Applicants together with Second Defendant/Applicant Cross Claimant and Third Defendant/Applicant failed to enquire and discover whose property they were impounding and thereby had failed to exercised due diligence, that the said vehicles were indeed owned by the First Plaintiff/Respondent, and not Barava Limited the judgment debtor..

8.	As a consequence of the First Defendant/Applicant, Second Defendant/Applicant Cross Claimant and Third Defendant/Applicant demonstration of professional carelessness, recklessness, malicious and negligence with lack of due diligence, in ascertaining the legal ownership of the above said vehicles, the Sheriffs Officer and the Police enforced the Writ For Levy of Property, on properties which were owned by the First Plaintiff/Respondent and as a direct result, First Plaintiff/Respondent has suffered shame, embarrassment and loss of dignity.

Particular Facts Pleaded by First Plaintiff /Applicant

9.	The particular undisputed facts pleaded by the first plaintiff/respondent are as follows:

a)	On the 09/11/10, at around lunch time, the Police stopped the Fourth Plaintiff/Respondent at the main bus stop at Kokopo, beside the market and off loaded the passengers in the Red Nissan Bus and ordered the Fourth Plaintiff/Respondent to drive the said bus to the Court House car park yard. Such action caused so much shame and embarrassment and loss of dignity to the First Plaintiff/Respondent.

b)	On the 09/11/10, at around lunch, the Police also stopped the Fifth Plaintiff/Respondent at the Kokopo town, at the main bus stop at Kokopo Market and off loaded the passengers in the Blue Nissan Bus and ordered the Fifth Plaintiff/Respondent to drive the said bus to the Court House car park yard. Such action caused so much shame and embarrassment and loss of dignity to the First Plaintiff/Respondent.

c)	On the 09/11/10, at the Barlow Ware House, Kokopo, the Police Stopped the First Plaintiff/Respondents wife and children and confiscated the said BT50, Dark Blue Double Cab Mazda from her and the children. The wife and the children were then forced to vacate the said vehicle and had to look for alternate transport to go home. Such action has caused shame, embarrassment and loss of dignity to the First Plaintiff/Respondent. Further, the First Plaintiff/Respondents wife and the children were in fear, thinking that they may have done something wrong, or that their father, the First Plaintiff/Respondent had committed an offence, which they don’t know was indeed, much to their surprise. 

Further Particulars of Loss of Business on PMV Transport Pleaded by First Plaintiff/Respondent

10.	The First Plaintiff/Respondent had operated a small fleet of Public Motor Vehicle transport business in and around Kokopo District and along Rabaul and Kerevat routes. The transport fleet comprise of the following Vehicles and the daily earnings as referred to below:

a)	The Red Nissan Bus, Registration No. P0100X makes approximately K200,00 per day, by way of ferrying passengers.

b)	The Blue Nissan Bus, Registration No. P0363E makes approximately K200.00 per day by way of ferrying passengers. Total Loss of Earnings is K400.00 per day x two (2) days is equal to K800.00. Therefore the First Plaintiff/Respondent has lost K800.00.

c)	The First Plaintiff/Respondent has also lost the sum of K350.00 per day to hire an alternate vehicle to use, for the purpose of conducting his own private business as well as taking his children to school. For the period that the First Plaintiff/Respondent own vehicle, to wit, a Dark Blue BT50 Mazda Double Cab, 4x4, Registration No. RAI 664, was locked up in the Kokopo National Court car park yard for two (2) days, the First Plaintiff/Respondent paid the sum of K350.00 per day for two (2) days, to the owner of the hired vehicle which is equivalent to K700.00.The First Plaintiff/Respondent further makes a claim of K700.00

11.	The First Plaintiff/Respondent is a leader and respected person within the Kokopo District, inclusive of its surrounding villages. The actions of impounding his private vehicles, has caused a lot of shame and embarrassment to the First Plaintiff/Respondent. Further, the First Plaintiff/Respondent has suffered loss of dignity and his reputation has suffered in the eyes of the public in Kokopo in that the public will perceive and have perceived that the First Plaintiff/Respondent has committed something wrong against the law.

Based on the above Business Loss Calculations, the First Plaintiff/Respondent now claims:

i)	Damages in the sum of K200,000.00 (to be assessed).
ii)	K800.00 as loss of earnings.
iii)	K700.00 for the hire of a private vehicle.
iv)	Interest of 8% p.a. pursuant to Statute.
v)	Costs on a Solicitor/Client basis.

12.	The Defence Counsel filed Notice of Motion on 16th June 2014 under Order 10 Rule 5 of the National Court Rules to dismiss the entire proceedings for want of prosecution due to unprecedented delay over period of little over 3 years. The motion is supported by an affidavit by one of the First Defendant/Applicant Robert Rarap dated 13th June 2014.

FACTS

13.	The First Plaintiff/Respondents filed the Writ of Summons on 12th November 2010 against the defendant/applicants for damages for wrongful execution of Writ for Levy of Property Order by members of Police force to impound property from the judgment debtor Barava Ltd.

14.	However, Plaintiffs/Respondents collectively filed Writ of Summons and sued the defendants/applicants each and severally in their individual capacities for damages for alleged breach of legal right in respect to an event that took place when named members of the Police executed the Writ for Levy of Property on 9th November 2010, and confiscated the three separate vehicles, the property of the First Plaintiff/Respondent on behalf of the Third Defendant/Respondent, the judgment creditor. 

LAW

15.	The law on application for dismissal for want of prosecution in this jurisdiction is well settled. It is governed by Order 10 Rule 5 of the National Court Rules. It reads:

Order 10 Rules 5.      Want of prosecution. (33/6)
“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”

ISSUES

(a)	Whether defendant/applicants is entitle to dismiss the proceedings for want of prosecution for failing to prosecute the matter within six weeks after pleadings have closed, but have allowed for three years to date.

(b)	Whether second defendant/applicant cross/claimant is entitled to cross claim against the plaintiff/respondent cross/defendants.

APPLICATION OF LAW TO THE FACTS

16.	The defendant/applicants filed application to dismiss the proceedings for want of prosecution after pleadings were closed after six weeks, and first plaintiff/respondent failed to set the matter down for trial thereafter. The matter has been on the active civil track for little over three years.

The Brief History of Plaintiff’s Case

17.	The Defendant/Applicants each and severally seeks the court that the matter should be dismissed for want of prosecution due to unprecedented delay. The unprecedented delay is not only more than six weeks after pleadings were closed but the period in question is little over three years is indeed, unreasonable and too long. The unprecedented delay amounted to justice delayed is justice denied or on the converse justice rushed is also justice denied. It is obvious that the unprecedented delay of three years amount to breach of Order 10 Rule 5 under National Court Rules. 

18.	Whilst the defendant/applicants legal right is accorded under Order 10 Rule 5 of the National Court Rules to seek to dismiss the matter for want of prosecution, the plaintiff/respondent is required by law within six weeks after the pleadings are closed, to secure a trial date for the matter to proceed to trial. The rationale behind Order 10 Rule 5 is to allow parties to have their day in court according to the due process of the court procedure and process and court determine the finality of the matter as between the parties in the proceedings that results a win and lose outcome for either one of the party. However, the Court, on motion by any other party for plaintiff/respondent failing to set the matter down for trial, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit. The defendant/applicants in this case is basically exercising their legal right under the National Court Rules according to the rule of law. 

19.	Whilst the court has discretional power to consider the defendant/applicants motion on its own merit, but what features so prominently in this case is the unprecedented delay in not having the matter listed for trial after pleadings were closed within six weeks, that denied the parties from proceeding to trial. However, the six weeks’ timeframe during which to have the matter listed for trial is a compulsory legal requirement, failing the aggrieved party is at liberty on motion, may on terms, dismiss the proceedings or make such other order as the Court thinks fit. 

20.	The National Court Rules pursuant to Order 10 Rule 5 provides the court with the discretional power to exercise whether to grant ultimate relief to dismiss the proceedings for want of prosecution or to make such other orders or on terms as the Court thinks fit. In the context of this case before me, three years waiting time and first plaintiff/respondent demonstrated no initiative to have the matter listed down for trial is far too long, without any relevant litigation intervening events that justify the delay period to three years. However, I am not convinced that by and large, there was no reasonable justifiable reasons advance by First Plaintiff/Respondent that contributes to explain the special circumstances surrounding the unprecedented delay of little over three years. In the absence of any exceptional reasons or explanation provided by Plaintiff/Respondent for such a long delay, the defendant/applicants are entitled to the relief sought or such other orders or on terms as the Court think fit.

21.	The second leg to Order 10 Rule 5 provides that Court also has the discretional power that, if it does not grant dismissal order for want of prosecution, it may make such other order as the Court thinks fit. I am laboured and burdened by the fact that what constitute other relevant considerations that court may consider in the circumstances of this case, in order to make such other order as the court thinks fit in the circumstances of this case. I take time to look at the conduct of the First Plaintiff/Respondent and their lawyer’s conduct that may have contributed to the unjustifiable delay. To do that, it is necessary to recite the relevant chronological history of litigation in the history of this case and the facts relating to its antiquity.

Chronology Historical Events in Litigation of the Case

22.	The chronology historical events in the litigation of this matter by parties reflect the following transaction events as follows:-

a)	On 12th November 2010- Issuance of Writ of Summons by Plaintiff/Respondents.

b)	On 15th December 2011 – First & Third Defendants Defence filed.

c)	On 15th December 2011 – Second Defendant’s Defence and Cross Claim Defendant’s Defence filed

d)	On 30th December 2010 – Reply to the 1st& 3rd Defendants Defence filed.

e)	On 30th December 2010 – Reply to the 2nd Defendant Defence & Response to Second Defendants Cross-Claim filed.

f)	On 27th July 2011 – Affidavit by Robert Rarap filed 

g)	On 19th August 2011 – Notice of Motion by Defendant/Applicants to dismissed the proceedings for failing to give discovery, (Order 9 Rule 15 (1) (a) of NCR.

h)	On 8th August 2011 – Affidavit by Nelson Saroa filed

i)	On 4th July 2011 – Notice of Discovery by Nelson Lawyers for defendant/applicant requesting Plaintiff/respondents to provide certain documents in their custody.

j)	On 19th August 2011 – Order granted for Adjournment sought by Plaintiff/Respondent to provide list of documents.

k)	On 24th August 2011 – List of Documents filed by Plaintiff/Respondents Lawyer Mr. Motuwe 

l)	On 24th August 2011 – Affidavit of Service to Epita T Paisat filed.

m)	On 5th October 2011 - List of Documents filed by Defendant/Applicants Lawyer Mr. Nelson Saroa.

n)	On 13th September 2011 – Affidavit of Service – by deponent Mr. Joseph Buidal filed.

o)	On 21st October 2011 – Affidavit in Support by Principal Plaintiff/Respondent Benjamin Mesmin Murliu filed.

p)	On 21st October 2011 - Affidavit in Support by Patrick Talika filed.

q)	On 24th October 2011 – Affidavit in Support by Taina Mesmin filed.

r)	On 24th October 2011 - Affidavit in Support by Ludwick Talia filed.

s)	On 16th June 2014 – Notice of Motion by Defendant/Applicants to dismiss proceedings for want of prosecution filed.

t)	On 16th June 2014 – Affidavit by Robert Rarap in support of the motion filed.

23.	The Court having highlighted the chronological history of the litigation events, and it is very obvious from this events that Plaintiff/Respondents have not made any real attempt to have the matter to be set down for trial after six weeks when the pleadings were closed. According to the chronological history of the case reveal, since filling of the Writ of Summons on 12th November 2010, it would have been in New Year in February 2011 after the commencement of the legal year this matter should have been set down for trial. The chronological litigation historical event of the case does not confirm this legal compliance by the Plaintiff/Respondents. Despite this obvious non-compliance with the clear provisions of Order 10 Rule 5 of the National Court Rules, there is no justifiable reason advance on behalf of the Plaintiff/Respondents to explain why such a long delay in prosecuting the matter after six weeks when the pleadings were closed, but allowed the matter to run to experience the unprecedented delay for not less than three years to date. With this kind of unfortunate predicament surrounding the unexplained delay history with the Plaintiff/Respondents position, the justice pendulum swings in favour of the Defendant/Applicants application to dismiss the matter for want of prosecution.

24.	In the case of Markscal Ltd v Mineral Resource Development Company Pty Ltd [1999] PGNC 117 His Honour Sevua J, dealt with an application by the first defendant, by way of notice of motion, seeking orders that the plaintiff's writ of summons and statement of claim be dismissed for want of prosecution, pursuant to Order 10 Rule 5 of the National Court Rules, and that the plaintiff pays the first defendant's costs of this motion.

25.	The plaintiff's writ of summons claiming K17, 377, 775.00 for loss and damages relating to an alleged wrongful breach of an agreement, was filed on 28th August, 1996. Since then, various documents have been filed and served. Court records reveal that at least two interlocutory applications have been made, and two interim orders issued consequently. In my view, a plaintiff, who institutes a lawsuit, has an obligation to prosecute it without unnecessary delay. He has the duty to comply with any Court order relative to that lawsuit; he has the duty to comply with the rules of Court to ensure that prosecution of the suit reaches finality without inordinate delay, and without causing prejudice to the defendant. I adopt what Woods, J said in Credit Corporation (PNG) Ltd-v- Gerald Jee [1988-89] PNGLR 11,at 12; and which I quoted in Titus Keran –v- Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130; and that is, "a party cannot just ignore Court process, if he does, he does so at his peril. "In the present case, the plaintiff ignored Court process, Court orders and Court rules and now finds itself in peril. It is the opinion of this Court that there is no impediment to the granting of the first defendant's application, therefore, the judgment of the Court is that the application should be granted. The Court therefore orders that the plaintiff's writ and statement of claim be dismissed for want of prosecution, pursuant to Order 10 Rule 5 of the National Court Rules. The court held that:

1. 	A party who institutes legal proceedings is obliged to prosecute it without delay, has the duty to comply with orders relative to the proceedings, has the duty to comply with the rules, and has the duty to prosecute it to finality without undue delay and without causing prejudice to the defendant.

2. 	There is no impediment to the granting of this application.

3. 	Plaintiffs pay the first defendant's costs of the proceedings

26.	In the above case the court is very positive and particular on "a party cannot just ignore Court process, if he does; he does so at his peril". In another word the party who fail to prosecute the matter after pleading closed after six weeks, is taking upon itself the risk of having the matter being dismiss for want of prosecution. I find this case is no exception and apply the above outcome in this case with the same result, that assist me arriving at the outcome in this case, to rule in favour of the defendant/applicants motion to dismiss the proceedings in its entirety. This I do so in this case on foot.

THE SECOND DEFENDANT/APPLICANTS CROSS CLAIMANT

27.	The second defendant/applicant cross claimant files a Cross Claim against the second and third Plaintiff/Respondent Cross Defendants. And Claim monetary damages in the sum of K1,000,000.00 (K1mil) to be assessed. The second/defendant cross claimant in his affidavit denied that he has any part nor provide any form of legal advice to first defendants/applicants, as to how to execute the Writ for Levy of Property against the First Plaintiff/Respondent property. In his affidavit he file in December 2010, he depose to the fact that he did wrote a letter to Plaintiff lawyer, second cross defendant to remove his name in the proceedings. He also states that failure to remove his name from the proceedings; he forewarned the legal counsel that he will file a Cross Claim against the second and third cross defendants. There was no response receive from second and third cross defendants. 

28.	The second defendant cross claimant further stated in his affidavit that on Monday 6th December 2010, he met the second cross defendant at the car park at Supreme and National Courts at Waigani, to discuss the proceedings of SCA No. 50 of 2009 and further requested that the Second Cross Defendants remove the second defendant Cross Claimant as second defendant to the proceedings herein, in which the second cross defendant stated "it is the instructions of my client and if you want to remove yourself as a party, make application to be remove"

29.	I find the above discussion very useful between second defendant cross claimant and second plaintiff cross defendant, in view of the second defendant cross claimant desire to be remove from the proceedings. Whilst second defendant cross claimant forewarned of his intention to file cross claim against the plaintiff/respondent second cross defendants, the second defendant cross claimant was also put on notice to seek courts formal endorsement by application to the court, in order to be remove as a party to this proceedings, if so desirous to do so. I find the legal proposition to second defendant cross claimant by plaintiff/respondent cross defendants in his capacity as a lawyer and counsel acting for the first plaintiff/respondents and himself, appear to be sound and valid in the circumstance of this case.

30.	The second defendant cross claimant is the counsel representing the defendant/applicants in this case including himself as well, hence there is a presumption that he would have done company search of the judgment debtor Barava Ltd assets and whether the living Directors are to be vicariously personally held liable for the company Barava Ltd, the judgment debtor outstanding unsatisfied judgment still owing to the judgment creditor, the third defendant/applicant. Whether in this case, was the first plaintiff/respondent is a Director of Barava Ltd the judgment debtor. Whilst second defendant cross claimant strongly argued that he has no knowledge nor provide any legal advice in the way the Writ for Levy of Property to be executed and impound first plaintiff/respondent property.

31.	These are some penitent competing issues still remain unresolved, such as who advised the Police to do what they did, therefore in the interest of justice and in view of the outcome that the court has ruled on the issue No. 1, in favour of the defendant/applicants, the legal issues raised in the Issue No. 2 will remain unresolved because of the strategic decision the second defendant/cross claimant has taken, by not taking the second cross defendant's proposal seriously to heart when he was told that:- "it is the instructions of my client and if you want to remove yourself as a party, make application to be remove". This is the challenge where second defendant cross claimant choose not to positively explore and progress in court to have his denial vindicated through the due process of law that will validate or otherwise his cross claim that he vigorously filed against second and third cross defendants respectively. I therefore refuse the cross claim by second defendant/cross claimant in its entirety against second and third cross defendants.

CONCLUSION

1.	I am satisfied that there was indeed an unprecedented delay for three years was not justified under the circumstances of this case and therefore amount to breach of provisions of Order 10 Rule 5 of the National Court Rules and also Rules 15 (1) a & (2) c under Listings Rules 2005.

2.	The Cross Claim by Second Defendant/Applicant Cross/Claimant for damages, against second and third cross defendants is refused.

3.	The cost is awarded in favour of the Defendant/Applicants, if not agreed be taxed.

ORDER
 
32.	The Court accordingly makes the following orders:

1.	That the court grants the motion in favour of the defendant/applicants that this proceedings be dismissed for want of prosecution.

2.	The Cross Claim by Second Defendant/Applicant Cross/Claimant for damages against second and third cross defendants is refused.

3.	The cost in favour of the defendant/applicants, if not agree be taxed.

4.	The time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

The court orders accordingly.
________________________________________________________________

Paisat Lawyers: Lawyer for the Plaintiffs
Nelson Lawyers: Lawyer for the Defendants