N11568
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 1652 OF 2016

MAKTOL OKE
Plaintiff

V

BARRICK (NIUGINI) LIMITED
Defendant

WABAG: ELLIS J
3 NOVEMBER 2025

PRACTICE AND PROCEDURE – Motion to dismiss for want of prosecution – lengthy delay with no adequate explanation provided – proceedings dismissed 

Cases cited

Seravo v Bahafo (2001) N2078

Counsel

L Toke, for the plaintiff
M Kambao, as agent for J Munnull, for the defendant

RULING

1.	ELLIS J:    On 14 February 2025 the defendant filed a notice of motion which sought to have these proceedings dismissed for want of prosecution.  On 3 October 2025 that motion was listed for hearing today and any written submissions were to be filed and served by 31 October 2025.
 
2.	That motion was based on the following words in Order 10 Rule 9A(15): 

(1)	The Court may summarily determine a matter:
a.	on application by a party ...
(2)	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 ...

3.	As was noted in cases such as Seravo v Bahafo (2001) N2078, 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 defendant for the delay; and
3.	That delay has cause[d] injustice or prejudice to the defendant.
 
4.	What a consideration of the Court’s file in relation to these proceedings reveals may be summarised by saying that the last activity on the part of the plaintiff was in 2018 when affidavits in support of a request for an extension of time were filed, on 20 April and 18 May, followed by documents filed on 5 July 2018 seeking taxation of costs.  It is noted that those affidavits were seeking to explain the delay in not complying with an order made on 24 October 2017.  As a result, putting the attempt to chase costs to one side, the last activity on the part of the plaintiff was an attempt to explain earlier inactivity.  Given that more than seven years has past since the plaintiff took any steps to progress this matter, it is clear there has been inordinate and inexcusable delay in prosecuting this claim.

5.	Despite the orders made on 3 October 2025 providing the plaintiff with an opportunity to lodge written submissions, there has been no written explanation provided by the plaintiff for that delay.

6.	Submissions were filed for the defendant which noted the following chronology:

21 Dec 16	Writ of Summons filed
11 Jan 18	Amended Writ of Summons filed
09 Feb 18	Defence filed
23 Feb 18	Pleadings closed
06 Apr 18	The time to file a Notice to Set Down for Trial expired 
06 Dec 21	Notice of change of lawyers filed
11 Mar 22	Defendant’s lawyer asked if plaintiff’s lawyers were still acting
30 Nov 22	Follow-up letter sent due to no response to that letter
12 Feb 25	Defendant’s file search revealed no documents since 06 Dec 21
14 Feb 25	Notice of motion filed and served
20 Feb 25	Hearing of motion adjourned as judge was ill
03 Oct 25	Hearing date of 03 Nov 25 allocated at call-over and an order was made for the provision of written submissions

7.	Submissions for the plaintiff noted that the plaintiff filed a Notice of Motion on 20 April 2018 which sought an extension of time to comply with orders made on 28 December 2017.  It was said that that motion had not been heard but there is nothing to indicate that the plaintiff ever did anything to progress that motion.  As that motion was not raised at the call-over on 3 October 2025, it was not listed for consideration today.  No written submissions have been filed by or for the plaintiff.  While it was submitted that there has been no civil circuit in Wabag, there has been a resident judge here during the period when the delay has occurred and there have been multiple considerations of the Civil List in Wabag by Kandakasi DCJ, such as the directions he made on 28 December 17, with which the plaintiff failed to comply, and further orders made by Kandakasi DCJ on 21 March 2018.  Reference was made to the submission filed by the plaintiff on 22 October 2018 in support of his motion which sought an extension of time, but that submission is now seven years old.

8.	The Court takes judicial notice that the defendant is no longer the operating in Porgera and that the incident upon which these proceedings are based is alleged to have occurred on 30 December 2015, which is close to ten years ago.  In terms of retention of documents and the availability of witnesses, it is clear there would be prejudice to the defendant if these proceedings were permitted to continue.

9.	It is now more than seven years since the pleadings closed and more than seven months since the defendant moved to dismiss these proceedings.  That level of inactivity on the part of the plaintiff is unacceptable.

10.	In these circumstances, the Court is satisfied that (1) there has been an inordinate delay, (2) no reasonable explanation has been provided for that delay, and (3) that delay either has caused or is likely to cause injustice and prejudice to the defendant.  

11.	There does not appear to be any reason why costs should not follow the event, ie the outcome.

12.	For those reasons, the orders of the Court will be as follows:

1	The proceedings are dismissed for want of prosecution.
2	Any earlier orders for costs are set aside.
3	The plaintiff is to pay the defendant’s costs of these proceedings, including the notice of motion filed on 14 February 2025, as taxed if not agreed.
4	Time is abridged so that these orders may be entered forthwith.
5	Time is abridged so that these orders may be entered forthwith.
Orders Accordingly.

__________________________________________________________________
 Lawyer for the plaintiff: Public Solicitor
Lawyers for the defendant: John Peter Munnull Lawyers