N10002

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1786 OF 2019

BETWEEN:
UIN KINANEO
-Plaintiff-

AND:
FR. SAM PHASZ
-Defendant-

Alotau:  Collier, J
2022:  1st November

PRACTICE AND PROCEDURE – application for dismissal for want of prosecution - Order 4 Rule 36 National Court Rules – relevant principles concerning want of prosecution – where evidence that plaintiff uncontactable – where plaintiff failed to appear in National Court on multiple occasions – where no activity on Court file by plaintiff since 2020 – where no explanation by plaintiff for failure to be active on Court file – where Court satisfied of prejudice to defendant by ongoing proceeding without due prosecution.

Cases Cited:

Task Guard Ltd v Foulton [2016] SC1560

Legislation Cited:

National Court Rules Order 4 Rule 36 

Counsel:

The Plaintiff as litigant in person (no appearance)
Mr S Alberic, for the Defendant

1st November 2022

1.	COLLIER, J:  BACKGROUND: Before the Court is a Notice of Motion filed by the defendant on 15 September 2022 in which the defendant sought the following orders:

1.	Pursuant to Order 1 Rule 7, the requirements for service be dispensed with.

2.	Pursuant to Order 4 Rule 36 of the National Court Rules, the proceedings be dismissed for want of prosecution.

3.	Further, pursuant to Order 12 rule 40 (a), (b) and (c) of the National Court Rules, the proceeding be dismissed for showing no reasonable cause of action, being frivolous or vexatious and an abuse of the process of Court.
4.	Costs of this application and of the proceedings.

5.	Any other orders as the Court thinks fit.

2.	The present proceedings were commenced by Writ of Summons filed on 13 December 2019. The plaintiff, Mr Kinaneo, has been unrepresented the entirety of the proceedings before the Court. In summary, Mr Kinaneo claimed that the defendant stole gold dust from Mr Kinaneo while Mr Kinaneo took refuge at the defendant’s premises to escape persons who were assaulting him. In summary, Mr Kinaneo sought the following relief:

1.	The sum of K36,878.40 for the value of the property in gold dust.
2.	General Damages.
3.	Loss of Business.
4.	Breach of Human Rights.
5.	Interest at 8% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.
6.	Costs against the Defendants.
7.	Any other orders this Honourable Court deems appropriate.

SUBMISSIONS OF THE DEFENDANT AT TODAY’S HEARING

3.	Mr Alberic for the defendant this morning submitted that the matter is very clear. The plaintiff has done nothing to prosecute the matter and the evidence of the defendant is not rebutted. The defendant is a parish priest, this litigation is inconveniencing him by causing him to incur expense and time in defending the litigation. There has also been inordinate delay – the plaintiff has no intention of participating in the matter.

CONSIDERATION

4.	Following the filing of the Writ of Summons there was little activity on this matter. However, I note in particular the following.

5.	First, although the defendant filed a Notice of Intention to Defend on 30 March 2020, no Defence has been filed by the defendant. The plaintiff on 4 September 2020 filed an Affidavit of Search, deposing that he had searched the Court file but that the defendant had failed to file his Defence within the prescribed period of 14 days under the National Court Rules, and as at 4 September 2020 no Defence had been filed by the defendant. The plaintiff subsequently filed a Notice of Motion on 22 September 2020 seeking an order for default judgment against the defendant in the sum of K36,878.40 and costs.

6.	However, second, on 7 October 2020 the defendant filed a Notice of Motion seeking orders that pursuant to Order 1 Rule 15 and Order 12 r 1 of the National Court Rules and s 155 (4) of the Constitution, leave be granted to the defendant to file his Defence out of time, and costs be ordered in the cause. In support of that Notice of Motion the defendant filed an affidavit in support, in which he relevantly deposed, in summary:

1.	Due to his commitments as a Priest in the outlying islands of the Samarai Murua District, moving around the islands where communication difficulties are so prevalent, he could not send his statements to his lawyers quickly to enable them to prepare and file his Defence within the required time.

2.	He and his lawyers attempted to serve his Notice of Motion and Affidavit in Support on the plaintiff, who was then residing at Siagara Village on Misima Island, but the plaintiff became evasive and they could not locate him. Further, on attempting to telephone the plaintiff on his cell phone number listed in the Writ of Summons the person answering the phone said the phone did not belong to anyone of the plaintiff’s name.

3.	The defendant had endeavoured to serve his Notice of Motion on the plaintiff at Siagara Village on 21 May 2022 however the plaintiff evaded service and departed to Port Moresby.

4.	The defendant totally denied the allegations of the plaintiff that the defendant stole any bag containing gold dust from the defendant during the early hours of 7 May 2019. Rather, the plaintiff was drunk and disorderly, had caused a fight with several youths, had run on to the defendant’s premises to save himself from serious injury, and had awoken the defendant from a deep sleep in seeking that refuge.

5.	The defendant denied that he saw any bag of the plaintiff, and had no knowledge about the gold dust the plaintiff claims he had in the bag.

7.	Third, the matter has been repeatedly listed in the National Court, but with no appearance by the plaintiff. In particular I note:

•	The matter was listed in the National Court before Toliken J on 9 November 2020. At that hearing there was no appearance by the plaintiff. Mr Alberic for the defendant informed the Court that the defendant’s Notice of Motion could not be served on the plaintiff because he could not be located.

•	The matter returned on 13 May 2022 for the hearing of any motions. Mr Alberic appeared for the defendant, however there was no appearance by the plaintiff. Justice Cannings adjourned the matter to the Registry.

•	Finally, the matter came before me at the callover on 31 October 2022. There was no appearance by the plaintiff. Mr Alberic appeared for the defendant and informed the Court that he was unable to locate the plaintiff. Accordingly, I made the following orders:

1.	Service of the defendant’s notice of motion dated 15 September 2022, seeking dismissal of this proceeding for want of prosecution (notice of motion), be dispensed with under Order 1 Rule 7 of the National Court Rules.

2.	The plaintiff’s notice of motion be listed for hearing at 9.30am on 1 November 2022.

8.	The defendant seeks dismissal of the proceedings pursuant to Order 4 Rule 36 of the National Court Rules, which relevantly reads:

36. Want of Prosecution. (5/12)

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.

(2) …

9.	In the present case the defendant submits that the plaintiff has not prosecuted the proceedings with due despatch.

10.	Principles relevant to the exercise by the National Court of the power to dismiss a matter for want of prosecution have been the subject of extensive consideration by the Court, as well as the National Court. In Task Guard Ltd v Foulton [2016] SC1560 the Supreme Court observed:

11.	The principles as regards the Court’s exercise of power in relation to application for dismissal of proceeding are now well established by a line of case authorities. The cases cited by the appellant namely Ronald Nicholas (supra), Mali Pyali (supra) and Obadia Buka (supra) are just a few examples of those cases. Incidentally, Obadia Buka (supra) is numbered and is referred to in the judgment of the primary Judge. Others include such cases as Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55. Perhaps one of the often cited authorities is the case of Vivisio Seravo v Jack Bahafo (2001) N2078 where his Honour Kandakasi J summarized the important principles. His Honour said:

“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.

	This is apparent from cases like that of Ronald Nicholas v. Commonwealt	Niugini Timbers Pty Ltd [1986] PNGLR 133 which has been followed in a number of other cases such as Umbu Waink & Anor v. Motor Vehic	Insurance (PNG) Trust and The State (15/08/97) N1630. I consider those 	principles relevant and therefore they apply in the context of O.4. r.36 (1), in the absence of any authority to the contrary.”

12.	The Court in Kai Ulo (supra) held that where there is a prima facie case establishing delay the respondent is obliged and must provide a satisfactory explanation for the delay.

13.	The Courts power to dismiss a proceeding for want of prosecution is of course discretionary, however, the power must be exercised properly and judicially.

11.	Turning to the proceedings before me I am satisfied that they should be dismissed for want of prosecution by the plaintiff. I have regard to evidence of the defendant, and in particular his evidence of his fruitless attempts to serve documentation related to these proceedings (including the Notice of Motion filed on 7 October 2020) on the plaintiff. I also note that the proceedings have been listed multiple times in the National Court with no appearance by the plaintiff. I finally note that there has been no activity on this file in any identifiable way by the plaintiff since he filed his Notice of Motion seeking default judgment on 22 September 2020. I conclude that:

•	The plaintiff's apparent failure to accept service of material and appear in proceedings is allowing for an inordinate and inexcusable delay in prosecution of his claim;

•	No explanation of any kind has been given by the plaintiff for his failure to engage with the proceedings after September 2020; and

•	The delay has caused injustice or prejudice to the defendant, in that he continues to face proceedings claiming a significant sum against him, he continues to incur legal costs to defend the proceedings, and the outstanding unresolved writ of summons potentially has reputational implications for him.

12.	While the defendant himself did not file his Defence within time, I note the explanation for this given in his affidavit in support. In my view that explanation is plausible, and does not prevent him seeking the Orders currently sought by the Notice of Motion filed on 15 September 2022.

13.	The Defendant has also sought alternative relief, namely dismissal for showing no reasonable cause of action, being frivolous or vexatious and an abuse of process of the Court. In my view it is not appropriate to dismiss the proceedings on that basis, having regard to the material before me, the non-appearance by the plaintiff, and the absence of submissions made on this issue.

14.	Finally, while the location of the plaintiff remains currently unknown to either the Defendant or the Court, I consider it appropriate to order costs against him.

ORDERS

15.	The Court orders that:

(1)	Pursuant to Order 4 Rule 36 of the National Court Rules the proceedings be dismissed for want of prosecution.

(2)	The plaintiff pay the costs of the defendant of and incidental to the proceedings, such costs to be taxed if not otherwise agreed.
____________________________________________________________________
In person (no appearance):  Lawyer for Plaintiff
Alberic Lawyers:  Lawyer for Defendants