Goma Ermuke v Motor Vehicles Insurance Limited (2009) N3719

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

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

PRACTICE & PROCEDURE—application to dismiss proceedings—want of prosecution—National Court Rules, O10 r5, O12 r1—exercise of court’s discretion—relevant considerations—exercise of discretion in favour of plaintiff—application refused.

Cases cited:

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148; Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55; Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133; Mapmakers Pty Ltd v BHP Co Pty Ltd [1987] PNGLR 78; Viviso Seravo v Jack Bahafo (2001) N2078; John Niale v Sepik Coffee Producers Ltd (2004) N2637; PNG Waterboard v Gabriel M Kama (2005) SC821; Ahmadiyya Muslim Mission v BSP Ltd (2005) N2845; Island Helicopter Services Ltd v Wilson Sagati (2008) N3340; Hilary Singat v Commissioner of Police (2008) SC910

RULING ON MOTION

1. DAVID, J: INTRODUCTION: This is an application on notice to dismiss the proceedings for want of prosecution pursuant to O10 r5 and O12 r1 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...