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Lalai v Munana [2017] PGNC 295; N6973 (6 October 2017)

N6973

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS 852 OF 2006


BETWEEN
WILLIE LALAI
Plaintiff


AND
ANDREW MUNANA
First Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Polume-Kiele J
2016: 13thFebruary
2017: 6th October


PRACTICE AND PROCEDURE - Application to set aside or varying judgment or order pursuant to Order 12 Rule 8 (3) (b) of the National Court Rules and alternatively s 155 (4) of the Constitution- whether this application is properly before the Court – relevant considerations


PRACTICE AND PROCEDURE - Application to set aside summary dismissal orders –Order 10 Rule 9A (15) - National Court Rules - Whether this court can grant application – relevant considerations


Cases cited:
Papua New Guinea Cases


Ahmadiyya Muslim Mission v BSP Ltd (2005) N 2845
Aundak Kupil v. the State [1983] PNGLR 350
Belden Memi v Nokondi Investments Limited (2012) N4861
Freddy Kave v Fred Yakasa (2014) N5692
Golobadana No35 Ltd v Bank South Pacific Ltd (2015) N5890
John Naile .v. Sepik Coffee Producers Ltd and Ors (2004) N2637
Malt v Queen [2009] N3577
Philip Lomai v Seal (Manus) Ltd (2008) SC1326
Timbani Longai v Steven Maken (2008) N4021
Vivisio Seravo v. Jack Bahafo (2001) (N2018)
Yap v Tan & Ors [1987] PNGLR 227


Overseas Cases:


Chuck v Cremer [1846] Eng. R 924, 47 ER 820;
Hadkinson v Hadkinson [1952] All ER 567


Counsel:


Mr M Nasil, for the Plaintiff
Mr L Florian, for the Defendants


JUDGMENT


6th October, 2017


  1. POLUME-KIELE J: On the 14th of October 2014, the Plaintiff applied by way of notice of motion pursuant to Order 12 Rule 8 (3) (b) of the National Court Rules and alternatively s 155 (4) of the Constitution seeking a number of reliefs:
  2. The application was heard on the 13th of July 2016 but the matter only became apparent on the 21st of June 2017 as an outstanding judgment.
  3. This is now my ruling on the application.

Background Facts


  1. The plaintiff; an adult male claims damages under the provisions of Part IV and V of the Wrongs (Miscellaneous) Provisions Act Chapter 297 for the unlawful death of his 20 year old daughter, namely Cindy Lalai. The deceased was a passenger in private motor vehicle, a Mazda Sedan Registration No. BBL 142 which collided with another vehicle, a government vehicle, a Toyota Land Cruiser, Registration No. ZGB 331, driven by a police officer, namely Andrew Munana, the first defendant in these proceedings. The accident is alleged to have occurred on the 29th of June 2003 at the intersection of the Dikagara and Koura Roads, Tokarara, National Capital District at 10.00 a.m. The plaintiff alleges that his daughter’s death was due to the negligent driving of the police officer, the first defendant. The plaintiff alleges further that the first defendant was drunk at the material time and his negligence led to the accident which resulted in the death of his daughter.
  2. Default judgment was entered against the Defendants on 2nd September 2008 for failure to file a Defence within the requisite period under s 9 of the Claims By and Against the State Act 1996 and Order 8 Rule 4 of National Court the Rules (where appropriate).
  3. For reasons only known to the plaintiff and his lawyers, no action was taken to progress the matter to trial for a period of three years and 6 months, after securing default judgment in his favour.
  4. Consequently, this led to actions taken by the Registrar to list the matter for Summary Determination and it was then set down for hearing on the 4th of April 2012. On the day of the hearing, cause was shown by the plaintiff for the delay in prosecuting the matter. The Court in the exercise of discretion removed the matter from the summary determination list and referred the matter to the registry and to allow the parties to progress the matter to trial.
  5. Having obtained leave to Set Down the matter for trial, the plaintiff still did not list the matter for trial. This lack of action then led to the second summary determination listing on the 19th July 2013 where the Court issued directions for the further conduct of the proceedings.
  6. On the 2nd December 2013, the Court summarily dismissed the proceedings for non-compliance with “directions” issued by the Court on the 19th of July 2013 with costs to the Second Defendant to be taxed if not agreed.
  7. This decision is subject of this application.

Relevant Law


  1. The powers of the Court to summarily determine a matter is provided for under Order 10 Rule 9A (15) – National Court Listing Rules (2005). Order 10 Rule 9A (15) reads:
  2. Section 155 (4) of the Constitution states that “both the National and Supreme Courts have review powers”. The power of the National Court to set aside a decision of another National Court arises in certain circumstances pursuant to Statute or on common law principles.

Plaintiff’s Submission


  1. The plaintiff in his application says there was misapprehension of the law and facts leading to the Court making the orders of 2nd December 2013. This being that the proceedings were simply dismissed for non-compliance with the Directions of 19th July 2013. He says that no explicit directions were given to the parties, especially requiring the Plaintiff to comply except that the matter was adjourned for directions to be endorsed.
  2. Furthermore, he says that the order of 19th July 2013 is not clear as to what directions and/ or order of the Court required the Plaintiff to comply with and/or to prepare for endorsement by the parties; and hand up in Court for endorsement. Due to this ambiguity, the plaintiff submits that the Order of 19th July 2013 is not really a “self- executing order’ to clearly warrant an instant dismissal of the proceedings for non-compliance of any directions. He therefore seek orders that this court exercise discretion to set aside or vary an order pursuant to Order 12 Rule 8 (3) (b) of the National Court Rules and s 155 (4) of the Constitution and to make an order that the matter be reinstated to the National Court to progress to trial.

Defendant’s Submission


  1. The second defendant opposes the application and submits that none of the sub-categories of Order 12 Rule 8 apply because this was a summary judgment. Both parties were represented by Counsels and arguments were at the hearing of the application for summary determination. They submit that whilst this Court has inherent jurisdiction to make orders to do justice in circumstances where there are no other remedies available, the exercise of discretion should only be exercised as a last resort remedy: Malt v Queen [2009] N3577. Section 155 (4) of the Constitution states that “both the National and Supreme Courts have review powers”. The power of the National Court to set aside a decision of another National Court arises in certain circumstances pursuant to Statute or on common law principles.

Consideration of applicable law and principles


  1. The considerations set out in Order 10 Rule 9A (15) of the Listing Rules (2005) of the National Court Rules (Consolidated 1983-2011) gives discretion to the Court in determining matters referred for summary determination by the Registrar or upon its own initiative or on application by a party or for non-compliance with a direction or order of a Court. A number of grounds have been set out under Order 10 Rule 9A (15 (2) of the Rules which gives powers to the Court to summarily dispose of a matter. Order 10 Rule 9A (15 (2) states:
  2. In the course of writing this judgment, I had taken the liberty to peruse various materials presented before the Court and one matter which is the subject of contention by the applicant is worth commenting on and this matter relates to the directions issued by the Court on the 19th of July 2013. My assessment of the materials on the court file reveal that the directions issued were in line with the proposals that the plaintiffs had presented before the Court and the relevant documentation relied upon by the plaintiff to show cause as to why the proceedings should not be summarily determined were attached to the affidavit of the plaintiff’s lawyer, Mr Thomas Ilaisa of the Office of the Public Solicitor sworn on the 16th of July 2013 and filed on the 17th of July 2013. This Attachment is referred to as “Annexure C”“draft directional orders” which contained a number of proposed directional orders by the plaintiff’s lawyers as to the further conduct of the matter for endorsement by the parties.
  3. I understand from the affidavit of Mr Ilaisa that the draft directional orders were being discussed between the Plaintiff’s lawyers and the Office of the Solicitor General, whose consent he was yet to secure. It was on that basis that he sought an adjournment of the matter to secure endorsement of the Lawyers for the Defendants, (the Solicitor General). The full text of the ‘draft directional orders’ is reproduced below:

“PAPUA NEW GUINEA


IN THE NATIONAL COURT) WS 852 OF 2006
OF JUSTICE AT WAIGANI)
PAPUA NEW GUINEA ) BETWEEN


WILLIE LALAI

Plaintiff


AND


ANDREW MUNANA

First Defendant


AND


THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant


DIRECTIONAL ORDERS

THE COURT ORDERS:


  1. The plaintiff shall file and serve on the Defendants any affidavits he intends to rely on for trail on assessment of damages by 12th July 2013;
  2. The Defendant shall file and serve on the Plaintiff any affidavits they intend to rely on at trial by the 24th of July 2013
  3. Parties to file relevant Notices under the Evidence Act by or before the 26th of July 2013
  4. Matter shall return for allocation of trial date on the 29th of July 2013

______________________________
FRAZER S PITPIT JUBILEE TINDIWI PAKI
Public Solicitor Acting Solicitor General
Lawyer for the Plaintiff Lawyer for the Defendants


BY THE COURT


__________________
IAN V AUGERIA
REGISTRAR


Ordered: ______________July 2013
Entered: ______________July 2013”


  1. The Court being satisfied with these explanation and draft proposal as to the further conduct of the matter removed it from Summary Determination list and adjourned the matter to the 17th of September 2013. The matter was not heard on the 17th of September 2013 for various reasons until it was listed for hearing on the 2nd of December 2013.
  2. Numerous case authorities which outline the requirements for compliance with Court directions and orders amongst others including the cases of Belden Memi v Nokondi Investments Limited (2012) N861, Yap v Tan & Ors [1987] PNGLR 227 in which the Court adopted and applied the principle held in Hadkinson v Hadkinson [1952] All ER 567 and Chuck v Cremer [1846] Eng. R 924, 47 ER 820; that “It is the obligation of every person against whom the order is made that it is obeyed unless and until the order is discharged”; these obligation is therefore relevant to this case. The principles established in these cases have been adopted and applied in this jurisdiction and are quite clear. “All orders or directions issued or made by the Court are to be obeyed by all parties who seek redress through the Court and applies to all persons to whom the orders or direction relates. Whether or not a party accepts or likes the order, it is an order of a court and remains in force. It must be obeyed until discharged”: (see Hadkinson v Hadkinson (supra) per the judgment of Lomer at p 569 which states:

“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the persons affected by an order believes it to be irregular or even void. Lord Cottenham LC., said in Chuck v Cremer [1846] Eng. R 924, 47 ER 820: “A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it... It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid- whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed”


  1. Where the Plaintiff has not shown any justifiable reasons for non-compliance; a court must be seen to be enforcing its own orders and in cases where parties have blatantly breached such orders without providing a satisfactory explanation for doing so: Golobadana No35 Ltd v Bank South Pacific Ltd (2015) N5890 must be penalised by a sanction that is warranted and justified. The plaintiff must explain his conduct for non-compliance.
  2. In addition, the Rules of Court are available to provide guidance on the practice and procedures to be followed in dealing with matters before the Court such as this case.
  3. With regard to the second leg of argument raised by the plaintiff that substantial injustice was done when the proceedings were dismissed for non-compliance with directions of 19th July 2013. He submits that in the interest of justice, this Court should set aside the Order of 2nd December 2013 and to allow the matter to proceed to trial.
  4. This is where I am led to enquire as to whether the application is properly before this Court? In order to answer that question, this Court will consider the relevant factors that have given rise to the decision of the Court made on the 2nd of December 2013.
  5. This is a case, where the plaintiff and his lawyer had given an undertaking to the Court that they will do a number of things to ensure that this matter progress to trial. These being:
  6. In Philip Lomai v Seal (Manus) Ltd (2008) SC 1326, the Supreme Court held that “the appellant in this case had failed to comply with the conditional orders that were made to be obeyed within a certain specific date. He did not immediately file any application either before or soon after the expiry of the time when the orders were to be complied with seeking extension of time while cognizant of the difficulty he was faced with”...
  7. The case is similar to Philip Lomai v Seal (Manus) Ltd (supra) where both the plaintiff and his lawyer had failed to comply with their own undertaking made in court to have the “draft directional orders” endorsed by the Defendants and to have the “draft directional orders” return to Court on the 17th of September 2013 for endorsement of the Court. No application was made before or soon after the expiry of the time when the directions were to be complied with seeking extension of time while noting the difficulties (if any) being faced by the plaintiff. The situation is that the direction given by a court remained unfulfilled which led to the decision made on the 2nd of December 2013 to dismiss the entire proceedings.
  8. As pointed out by Counsel for the Defendants, this is a Summary Determination matter. The plaintiff in this case should have taken proactive steps to have the matter dealt with more diligently by ensuring that the ‘draft directional orders’ were endorsed by the Defendants and filed at the Registry and to progress the matter to trial. The Plaintiff failed to take positive steps to prosecute his claim. There is a lapse of more than 4 months since the decision of 19th July 2013.
  9. On the 2nd of December 2013, both parties were present before the Court and made submissions in respect of their respective claims. The Court heard the matter and made a decision to summarily dismiss the order of 2nd of December 2013 pursuant to Order 10 Rule 9A (15) (2) (c) - dismissing the proceedings for non-compliance with directions of the Court made on the 19th of July 2013. It is an order summarily disposing of the matter and a final order of the Court. If the plaintiff was aggrieved by that decision, he should have lodged an appeal within the 40 day period required under s 27 of the Supreme Court Act 1975.
  10. With regard to the Section 155 (4) of the Constitution argument, s 155 (4) states that both the National and Supreme Court have an inherent power to make, in such circumstances as deem proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. In regard to this case, Section 155 (4) of the Constitution enables the National Court to tailor its remedies to the circumstances of an individual case to ensure that the primary rights of a party are protected where “necessary to do justice in the circumstances of the case": Aundak Kupil v. the State [1983] PNGLR 350 and as referred to in the judgment of Bredmeyer .J where he held;

"those cases have decided that the latter words [of s. 155 (4)] are disjunctive from the former, that is the latter orders do not have to be in the nature of prerogative writs. The section is a grant of power or of jurisdiction. It does not affect the primary rights of parties which are determined by the substantive law. It is no warrant for the court allowing a new cause of action for example. The section encompasses remedies, adjectival and procedural orders. It enables the court to tailor its remedies to the circumstances of an individual case to ensure that the primary rights of a party are protected".


  1. Whilst I note that no transcript of the hearing has been requested so as to confirm with certainty, the full details of the directions issued by the Court on the 19th of July 2013 and Counsels have not assisted this Court in this regard; I have taken the liberty to peruse of the court file and the materials presented by parties on the Court file. In my perusal of the Court file, I note that there are sufficient material relating to the matter more particularly in relation to the application before the Court on the 19th of July 2013 and I am satisfied that the Plaintiff ‘s application is without merits and an abuse of the process of the court.
  2. I also note and am satisfied that the documents relied upon by the plaintiff in “showing cause” as to why the proceedings should not be summarily determined are the material presented before the Court on the 19th of July 2013. This is referred to and marked as “Annexure ‘C’ in the affidavit of Mr Thomas Ilaisa sworn on the 16th of July 2013 and filed on the 17th of July 2013. This material was relied upon by the plaintiff to show cause.
  3. Given, such a document on the court file, I am of the view that if the plaintiff or his lawyer had conducted a search of the court file (since the filing of notice of change of lawyers on the 18th of May 2015), Counsel for the Plaintiff would have obviously discovered that there were specific material which were presented before the Court on the hearing of the summary determination listing of this matter. He would have by then be in a position to give due consideration to the matter and to take appropriate action on behalf of his client. He failed to do so.
  4. I therefore find no misrepresentation of the law or facts with regard to the exercise of powers of the court. There were in fact, specific and precise “Directional Orders” that the parties were to comply with. The obligation rests with the plaintiff to comply with those “draft directional orders” such directions as per Item 1 of the Directional Orders which reads:
    1. “The plaintiff shall file and serve on the Defendants any affidavits he intends to rely on for trail on assessment of damages by 12th July 2013”
  5. The plaintiff failed to file and serve on the Defendants any affidavits he intends to rely on for trial on assessment of damages by 12th July 2013. This failure led to the non-compliance with the other requirements specified in Items 2, 3, 4 and 5 of the Directional Orders for purposes of the further conduct of the matter.
  6. My comments in relation to this matter are that this matter had been unduly prolonged. Default judgment was entered on the 2nd of September 2008. The matter was first listed for summary determination on the 4th of April 2012. Numerous opportunities were given to the plaintiff to prosecute his claim. Firstly on the 14th of April 2012 and secondly on the 19th of July 2013. Following two subsequent reprieve, the plaintiff still failed to prosecute his claim. This behaviour is to my view, intentional which had led to the inordinate and excusable delay in prosecuting the matter and that the delay has caused injustice or prejudice to the defendant.
  7. Further with regard to the consideration of the principles of natural justice, whilst the Court should take into account its duty to give paramount consideration to the dispensation of justice under s 158 (2) of the Constitution, their conduct falls within the list of criteria established in Vivisio Seravo v. Jack Bahafo (2001) (N2018) which is a case that dealt with an application for dismissal brought under Order 4 Rule 36 of the National Court Rules, his Honour Kandakasi J held that, the principles governing want of prosecution under Order 10, Rule 5 of the National Court Rules apply to Order 4, Rules 36 applications. His Honour Kandakasi J listed 3 criteria in determining an application brought under Order 10 Rule 5 of the National Court Rules and in page 3 of his judgment stated:

“It is now clear law especially in the context of Order 10, Rule 5 of the National Court Rules that an application for a dismissal of proceedings for want of prosecution may be granted if:


(1) The Plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;

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

(3) That the delay has caused injustice or prejudice to the defendant”.


  1. In John Naile .v. Sepik Coffee Producers Ltd and Ors (2004) N2637; Ahmadiyya Muslim Mission v BSP Ltd (2005) N2845 his Honour Cannings J, applied the criteria established in Seravo v Bahafo (supra) and added two more criteria to the list of considerations. These are:

(2) The duty of the Court to give paramount consideration to the dispensation of justice”


  1. This is a case where a plaintiff makes default in complying with an order or direction as to the conduct of proceedings. The plaintiff has not prosecuted the proceedings with due dispatch particularly where the plaintiff’s default is intentional or allows for an inordinate and inexcusable delay in prosecuting his claim. Further, there is no reasonable explanation given by the plaintiff for the delay and the delay continued to cause prejudice to the defendant.
  2. Further Order 4 Rule 36 states:

“(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.


(2) Sub-rule 1 applies, with any necessary modifications, in relation to a cross-claimant as it applies to a plaintiff”


  1. In that regard, the Plaintiff in this case makes default in the conduct of the proceedings or has not prosecuted the proceedings with due despatch. Consequently, the Court has discretion to stay or dismiss the proceedings which the Court did.
  2. In Freddy Kave v Fred Yakasa (2014) N5692, a case similar to the present application under Order 10 Rule 9A 15(2) (a) and (c) of the Rules in which her Honour Murray J dismissed the application for failure to comply with any order or direction as to the conduct of the proceedings; her Honour in her remarks stated that:

“It is, however noted that, the terms of Rule 15 (2) (a) and (c) are almost same as the terms of Order 4, Rule 36 of the National Court Rules. Consequently, I find the discussions by other Courts of applicable principles with regard to Order 4, rule 36 appropriate”.


  1. This is a matter that has been in and out of court on a number of occasions (more so, with regard to summary determination). This behaviour is indicative of a party not really serious about the prosecution of his claim. The lack of activity is not only causing inconvenience to the defendants but also to the Court in regard to its case management.
  2. Finally in Timbani Longai v Steven Maken (2008) N4021, his Honour Injia CJ held that: “The failure or negligence of a lawyer in failing to comply with directional orders or prescribed Court rules of procedure is no reason to avoid the consequence of failing to comply with directional orders or prescribed court rules of procedure.” In that where there is no plausible explanation and one that would warrant a Court's departure from its traditional stance to discipline lawyers or to dismiss proceedings; then this court will exercise its discretion to dismiss proceedings, and the Plaintiffs remedy in these circumstances lies in professional negligence against the lawyer having carriage of the matter and the employer (the firm).
  3. In these circumstances, the court is at liberty to look at the conduct of the parties and their lawyers and exercise discretion accordingly: (Seravo v Bahafo (supra); John Naile .v. Sepik Coffee Producers Ltd and Ors (supra); Ahmadiyya Muslim Mission v BSP Ltd (supra); Freddy Kave v Fred Yakasa (supra). These case authorities set out the basic preconditions for the exercise of the court’s power and are relevant and applicable to the Court’s exercise of discretion under Order 10, Rule 9A (15) (2) (a) (b) and (c) of the Rules.
  4. Furthermore, this is a matter in which the trial judge had heard parties on the issue of non-compliance with any order or direction as to the conduct of the proceedings issued on the 19th of July 2013. The plaintiff was present in Court and heard on his explanation for non-compliance with directions issued by the Court. I am satisfied that the decision of the court in this case was not made ex parte. Upon consideration of this explanation, provided for non-compliance with the Court directions of 19th July 2013; the Court made a ruling accordingly. The trial judge in the exercise of discretion dismissed the proceedings under Order 10 Rule 9A (15) (2) (c) of the Rules summarily disposing of the matter. It was an order finally disposing of the proceedings.
  5. In that regard, the plaintiffs application under Order 12 Rule 8 (3) (b) is misconceived and an abuse of the court’s process. If the plaintiff was aggrieved by the decision of the Court made on the 2nd of December 2013, the avenue available was by way of an appeal instead of an application to set aside the Order pursuant to Order 12 Rule 8 (3) (b) of the National Court Rules and s 155 (4) of the Constitution.
  6. Consequently, I find no merits in the Plaintiff’s application and dismissed it for the reasons that the order made on the 2nd of December 2013 is a final order of the Court summarily disposing the matter. Any recourse open to the plaintiff is by way of appeal. No appeal had been lodged by the plaintiff and time has since lapsed. Costs are in the cause.

Orders Acordingly
__________________________________________________________________
Nasil Lawyers : Lawyers for the Plaintiff
Solicitor General : Lawyers for the Defendants


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