Cecilia James v Motor Vehicle Trust Limited (2009) N3661

• Jurisdiction: Papua New Guinea
• Judge: Yalo, AJ
• Judgment Date: 17 June 2009
• Court: National Court
• Citation: (2009) N3661
• Docket Number: WS NO 1390 OF 2004
• Year: 2009
• Judgement Number: N3661

Full Title: WS NO 1390 OF 2004; Cecilia James v Motor Vehicle Trust Limited (2009) N3661

National Court: Yalo, AJ

Judgment Delivered: 17 June 2009

N3661

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1390 OF 2004

BETWEEN

CECILIA JAMES

Plaintiff

AND

MOTOR VEHICLE TRUST LIMITED

Defendant

Wabag: Yalo, AJ

2008: 22 October

2009: 17 June

Cases cited

Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133

Umbu Waink v MVIT [1997] PNGLR 390

Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) N1630

Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) N1807

Smugglers Inn Resort Hotel Ltd v Papua new Guinea Banking Corporation (2006) N3062

Counsels

Mr. J. Poponawa, for the Defendant/Applicant

Mr. M. Thoke, for the Plaintiff/Respondent

RULING ON NOTICE OF MOTION

1 YALO, AJ: The Defendant/Applicant (Applicant) by way of a Notice of Motion sought to dismiss the entire proceedings pursuant to Order 10 rule 5 of the National Court Rules (NCR) for want of prosecution. The Applicant sought in the alternative summary determination of the whole proceedings under Order 15 rules 1(a) and 2(a) of the Listings Rules 2005. The Plaintiff/Respondent (Respondent) claimed damages against the Applicant for injuries she sustained from a traffic accident on 20 November 2003. The Respondent opposed the application on the basis that it is misconceived. So should the entire proceedings be dismissed for want of prosecution?

APPLICANT’S SUBMISSIONS

2 The Applicant sets out the chronology of the events leading up to this application as follows. On 13 October 2004 the Respondent filed her Writ of Summons. The Applicant filed its Defence on 27 January 2005. On 2 March 2005 the Respondent filed a Reply. A Notice to Set Down for Trial was endorsed by both parties and filed on 10 August 2005. On 13 December 2006 the Applicant filed an Amended Defence. On 17 April 2007 the Respondent filed a Reply to the Amended Defence.

3 On 30 April 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to take the next step to progress the matter to trial. They did not respond to this letter. On 27 September 2007 the Applicant’s Lawyers wrote to the Respondent’s Lawyers asking them to progress the matter to trial. They did not respond to the letter. On 10 December 2007 the Applicant’s Lawyers wrote again to the Respondent’s Lawyers giving them notice of their intention to file an application seeking to dismiss the Respondent’s claim for want of prosecution.

4 The Applicant’s Counsel submitted that as at 17 July 2008 neither the Respondent nor her Lawyers have responded to their letters. The Respondent’s Lawyers have not taken any step to progress the matter to trial since the close of pleadings in April 2007 and since the filing of the Notice to Set Down for Trial. The Respondent’s Lawyers actions clearly show that they are not keen in prosecuting the matter. Therefore the matter should be dismissed for want of prosecution.

RESPONDENT’S SUBMISSIONS

5 The Respondent submitted through her Lawyers that she sustained serious injuries in a motor vehicle accident on 20 November 2003 along the Wabag/Laiagam road in the Enga Province. Thereafter she commenced proceedings at the National Court claiming damages against the Applicant. The Respondent’s Counsel outlined the chronology of the progress of this matter in particular the steps taken by both parties before this application was filed. Counsel has set out the chronology of events in his affidavit which are very much the same with the facts outlined by the Applicant’s Counsel in her affidavit. These facts which are not in dispute relate to the commencement of the proceedings on 13 October 2004 up till 17 April 2007 when the Respondent’s Lawyers filed a Reply to the Applicant’s Amended Defence.

6 The Respondent’s Counsel further submitted that on 25 June 2007 they forwarded to the Acting Assistant Registrar in Wabag the Notice to Set Down for Trial for sealing. On 27 September 2007 the Applicant’s Lawyers wrote to them advising that they take steps to have the matter placed on the call-over list for listing and forward to them the copies of the Notice to Set Down for Trial.

7 On 10 April 2008 the Respondent’s Lawyers forwarded to the Applicant’s Lawyer’s sealed copies of the Notice to Set Down for Trial. But the Applicant had proceeded to file the application to dismiss the entire proceedings for want of prosecution. On 7 August 2008 the Respondent’s Lawyers wrote to the Applicant’s Lawyers advising them why they were not able to obtain trial date and asked them to consider withdrawing their applications with costs. The Respondent’s Lawyers enclosed a copy of a letter from Michael Thoke Lawyers who are their town agents who explained the reasons why the matter could not be progressed in 2007.

8 On 26 August 2008 the Applicant’s Lawyers responded by advising that they had instructions to proceed with their application. On 4 September 2008 the Respondent’s Lawyers wrote to the Applicant’s Lawyers advising that since the proceeding were already set down for trial both parties have not filed any witness’ affidavits and they asked the Applicant’s Lawyers to withdraw their application with costs and allow the matter to go for directions hearing first before having the matter listed for trial. The Applicant’s Lawyers declined their request and proceeded with this application.

9 The Respondent argued that the Applicant is being unreasonable in bringing this application to dismiss the entire proceedings. She submitted through her Counsel that there is no serious default or failure on her part to progress the matter to trial. In 2007 the National Court did not have regular civil sittings in Wabag. Some civil matters could have been dealt with during the Court vacation but the resident Judge, late Justice Jalina died and no vacation Judge was available until 2008 when a new Judge was appointed. She argued through Counsel that this is not a case where she had done nothing to progress the matter to trial. The matter was Set Down for Trial on 25 June 2007 and it is now on the call-over list. It should be allowed to go for directions hearing first to enable the parties to file witnesses’ affidavits before it can be set down for trial. Taking into account all of the above reasons she asked the Court to refuse the Application with costs because it is misconceived.

THE LAW

10 Order 10 rule 5 of the National Court Rules states:

5. Want of prosecution. (33/6)

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.

11 This particular rule has been applied by this Court on many previous occasions. For instance in Ronald Nicholas v Commonwealth Niugini Timbers Pty. Limited [1986] PNGLR 133; the court held that the power of the court to dismiss 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. In Martin Imbu Sambai v Motor Vehicles Insurance (PNG) Trust & The State, (1991) N1630; Lenalia, J said: "The Law in relation to dismissal for want of prosecution is quite clear. This is evident from the wording of O.10, r.5 of the Rule. Rule 5 of Order 10 requires that within six (6) weeks after the pleadings are closed, the plaintiff is entitle to set the matter down for trial. The court has power to dismiss proceedings for want of prosecution on Motion by the other party where there has been a long delay and default or where there has been inordinate and inexcusable delay on the part of the party who instituted the proceedings." This statement was later reiterated in 1997 by this Court that Order 10 rule 5 are in plain English and ‘are self explanatory’: Umbu Waink v MVIT [1997] PNGLR 390. In Markscal Limited & Robert Needham v Mineral Resource Development Company Limited, Masket Iangalio, Gerea Aopi & Charles Lepani (1999) N1807 Sevua, J said:

"In my view a plaintiff, who institutes a law suit has an obligation to prosecute it without unnecessary delay. He has a duty to comply with any court order relative to the law suit; 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. A party cannot just ignore court process, if he does, he does so at his peril."

12 In the case of Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062 the National Court stated:

“where there is a long delay a balance must be struck as between the Plaintiff and the Defendant and decide in the end whether the...