N8842
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 586 OF 2007

BETWEEN
COSMOS INKISOPO
Plaintiff

AND:
MANASUPE ZURENUOC – Administrator & Departmental Head of Morobe Province
First Defendant

AND:
SECRETARY – Department of Personnel Management
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Lae: 	Numapo J
2020:	21st September
2021:16th April

CIVIL - PRACTICE AND PROCEDURE – Dismissal of Proceedings for Want of Prosecution (Order 10 Rule 5) – Summary dismissal to safeguard the process of the Court against abuse (Order 10 Rule 15) - Inordinate and inexcusable delay without any reasonable explanation – Failure to comply with the Court’s directions to file – Conduct of parties and lawyers warrants dismissal of the matter – Case dismissed.

Cases Cited:
Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845
John Niale v Sepik Coffee Producers Ltd (2004) N2637 
Markscal Ltd v Mineral Resource Development Company Ltd (1999) PGNC 117; N1807 
Philip Takori v Simon Yagari (2008) SC905
Viviso Seravo v Jack Bahafo (2001) N2078
Counsel

Mr. S Kesno, for the Plaintiff
Nil Appearance for the First, Second & Third Defendants 

DECISION

16th April, 2021

1.	NUMAPO J: The plaintiff commenced this action on assessment of damages pursuant to Order 10 Rule 17 of the National Court Rules (NCR) after a summary judgment on liability was generally entered against the Defendants jointly and severally on the 11th December 2007 with damages to be assessed later. 

2.	The claim arose from a loss of employment when the first defendant failed to carry a proper contract appraisal review of the plaintiff’s employment for purposes of renewal or non-renewal under Clause 9.62 of the Contract of Employment.  Consequently, the plaintiff’s contract was not renewed and he was effectively terminated from the job.

3.	The plaintiff claims the following:

(a)	Special damages in the sum of K3,414.00 for unpaid accommodation allowances,

(b)	 General damages for loss and suffering to be assessed in the sum of K1 million, minus a sum of K7, 953.00 already paid as termination entitlement,

(c)	Exemplary damages of K30,000.00 personally against the first defendant,

(d)	Interests pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act

(e)	Costs of these proceedings

1.	BACKGROUND

4.	The plaintiff was employed as a lawyer in the public service on a salary level Grade 15.1 with a salary of K24, 378 per annum and attached to the Lae Urban Local-Level Government (hereinafter, ‘Lae Urban Council’) as its Principal Legal Officer (‘PLO’). He commenced his employment in 2001 on a three (3) year contract. The contract was signed by the second defendant for and on behalf of the third defendant and signed by the first defendant in his capacity as the Provincial Administrator of the employing Department, the Department of Morobe.

5.	The plaintiff alleges the following:

(i)	The first defendant failed to comply with the contract review procedures provided for under Clauses 9.48 through to 9.56 of the contract. 

(ii)	The first defendant failed to comply with Clause 9.62 of the contract in not notifying the plaintiff of the second defendant’s decision (if any) either to renew or not to re-new the contract within a period of three (3) months to no later than one (1) month prior to the contract expiry date. 

(iii)	The first defendant wrongfully advertised the plaintiff’s position as if it was vacant within only two (2) weeks of the contract expiry date in contravention of Clauses 9.65 of the contract.

(iv)	The first defendant failed to extend the plaintiff the avenues and benefits of the provisions to cater for ‘unattached’ officers under Clause 9.66 et sequentes the contract,

(v)	The first defendant wrongfully struck the plaintiff off the payroll at the instance of the conclusion of the contract in breach of Clause 9.66 (b) of the contract.

(vi)	The first defendant breached Clause 10 of the Category “D” contract’s terms and conditions in not paying the Plaintiff his accommodation allowances of K1,380.00 per annum for the three (3) year contract period totaling to K3,414.00.

(vii)	The first defendant arbitrarily, wrongfully and prematurely ‘retired’ the plaintiff and wrongfully computed plaintiff’s final entitlements on a purported retirement basis when his termination from the employment contract was not and cannot have been for specific grounds of retirement as that was not and cannot have been the stated cause as plaintiff at all material times was then not of retirement age at only 41 back then (2001) and is of a sound mind and healthy condition.

6.	As regards to particulars of loss and damages the plaintiff claims the following, amongst others:

(a)	Suffered distress and undue anxiety for an uncertain future as a result of his loss of employment.

(b)	 Loss of wages, allowances and other entitlements due to him under his contract.

(c)	Suffered immediate financial losses and hardships experienced in the short to medium term whilst looking for other employment opportunities.

(d)	Loss of proper termination entitlements due to the erroneous calculation of his final entitlements.

(e)	Wrongful denial and loss of benefits on account of the CPI increases to all public servants from 2001 upwards to now. 

7.	The proceedings were filed on the 28th May 2007 and was first mentioned on the 14th September 2007. The history of the proceedings since 2007 in the court file is somewhat sketchy. Different lawyers were engaged by both parties at different times throughout the life of this case. The case disappeared off the radar for a period of time prompting the registry to list it down for summary determination only for it to be re-instated again on application by the plaintiff. Attendance of both parties were very poor throughout and the overall handling of the matter was generally below par. None of the parties seem to be genuine in either prosecuting or defending the matter. It was for this reason, I would think that the parties were directed to resolve their dispute outside of court through mediation.

8.	According to subsequent court records, the parties reached an agreement to settle out of court. Both parties were then directed to conclude their negotiations with a consent order for the Court’s endorsement. However, the lack of interest by the defendants, especially the first defendant, to participate in the mediation prompted the plaintiff to have the matter reinstated again for determination. Noting the failure by the defendants to comply with the mediation requirements, which is also in breach of the ADR Rules, Kandakasi J (as he then was) entered judgment in favour of the plaintiff on the 25th June 2019 with the assessment of damages to follow thereafter. Since the granting of the order, the plaintiff has not taken any meaningful steps to file and commence proceedings with respect to assessment of damages. 

9.	On the 29th January 2020, after seven months, His Honour Kandakasi DCJ, noting the lack of interest of the plaintiff towards this matter, directed Counsel for the plaintiff to immediately commence proceedings by filing the submission on the assessment of damages, if his client is still interested in pursuing the matter. His Honour then set 4th September 2020 for the hearing of assessment of damages before me. 

10.	On the 4th September 2020, Counsel for the plaintiff, Mr Kesno appeared in court but there was no appearance of the defendants nor their lawyers. Mr Kesno filed two affidavits and informed the court that he would be relying on them and thereon undertook to file his written submission on the assessment of damages by the 25th September 2020 to which the court also issued the necessary directions that he so filed within that date. Despite the undertaking by counsel to do so, he failed to file any written submission on the assessment of damages by the due date. A month later, on the 30th October 2020, Mr Kesno wrote to the court via an email and apologized for not filing his written submission by the due date as he was busy with other matters and undertook to email the submission through once it is completed. It is now almost seven (7) months since the plaintiff’s Counsel undertook to file the submission on assessment of damages but to date he has not filed anything. It became obvious once more that the plaintiff is not interested in pursuing the matter any further and seeing it through to finality. The court cannot wait forever for the plaintiff to file his submission as there are hundreds of other cases that it must also deal with. In this regard, time is of essence. It is in the plaintiff’s own interest to vigorously pursue the matter if he is genuine about the claim. Clearly, he failed to do so therefore, the case must somehow come to an end.

2.	ISSUES
 
11.	The issue is; ‘Whether the plaintiff’s claim should be summarily dismissed for want of prosecution’?

3.	APPLICABLE LAW
12.	The applicable law is Order 10 Rule 5 & Rule 15 of National Court Rules (NCR) which states: 

(5) Want of Prosecution. 

“Where a plaintiff does not, within six weeks after 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.” 

(15) Summary Disposal 

(1)	The Court may summarily determine a matter:

(a)	 on application by a party; or
(b)	 on its own initiative; or
(c)	 upon referral by the Registrar..

“The Court may summarily dispose of a matter in the following situations: 

(a) for want of prosecution since filing the proceedings or since the last activity on the file; or 

(d) under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules; or 

(e) on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of the Court.”

13.	The principles governing the dismissal of proceedings for want of prosecution is well settled in this jurisdiction. A party who instituted legal proceedings is obliged to prosecute it without delay, has the duty to comply with the orders relative to the proceedings, has a duty to comply with the rules, and has the duty to prosecute it to finality without undue delay and without causing prejudice to the defendant (Markscal Ltd v Mineral Resource Development Company Ltd (1999) PGNC 117; N1807). 

14.	Order 10 Rule 5 of NCR provides for the dismissal of proceedings for want of prosecution. Application for dismissal on this ground can be made by a party to the proceedings or by the Court on its own initiative pursuant to Order 10 Rule 15 to summarily dismiss the matter to safeguard the processes of the court against abuses (Philip Takori v Simon Yagari (2008) SC905). 

15.	Kandakasi J (as he then was) summarized well the principles governing the dismissal of proceedings for want of prosecution in Viviso Seravo v Jack Bahafo (2001) N2078. See also: Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845.

16.	Cannings J in John Niale v Sepik Coffee Producers Ltd (2004) N2637 suggested additional principles and succinctly set them out as follows: 

“An application for a dismissal of proceedings for want of prosecution (pursuant to Order 10 Rule 5) may therefore be granted if: 

(i)	       The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim; 

(ii)	      There is no reasonable explanation given by the plaintiff for the delay; 

(iii)	The delay has caused injustice or prejudice to the defendant; 

(iv)	The conduct of the parties and their lawyers warrants; and 

(v)	    It is in the interests of justice.”

PRESENT CASE

17.	I adopt the principles applied by Cannings J in John Niale v Sepik Coffee Producers Ltd (supra) as I found them appropriate and relevant to the present case in that there has been an inordinate and inexcusable delay on the part of the plaintiff to prosecute the case. Firstly, for failing to prosecute the case within a reasonable period of time pursuant to O10 r 5 and secondly, for failing to comply with the Court’s direction to file his written submissions on the assessment of damages by the 25th September 2020. Consequently, there is no written submissions on assessment of damages before the court to enable it to make a finding.

18.	Furthermore, the plaintiff has not provided any reasonable explanation for the delay in filing the submission and/or his failure to comply with the directions issued by the court to file nor did he seek leave of court for extension of time to file. Giving an undertaking to the court is a serious commitment and it is incumbent upon the person giving such undertaking to see that it is done. Failing that amounts to an abuse of the court’s process and the court will not tolerate that. The conduct of the parties and their lawyers in this case leaves a lot to be desired and warrants a dismissal of the matter.

Although, there is no application by the defendants to dismiss the matter for want of prosecution pursuant to O 10 r 5, the Court, on its own motion, may summarily dismiss the matter (O 10 r 15) to safeguard the process of the Court against abuse, if the court is of the view that conduct of the parties are such that the matter must be dismissed to uphold the rules of the court and the integrity of the judicial process. It is also in the interest of justice that the matter be dealt with expediently and without delay. 

ORDER

19.	I make the following Orders:

(i)	     The matter is summarily dismissed pursuant to O 10 rr 5 and 15.

(ii)	 	Parties are to meet their own costs.

Orders accordingly
________________________________________________________________
Kesno Lawyers: Lawyer for the Plaintiff
State Lawyers & MPG (in-house lawyers):  Lawyers for the Defendants