N9617
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 744 OF 2020

BETWEEN:
ANDREW SIARI trading as PONO RAPA HIRE CAR
Plaintiff

AND:
CATHY PUPU GARIN
Defendant
Goroka: Mugugia, AJ  
2022: 28th, 29th April

PRACTICE AND PROCEDURE – writ of summons – motion to dismiss proceedings for want of prosecution - National Court Rules, Order 4, Rule 36 and/or Order 10, Rule 5 - whether the proceedings should be dismissed for want of prosecution – principles to consider - the Defendant failed to establish a case for the dismissal of the proceedings for want of prosecution - exercise of discretion - motion refused.  

Cases Cited:

Seravo v. Bahofa (2001) N2078
Tani v. Motor Vehicles Insurance Ltd. (2010) N3984
Dogoliv v. Laho (2005) N2885 

Counsel:

N. Amoiha, for the Plaintiff 
J. Be’soer, for the Defendant 
.
RULING 
29th April, 2022 
1. MUGUGIA, AJ: The Defendant filed a motion on 25 March 2022, seeking an order to dismiss the entire proceedings for want of prosecution. The Defendant had filed a previous motion to dismiss the proceedings for want of prosecution on 14 March 2022. It was withdrawn with leave of the Court on 24 March 2022. The current motion before me was contested by the Plaintiff. This is my ruling. 

BACKGROUND

2. The Plaintiff claims that based on an official rental agreement entered into by the parties, the Defendant hired the Plaintiff’s vehicle, a Toyota 5-Door Land Cruiser, at a hire rate of K600.00 per day. That was for a period of 107 days from 13 September 2017 to 25 December 2017. The cost incurred was K70,420.00. The Plaintiff issued an invoice for the hire to the Defendant. Despite requests and demands by the Plaintiff, the Defendant did not settle this invoice which remains outstanding. The Plaintiff filed his writ of summons on 21 September 2020, claiming judgment in the sum of K70,420.00, interest and costs. The Defendant filed her defence on 14 October 2020. The matter was listed for summary determination on 23 September 2021. It was taken off the summary determination list and set for directions hearing on 20 October 2021 to progress the matter to trial. 

THE DEFENDANT’S MOTION 

3. The jurisdictional basis cited in the Defendant’s motion is Order 4, Rule 36, and/or Order 10, Rule 5 of the National Court Rules. 

ISSUE FOR DETERMINATION 

4. Whether the Defendant has established a case for the dismissal of the proceedings for want of prosecution. 

DEFENDANT’S SUBMISSIONS 

5. Mr. Be’soer of Counsel for the Defendant relied on his own affidavit in support sworn on 9 March 2022 and filed on 14 March 2022. He submitted that the Defendant’s main reasons for making this application are that the Plaintiff filed the Statement of Agreed and Disputed Facts and Legal Issues but failed to serve it, there was non-compliance with Court directional orders, and the Plaintiff’s lawyer did not appear to deal with the case. 

6. The Defendant’s argument is that nothing has been done by the Plaintiff to prosecute the matter after the filing of the writ of summons on 21 September 2020. The matter was listed for summary determination on 23 September 2021. The matter was taken off the summary determination list, and since then, no actions have been taken by the Plaintiff to prosecute the case. This, and non-compliance with the Court orders/directions amounted to undue delay. The Plaintiff’s default is intentional.  

7. Mr Be’soer relied on Ronald Nicholas v. Commonwealth New Guinea Timbers Pty. Ltd. [1986] PNGLR 133, and Arthur Agevu v. Bobby Gaigo [1986] PNGLR 160. 

8. Mr Be’soer submitted that the Plaintiff failed to action or prosecute the case with due dispatch to this day. Therefore, justice demands that the proceedings be dismissed.  

PLAINTIFF’S SUBMISSIONS 

9. In opposing the Defendant’s application, Counsel representing the Plaintiff Mr. Amoiha submitted that the Defendant’s application is misconceived because of the following reasons: 

•	The Notice to Set Down for Trial was filed on 17 December 2021, and the parties are ready to proceed to trial. 

•	The Statement of Agreed and Disputed Facts and Legal Issues was served on 14 March 2022. 

•	All the Court directions have been complied with. 

•	There was no default by the Plaintiff. There is no evidence of default.

•	There is no evidence of the delay. 

•	The Defendant’s notice of motion should be dismissed with costs, and the proceedings should be adjourned to another date for listings.   

CONSIDERATION
10. The Defendant’s motion sought orders to dismiss the proceedings for want of prosecution pursuant to Order 4 Rule 36 of the National Court Rules or alternatively, Order 10, Rule 5 of the National Court Rules. Order 4, Rule 36 provides for want of prosecution for proceedings commenced by originating summons. Rule 36 is found under Division 4 which applies only to proceedings commenced by originating summons. The current proceedings was commenced by writ of summons. I am of the view that Order 4, Rule 36 is not the correct rule to rely on here. The correct jurisdictional basis is Order 10, Rule 5, which I noted is the alternative rule relied on by the Defendant. I accept the Notice of Motion moved under Order 10, Rule 5.    
11. Order 10, Rule 5 of the National Court Rules reads: 

“5. Want of prosecution. 
	
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.”
12. The applicable principles governing the dismissal of proceedings for want of prosecution were summarised by His Honour Justice Kandakasi in the case of Seravo v. Bahofa (2001) N2078. His Honour said, and I quote:
"It is now clear law especially in the context of O.10 r.5 of the NCRs that an application for a dismissal of proceedings for want of prosecution may be granted if:
1. The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
2. There is no reasonable explanation given by the plaintiff for the delay; and
3. That the delay has caused injustice or prejudice to the defendant.
13. The power of the Court to dismiss proceedings for want of prosecution is discretionary: Tani v. Motor Vehicles Insurance Ltd. (2010) N3984.  
14. Order 10, Rule 5 of the National Court Rules creates an obligation on the part of the plaintiff to set down the proceedings for trial within 6 weeks from the date of close of pleadings. This is a discretionary rule. Thus, if a breach of this rule occurs, it does not automatically result in the dismissal of the proceedings. The rule however, does give a defendant a right to apply for dismissal of the proceedings and the court has a discretionary power to dismiss the proceedings under this rule in the appropriate circumstances: Sawong J in Dogoliv v. Laho (2005) N2885. 

15. The motion before me for hearing was filed on 25 March 2022. I noted that Mr Be’soer had relied on his own affidavit in support sworn on 9 March 2022 and filed on 14 March 2022. This particular affidavit was filed in support of the Defendant’s previous motion for dismissal of proceedings filed on 14 March 2022. This motion was withdrawn with leave of Court on 24 March 2022. All affidavits in support of a motion must be filed on the date of filing the motion: National Court Motions (Amendment) Rules 2005.  
 
16. The Defendant’s contention is that the Plaintiff filed the Statement of Agreed and Disputed Facts and Legal Issues but failed to serve it, there was non-compliance with Court directional orders, and the Plaintiff’s lawyer did not appear to deal with the case. 

17. I ask myself whether there was a delay in prosecuting the case, and whether there was a default by the Plaintiff.  
 
18. The Plaintiff filed his writ of summons on 21 September 2020. The Defendant filed her defence on 14 October 2020. The Notice to Set Down for Trial was filed on 25 October 2020. The Statement of Agreed and Disputed Facts and Legal Issues was also filed on the same date. These two documents were not endorsed by Mr Be’soer. 

19. The matter was listed for summary determination on 23 September 2021. It was taken off the summary determination list on that date by Neill J, and set for directions before me on 20 October 2021. Since the Notice to Set Down for Trial filed on 25 October 2020 was not endorsed by Mr Be’soer, I made orders on 20 October 2021 for the parties to settle and endorse a fresh notice to set down for trial based on parties’consent, and the Plaintiff’s lawyer to file it on 25 October 2021. I made additional directional orders for the filing of affidavits for the trial, and a further order for the Plaintiff to file the Statement of Agreed and Disputed Facts and Legal Issues on 8 December 2021.When the matter returned to Court on 8 December 2021, I extended the orders of 20 October 2021 to 31 January 2022. 

20. I have considered the relevant materials relied on by the parties’ lawyers at the hearing, and their respective submissions. I find the evidence provided by the Defendant in support of his motion lacking in substance. There was no clear and convincing evidence provided to prove the Defendant’s allegation that there was a delay in the prosecution of the case, and the default by the Plaintiff. The affidavit material relied on by Mr Be’soer did not demonstrate a clear case warranting dismissal for want of prosecution. I am not satisfied by the Defendant’s submissions. 

21. I find that there was no delay and default by the Plaintiff. After the matter was taken off the summary determination list, and directional orders were issued by the Court to progress the matter to trial, meaningful steps were taken by the Plaintiff’s lawyers to set the matter down for trial. The evidence before me and the Court records show that the Plaintiff’s lawyers complied with the Court directions and prosecuted the matter without delay. The fresh Notice to Set Down for Trial and the Statement of Agreed and Disputed Facts and Legal Issues both dated 9 December 2021 were filed by the Plaintiff’s lawyers on 17 December 2021 in compliance with my orders of 8 December 2021. The Defendant’s lawyer was duly served with the Statement of Agreed and Disputed Facts and Legal Issues. In the absence of his lawyer, the Plaintiff did appear in person in Court. Since there was no delay by the Plaintiff, there was no injustice or prejudice to the Defendant. 
22. To determine the issue at hand, I also considered as a guide, the conduct of the parties and their lawyers. 
23. The practice is that once a notice to set down for trial requesting that the proceedings be set down for trial has been filed, the matter is listed. In the present case, the Notice to Set Down for Trial filed on 17 December 2021 was endorsed by both parties’ lawyers. This shows that both parties’ lawyers agreed that the pleadings closed, and the matter is ready for trial. 
24. What happened in this case was that the Statement of Agreed and Disputed Facts and Legal Issues was served on the Defendant’s lawyer on 14 March 2022. On the same date, Mr Be’soer filed his client’s first motion for dismissal. The Defendant was granted leave by this Court to withdraw this motion on 24 March 2022. Mr Be’soer then filed the current motion on the next day, that is, 25 March 2022, when the duly endorsed Notice to Set Down for Trial, and Statement of Agreed and Disputed Facts and Legal Issues were already filed in compliance with the Court’s directional orders, and served on him. I am of the view that the action taken by Mr Be’soer to file the current motion is inappropriate. This motion is misconceived.   
CONCLUSION

25. The Defendant failed to establish a case for the dismissal of the proceedings for want of prosecution. I have considered the circumstances of the case. The current status of the matter is that the Notice to Set Down for Trial has been filed, and relevant affidavits for the trial have been filed by both parties. The Statement of Agreed and Disputed Facts and Legal Issues has been filed and served by the Plaintiff. The proper course for the parties to take now is to have the matter listed to progress it to trial. To do justice in this case, I will exercise my discretion and refuse the Defendant’s application. 

COURT ORDER

	1. The Defendant’s Notice of Motion filed on 25 March 2022 is refused. 

2. The Defendant shall pay the Plaintiff’s costs which are to be taxed if not agreed. 

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

The Court orders accordingly.
________________________________________________________________
N. Amoiha: Lawyer for the Plaintiff 
J. Be’soer: Lawyer for the Defendant