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Oroi v Rove [2020] PGNC 398; N8644 (11 November 2020)

N8644

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 419 OF 1994

BETWEEN:
VAIVAI OROI
First Plaintiff

AND:
AUDA ROVE
First Defendant

AND:
GODUA GABI
Second Defendant

AND:
WILLIAM L NOKI
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 22^nd September, 11^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Motion to reinstate proceedings dismissed for want of prosecution – Order 12 Rule 8 (3) NCR – Order entered – No jurisdiction National Court – Supreme Court Review – dismissal of proceedings abuse of process – Costs in cause on indemnity basis.

Cases Cited

Telikom PNG Ltd v Independent Consumer & Competition Commission [2008] PGSC 5; SC906
Philip v Tiliyago [2019] PGSC 17; SC1783

Counsel:

P A. Siminzi, for plaintiff /Applicant
M. Tukuliya. for State Defendants

RULING

11^th November, 2020

1. MIVIRI, J: This is the ruling of the court on the Plaintiffs/applicant’s notice of motion of the 17^th February 2020. He seeks orders pursuant to Order 12 Rule 8 (3) of the National Court Rules for the setting aside of the Court Order of the 31^st August 2017. And the matter is reinstated. And also cost of the proceeding.
   
2. The subject order is of the 31^st August 2017 and has been entered 1^st September 2017. Firstly, the proceeding is dismissed for failure to comply with Court Orders and for want of prosecution generally. No order is made as to costs and time for entry is abridged to take place forthwith upon the court signing the orders.
   
3. Today 11^th of November 2020 when the decision is pronounced in this matter this case will be 3 years 2 months since that initial order dismissing it for failure to comply with court orders. There must be finality to litigation and it cannot go on forever: Telikom PNG Ltd v Independent Consumer & Competition Commission [2008] PGSC 5; SC906 (28 March 2008).
   
4. This Court presided by Justice Kandakasi (as he then was) made the orders dismissing. That was a final order in determining the matter. It meant that this court was ceased of the matter. The matter could not return in the form it is now before me the National Court again. It should have gone by way of an appeal to the Supreme Court. Even then it is 3 years 2 months and the period for appeal has since expired. Review for Leave is also before that court and is a matter in the discretion of the applicant to pursue. He would have to justify the lateness in coming before that court before he gets around to the hearing of the matter.
   
5. Plaintiff must be put on notice that Court Orders and Directions must be complied with because non-compliance is being disrespectful to the court and is at the peril of the offending party as here: Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). That is the demise of the applicant here leading to this proceeding. And the delay is inordinate and the matter as it is pleaded is not properly before this court. This Court does not have jurisdiction to deal with a final decision in a matter that it made on the 31^st August 2017 entered the 1^st September 2017.
   
6. Further this is not a case of a straight out appeal from a decision of a lower court so that this court has jurisdiction to deal with the matter. The matter relied on in support will not be considered here because there is no jurisdictional basis and the result is this action is dismissed for being an abuse of the process of court pursuant to Order 12 Rule 40 (1) (a) (c) (d) of the National Court Rules. It is incompetent and does not disclose any cause of action and is dismissed in its entirety.
   
7. This is an action where the court has been put through unnecessary sitting hours. The law is very clear in respect of the hierarchy of the courts. And the fact that this is a matter going back 3 years the selection of the jurisdiction of the courts was a simple matter of law. Parties have incurred costs unnecessarily and history of the matter is such that the applicant had failed to honour court orders and did not make appearance hence the dismissal initially. He will bear that fact on an indemnity basis.
   
8. His conduct is such that punishment is warranted because there is negligence rather than professionalism: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). This is not to say or to suppress a Lawyer from serving his client or litigants bringing causes of action properly founded in law before the courts. The wheels of Justice must be invoked to run but it should not be tainted by dubious action without merit at law. The duty of counsel is without fear and favour as an officer of the court should not be abused at the dictate of clients who have no cause of action in law. Costs will therefore be on an indemnity basis upon the plaintiff to follow the event.
   
9. The orders of the court are:
   
   • (1) The application of the plaintiff/Applicant is refused.
   • (2) The proceeding is an abuse of court process.
   • (3) The proceeding is dismissed in its entirety forthwith.
   • (4) Costs are on indemnity basis to follow the event forthwith.

Orders accordingly.
_________________________________________________________________

Siminzi Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Fifth Defendant