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Landu v Wong Ngu King [2019] PGNC 217; N7965 (23 August 2019)

N7965

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 197 of 2018 (COMM)

BETWEEN:
MABISA LANDU
Plaintiff

AND:
WONG NGU KING
First Defendant

AND:
ASL SEAFOOD LIMITED
Second Defendant

Waigani: Anis J
2019: 21 & 23 August

NOTICE OF MOTION – Order 10 Rule 5 and Order 4 Rule 36(1) – National Court Rules – dismissal based on want of prosecution – discretion – whether discretion should be exercised

Cases Cited:

Royal Thompson v. Sylvester Kalaut (2011) N4265
Nivani Ltd v. West New Britain Provincial Government (2018) N7190
Simakade Holdings Ltd v. David Dotaona (2018) N7356

Counsel:

No appearance by the plaintiff
Ms Judy Nandape, for the Defendants

RULING

23^rd August, 2019

1. ANIS J: The defendants applied to dismiss the proceeding on 21 August 2019. I permitted them to move their notice of motion ex-parte, and reserved my decision to today at 9:30am.

2. This is my ruling.

SERVICE

3. Before I dealt with the notice of motion, I queried counsel whether the plaintiff had been served as per the Court’s earlier direction that was issued on 15 August 2019. Counsel said there was compliance and drew the Court’s attention to the affidavit of Michael Kowi filed on 20 August 2019. I was satisfied then that term 2 of the Court’s direction of 15 August 2019 had been complied with.

4. But that was not the end of the matter regarding the issue of service. I also referred the defendants’ counsel to a notice ceasing to act that had been filed on 19 August 2019 (notice) by the plaintiff’s lawyers. I asked counsel to address the Court on whether the Court should proceed to hear the defendants’ notice of motion or whether the matter should be adjourned to another time. Counsel submitted that the notice was defective and should be struck out, and that the Court should hear their clients’ notice of motion. Counsel also submitted that despite the fact that an affidavit had been filed on 19 August 2019 by the plaintiff’s lawyer Mr Johannis Poya purporting to comply with Order 2 Rule 39 of the National Court Rules, that the said affidavit was defective. Counsel submitted that the affidavit did not provide evidence that the plaintiff’s lawyer had notified the plaintiff of his intention to cease to act for him as required by Order 2 Rule 39(2) of the National Court Rules. Therefore, counsel submitted that the notice was defective and that it should be struck out, and that the plaintiff’s lawyers should be regarded as lawyers on record for the plaintiff.

5. Order 2 Rule 39(2) states, and I quote:

(2)A solicitor shall not file or serve notice of a change under Sub-rule (1) without leave of the Court unless he has, not less than seven days before doing so, served on his former client notice of his intention to file and serve the notice of change.

6. After having perused the affidavit of Johannis Poya, I noted that there was no evidence which showed that the plaintiff’s lawyers had complied with Order 2 Rule 39(2) of the National Court Rules. I therefore ordered the notice defective and had it struck out. I was also satisfied after making that order that the plaintiff had been duly notified of the adjourned date of the hearing of the defendants’ notice of motion, and I allowed the defendants to proceed.

MOTION

7. The defendants’ notice of motion was filed on 9 August 2019 (motion). Its main relief is, and I quote, That the entire proceeding be dismissed for want of prosecution pursuant to Order 10 Rule 5 and/or Order 4 Rule 36(1) of the National Court Rules.

8. Order 10 Rule 5 and Order 4 Rule 36(1) are similar when it comes to the Court exercising its power to dismiss a proceeding for want of prosecution. Order 10 Rule 5 entitles a defendant to apply to the Court to ask for dismissal of the proceeding if a plaintiff fails to obtain a trial date within 6 weeks after the close of the pleadings. Order 4 Rule 36(1), similarly grants the Court the power to dismiss a proceeding for want of prosecution if the plaintiff does not prosecute the matter with due dispatch.

ISSUE

9. The main issue of course is delay, that is, whether the plaintiff has failed to prosecute his claim with due dispatch, and if so, whether the Court should exercise its discretion and dismiss the proceeding.

PROCEEDING

10. The plaintiff in this proceeding, seeks declaratory relief against the defendants for purportedly breaching various provisions under the Investment Promotion Authority Act, 1992. The relief sought include cancellation of shareholdings and directorship of the second defendant and to have the plaintiff replaced with the shares and directorship for the said company. The plaintiff alleges that he lost his shares and title to the second defendant under unlawful or dubious circumstances.

11. The originating summons was filed on 23 March 2018. The defendants filed their notice of intention to defend on 11 April 2018. Pleadings, in my view, would have closed in April of 2018. The plaintiff filed an ‘amended originating summons’ on 11 September 2018. I note from the court file that there is no record of a hearing or of a Court Order that granted leave to the plaintiff to file the purported amended originating summons. It is not however relevant for the purpose of computing time and delay, but nevertheless I will assume that leave was not sought in regard to filing of the said purported amended originating summons.

DELAY

12. I have no doubt that there has been delay in progressing this matter to trial. At this juncture, I note that it has not been set down for trial. From the time pleadings formally closed in April of 2018, the plaintiff, pursuant to Order 10 Rule 5 of the National Court Rules, had 6 six weeks within which to set the matter down for trial. Six (6) weeks from April 2018 is about 2 months, so the expiry date within which the plaintiff ought to have but had failed to set the matter down for hearing, was June 2018. Therefore, I find that the plaintiff has delayed and defaulted within the requirements under Order 10 Rule 5 of the National Court Rules.

13. Let me make this remark. An originating summons that is filed in the National Court should not take more than 3 to 6 months to complete. It is incumbent upon the parties and in particular the plaintiff to ensure that his or her matter is set down quickly, be heard and be disposed of without delay. The substantive facts in an originating summons filed are usually not in issue and proceedings are based primarily on arguments of law. See cases: Royal Thompson v. Sylvester Kalaut (2011) N4265 and Nivani Ltd v. West New Britain Provincial Government (2018) N7190. It has unfortunately become a common occurrence of delays in proceedings that are filed under this mode. In my view, the National Court must start to impose stiffer recourse so that originating summonses that are filed under Division 4, Order 4 of the National Court Rules are disposed of summarily if they are delayed for more than 3 to 6 months from the date they are filed. The same should apply to judicial review proceedings. See case of Simakade Holdings Ltd v. David Dotaona (2018) N7356.

14. Returning back to the matter, the delay period computed for the present case is about 1 year 5 months.

PLAINTIFF

15. Evidence adduced by the defendants shows that the plaintiff’s lawyers knew about the defendants’ motion before it first returned on 15 August 2019. Instead of appearing on that day, a letter was written to the defendants’ lawyers on 14 August 2019. Then on 15 August 2019, when the motion first returned to Court, the defendants’ counsel informed the Court that the motion was short served. The matter was adjourned to allow sufficient time and an opportunity for the plaintiff to defend himself against the motion.

16. Pursuant to my ruling rejecting the plaintiff’s lawyers notice, they remain as lawyers on record on behalf of the plaintiff, and I note that they have failed to appear to assist their client in the matter on 15 August 2019 and later on 21 August 2019. As a result, there is no evidence or argument raised or presented on behalf of the plaintiff against the evidence and submissions of the defendants in relation to their motion.

CONSIDERATION

17. I am satisfied firstly that there has been a delay in progressing the matter to trial. I am also satisfied that the plaintiff has not prosecuted the matter with due dispatch. A delay of over 1 year, that is, without any explanation provided by the plaintiff in reply to the defendants’ motion, shall be regarded negatively against him.

EXERCISE OF DISCRETION

18. Should I exercise my discretion and dismiss the proceeding for want of prosecution? In my view, without the assistance of the plaintiff and his lawyers, I have weight that against him. I also take into account the fact that the defendants have been summoned to this Court proceeding by the plaintiff; the defendants are not here at their own accord or choice, but rather, they are here to defend themselves against the proceeding which has been commenced against them by the plaintiff. As such, the plaintiff herein or any plaintiff for that matter, in my view, has a duty to prosecute the matter with due dispatch, and the plaintiff or again any plaintiff for that matter, must always be conscious of the time, the cost, and the necessity to reach a final outcome without delaying the proceeding. I also take into account the failure and default under Order 10 Rule 5 of the National Court Rules. And finally, I also take into account the delay of more than 1 year after the close of pleadings, where I note that the plaintiff has not progressed the matter to trial. I find the said delay to amount to want of prosecution with due dispatch, which in my view, also satisfies the requirements of Order 4 Rule 36(1) of the National Court Rules.

19. With these, I must say that I am inclined to exercise my discretion. I will dismiss this proceeding for want of prosecution.

COST

20. Cost is discretionary. I will order cost to follow the event applying the party/party costs scale.

THE ORDERS OF THE COURT

21. I make the following orders:

1.This proceeding is dismissed for want of prosecution.

2.Cost of the proceeding is awarded against the plaintiff in favour of the defendants on a party/party basis, which may be taxed if not agreed.

3.Time for entry of these orders is abridged to the time of settlement by the Deputy Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

________________________________________________________________
Poya Legal Services: Lawyers for the Plaintiff
Nandape & Associates Lawyers: Lawyers for the Defendants