Goma Ermuke v Motor Vehicles Insurance Limited (2009) N3719

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 18 August 2009
• Court: National Court
• Citation: (2009) N3719
• Docket Number: WS. No. 395 OF 2002
• Year: 2009
• Judgement Number: N3719

Full Title: WS. No. 395 OF 2002; Goma Ermuke v Motor Vehicles Insurance Limited (2009) N3719

National Court: David, J

Judgment Delivered: 18 August 2009

N3719

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. No. 395 OF 2002

BETWEEN:

GOMA ERMUKE

Plaintiff

AND:

MOTOR VEHICLES INSURANCE LIMITED

Defendant

Mt Hagen: David, J

2009: 7 & 18 August

PRACTICE & PROCEDURE – application to dismiss proceedings – want of prosecution – National Court Rules, O.10 r.5, O.12 r.1 – exercise of court’s discretion – relevant considerations – exercise of discretion in favour of plaintiff – application refused.

Cases cited:

Kai Ulo & 2 Ors v. The State [1981] PNGLR 148

Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55

Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133

Mapmakers Pty Ltd v. Broken Hill Proprietary Company Ltd [1987] PNGLR 78

Vivisio Seravo v. Jack Bahofa (2001) N2078

John Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637

PNG Water Board v. Gabriel M. Kama (2005) SC821

Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845

Island Helicopter Services Ltd v. Wilson Sagati (2008) N3340

Hilary Singat v. Commissioner of Police (2008) SC910

Counsel:

Paulus K Kunai, for the Plaintiff

Gloria Salika, for the Defendant

RULING ON MOTION

18 August, 2009

1. DAVID, J: INTRODUCTION: This is an application on notice to dismiss the proceedings for want of prosecution pursuant to O.10 r.5 and O.12 r.1 of the National Court Rules.

2. The application is moved by the Defendant pursuant to its Notice of Motion filed on 5 January 2009 and it is supported by the following Affidavits:-

1. Affidavit of Royale Thompson sworn on 24 January 2006 and filed on 30 January 2006 (Royale Thompson’s First Affidavit);

2. Affidavit of Royale Thompson sworn on 17 December 2008 and filed on 5 January 2009 (Royale Thompson’s Second Affidavit);

3. Affidavit of Service By Post of Haho Marjen sworn on 30 January 2009 and filed on 9 February 2009.

3. On 30 January 2009, the Notice of Motion and Royale Thompson’s Second Affidavit were served on the Plaintiff by causing those documents to be posted to the Plaintiff’s lawyer’s address at PO Box 991 Mt. Hagen. That is confirmed by the Affidavit of Service By Post of Haho Marjen.

4. According to the Court’s record, the Defendant’s lawyers served Royale Thompson’s First Affidavit on the Plaintiff on 7 February 2006. Sealed copies of that affidavit together with a Notice of Motion and a Notice of Change of Name giving notice of the change of the name of the law firm representing the Defendant all filed on 30 January 2006 were caused to be posted to the Plaintiff’s lawyer’s address at PO Box 991 Mt. Hagen. That is confirmed by the Affidavit of Service of Lilian Aisi sworn on 9 February 2006 and filed on 15 February 2006. It was by that Notice of Motion that the Defendant first sought an order to dismiss these proceedings for want of prosecution (the first application). The first application was withdrawn by consent on 24 March 2006.

5. The present application is the second time that the Defendant has filed an application to dismiss these proceedings for want of prosecution.

6. The Plaintiff contests the application. He relies on the Affidavit of Paulus Koim Kunai sworn on 16 March 2009 and filed on 7 April 2009 in response to the Defendant’s application.

BRIEF BACKGROUND AND FACTS

The Plaintiff’s claim

7. On 28 March 2002, the Plaintiff commenced these proceedings by filing his writ of summons endorsed with a statement of claim.

8. The Plaintiff claims that he is an adult who was injured in an accident whilst a passenger on a Toyota Coaster bearing registration number P956G (the motor vehicle) owned by a PK Trading and driven by one Luke Honjepari. He claims to have suffered severe injuries to his body in particular the ones to his chest, lower back and left shoulder as a result of the alleged accident. The Plaintiff also claims that the alleged accident occurred along the Rumbarumbanoku road near Daulo in the Eastern Highlands Province at about 03:00 pm on or about 22 September 1999 and it was caused by the negligence of the driver.

9. The Plaintiff claims that the Defendant is liable to pay him damages under the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 for the loss and damage suffered.

Notice of Intention to Defend, Defence and Reply

10. The Defendant’s Notice of Intention to Defend and Defence were filed on 13 May 2002.

11. The Defendant denies liability. It also pleads in its defence that on or about 22 September 1999, it was the insurer of a Toyota Coaster bearing registration number P956Q.

12. The Plaintiff’s Reply was filed on 4 June 2002 adopting the Defendant’s admissions and joining issue with the denials.

THE DEFENDANT’S SUBMISSIONS

13. Ms. Salika of counsel for the Defendant referred the Court to the principles governing the dismissal of proceedings for want of prosecution summarised by His Honour, Justice Kandakasi in Vivisio Seravo v. Jack Bahafo (2001) N2078 and followed in Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845 and submitted that these proceedings should be dismissed on the strength of the evidence produced for and on behalf of the Defendant before the Court which she said was sufficient to satisfy all the necessary requirements.

14. Counsel further submitted that when pleadings closed in June 2002, a Notice to Set Down for Trial endorsed by the parties was subsequently filed in July 2002. However, she said because the matter had not been set down for trial since the filing of the Notice to Set Down for Trial coupled with the fact that the Defendant’s lawyers had not, since August 2002, received any communication from the Plaintiff’s lawyers, the Defendant decided to file its first application which was later withdrawn by consent.

15. Counsel further submitted that notwithstanding that the matter has been on the civil call-over list for over 6 years, the Plaintiff has taken no meaningful steps to set the matter down for trial including, apart from some correspondence regarding filing of the order withdrawing the first application, not corresponding with the Defendant’s lawyers in relation to further steps taken since the withdrawal of the first application. The delay was either intentional or inordinate and the Plaintiff has provided no reasonable explanation for the delay she contended.

16. Counsel also argued that Royale Thompson’s Second Affidavit contained evidence showing that the Defendant has been severely prejudiced by the Plaintiff’s complete failure to take any steps to proceed with his claim considering that it is now about 10 years since the alleged accident and would no doubt affect memories of witnesses to recall facts about that and that the Defendant has incurred considerable expense in conducting the defence of these proceedings.

17. A case for the dismissal of the proceedings for want of prosecution has been established counsel said.

THE PLAINTIFF’S SUBMISSIONS

18. Mr Kunai of counsel for the Plaintiff submitted that the delay in setting the matter down for trial was not due to the Plaintiff’s fault, but was due to several factors which he highlights in his Affidavit. These are; firstly, the practice adopted and applied by the Court here now is that all matters including matters involving the Defendant are fixed for trial according to the age of matters on the civil call-over list in that older matters take priority over more recent matters; secondly, there were many older matters in the queue before this matter; and lastly, it was also a practice adopted and applied by the Court here now requiring all parties to attend call-overs in order to obtain a trial date.

19. The Listings Rules 2005 have been implemented here since last year and the parties should therefore progress the matter to trial in accordance with those rules counsel said.

20. Mr. Kunai further submitted that the first application was withdrawn because the Defendant took into account the Court’s practice here as to setting down matters for trial. That is acknowledged in Royale Thompson’s Second Affidavit he said.

21. Mr. Kunai also submitted that the Defendant’s application based on the alleged non-compliance by the Plaintiff with O.10 r.5 of the National Court Rules was misconceived because the Plaintiff has already filed a Notice to Set Down for Trial requesting that the proceedings be set down for trial. It was now a matter of getting a date fixed for trial, but because the Defendant was not represented at the call-overs, that made it extremely difficult to obtain a date counsel said.

22. Counsel suggested that if the Defendant wanted to seek other reliefs in respect of these proceedings other than dismissal for want of prosecution, such application(s) should be made under O.12 r.1 of the National Court Rules. This is because that rule gives the Court a considerable discretion at any stage of any proceedings on the application of any party to make such orders as the nature of the case requires he said.

23. Counsel submitted that the onus was upon the Defendant to establish all the necessary requirements for the dismissal of proceedings for want of prosecution. He argued that in the present case, the Defendant has to establish in particular that the delay...