Mali Pyali suing for and on Behalf of Himself and other Members of The Maken Tribe and Jim Kaiya suing for and on Behalf of Himself and other Members of The Miki Tribe v Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 17 December 2003
• Court: National Court
• Citation: (2003) N2492
• Year: 2003
• Judgement Number: N2492

Full Title: Mali Pyali suing for and on Behalf of Himself and other Members of The Maken Tribe and Jim Kaiya suing for and on Behalf of Himself and other Members of The Miki Tribe v Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492

National Court: Davani J

Judgment Delivered: 17 December 2003

N2492

IN THE NATIONAL COURT ]

OF JUSTICE AT MT HAGEN ]

PAPUA NEW GUINEA ]

WS 678 OF 1997

BETWEEN:

MALI PYALI suing for and on behalf of himself and other members of the Maken Tribe

First Plaintiff

AND:

JIM KAIYA suing for and on behalf of himself and other members of the Miki Tribe

Second Plaintiff

AND:

CHIEF INSPECTOR LEO KABILO

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mt Hagen: Davani .J

2003: 16, 17 December 2003

RULING

(Applications to dismiss and others)

Counsel:

J. Kunai for Defendants/Applicants

J. Kolkia for the Plaintiffs/Respondents

Practice and Procedure – Vicarious liability of State for torts allegedly committed by policemen – policemen not named on writ – liability to be proven by evidence – Statement of claim properly pleaded.

Practice and Procedure – Vicarious liability – Denial by State that raid ever occurred – onus on Plaintiffs to prove vicarious liability – Statement of claim properly pleaded.

s. 1(4) of Wrongs Miscellaneous Proceedings Act Chapter 297

Practice and Procedure – Notice of Intention to Defend – filing of Notice of Intention to Defend by Defendant is proof of personal service of originating process

O. 6 R. 2 (3) of National Court Rules

Cases cited:

• General Accident Fire and Life Assurance v Illimo Farm (1990) PNGLR 331

• Umba Waink and Martin Umba Sambai v Motor Vehicles Insurance (PNG) Trust & The State 1991 (Unreported) N1630.

• Eriare Lanyat and others v George Wagulo and the State [1997] PNGLR 253

• Panga Coffee Factory Pty Ltd, Highlands Coffee Export Pty Limited and Kum Farming and Trading Pty Limited, Coffee Industry Corporation Limited SCA 22 of 2001 by Los, Injia and Davani, JJ

• Puk Num v the Independent State of Papua New Guinea WS 44 of 1996 dated 12.9.03

Other texts cited:

• Crown Proceedings Act of 1947 (United Kingdom)

• Crown Proceedings Act of 1950 (New Zealand)

• Crown Proceedings Act 1958 of Victoria

• Liability of the Crown in Australia, New Zealand and the United Kingdom by Peter W. Hogg (1971)

• Wrongs Miscellaneous Proceedings Act Chapter 297 (‘Wrongs Act’)

17 December 2003

DAVANI .J: The Defendants/Applicants (‘Applicant’) move by Notice of Motion filed on 15.9.03 seeking orders to dismiss the proceedings. They rely on several grounds in moving this application, which I set out below. The Applicants do not rely on any affidavit material, only making submissions on the law which is set out on written submissions dated 16.12.03 and filed in court.

The Applicants Notice of Motion reads;

“1. The proceedings be dismissed for want of prosecution pursuant to Order 4 Rule 3(i) and Order 10 Rule 4 of the National Court Rules;

2. In the alternative, the within proceedings be dismissed pursuant to Order 12 Rule 40 of the National Court Rules;

3. In the alternative the Writ of Summons and Statement of Claim be struck out pursuant to Order 8 Rule 27 of the National Court Rules;

4. Further or in the alternative, the claims for other members of the Maken tribe and Mike tribe apart from Mali Yiyali and Miki Kaiya, be struck out pursuant to Order 8 Rule 27 of the National Court Rules (‘NCR’);

5. Further in the alternative, the Defendants to be given leave to file a Request for Further and Better Particulars of the Statement of Claim;

6. Costs be in the cause;

7. Any other Orders this Honourable Court deems fit.”

A threshold issue I raise at this time is that once a Notice to Set Down for Trial is filed, the court should not entertain any interlocutory applications by either party and that the matter should proceed to trial, unless of course counsel either seeks leave of the court, or parties agree to the application proceeding or parties agree that the matter is not ready for trial. However, because I heard extensive argument, I will consider them in full.

I deal with all the orders sought together because the same issues in relation to the dismissing or striking out of proceedings arise.

1. Applicants submission on O. 4 R. 13 and O. 10 R. 5 of the NCR

The Applicant moves on the above orders in their application to dismiss for want of prosecution. These orders read;

- O. 4 R. 13

“13. Validity for service

a. For the purpose of service, an originating process shall be valid for two years from the date on which it is filed.

b. The Court shall not extend the period of two years mentioned in sub-rule (1).

c. This rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.”

- O. 10 R. 5

“5. Want of Prosecution

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.”

The Writ of Summons and statement of claim was filed on 25.7.97. Both counsel have not filed affidavit material setting out a chronology of the pleadings filed to date. In fact the Applicants lawyer relies only on his argument that six weeks after the filing of the ‘Notice to Set Down for Trial’ on 27.2.97 by the plaintiffs lawyer, that pleadings effectively closed and that the matter should have been set down for trial. The Applicant submits that a period of 5 years is inordinate and inexcusable delay. I note from the documents in the court file that the last document filed by the Plaintiffs lawyer is a ‘Consent to Act’ dated 20.6.03. Prior to that, the plaintiffs lawyer filed several affidavits during the period 1999 and 2000.

The Plaintiffs lawyer deposes in his affidavit that because Mount Hagen has only one resident judge, that this has also contributed to the back log of cases awaiting the allocation of trial dates and that this case is one of them. He does not set out in that affidavit the actual steps he took since 27.2.98, in relation to securing another trial date. I should state at the outset that the Applicants present lawyers had no direct dealings with the Plaintiffs present lawyer until 22.4.03 when they filed ‘Notice of Change of Lawyers’. In fact, the Applicants former lawyers took no steps at all since their filing of a Reply on 23.12.97. Lawyers must come to court with clean hands. If they both did not conduct the matter in an efficient manner, then they both cannot say the other did not do anything but sit on the file. (see Panga Coffee Factory Pty Ltd, Highlands Coffee Export Pty Limited and Kum Farming and Trading Pty Limited, Coffee Industry Corporation Limited SCA 22 of 2001 delivered on 26.4.01 by Los, Injia and Davani, JJ).

I should also state here that lawyers should not come to court and blame the administration of the courts for their own inefficiency as done by Plaintiffs counsel. They should set out in affidavit material the steps they have taken since the filing of the Summons. General statements in affidavit materials is not good evidence. That practice should stop.

The law on application to dismiss for want of prosecution is clear as established in many cases. This power to dismiss should be exercised only “where the Plaintiffs default has been intentional, contumelious or …inordinate and inexcusable.” (see General Accident Fire and Life Assurance v Illimo Farm (1990) PNGLR 331; a Supreme Court Appeal).

I have also read the authorities cited by counsel for the Applicant in his written submissions and refer to the matter of Umba Waink and Martin Umba Sambai v Motor Vehicles Insurance (PNG) Trust & The State 1991 (Unreported) N1630. In that case, Lenalia .J ruled that the court can dismiss proceedings for want of prosecution on the same principles as held in General Accident Fire and Life Assurance (supra).

In General Accident Fire and Life Assurance (supra), the Appellant failed to provide an explanation to the Supreme Court as to why the appeal was not progressed. The Supreme Court held that “…the absence of an explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.” (pg 334). In this case, the Applicant does not provide an explanation as to why no action was taken on the matter since 23.12.97. The affidavit filed by the Applicant only depose to an explanation in relation to the administrative problems encountered by the courts. That is insufficient explanation of the reasons why judgment was allowed to be entered by default. Fortunately, I have the benefit of the pleadings on the court file which show me that the latest document filed by the Plaintiff’s lawyer was on 20.6.03, being the Consent to Act. So, as far as I can tell, there is no inordinate or inexcusable delay by the Plaintiff.

In relation to arguments raised under O. 4 R. 13 of the NCR, that the Originating Summons was not personally served on the first defendant within 2 years from 25.7.97 when the Writ of Summons was filed, that it is now not a valid...