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Koma v Bukwa [2020] PGNC 283; N8479 (10 July 2020)

N8479

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1023 OF 2015

BETWEEN:
ALEX KOMA
Plaintiff

AND:
EARE BUKWA, Human Resource Manager, Lae Biscuit Co. Ltd
First Defendant

AND:
LAE BISCUIT CO. LTD
Second Defendant

Lae: Dowa AJ
2020: 22^nd June &10^th July

PRACTICE AND PROCEDURE – application by defendant to dismiss proceedings for want of prosecution - Whether the Plaintiff defaulted in filing his Notice to Set the Matter down for trial - Whether the Plaintiffs proceedings can be dismissed for want of prosecution – Court has power to dismiss proceedings where there is default or non-compliance of the Rules - use of court’s discretion – application to dismiss proceedings dismissed - costs for this application awarded to defendant

Cases Cited:

Ronald Nickolas v Commonwealth Niugini Timbers Pty Ltd (1986) PNGLR 133
Anopari v Motor Vehicle Insurance (PNG) Ltd (2009) N3697

Counsel:

K. Kevere, for the Plaintiff
D. Poka, for the Defendant

DECISION

10^thJuly, 2020

1. DOWA AJ: The defendant by Notice of Motion applied for the dismissal of the proceedings for want of prosecution pursuant to Order 10 rule 5 of the National Court Rules.

Facts

2. The Plaintiff, a former employee of the Second Defendant instituted proceedings, seeking damages for wrongful termination of employment. The Plaintiff commenced proceedings by filing a Writ of Summons on 29^th July 2015. The Defendant filed a defence on 22^nd March 2016.

3. The pleadings closed after the last document of the pleading, (the defence) was filed on 22^nd March 2016. Since then, the Plaintiff did not take steps to file a notice to set down for trial, pursuant to Order 10 rules 5 of the National Court Rules. This resulted in the Defendant filing this application seeking dismissal of the proceedings for want of prosecution.

Issue

4. The issues before the Court are:

1. Whether the Plaintiff defaulted in filing his Notice to Set the Matter down for trial,
   
2. Whether the Plaintiffs proceedings can be dismissed for want of prosecution.

Law

5 Order 10 rule 5 of the National Court Rules states and I quote:

“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, then Court on motion by any other party, may on terms, dismiss the proceedings or make such other order as the court thinks fit.”

6. The rules give the Court power to dismiss proceedings where there is default or non-compliance of the Rules. However, the exercise of that power is discretionary and not absolute. The requirements to satisfy when considering an application under Order 10 rule 5 National Court Rules, as set out in the case of Ronald Nickolas v Commonwealth Niugini Timbers Pty Ltd (1986) PNGLR 133, are:

“1)The Plaintiffs default in intentional, or is allowing for an inordinate and

in excusable delay in a prosecution of his claim;

2. There is no reasonable explanation by the Plaintiff for the delay, and
   
3. that the delay has caused injustice or prejudice to the Defendant.”
   
7. In Anopari v Motor Vehicle Insurance (PNG) Ltd (2009) N3697, David J added two further considerations; and they are:
   
   4. The general conduct of the parties and their lawyers
   5. The duty of the Court to give paramount consideration to the dispensation of justice.
      

Default and Inexcusable Delay

8. The pleadings closed in March 2016. The Plaintiff did not set the matter down for trial as required by Order 10 rule 5 of the National Court Rules. On 27^th September 2017, Mr Poka sent a letter to the Plaintiff lawyers to Set the matter down for trial. The matter was not set down for trial. On 20^th April 2020, Mr Poka sent a letter to the Plaintiff’s lawyer to set the matter down for trial, warning that if no steps are taken to prosecute the matter, application will be made for appropriate orders. Again, the Plaintiff did not file a notice to set down for trial. I find, the Plaintiff has defaulted. The default has been continuous since March 2016 and has amounted to inexcusable delay.

Reasonable explanation for Delay

9. On 19^th June 2020, the Plaintiff filed an affidavit. In his affidavit, he explained, the reasons for the delay in setting the matter down for trial is due to change of lawyers. He says his first lawyer ceased to act for him in 2017. He then applied to Public Solicitors office for legal aid. He was waiting for a response from the Public Solicitor for almost two years. The Public Solicitor entered appearance on 21^stNovember 2019and has since taken over the conduct of the proceedings on behalf of the Plaintiff.

10. I find the reasons provided are not satisfactory. At the time of hearing this motion, I have specifically directed the Plaintiff’s lawyers to provide material, setting out reasons why they have not set the matter down for trial. The Plaintiff was to file the Affidavit by 3^rd July 2020. Whilst, the Plaintiff has filed an Affidavit, the reasons are not good enough. In my view, the Plaintiff has no reasonable explanation for the delay.

Prejudice

11. The Defendant has not specifically provided evidence of prejudice. However, the second Defendant’s success in defending the proceedings depend on the availability for the first Defendant and other employees of the company. Evidence of witnesses can be difficult to retrain due to passage of time and change in employment circumstances. Continuous delays are likely to cause prejudice to the Defendants, both in securing the attendance of witnesses as well as cost.

Conduct of Parties and their Lawyers

12. The Plaintiff and his lawyers have not followed the Rules of the National Court. They have not responded to the correspondence sent by the lawyers for the Defendant. The lawyers for the Plaintiff have not taken heed to the warning letters sent by the lawyers for the Defendants. The lawyers for the Plaintiff, did not comply with the directions given by the court, especially the orders given by Kandakasi DCJ on 30^th January 2020. No steps were taken by the lawyers for the Plaintiff in filing Notice to Set Down for Trial, which is a simple document. The Lawyers for the Plaintiff arrogantly responded that the correspondence by the Lawyers for the Defendant did not provide a clear and express warning. I find this response absurd, and unbecoming.

In the circumstances, I find the conduct of the Plaintiff and his lawyers disclose arrogance and disrespect for the rules and process of court.

Dispensation of Justice

13. The proceedings were filed on 29^th July 2015. The defence was filed 22^nd March 2016. The Plaintiff did not set down the matter for trial after the close of pleadings. The Plaintiff did not file any Affidavit evidence on the substantive matter. As a result, the matter was initially listed for summary determination on 17^th October 2019. On 30^th January 2020, directional orders were issued for parties to take steps to resolve the matter. The Plaintiff did not comply with the directions given on 30^th January 2020. On 20^th April 2020, a warning letter was sent to the Plaintiff’s lawyer to Set Down the Matter for Trial. Again, the Plaintiff and his Lawyers did not take heed. It appears either the Lawyers for the Plaintiff do not understand the process and steps to be taken under the National Court Rules or are simply arrogant. The actions by the Plaintiff’s lawyers have delayed due dispensation of justice.

Conclusion

14. The Court has the discretion under Order 10 rule 5 of the National Court Rules to dismiss the matter. However, I have to exercise this power cautiously, so as not to drive the Plaintiff from the judgment seat. I note the Plaintiff is desirous of pursuing the matter. For instance, he has filed a Court document himself on 17^th March 2020, entitled “Response to the Defence” even though by that time, he had a lawyer on record acting for him. I find, the Plaintiff wants to pursue the matter but he is somewhat misguided.

15. In the circumstances, I am not inclined to dismiss the proceedings. However, I will make other orders to do justice in the circumstances.

The formal orders of the Court are:

1. The Defendants Notice of Motion filed 10^th June 2020 is refused.
2. The Plaintiff pay the Defendants’ cost of the application on Solicitor-client basis to be taxed, if not agreed.
3. The Plaintiff’s proceedings be stayed until settlement of the Defendants cost.
4. Time be abridged.
   

________________________________________________________________
Public Solicitor Lawyers: Lawyer for the Plaintiff
Niugini Lawyers : Lawyers for the Fourth Defendant