N9813
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 175 OF 2016

BETWEEN
THOMAS KAPIGENO t/a TOMICANDO
BUILDERS AND CONSTRUCTION
Plaintiff

AND
CHINA RAILWAY CONSTRUCTION ENGINEERING (PNG)
LIMITED
Defendant

Waigani: Linge A J
2022: 2 August

PRACTICE AND PROCEDURE – application to dismiss proceeding based on breach of subcontract- want of prosecution - Order 10 Rule 5 of the National Court Rules

CONTRACT - breach of subcontract - main contractor unilateral takeover of subcontract- part payment - failure to pay full contractual entitlement

 In 2014 the plaintiff entered into a subcontract with the defendant to undertake landscaping works and services for a lump sum payment of K2, 737, 731.36, excluding GST. The defendant was the main contractor for the construction of the 2015 Pacific Games Village phase 3 Building Works project in Port Moresby. On the 4 June 2015 the defendant took over the landscaping work after alleging that the plaintiff had breached certain clauses of the subcontract.
The plaintiff completed work for the month of June 2015 and invoiced the defendant for K451, 840.70 but was part paid only K30,000.00 on 14th August 2015 with promise to settle the balance later. The defendant was unable to settle, and the plaintiff instituted these proceedings claiming that the takeover of the subcontract works by the defendant was in breach of the subcontract.
Held:
1.	The Defendant’s Notice of Motion filed on the 21 June 2022 to dismiss the proceeding is refused. The delay is not inordinate and inexcusable or a serious prejudice to the defendant. The interest of justice is not to dismiss the proceeding but to proceed to trial.
2.	This proceeding shall be set down for Directions hearing within 14 days.

Cases Cited:

Ahmadiyya Muslim Mission v Bank South Pacific (2005) N2845
Dogoliv v Laho [2005] PGNC 47
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, (1999) N1807
Murliu v Buidal [2015] PGNC 88
Nicholas v Commonwealth Niugini Timbers Pty Limited [1986] PNGLR 133
Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062
Viviso Seravo v Jack Bahafo (2001) N2978

Counsel:

Ms. N Kamjua, for the Plaintiff
Mr. D Rake, for the Defendant

RULING
5th August, 2022

1.	LINGE A J:    The defendant filed Notice of Motion on the 21 June 2022 seeking to dismiss the plaintiff’s Statement of Claim for want of prosecution.  He relies on Order 10 Rule 5 and in the alternate on Order 4 Rule 36 of the National Court Rules.  I heard the application on the 2 August 2022, and this is my ruling.

Facts
2.	The defendant was the main contractor for the Contract for the construction of the 2015 Pacific Games Village phase 3 Building Works project in Port Moresby in 2014. Also in 2014, the plaintiff trading as Tomicando Builders and Contractors entered into a subcontract with the defendant.

3.	The terms of the subcontract were for plaintiff to undertake landscaping works and services and the defendant was to pay a lump sum of K2, 737, 731.36, excluding GST.

4.	On the 4 June 2015 the defendant took over the landscaping work after alleging that the plaintiff had breached certain clauses of the subcontract.

5.	The plaintiff completed work for the month of June 2015 and invoiced the defendant for K451, 840.70. He was part paid K30,000.00 on 14th August 2015 with verbal advice from the defendant’s employee that the balance will be paid later.

6.	The defendant was unable to settle, and the plaintiff instituted these proceedings claiming that the takeover of the subcontract works by the defendant was without legal basis and in breach of the subcontract.

Submissions
Defendant’s/ Applicant’s submission
7.	Mr, Rake for the applicant/ defendant submit that since the order for mediation on the 16 October 2019 he had on many occasions by emails advised the lawyer on record Rageau, Manua & Kikira Lawyers to agree on the list of mediators and to facilitate mediation process but there had not been any response.

8.	Counsel submits that the lack of response by the lawyers clearly shows that the plaintiff has shown lack of interest in prosecuting the cause of action and that on the defendant’s part it filed an application for dismissal of proceeding that was struck out for want of prosecution on the 5 February 2021.

9.	 This Notice of Motion is filed because since February 2021 the plaintiff has not taken steps to progress the matter and submit that it is proper for the court to dismiss the proceeding for want of prosecution. 

Plaintiff’s/ Respondent’s Submission

10.	Ms. Kamjua submits that in the later part of 2019 and 2020 and up to August 2021 the Plaintiff was unrepresented since the filing of Notice of Ceasing to Act by Rageau, Manua & Kikira Lawyers on the 20 December 2019.

11.	She submits also that during most of 2019 and 2020 and part of 2021 the plaintiff had to deal with the sick wife which affected him much financially and disorientated him. Counsel contends that in his affidavit the plaintiff clearly explained the reasons for his predicament.

12.	She further submits that this application is premature. She refers me to Nicholas v Commonwealth Niugini Timbers Pty Limited [1986] PNGLR 133, which held that, the power of the court to dismiss an action for want of prosecution pursuant to Order 10 rule 5 National Court Rules should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been long and inexcusable delay. 

13.	She submits that this is not the case here as the delay in prosecuting the matter was explainable, not intentional on his part or his lawyer to deliberately delay a fair trial or in this case mediation.  The Defendant is not prejudiced by the delay.

14.	Counsel submits that the substantive claim has merit, and it demands its progress to trial whereas if dismissed, would amount to a severe miscarriage of justice.

The Law

15.	The law in respect of dismissal for want of prosecution after close of pleadings in terms of Order 10 rule 5 National Court Rules is settled in this jurisdiction. The Rule states:

“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”

16.	Each case is determinable on its own merits. There are many cases on point dealing with the various elements or aspects of the Rule and I will adopt as the starting point the clear view expressed by Sawong J in Dogoliv v Laho [2005] PGNC 47. His Honour held: 
 
“O 10 r5 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 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.” 

17.	In Ronald Nicholas v Commonwealth Niugini Timbers Pty Limited [1986] PNGLR 133, the Court held that, “the power of the court to dismiss an action for want of prosecution pursuant to Order 10 rule 5 NCR should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been long and inexcusable delay”.

18.	In Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, (1999) N1807, Sevua J held: 

“In my view a plaintiff, who institutes a lawsuit has an obligation to prosecute it without unnecessary delay.  He has a duty to comply with the rule of the Court to ensure that prosecution of the suit reaches finality without inordinate delay and without causing prejudice to the defendant.”

19.	In the case of Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062, the court identified long delay, it held:
“…where there is a long delay, a balance must be struck as between the plaintiff and defendant and decide in the end whether the balance and justice demand that the action be dismissed.”

20.	   Failure to prosecute was identified in Murliu v Buidal [2015] PGNC 88, the court held: “…the party who fail to prosecute the matter after pleading closed after six weeks, is taking upon itself the risk of having the matter being dismissed for want of prosecution.”

21.	The Court had formulated general principles and elements of the Rule to be applied consistently. In Viviso Seravo v Jack Bahafo (2001) N2978 Kandakasi J, after he summarized all prior cases affirmed three (3) elements of the Rule for Courts consideration as being: -  
	
(a) 	the plaintiff’s default intentional or is allowing for an 	inordinate and inexcusable delay in the prosecution of the claim;	
(b)  no reasonable explanation given by the plaintiff for the delay;

(c)  	the delay caused injustice or prejudice to the defendant?

22.     This was followed in Ahmadiyya Muslim Mission v Bank South Pacific (2005) N2845 and John Niale v Sepik Coffee Producers Ltd (2004) N2637 wherein Cannings J incorporated two (2) additional elements:

(d)	the conduct of the parties and their lawyers; and

            (e)	it is in the interest of justice.
23.	These five (5) elements have now become guidelines in the consideration of applications under Order 10 Rule 5 of the National Court Rules. 

24.	The principle in law in relation to Order 4, rule 36 are similar in nature to that of Order 10, rule 5 of the National Court Rules in that the court should exercise its power to dismiss the proceeding in cases where the plaintiff or his lawyer’s default has been intentional and contumelious.

25.	The power of the Court to dismiss proceedings for want of prosecution is discretionary and should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial will not be possible or to serious prejudice to the defendant.

26.	The Court must also consider the conduct of the parties and their lawyers and whether it is in the interest of justice to dismiss the proceeding without going to trial.

27.	Even if there has been a long delay in bringing the proceedings to trial a balance must be struck as between the plaintiff and the defendant and in the end the Court must decide whether or not, in the balance, justice demands that the proceedings should be dismissed.

28.	The Rule does not automatically result in the dismissal of proceedings. It gives 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.
 
Findings

29.	The defendant filed a Notice of Motion on the 29 May 2020 seeking dismissal of the Statement of Claim but did not move the application until the 5 February 2021.

30.	The defendant cross claim was dismissed by Kariko, J on 16th October 2019.  Also, on the 16 October 2019 the proceeding was ordered to proceed to mediation. I find that no mediation materialized and there is no material evidence that the plaintiff was advised of the order for mediation.

31.	What is in evidence is that Rageau Manua & Kikira lawyers were directed on the 7 December 2019 to file Notice of Ceasing to Act and they filed their Notice of Ceasing to Act on the 20 December 2019. 

32.	 On the 5 February 2021 the National Court struck out the defendant’s Notice of Motion filed on the 29 May 2020 seeking dismissal of the Statement of Claim for want of prosecution.

 Conclusion

33.	The plaintiff has given his reasons for lack of attention especially during 2019 and 2020 period when his attention was focused on medical treatment of his late wife. 

34.	I also consider his obvious financial outlay for the medical expenses in country and abroad which impacted on his ability to settle his legal bills with Rageau, Manua & Kikira. This resulted in the lawyers filing of their Notice of Ceasing to Act on the 20 December 2019.

35.	The plaintiff did not have the benefit of a lawyer since 20 December 2019. I accept the ad hoc appearance by an officer from Public Solicitor Office when the defendant Notice of Motion came before the court on the 5 February 2021. The defendant/applicant did not appear in Court and the Court properly struck out the application.  He has filed a similar notice of motion and seeks a similar outcome. 

36.	The defendant main contention for dismissal of the proceeding in this Notice of Motion is that since February 2021 the plaintiff has not taken steps to progress the matter. The evidence before the Court is that the plaintiff formally has the services of the Public Solicitor upon the latter filing the Notice of Change of Lawyers on the 28 June 2022. 

37.	 In the consideration of all the above, and in the exercise of the Courts discretionary power, I must also consider my duty pursuant to Sections 155 (4) and 158 (2) of the Constitution to do justice to the case and to give paramount consideration to the dispensation of justice. 

38.	In the end I must strike a balance and decide whether or not I should dismiss the proceeding at this stage. I will not do so but allow the proceeding to proceed to trial.

Order
39.	The formal orders of the Court are:
1.	The Defendant’s application to dismiss the proceeding is refused.
2.	The proceeding shall be set down for Directions within 14 days.
	3.	Parties bear own costs.
	4.	Time is abridged

Ordered Accordingly
_______________________________________________________________
Public Solicitor: Lawyers for the Plaintiffs			
Rake Lawyers: Lawyers for the First Defendants