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Loniga v Green [2018] PGNC 324; N7417 (17 August 2018)

N7417

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1591 of 2014

DIDI LONIGA

V

JAMES GREEN MANAGING DIRECTOR
First Defendant

AND
DUNLOP TYRES (PNG) LIMITED
Second Defendant

Kimbe: Miviri AJ
2018: 13^th August

PRACTISE & PROCEEDURE – Notice of Motion – Application for dismissal for Want of Prosecution Order 04 r 36 NCR – in proper form – due service –inordinate and inexcusable delay – no reasonable explanation – facts in favour of exercising – motion granted – dismissal granted.

Cases cited:

Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 (29 May 1986)
Norr v Ikamata [2005] PGSC 13; SC815 (15 November 2005)

Counsel:

No appearance for Plaintiffs

A, Kumbari, for Defendants

RULING

17^th August, 2018

1. MIVIRI, AJ: The Defendant moves pursuant to Order 4 Rule 36 of the National Court Rules, “the rules” by Notice of Motion for dismissal of the entire proceedings for Want of Prosecution. And costs of the application to be paid by the Plaintiff including any other orders deemed appropriate in the circumstances.
   
2. The original cause of action is a Writ of Summons that the Plaintiff has filed since 18^th December, 2014 for outstanding rentals, electricity and water bills and damages to the property, a total of K 13, 242.39.
   
3. The Defendant has filed a Notice of Intention to Defend dated the 5^th March, 2015 filed the same day. And on the 6^th March, 2015 the Defence filed the same day. No activity has eventuated on the file by the Plaintiff since the time of filing up to the date of this ruling. This includes when the matter was heard on the motion. Hence the application by the Defendant pursuant.
   
4. Order 4 Commencement of Proceedings- Division 1 Mode of beginning of civil proceedings;

36. Want of prosecution. (5/12)

(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 despatch, 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 in relation to a plaintiff.

5. There is default by the Plaintiff not conducting the proceedings diligently to finality alleged hence the Motion supported by Affidavit by Defendant. The Motion relies on the Affidavit of Abraham Kumbari sworn the 04^th July, 2018 filed the 06^th July, 2018. Defendants have reconciled their records and confirmed that it has complied with the terms of the lease and made full payments to the Plaintiff, and therefore does not owe the Plaintiff any rental moneys unpaid as alleged in the Plaintiff’s statement of claim filed on the 18^th December, 2014. The subject of the proceedings by Writ has been attended to and successfully discharged by the Defendant. There is no utility in maintenance of the proceedings.
   
6. Further the Defendant served a letter on the Plaintiff to dismiss the entire matter on 12^th April, 2018 and no developments has eventuated from it. Seven days extension on the same has been fruitless.
   
7. These are confirmed by the Affidavits of Service of Joshua Lesley sworn on the 4^th July, 2018 filed the 6^th July, 2018. A further affidavit dated the 12^th July, 2018 filed the 13^th July 2018 of this deponent again serving this motion with accompanying affidavit. Again a further Affidavit dated the 9^th August, 2018 filed that same day advising hearing of this Motion in Court.
   
8. That has not prompted appearance of the Plaintiff represented by Office of the Public Solicitor to argue the matter. He has been properly served in law. And on the materials discretion has been exercised to allow the Defendant to proceed to argue the motion.
   
9. Matter has been originally instituted by the Plaintiff since the 18^th December, 2014 and up to the present he has not exercised due diligence in the prosecution of the matter. That is a delay of 3 years 8 months on the matter. Defendant has voiced to settle the matter to no avail particulars set out above. It is a lengthy delay and bears no cause in view of the issues taken for settlement by defendant to which Plaintiff has not responded positively. It is a lengthy delay and the balance of Justice does not favour continued extension as that would amount to inordinate and inexcusable delay. It is not the same situation as in Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 (29 May 1986).
   
10. “The Appellants and their Lawyers have not only delayed in prosecuting their Leave Applications and Appeals, but have offered no explanation or reason for their delay. It is trite law that litigants who file legal proceedings are under an obligation to see that such proceedings reach finality. If they fail to bring their suits to finality, they do so at their own peril. Even when the Applications for leave were fixed for hearing twice, the Appellants and their lawyers failed to appear to prosecute their Applications. On one occasion, they merely sent a letter requesting an adjournment without having the common courtesy to appear to seek such an adjournment. Such is the lack lustre attitude of the appellants and their lawyers which clearly demonstrated a contumelious path they were treading” Norr v Ikamata [2005] PGSC 13; SC815 (15 November 2005)
    
11. These principles are relevant and applicable here given the facts here where action has started three years eight months ago without Plaintiff bringing the matter to finality. It is a contumelious path which must be stopped and justice here favours that path which is invoked upon the discretion of the court. There is no explanation by the Plaintiff and the delay has caused undue injustice and prejudice upon the Defendants. The Motion of the Defendant is granted in the terms sought.
    
12. The motion is granted in accordance with Order 4 Rule 36 in that the entire proceedings are dismissed for Want of Prosecution.
    
13. Costs will follow the course.
    

Orders Accordingly.
__________________________________________________________________

Public Solicitor: Lawyer for the Plaintiff Applicant

Kumbari & Associates Lawyers: Lawyer for the Defendant