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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (COMM) No. 192 of 2018
BETWEEN:
VUKSICH & BORICH (NZ) LIMITED
Plaintiff
AND:
PACIFIC ENERGY AVIATION (PNG) LIMITED
Defendant
Waigani: Anis J
2020: 7th & 15th July
NOTICE OF MOTION – dismissal of proceeding – want of prosecution – Order 10 Rule 5 and Order 10 Rule 9A(15) – National Court Rules – consideration – exercise of discretion
NOTICE OF MOTION – dismissal of motion to dismiss – Order 4 Rule 49(17) and Order 12 Rule 1 of the National Court Rules – consideration – exercise of discretion
Cases Cited:
Umbu Waink v. MVIT (1997) PNGLR 390
Steven Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2013) SC1297
Viviso Seravo v. Jack Bahafo (2001) N2078
Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637
Ahmadiyya Muslim v. Bank of South Pacific Ltd (2005) 2845
Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774
Albright Ltd v. Mekeo Hinterland Holdings Ltd (2014) SC1400
Counsel:
P Lowing with counsel assisting B Sinen, for the Plaintiff
E Asigau, for the Defendant
RULING
15th July 2020
1. ANIS J: I heard 2 applications on 7 July 2020. The first was by the defendant seeking to dismiss the proceeding, and the second was by the plaintiff seeking to dismiss the defendant’s application. I reserved thereafter to a date to be advised.
2. Parties have been notified so I will rule on them now.
BACKGROUND
3. The plaintiff’s claim against the defendant is based on restitution for unjust enrichment. The plaintiff says it had been sub-contracted by a third party MRS Guernsey (MRS) to do construction work. Its sub-contract related to a main contract. The main contract was entered between the defendant and MRS, to build an aviation fuel and oil depot (Fuel Farm) at Port Moresby’s Jackson’s International Airport.
4. The plaintiff’s grievance is this. It says it performed its sub-contract within its terms and conditions and within the contractual period. It says MRS later had issues with the defendant in regard to the main contract. As a result, the plaintiff claims that MRS was unable to pay some of its invoices that it had issued to MRS under the sub-contract. MRS has since gone into voluntary liquidation. The Fuel Farm was later completed with third parties that had been engaged by the defendant. The plaintiff claims that because there was no issue with the work that it had performed which was part and parcel of the Fuel Farm project, the defendant, it claims, has therefore unjustly enriched itself from the completed Fuel Farm project or from the tasks that the defendant had been engaged to perform in the sub-contract. The plaintiff therefore seeks, amongst others, damages to the tune of AUD 572,221.35.
5 The defendant filed its defence on 25 April 2018. It denies the claim. Its defence include its claim that no privity of contract existed between the parties at the material time. The defendant also claims that all moneys that have been claimed by MRS under the main contract or for work on the Fuel Farm, have been fully paid to MRS.
APPLICATIONS
6. The motion filed first in time was by the defendant on 3 July 2019. The main relief sought is this, The entire proceedings be dismissed for want of prosecution pursuant to Order 10 Rule 5 and Order 10 Rule 9A(15) of the National Court Rules.
7. The plaintiff’s motion was filed on 22 November 2019. It was filed to dismiss the defendant’s motion. The main relief sought therein is this, The Defendant’s Notice of Motion filed 3 July 2019 be dismissed for want of prosecution pursuant to Order 4 Rule 49(17) and Order 12 Rule 1 of the National Court Rules.
COMMON GROUND
8. At the hearing, the parties agreed that I should deal with the motions together. I will proceed in that manner.
ISSUES
9. The issues, in my view, are as follows:
(i) Whether the defendant’s motion was delayed for more than 1 month and if so, whether the defendant caused the delay?
(ii) Subject to my findings of the above, whether the proceeding should be dismissed because the matter has been delayed and the delay is inordinate or unreasonable.
DELAY OF 1 MONTH OR MORE
10. The relevant provision relied upon by the plaintiff in its motion is Order 4 Rule 49(17) of the National Court Rules (NCR). It reads:
17. Dismissal /Striking out of Motions.
The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.
11. I address use of my discretionary powers commencing at paragraph 16 below and I refer to that. I have considered the evidence and submissions of the parties. The defendant’s motion to dismiss was filed on 3 July 2019. The motion returned to Court the next day on 4 July 2019. It had been short served at that time so it was adjourned to 21 August 2019 for hearing. On 21 August 2019, the motion was not listed as it should be, so it was not heard on that day. It was next listed for hearing on 4 December 2019. On that day, the National Court did not sit. Matters that were listed for hearing on that day were not heard including the defendant’s motion. Meanwhile or before that and on 22 November 2019, the plaintiff filed its motion to dismiss the defendant’s motion.
12. So the relevant period for purposes of considering the first issue, in my view, is between 3 July 2019 and 22 November 2019. The first question I have is this. Was the defendant’s motion delayed for more than 1 month? The answer to that is, “yes it was”. The next question is this. Was the delay caused by the defendant? The answer to that is, “no, it was not.” Evidence adduced shows that the matter was simply not listed by the Registry at its designated date and time on 21 August 2019. This then caused the delay which exceeded the 1 month requirement under Order 4 Rule 49(17) of the NCR. It is therefore obvious that the defendant cannot be said to be responsible for this delay.
13. As such, I decline to grant the motion by the plaintiff.
DELAY
14. I turn to the second issue. I ask myself these. Was there a delay? If so, was the delay unreasonable or inordinate? Is it prejudicial? Whether the conduct of the plaintiff was lacking or wanting towards progression of the matter? Whom does the interest of justice favour? I note that I may proceed to consider some or all of these questions subject to me considering the issue of delay.
15. I have considered the evidence and submissions of the parties.
16. Let me begin by addressing the Court’s power. I have discretionary powers to either grant or refuse the motion. I refer to the case Umbu Waink v. MVIT (1997) PNGLR 390. His Honour Lenalia AJ, held in part, and I quote:
(1) The power of the Court to dismiss proceedings for want of prosecution should only be exercised where the plaintiff's default has been intentional and where there has been inordinate and inexcusable delay.
(2) Where there has been lengthy delay in setting down for trial, O. 10 r. 5 of the National Court Rules should be construed in favour of an application to dismiss for want of prosecution only where circumstances are such that there has been a long delay and where there is no reasonable explanation given by the plaintiff.
17. The Supreme Court, in Steven Punagi v. Catholic Diocese of Mount Hagen Board of Trustees (2013) SC1297 also stated, and I quote in part:
The onus is on an applicant who seeks dismissal of proceedings to establish that there is a delay and it is inordinate. In Public Prosecutor -v- Allen Ebu Marai [1996] PNGLR 81, the Supreme Court held that where an appellant fails to prosecute an appeal and fails to give an explanation for the delay, the appeal will be dismissed for want of prosecution. In that case, the delay was one year and two months. The Court dismissed the appeal for want of prosecution.
18. The considerations have been clarified with particularity by Justice Kandakasi, as he then was, in Viviso Seravo v. Jack Bahafo (2001) N2078 and by Justice Cannings in Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637 and Ahmadiyya Muslim v. Bank of South Pacific Ltd (2005) 2845. There are 5 tests, and I summarise them as follows:
19. These considerations are of course valid having been developed over the years. But in the same token, it is important to note that the Court’s discretionary power remains wide and unfettered. See Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774 and Albright Ltd v. Mekeo Hinterland Holdings Ltd (2014) SC1400. At paragraph 29, the Supreme Court said and I quote:
29. Hartshorn, J discussed the case authorities in Green v Green (supra) and Totamu v Small Business Development Corporation (supra) with much detail which cases refer to the decision of the House of Lords in Evans v Bartlam (1937) AC 473 – 2 All ER 646. Lord Wright in that decision at para 488 quoted the statement of Bowen CJ in Gardner v Jay (1835) 29 Ch 50 at p.59.
“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the court do so?”
20. In the present proceeding, discovery had been required by the defendant and has been attended to, and it appears to have concluded belatedly on or about 16 August 2019. If I compute time from 16 August 2019, which was when the verified list of documents was served on the defendant, to the date of the defendant’s motion which was 3 July 2019, the delay period would be nil. But if I compute time from the date when the plaintiff’s verified list of documents was filed, which was on 26 July 2018, the delay period would be 11 months and 23 days.
21. Of particular importance for this purpose, is Mr Asigau’s deposition at paragraph 8 of his affidavit of 3 July 2019. His affidavit points to want of service of the plaintiff’s verified list of documents. In other words, the defendant’s focus or concern is with the lack of service of the verified list of documents rather than the date within which it was filed. So by the time the defendant filed its motion on 3 July 2019, the plaintiff had already filed its verified list of documents by about a year ago. And about 1 year 1 month later on 16 August 2019, presumably after having received the defendant’s motion, the plaintiff served its verified list of documents on the defendant. The verified list of documents, which appears to be the primary cause for filing the motion, has since been served on the defendant. So should I therefore exercise my discretion and dismiss the entire proceeding? In my view, if I do that, it would amount to great injustice on the part of the plaintiff. The defendant of course was entitled to be served with the verified list of documents within reasonable time of its filing. It was not done in this case which was what had prompted it to file the present motion. In my view, the tardiness conduct of the plaintiff may be a good ground for the defendant to be recompensed by an order for cost made in its favour. But I do not think that I should simply dismiss the entire proceeding because of that. I also note that the issue could have been resolved earlier had the defendant taken some time to conduct a court file search. Had that been done, the defendant would have realized that the verified list of documents were filed a lot earlier.
22. I have also had a benefit of perusing the pleadings. In my view, the cause of action appears reasonable. On the same token, I see that the defence has also raised valid arguments in its defence, and I have summarized some above in my judgment. There appears to be meritorious issues which in my view should require a proper hearing.
23. For these reasons, although I am satisfied that there may have been some delay in progressing the matter, I am not satisfied that the delay was significant or inordinate to the extent that the plaintiff should be shut out from pursuing its grievance against the defendant.
OTHER CONSIDERATIONS
24. For the same reasons, I find that dismissal of proceeding would be far more prejudicial to the plaintiff than the defendant, that is, if I am minded to exercise my discretion that way. Granting a dismissal would mean the end of the matter and denial of the plaintiff’s claim or right to a fair hearing. As for the consideration interest of justice, I find it to favour the plaintiff; that the matter should not be summarily dismissed but rather proceed to trial to be determined on its merit.
WANT OF EVIDENCE
25. Let me also say this. The matter has not been formally listed for directions hearing. As such, matters concerning evidence or lack of it, should, in my view, be addressed at that time when directions are issued for their filing or after the evidence have been filed by the parties. It is at the directions hearing that the Court will inquire as to how the parties will or intend to adduce their evidence at the trial of the matter, for example, the number of witnesses each party will call and whether the witnesses to be called will give oral or written testimonies. Raising matters of evidence at this juncture to me appears premature. As such, I refuse to address them now, that is, without both parties being given the opportunity to file their evidence. The defendant is at liberty to raise this argument at a later stage.
SUMMARY
26. In summary, I refuse to exercise my discretion to dismiss the proceeding for want of prosecution.
COST
27. Cost award is discretionary. For the reasons stated, I will award cost of both motions to be paid by the plaintiff on a party/party basis to be taxed if not agreed.
ORDERS OF THE COURT
28. I make the following orders
The Court orders accordingly.
________________________________________________________________
Leahy Lewin Lowing Sullivan: Lawyers for the Plaintiff
Pacific Legal Group: Lawyers for the Defendant
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