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
• Judge: Hartshorn, J
• Judgment Date: 17 August 2011
• Court: National Court
• Citation: (2011) N5396
• Docket Number: CIA 122 OF 2008
• Year: 2011
• Judgement Number: N5396

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

N5396

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA 122 OF 2008

BETWEEN:

PACIFIC EQUITIES & INVESTMENTS LIMITED

Applicant

AND:

IVAN POMALEU, Chairman of the

Securities Commission of PNG

First Respondent

AND:

MELANESIAN TRUSTEE SERVICES LIMITED

Second Respondent

Waigani: Hartshorn, J.

2011: 21st June,

: 17th August

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

Counsel:

Mr. P. Liskia, for the Applicant

Mr. F. Kuvi, for the First Respondent

Mr. J. Poya, for the Second Respondent

Mr. J. Brooks, for National Superannuation Fund Ltd

17th August, 2011

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 written to the respondents explaining the difficulties it was having in expediting the proceeding. There is no evidence of personal attendances at the National Court registry or telephone conversations with registry personnel that occurred in attempts to expedite the proceeding,

g) there is no evidence of responses to the 2 warning letters that were written to the lawyers for PEIL and no evidence of attempts to expedite the proceeding from 24th November 2010 to 26th April 2011,

h) from the date of filing of the application to dismiss, there is no evidence of any steps taken by PEIL to expedite the proceeding,

i) PEIL has defaulted in taking steps to progress the appeal for over 2 years 9 months,

j) the delay in the proceeding being prosecuted has caused prejudice to MTSL as its powers, functions, duties and responsibilities are restricted by interim orders made on 12th June 2009 (Consent order).

5. PEIL opposes the application as:

a) PEIL’s lawyers have been writing to the National Court registry requesting that the proceeding be listed for directions and for the allocation of a trial date,

b) despite this correspondence and various attendances by PEIL’s lawyers at the registry, the registry staff have failed to list the matter before the court. This is a reasonable explanation for the delay,

c) MTSL filed an application on 19th November 2010 seeking to set aside the Consent order but this has not been prosecuted. This has contributed to the delay,

d) despite this, PEIL’s lawyers have continued to write to the National Court registry seeking to secure a hearing for directions and the allocation of a hearing date but to no avail,

e) the letter of warning sent by MTSL did not give PEIL an opportunity to do anything as the application to dismiss was filed a few days after the warning letter was issued,

f) the delay is not intentional or inexcusable,

g) the delay has not caused injustice or prejudice to MTSL,

h) it is in the interest of all parties that this appeal should be heard so that a precedent is set,

i) the conduct of PEIL and its lawyers does not warrant the proceeding being dismissed for want of prosecution,

j) it would be unfair and not in the interests of justice for this proceeding to be dismissed for want of prosecution.

6. In addition, Nasfund submitted that the first dismissal application was unsuccessful and since then PEIL had been writing to the National Court registry to have the matter listed, any delay has not been inordinate or contumelious, MTSL filed another motion in the proceeding but has not prosecuted it, the only relevant delay is 6 months, a reasonable explanation for the delay has been provided, there is no evidence of prejudice, MTSL’s conduct has been lacking in “clean hands”, MTSL at no time engaged with PEIL or requested PEIL to progress the proceeding, it is not in the interests of justice and the balance of convenience does not favour the dismissal of the proceeding.

Law

7. PEIL submits that for an order for dismissal for want of prosecution to be sought successfully the court may consider amongst others, whether:

“a) the plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim;

b) there is no reasonable explanation given by the Plaintiff for the delay.

c) the delay has caused injustice or prejudice to the Defendant.

d) the conduct of the parties and their lawyers warrants.

e) it is in the interest of justice.”

8. PEIL relies upon numerous cases including, PNG Electricity Commission v. Joseph Amban (2004) N2666, Joe Chan and PNG Arts v. Matthias Yambunpe (1997) SC537, Donigi v. PNGBC (2002) SC691, PNG Nambawan Trophy Ltd v. Dynasty Holdings Ltd (2005) SC811, Burns Philp (NG) Ltd v. Maxine George [1983] PNGLR 55, Yema Gaiapa Developers Ltd v. Hardy Lee (1995) SC484, Attorney General, Minister for Justice and The State v. PNG Law Society (1997) SC530, Bernard Juali v. The State (2001) SC667, General Accident Fire & Life Assurance Co Ltd v. Ilimo Farm (1990) PNGLR 331 and State v. Raymond Turu (2008) SC904.

9. The requirements for a successful dismissal application for want of prosecution and the relevant principles contained in the above cases are similar to numerous other decisions in this jurisdiction on the question. In this regard I also refer to the discussion of the relevant law in my decision in Pacific Equities & Investments Ltd v. Teup Goledu & Ors (2008) unreported CIA 19/06 delivered 14/7/08, Waigani.

10. I now consider the factors referred to in paragraph 7 above in determining this application.

Delay

11. The proceeding was commenced on 1st August 2008. There is no evidence as to the steps taken by PEIL to prosecute the proceeding from its commencement to the time of the first dismissal application. The first dismissal application did not...