N8411
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) No. 1092 of 2018

BETWEEN:
TZEN RESOURCES LIMITED
Plaintiff

AND:
KINMAS INVESTMENT LIMITED
Defendant

Waigani: Anis J
2020: 10th & 15th July

NOTICE OF MOTION – application to dismiss – Order 10 Rule 5 – National Court Rules – requirements – delay of 1 year 3 months – whether delay inordinate – no explanation provided – 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:

No appearance by the Plaintiff
Ms L Painap, for the Defendant

RULING

15th July, 2020

1.	ANIS J:	The defendant moved its notice of motion (filed on 24 June 2020) seeking dismissal of the proceeding, on 10 July 2020.  I reserved my ruling to a date to be advised.

2.	The parties have been notified so I will rule on it now.

BACKGROUND

3.	The claim is one of enforcement of a service contract.  The plaintiff had subcontracted the defendant to harvest logs in an area called Hawain LFA Timber Project area.  The area which the agreement had covered is situated in Wewak in East Sepik Province.  The agreement, described as Logging and Marketing Agreement (LMA), was entered on 29 May 2017 and terminated on 22 May 2018.  The plaintiff’s grievance is this.  It says that despite the mutual agreement whereby the parties have terminated the LMA on 29 May 2017, the defendant has refused to leave the logging or operation site.  It therefore seeks orders which include enforcement of a restraint of trade clause in the LMA, and also permanent injunctions against the defendant.

4.	The defendant has filed a defence.  In its defence, it, amongst others, admits that the LMA was terminated on 22 May 2018 but denies the other allegations raised by the plaintiff.

NOTICE OF MOTION

5.	The defendant’s notice of motion (NoM) reads in part:

2.	Pursuant to Order 10 Rule 5 of the National Court Rules and the inherent jurisdiction of the Court, the herein proceedings be dismissed for want of prosecution.
3.	Costs of and incident to these proceedings be paid for by the Plaintiff.

6.	The application was not contested.  I was satisfied that due notice had been given and that the plaintiff was well aware of the NoM returning on 10 July 2020 for hearing.  In a brief ruling, I granted leave to Ms Painap to proceed ex parte.  I would refer to the transcripts of proceeding for the said consideration and ruling on service of the NoM.

7.	The main supporting affidavit is the affidavit of Phillip Tabuchi filed on 24 June 2020.

ISSUES

8.	The main issue herein relates to delay.  If there is a delay then whether the delay is inordinate and whether that should be sufficient for this Court to exercise its discretion and dismiss the proceeding.

ORDER 10 RULE 5

9.	Order 10 Rule 5 of the National Court Rules (NCR) reads:

5.  Want of prosecution. (33/6)

Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.

REQUIREMENTS

10.	The requirements before this Court may exercise its discretion under Order 10 Rule 5, are settled in the case law.  In 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.

11.	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.

12.	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:

1.	The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in prosecution of his claim;
2.	there is no reasonable explanation given by the plaintiff for the delay;
3.	the delay has caused injustice or prejudice to the defendant;
4.	conduct of the parties and their lawyers; and
5.	where does the interest of justice lie?

13.	These are of course valid considerations the Court may consider in the exercise of its discretion.  But I also note that the discretion is unfettered as held in Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774 which was approved by the Supreme Court in Albright Ltd v. Mekeo Hinterland Holdings Ltd (2014) SC1400.  At paragraph 29, the Supreme Court stated as follows:

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?”

CONSIDERATION

14.	For this case, the main consideration is delay.  Counsel submits that pleading closed on or about 7 March 2019, after the due date for filing a reply.  Computing time from then to the date of filing the NoM, counsel submits that a period of about 1 year 3 months had lapsed.  Counsel submits that the delay was inordinate.  Counsel also submits that the defendant’s evidence is unopposed because the plaintiff has not filed any evidence in reply.  The defendant submits that the conduct of the plaintiff’s lawyers in not taking steps for the past 1 year 3 months should also be noted.  Counsel also submits that the delay is prejudicial and that the interest of justice requires that the matter be dismissed.  The continued existence of the proceeding, the defendant submits, has caused uncertainty to its business operations and reputation.

15.	The NoM, as stated, is not contested.  The plaintiff was not present at the hearing despite being duly served with the application documents.  It has also not filed any affidavits to defend itself.  Despite that, I note that I have to be satisfied that this is a case or matter that should be dismissed for want of prosecution.  The defendant has that burden to convince the Court.  When I look at the evidence, I uphold the fact that there has been a delay of about 1 year 3 months since the close of pleadings.  There is no explanation provided by the plaintiff of why it had not progressed the matter to trial after the close of pleadings.  Non-attendance by the plaintiff in Court, in my view, also goes to show that the plaintiff is perhaps not interested in the matter.  I give due regard to this consideration in favour of the applicant.  A plaintiff and a defendant in a proceeding, are required at all times whilst their matter is before the Court, to take all reasonable steps to ensure that there is no delay and that their matter is progressed efficiently to a trial stage.  In this case, whilst I note that the delay of 1 year 3 months may not necessarily be regarded as excessive delay, the plaintiff’s absence despite being served with the NoM and its lack of evidence to defend itself, in my view, is sufficient enough for me to exercise my discretion in favour of the defendant.

SUMMARY

16.	I am therefore satisfied and will exercise my discretion to grant the NoM.  The matter will be dismissed for want of prosecution.

COST

17.	Awarding cost is discretionary.  I will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

18.	I make the following orders:

1.	The proceeding is dismissed.

2.	The plaintiff shall pay the defendant’s cost of the proceeding on a party/party basis which may be taxed if not agreed.

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

The Court orders accordingly
________________________________________________________________
Kandawalyn Lawyers: Lawyers for the Plaintiff
Young & Williams: Lawyers for the Defendant