OS No. 1058 OF 2005; Thomas Babia and Gregory Babia, Joseph Abi, Alphonse Pahuli and Lawrence Tonte for and on behalf of the customary land owner of Yawhang Reef (now reclaim) of Vanimo, Sandaun Province v Mr. Pepi Kimas, as the secretary for the Department of Lands & Physical Planning and Dr. Wari Iamo, as Secretary for Department of Environment and Conservation and The Independent State of Papua New Guinea (2009) N3940

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2009) N3940
• Year: 2009
• Date: 23 December 2009

Full Title: OS No. 1058 OF 2005; Thomas Babia and Gregory Babia, Joseph Abi, Alphonse Pahuli and Lawrence Tonte for and on behalf of the customary land owner of Yawhang Reef (now reclaim) of Vanimo, Sandaun Province v Mr. Pepi Kimas, as the secretary for the Department of Lands & Physical Planning and Dr. Wari Iamo, as Secretary for Department of Environment and Conservation and The Independent State of Papua New Guinea (2009) N3940

National Court: Kandakasi, J

Judgment Delivered: 23 December 2009

JUDGEMENTS & ORDERS—Application seeking to set aside order dismissing proceedings—Effect of—No active file—Matter concluded—No foundation to file motion - Court functious officio—Court has no jurisdiction - Available remedy—Appeal or review.

Cases Cited:

Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 1) [1988–89] PNGLR 355; Melina Ltd v Fred Martens (2001) N2183; Christopher Smith v Ruma Constructions Ltd (2002) SC695; Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112; Peter Malt v Dean Queen (2009) N3577; William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government 2006 SC844; Application by Wili Kili Goiya [1991] PNGLR 170; TST Holdings Pty Ltd v Tom Pelis (1997) SC534; PNG National Stevedores Pty Ltd v The Honourable Andrew Baing; PNG Harbours Board v PNG National Stevedores Pty Ltd (1998) N1705; Telikom PNG Ltd v ICCC (2008) SC906; Koitaki Farms Ltd v Kemoko Kenge (2001) N2143; Kundu Consultants Ltd v The Independent State of Papua New Guinea (2001) N2128; Eki Investments Ltd v Era Dorina Ltd (2006) N3176; Makop v Billy Parako (2004) N2593; NCDC v Yama Security Services Pty Ltd [2003] PNGLR 1; Sir Julius Chan v The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240; The State v The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor [1976] PNGLR 344; Daniel Ronald Walus v The State (2007) SC882; Richard Dennis Wallbank v The State [1994] PNGLR 78; MVIT Ltd v Yama Security Services Ltd (2009) SC1004

23 December, 2009

1. KANDAKASI J: This case raises an important procedural and jurisdictional point. It raises the question of whether the Plaintiffs/Applicants are entitled to file and move a motion on proceedings that have already been dismissed for want of prosecution. That necessarily raises the question of whether the Court has jurisdiction to entertain an application to set aside orders dismissing proceedings for want of prosecution.

Background Facts

2. The background facts giving rise to the issues before the Court is simply this. On 13th October 2009, this Court dismissed these proceedings for want of prosecution. The matter was listed for directions hearing on 13th October 2009. That followed a request from the Plaintiffs through their lawyer, Mr. C. Narokobi by letter dated 28th September 2009. By letter dated 9th October 2009, faxed by the Deputy Registrar, National Court, the Plaintiffs and their lawyers were informed of the listing of this matter for directions hearing on 13th October 2009. On 13th October when the Court eventually called the matter during directions hearing, neither the Plaintiffs nor their lawyers showed up. That caused the Court to dismiss the proceedings for want of prosecuting noting as it did that, the normal requirement in our jurisdiction as is elsewhere, is for the parties and their lawyers to wait on the Court and not vise versa. Also the Court noted that, ready adjournment of proceedings with no good cause has seriously contributed to a build up in backlogs for the Courts. Hence, the Court should be slow to adjourning except in cases where a case is made out in accordance with the accepted principles governing adjournment as enunciated in the case of Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others [ (No 1) [1988-89] PNGLR 355.] and elaborated and followed in subsequent cases as in Melina Limited trading as CN Mercantile v. Fred Martens. [(2001) N2183.]

3. Notwithstanding the above background, the Plaintiffs through their learned counsel, Mr. C. Narokobi argued that, neither of the parties...