Pacific Equities & Investments Limited v Ivan Pomaleu, Chairman of the Securities Commission of PNG and Melanesian Trustee Services Limited (2011) N5396

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 17 August 2011
• Citation: (2011) N5396
• Docket Number: CIA 122 OF 2008
• Year: 2011

Full Title: CIA 122 OF 2008; Pacific Equities & Investments Limited v Ivan Pomaleu, Chairman of the Securities Commission of PNG and Melanesian Trustee Services Limited (2011) N5396

National Court: Hartshorn, J

Judgment Delivered: 17 August 2011

Application to dismiss proceeding for want of prosecution

Cases cited:

Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55

General Accident Fire & Life Assurance Co Ltd v. Ilimo Farm (1990) PNGLR 331

Yema Gaiapa Developers Ltd v. Hardy Lee (1995) SC484

Joe Chan and PNG Arts v. Matthias Yambunpe (1997) SC537

Attorney General, Minister for Justice and The State v. PNG Law Society (1997) SC530

Bernard Juali v. The State (2001) SC667

Donigi v. PNGBC (2002) SC691

PNG Electricity Commission v. Joseph Amban (2004) N2666

Obadia Buka v. Jude Baisi (2004) N2602

PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811

State v. Raymond Turu (2008) SC904

Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) unreported CIA 19/06 delivered 14/7/08, Waigani

Zachery Gelu v. Sir Michael T. Somare (2009) N3647

1. HARTSHORN, J: The appellant Pacific Equities & Investments Limited (PEIL) commenced this proceeding on 1st August 2008. It is an appeal against the decision of the first respondent, the chairman of the Securities Commission of Papua New Guinea (Commission), to reappoint the second respondent, Melanesian Trustee Services Limited (MTSL), as the trustee of Pacific Balance Fund (PBF) and the Pacific Property Trust (PBT).

2. MTSL applies to dismiss the proceeding for want of prosecution under Order 4 Rule 36 (1) and various other National Court Rules. No issue is taken with the Rules under which application is made. Alternative orders sought are for a consent order to be set aside and an order that MTSL continue as trustee of PBF and PBT without interference, until further order or the determination of the proceeding. PEIL and the Commission oppose MTSL’s applications.

3. The National Superannuation Fund Ltd (Nasfund), the largest Unit Holder in PBF, was given leave to appear and make submissions upon MTSL’s application. I consider the application to dismiss for want of prosecution first.

Dismissal for want of prosecution

4. MTSL applies to dismiss the proceeding for want of prosecution as:

a) on 31st March 2010 this court ordered amongst others, that this proceeding be progressed to a speedy trial as soon as possible,

b) the lawyers for the Commission wrote to PEIL by letter dated 24th November 2010 informing that an application to dismiss the proceeding for want of prosecution without further notice would be filed due to the lack of interest shown by PEIL to progress the matter for hearing in compliance with the 31st March 2010 court order,

c) the lawyers for MTSL wrote a letter dated 26th April 2011 to the lawyers for PEIL informing that an application to dismiss for want of prosecution would be filed without further notice,

d) there is no evidence of any action taken by PEIL to prosecute the proceeding from the date of its filing on 1st August 2008 to 11th August 2009, the date of the filing of an application to dismiss the proceeding for non-compliance with the requirements of s. 219 District Courts Act (first dismissal application), a period of 1 year 10 days,

e) from 31st March 2010 (the date when this court delivered its decision that the first dismissal application was unsuccessful) to 24th November 2010, the only explanation given for the proceeding not being progressed is that the staff of the National Court registry had failed to list the proceeding for directions for a trial date to be allocated. There is evidence of letters being written to the National Court registry but none of these letters were copied to the respondents,

f) PEIL has not...