Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Riyong v Shelley [2018] PGNC 469; N7589 (3 December 2018)

N7589

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 343 OF 2009

BETWEEN:
YAWE RIYONG
Plaintiff

AND:
BEN SHELLEY
First Defendant

AND:
NOWEK LIMITED
Second Defendant

Goroka: Yagi J
2018: 22^nd November & 03^rd December

PRACTICE & PROCEDURE – application to extend time – ground for seeking extension – advice from senior counsel – application refused.

Cases cited:

Yawe Riyong v Terry Shelley & Nowek Ltd (2018) N7466

Counsel:

B. Koningi, for the Plaintiff
G. Geroro, for the First Defendant (with Leave)
E. Daroa, for the Second Defendant

RULING

03^rd December, 2018

1. YAGI, J: This is an application by the defendants seeking to extend time fixed by a directional order for the defendants to file affidavits.

2. The application is made pursuant to notice of motion filed on 23 October 2018 and is supported by an affidavit deposed to by Emma Nicole Daroa sworn on the same date.

3. The plaintiff opposes the application and relies on his own affidavit filed on 8 November 2018.

4. The relevant facts are that on 24 September 2018 a set of directional orders were issued by the court. The orders were made by consent of all parties and were in these terms:

1. The Plaintiff has served and the Defendants acknowledge service of the Plaintiffs affidavits filed herein on 16/04/18.
   
2. The Defendants shall file and serve on the Plaintiff any Affidavits that they intend to rely on at trial within 21 days from today that is on or by 15^th day of October, 2018.
   
3. The Plaintiff shall file and serve any replying Affidavits within 14 days thereafter which is on or by the 29^th October, 2018.
   
4. Parties shall file and serve their respective notices under Section 35 of the Evidence Act by 2 November 2018.
   
5. Parties shall file and serve their respective notices under Section 36 of the Evidence Act by 6 November 2018.
   
6. The Plaintiff shall forward a draft Statement of Agreed and Disputed Facts and Legal Issues for trial to the Defendants’ Lawyers by the 12^th day of November 2018.
   
7. The Defendants’ Lawyers shall forward to the Plaintiff’s Lawyers the draft Statement of Agreed and Disputed Facts and Issues for Trial with their comments if any by the 19 day of November 2018.
   
8. The parties shall settle the Statement of Agreed and Disputed Facts and Issues for Trial by 26^th day of November 2018 and for the Plaintiff’s Lawyers to file and serve on the Defendants’ lawyers before the Pre-Trial Conference.
   
9. The matter comes for Pre-Trial conference on the 27^th day of November, 2018, at 1.30PM and for the Trial date to be obtained.
   
10. Each party is at liberty to apply for variation of these directions on 2 days notice to the other parties.
    
11. The time for the entry of these orders is abridged to the date of settlement by the Registrar, which shall take place forthwith.
    

5. The plaintiff served on the defendants’ lawyers his affidavit on 24 April 2018. This is the affidavit which he intends to rely upon at trial. The service of the affidavit is acknowledged by the defendants under item number 1 of the orders.

6. The next step is for the defendants to file responding affidavits that they intend to rely on at trial. The time line for that event to happen is 15 October 2018. That event has not happened and obviously the time had expired. Consequently the defendants now seeks extension of time.

7. The reason for non-compliance is provided in the affidavit of Ms. Daroa, and in particular paragraphs 3 and 4. At all material and relevant times Ms Daroa was the lawyer for the defendants. She deposed that since the consent orders were made on 24 September 2018, she sought advice from senior counsel as to how to prepare the affidavit material on behalf of the defendants in the light of the fact that the principal witness for the defendants is deceased. The advice received from counsel is that extension of time is required to enable counsel to “consider and prepare all relevant evidence”. This is necessary due to the complexity of the case and the location of counsel outside of Goroka.

8. The plaintiff’s reason for opposing the application is that the defendants’ lawyer had adequate time to prepare the responding affidavits by the defendants because his affidavit was served on 24 April 2018, that is, approximately 6 months ago.

9. Moreover the plaintiff says that his case has remained unresolved for about 9 years and the delay was due to many unnecessary interlocutory applications made in the National Court and also the two Supreme Court appeals. These have been rather expensive and he simply wants the hearing to be expedited. This application is therefore nothing more than a mere attempt to further delay the proceeding.

10. The basis of the application by the defendants is that counsel has advised for extension of time to consider and prepare all the evidence. It is not clear whether advice of counsel was provided in writing. I do not have the benefit of reading the advice and appreciating the reasoning behind the advice. There is no evidence at all provided. Counsel for the defendants relied on her own affidavit in support of the application.

11. The matter has a long history since the commencement of proceedings in May 2009. Throughout the course of the proceedings the defendants have made several attempts to dismiss the proceedings. In February 2010 the defendants filed an application to dismiss the proceedings on the basis that the claim by the plaintiff was statute-barred. The Court dismissed that application on 21 February 2012. There was a further application made by the defendants seeking leave to file an amended defence which leave was refused by the Court and consequently the defendants appealed against the dismissal and which led the plaintiff to also file a cross-appeal. Both appeals were dismissed by the Supreme Court on 23 February 2017.

12. In August 2017 the defendants filed an application to dismiss the proceedings based on certain observations and remarks expressed by the Supreme Court regarding the unsatisfactory state of the pleading by the plaintiff. The application was refused by the court on 10 November 2017. As a result the proceeding was listed for directions hearing with the parties to discuss and agree on the appropriate directional orders for endorsement by the court. A number of direction hearings had been conducted with a series of orders made for the matter to be ready for trial. The first directional order was issued by consent on 5 December 2017. Amongst others, orders were made for discovery and inspection of documents.

13. In December 2017 the first defendant, Terry Shelley, passed away. Therefore on application, Ben Shelley, was substituted as the first defendant. The order was made on 16 March 2018. At the same time a number of directional orders were made by consent. Amongst the orders, and in particular paragraphs 2(a) – (g), the parties agreed that certain affidavits previously filed by the deceased (late Terry Shelley) shall be admitted into evidence on behalf of the defendants at trial.

14. On 28 May 2018 the defendants filed an application seeking to dismiss the proceedings alleging abuse of process. The application was heard on 20 July and dismissed on 14 September 2018. At the directions hearing on 24 September 2018 the court endorsed a number of directional orders consented to by all parties. The orders made allowance for the defendants to file and serve further affidavits by 15 October 2018.

15. It has been the contention by the defendants throughout that the only person who had all direct evidence on behalf of the defendant was the deceased, the late Terry Shelley. Ben Shelley, who was substituted for his late father as the first defendant, deposed to an affidavit sworn and filed on 23 February 2018. He admitted that he has no knowledge and is not privy to the alleged business dealings between his father and the plaintiff. A similar position is taken by his mother (Lynn Shelley) who has also filed an affidavit on the same date.

16. Given the circumstances, and having regard to the observations I made in my recent ruling delivered on 14 September 2018 (see Yawe Riyong v Terry Shelley & Nowek Ltd (2018) N7466), I am unable to see how advice by counsel fits into the equation. I am not persuaded that the basis for further extension is reasonable in the circumstances. I accept the submission by the plaintiff that it is merely an attempt to procrastinate the momentum in terms of an expeditious hearing. The defendants’ application is therefore refused with cost to be paid by the defendants.

17. The following orders are therefore made:

1. The application is refused.

2. The defendants shall pay the plaintiff’s cost in the application, if not agreed, to be taxed.
   
3. The time for compliance as regards the items (4) to (9) of the order made on 24 September 2018 are extended accordingly by their respective time periods as from today.
   
4. The matter is listed on Friday, 8 February 2019 at 9.00 am for a trial date to be fixed.
   
5. Mr. Gibson Geroro of Geroro Lawyers shall forthwith file and serve on the plaintiff and the second defendant a notice of change on behalf of the first defendant.
   
6. The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.

__________________________________________________________________
Koningi Lawyers: Lawyers for the Plaintiff
Endaroa Legal Services: Lawyers for the First & Second Defendants