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Madi v Davaia [2023] PGNC 353; N10517 (12 October 2023)

N10517

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 20 OF 2023

AVA MIKA MADI For himself & Family (refer to Schedule 1)
Plaintiffs

AND
GEITA GEITA DAVAIA
First Respondent

AND
HON JOHN ROSSO AS MINISTER FOR LANDS & PHYSICAL PLANNING
Second Respondent

AND
BENJAMIN SAMSON AS SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent

AND
REGISTRAR OF TITLES DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Respondent

V

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Miviri J
2023: 09^th & 12^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Order 16 Rule 13 (13) (2) (a) (b) NCR – Want of Prosecution – Due Diligence in Prosecuting – Opportunity to Defend Action granted to No Avail – Material Relied sufficient – Application to Dismiss Granted – Proceedings Dismissed – Costs Follow Event.

Cases Cited:

University of Papua New Guinea v Rosso [2021] PGNC 318; N9063
Gumanch Muipulg Wampnga Ltd v Samson [2020] PGNC 267; N8490
Kalinoe v Kereme [2017] PGSC 26; SC1631
Yawari v Agiru [2008] PGSC 31; SC948
Takori v Yagari [2008] PGSC 3; SC905

Counsel:

No appearance for Plaintiff
S. Malaga, for First Defendant
N. Yano, for the State Defendants

RULING

12^th October 2023

1. MIVIRI, J: This is the ruling of the court on the notice of motion dated the 14^th September 2023 of the Second, Third, Fourth and Fifth Respondents supported by the first Respondent pursuant to Order 16 rule 13 (13) (2) (a) (b) (i) of the National Court Rules, for the dismissal of this proceedings for want of prosecution.
   
2. On the eve of the motion a Mr. R. Tuva sought to appear for the Plaintiff. There was no notice of ceasing to act filed by the previous lawyer on record Korerua and Associate Lawyers. They remained on record until such notice was filed. And in the case of Mr. R. Tuva, he could not appear without that fact. There was no appearance by the plaintiff in person to inform as to the position on his representation in Court. The matter could not be adjourned as hearing had been set settled dated today.
   
3. Because the motion with supporting affidavit was served personally on the plaintiff in person by Lawyer Sanol Malaga who deposes an affidavit of service sworn of the 28^th September 2023 filed of that day. And service was affected personally on the plaintiff at his Kirakira village residence on the 27^th September 2023 at 12.36pm by the lawyer. Who acknowledged the proof of service annexure “A” to the affidavit of Lawyer Sanol Malaga with his endorsement. He was by that fact aware of the intentions of the State Respondents together with the First Respondent against the action that he had filed. By that fact he was put on notice of the intentions of the State Respondents including the first Respondent to move the court for orders pursuant to Order 16 Rule 13 (13) (2) (a) (b) (i) relevantly the jurisdictional basis of the subject motion. That by this application it was intended to dismiss the proceedings for want of prosecution. In effect saying that the plaintiff had not exercised due diligence in the prosecution of the subject Judicial review matter. It was filed initially on the 15^th March 2023 seeking leave for Judicial review. It remained outstanding in that regard without being moved taking account of Order 16 rule 4 of the Rules, and it was so remaining outstanding since being filed there was inactivity on the file which is set out as evidenced by the affidavit in support of the motion dated 14^th September 2023 by Lawyer Newman Yano of the office of the Solicitor General.
   
4. He deposes that the plaintiff’s lawyer served annexure “B” a notice on him on the 12^th June 2023 that the matter was listed for directions. Attendance on the 12^th June 2023 did not eventuate as Deputy Chief Justice Kandakasi’s matters were all differed to the registry. On 10^th July 2023 the Plaintiff’s lawyers caused a annexure “C” notice by letter to the Respondents that the matter was relisted for directions hearing on the 11^th July 2023. On that date both counsels appeared, and the matter was referred to the Judicial Review track. Here notice by the Plaintiffs lawyer annexure “D” informed that the matter was listed for Directions on the 07^th August 2023. On attendance at Court on the 21^st August 2023 the matter was not on the list for directions. Enquiries with the Registry resolved that the matter was listed for motion hearing on 22^nd August 2023. Respondents appeared but the Plaintiff did not appear with counsel. Verbal application to dismiss was refused with instructions to Counsel to properly file and move. And matter was adjourned to the 04^th September 2023 in that regard but was differed to the 11^th September 2023 for directions hearing. Appearance on the 11^th September 2023 was without the lawyer for the plaintiff. Once again verbal application was made by State Respondents to dismiss the proceedings. The Court advised Counsel for the application to be filed served on the plaintiff and application made in Court properly so that the Plaintiff was also heard as to the position he took in the matter. That service by the affidavit set out above has not brought the plaintiff into Court nor engagement of counsel into Court.
   
5. He instituted the action for leave for Judicial Review. He has made no appearance to explain his position in the matter despite being served particulars set out above. Want of prosecution denotes that there is no activity on the file since it was instituted by the plaintiff in the case here. And as a result, the case has not progressed where it was lodged initiating. And it would not be wrong to exercise the discretion this Court has exercised given the facts set out above. There is nothing shown to the contrary to keep the proceedings on the record of the court. It is clearly warranted by the facts relied here to do as was the case in University of Papua New Guinea v Rosso [2021] PGNC 318; N9063 (13 August 2021) and Gumanch Muipulg Wampnga Ltd v Samson [2020] PGNC 267; N8490 (4 September 2020) to grant dismissal in similar terms.
   
6. And here it is pertinent to point that the Plaintiff has caused no reasonable explanation as to why he reflects genuineness to the cause of action instituted. As with defiance of court orders where no reasons are advanced, the same would befall where no reasonable explanation nor attempt made by the plaintiff to hold fast and to bring this action to what is sought in law. It would be trite to follow Kalinoe v Kereme [2017] PGSC 26; SC1631(3 November 2017) and Yawari v Agiru [2008] PGSC 31; SC948 (6 November 2008) in dismissing this cause of action as applied and pleaded pursuant to Order 16 Rule 13 (13) (2) (a) (b) (i) of the Rules of Court. The Courts are slow to removing the litigant from the Judgment seat. It must be the only exercise of discretion open and not without, Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). Given all set out above there is nothing apparent or identifiable other than to dismiss this cause of action as pleaded by the Rules set out above. Accordingly, the Notice of motion of the second, third, fourth and fifth respondents supported by the first respondent is granted in full as pleaded. The cause of action is dismissed forthwith with costs following the event forthwith.
   
7. The formal orders of the Court are:
   
   • (i) The notice of motion dated the 14^th September 2023 of the Second, Third, Fourth and Fifth Respondents supported by the first Respondent is granted forthwith as pleaded.
     
   • (ii) The entire proceedings are dismissed forthwith for want of prosecution pursuant to Order 16 rule 13 (13) (2) (a) (b) (i) of the National Court Rules.
     
   • (iii) The Costs of and incidental to these proceedings and this application will follow the event forthwith to be taxed if not agreed.

Orders Accordingly.

__________________________________________________________________

Korerua & Associate Lawyers: Lawyer for the Plaintiff

Sanol Malaga Lawyers: Lawyer for First Respondent

ffice of the Solicitor General: Lawyer for the Second, Third, Fourth & Fifth Respondents