Melina Limited trading as CN Mercantile v Fred Martens (2001) N2183

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 August 2001
• Citation: (2001) N2183
• Court: National Court
• Year: 2001
• Judgement Number: N2183

Full Title: Melina Limited trading as CN Mercantile v Fred Martens (2001) N2183

National Court: Kandakasi J

Judgment Delivered: 24 August 2001

N2183

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. 998 of 1999

BETWEEN:

MELINA LIMITED trading as CN MERCANTILE

Plaintiff

AND:

FRED MARTENS

Defendant

WAIGANI : Kandakasi J

2001 : 9 April

24 August

JUDGEMENT

PRACTICE & PROCEDURE – Matter listed for trial at the request of the Plaintiff in the absence of the Defendant – Plaintiff failed to inform the defendant of the trial date – Plaintiff not ready to proceed with trial – Parties agreeing to adjourn trial by consent – Agreement of parties not binding on the Court’s discretion to decided otherwise – Listing a matter for trial when not ready amounts to an abuse of process – Court has power to struck out proceedings for want of prosecution and for abuse of process – Need to inform Court of matter not proceeding to trial in ample time discuss – Matter struck out for want of prosecution and abuse of process National Rules Order 10 rules 4, 5, 6, 7, 9, and Order 12 r. 40.

Cases cited:

Lupi Iohoi v. Motor Vehicle Insurance (PNG) Trust [1993] PNGLR 366 to 367

OK Tedi Mining Limited v. Niugini Insurance Corporation and Ors (1) [1988 – 1989] PNGLR 355

Mantly John Poling v. Motor Vehicle Insurance (PNG) Trust of [1986] PNGLR 228

Andrew Kumburi of Paulus M. Noel Lawyers v. The State [1998] SC 545

General Accident and Fire Assurance Corporation Limited vs. Ilimo Farm Products Pty. Ltd. [1990]

PNGLR 331

Burns Philip (New Guinea) Ltd. v. George [1983] PNGLR 55

Facts

This matter was listed for trial more than a month back in the absence and without the agreement of the defendant. The plaintiff took no steps to be ready and proceed with the trial including, a failure to notify the defendant of the trial date by reason of which the defendant was not ready for trial. Parties therefore agreed to adjourn on the date of trial. No prior notice of the trial vacating given to the Court.

Held

1. It is an abuse of process to list matters for trial when party requesting listing is not in fact ready.

2. Consent of parties to vacate trial date on date of trial not binding on the Court.

3. Failure to take every step to proceed to trial by the plaintiff without any good explanation or reason operates against any adjournment but provides a basis to infer want of prosecution warranting dismissal.

T. Boboro for the Plaintiff

Mr. Kubak for the Defendants

9th April 2001

KANDAKASI, J: This matter came before me for trial on 9th of April 2001. However the parties were not ready to proceed with the trial as the plaintiff’s key witness was not available and therefore the plaintiff was not ready to proceed with the trial. Also, the plaintiff after having obtained the trial date in the absence and without the consent of the defendant failed to notify the defendant of the trial date. The defendant was thus kept in the dark regarding the trial date until my Associate called the defendant’s lawyers on the 8th of April 2001 to confirm the trial.

After inquiring into the reasons why the matter was not proceeding to trial on the date set, I asked the plaintiff’s lawyer to show cause as to why I should not strike out the proceedings for want for prosecution and for abuse of process especially in relation to having the matter listed for trial when the plaintiff was not in fact ready for trial. Counsel for the plaintiff was not able to do that. I therefore ordered a strike out of the proceedings and ordered costs against the plaintiff on the defendant’s application.

I undertook to set out my full reasons for my decision given that many lawyers now appear to continuously adopt a practice of failing to extend common courtesies to each other especially to the opposing side and to properly prepare for proceed with the trial of a matter once a date has been set. On many occasions I note that, lawyers come on the day of the trial and say they have reached agreement to vacate the trial date. They often forget or over looked the fact that the courts time and calendar and administration of cases are adversely affected by such conduct. Also, listing a matter for trial when parties are not ready unnecessarily takes up time that could be allocated to another case that is indeed ready for trial and allow for a better utilization of judicial time. This kind of conduct in my view, raises the possibility of parties abusing the process of listing matters for trial when they are not in fact ready. It is now time in my view to say to lawyers and parties alike that it is no longer acceptable for them to turn up on the day of the trial and agree to an adjournment unless circumstances beyond their control occurs, such as the death of a party or a witness. It is also time now to spell out in a written judgement as to the true and correct meaning and intend of listing a matter for trial and the need to proceed with a trial once the matter has been listed for trial. This is particularly important when there is an increase in the volume of cases going before the courts and the number of pending cases is also on the increase which is partly contributed to by conduct such as the one under consideration.

Background

This is a claim for a recovery of a debt allegedly assigned to that plaintiff by the firm of Carter Newell Lawyers. The alleged debt is sixteen thousand one hundred & sixty one Kina forty-one toea (K16,161.41). The defendant denies any knowledge of the debt or the assignment and denies the claim in full.

The proceedings were issued on the 15th of September 1999. On the 28th of September 1999, the defendant filed its Notice of Intention to Defend followed by a Defence on the 28th of October 1999. On the 10th of April 2000 a Notice to Set Down for Trial with the endorsement of both parties was filed. Then according to the file notation, the matter was before my brother Justice Sakora on call-over on the 2nd of June 2000, when the matter was stood-over to the next call-over for listing. On the 7th of February 2000, a call over was conducted at which, this matter was listed for trial on the 9th of April 2000 at 9.30am. Mr. Boboro appeared for the plaintiff but it seems no appearance was made for or by the defendant. Counsel for the plaintiff informed me that, after obtaining the trial date, the defendant was not notified of the trial date. He says a letter was written but was not actually sent as they were going to file and serve a Notice for Trial which did not occur. The defendant was not informed of the trial date until my Associate telephoned its lawyers on the 8th of April 2001 to confirm the trial date. That obviously, took the defendant’s lawyer by surprise and he was not ready to proceed with the trial on the next day, 9th of April 2001.

On the other hand, the plaintiff’s counsel after having obtained the trial date, notified his client’s key witness, who is a partner in the firm of Pacific Legal Group, which was formerly known as Carter Newell Lawyers to avail himself to give evidence for the plaintiff in this matter on the set date. For reasons unknown to counsel for the plaintiff, that witness was not available to proceed with the hearing on the 9th of April 2001. No witness summons was filed and served on the witness. The plaintiff did no notify the defendant of the trial date. By reason of that, the defendant was not ready for trial and plaintiff took advantage of that and agreed to a vacation of the trial date, by reason of its own failures as noted.

The plaintiff failed to take any step to notify the Court of the possibility of the matter not proceeding to trial so that the Court could better utilize its judicial time to deal with other matters that were awaiting receipt of the Court’s attention.

Listing a matter for trial

Order 10 Rule 4 of the National Court Rules provide that after the pleadings have closed, a party may file a Notice to Set Down for Trial which is in effect a request for the proceedings to be set down for trial. A notice of that has to be given to the other party or parties to the proceedings. Then Rule 7 provides that once a notice to set down for trial has been filed, the Registrar shall place the matter on the list of matters for hearing at the next sittings of the court. Once a date has been allocated, Rule 9 requires notice of that to be given in Form 41 to a party who has an address for service and who was not present or represented when the proceedings were set down for trial.

A failure to set the proceedings down for trial by a plaintiff has the risk of being dismissed for want of prosecution by virture of Rule 5. That rule provides that:

“Where a...