Unreported National Court Decisions
N1852
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 626 OF 1998
BETWEEN: JOHN TUAP ON BEHALF OF HIMSELF AND THE 1,189 PEOPLE OF WATARAIS, MARAWASA AND RAGITZARIA VILLAGES
FIRST PLAINTIFF/CROSS DEFENDANT
AND: GRAHAM NABU ON BEHALF OF HIMSELF AND THE 721 PEOPLE OF MARASASA, WANKUN AND ATZUNAS VILLAGES
SECOND PLAINTIFF/CROSS DEFENDANT
AND: MARCONI IGIS ON BEHALF OF HIMSELF AND THE 53 PEOPLE OF RAGIZUMANG, TUMUA, WARITZIAN AND RAGIAMPUN VILLAGES
THIRD PLAINTIFF/CROSS DEFENDANT
AND: BARNABAS SAGUM ON BEHALF OF HIMSELF AND THE 115 PEOPLE OF GAINARUM, TOFMORA, INTSI, ZUMARA, MARAFAU, MAIAMSARIANG, NGARUAPUM AND GUDZUAP VILLAGES
FOURTH PLAINTIFF/CROSS DEFENDANT
AND: EDDIE SARUFA ON BEHALF OF HIMSELF AND THE 72 PEOPLE OF MUTZING VILLAGE, PUBLIC SERVANTS AND MARKHAM VALLEY HIGH SCHOOL AND NGARUBURAM VILLAGE
FIFTH PLAINTIFF/CROSS DEFENDANT
AND: TITUS PAMBEN [FORMER PROVINCIAL POLICE COMMANDER - EASTERN HIGHLANDS] PPC WESTERN HIGHLANDS 
FIRST DEFENDANT/CROSSPLAINTIFF
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT/CROSS PLAINTIFF
Lae
Sakora J
12 March 1999
9 April 1999
Counsel
Mr R. Pato for the Plaintiffs
Ms H. Kiele for the Defendants
9 April 1999
SAKORA J: The plaintiffs in their respective individual and representative capacities move this Court by a notice of motion filed 15 July 1998 for orders in the following terms:
THAT:
1.       The whole of the Defence be struck out.
2.       There be summary judgement for the Plaintiffs against the First and Second Defendants, for damages to be assessed.
3.       The whole of the Cross Claim of the First Cross Plaintiff and Second Cross Plaintiff be struck out.
4.       The First and Second Defendants pay the Plaintiffs' costs of this motion.
5.       Any further or other order this Honourable Court deems proper.
This motion is brought and orders sought pursuant to different sets of rules under Orders 8 and 12 respectively of the National Court Rules (NCR). Order 8 provides the rules governing pleadings, where under Rule 27 the Court may upon the application of a party, and at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleadings be struck out where such a pleading:
(a)      discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b)      has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c)      is otherwise an abuse of the process of the Court
Rule 28 of Order 8 NCR prohibits a party from pleading the general issues. And Division 2 of this Order provides the rules in respect of Particulars, where Rule 29 reads:
29. General
(1)      A party pleading shall give the necessary particulars of a claim, defence or other matter pleaded by him.
(2)      ......
Division 3 of Order 8 deals with the rules governing Cross Claims, where Rule 44 in particular (the pertinent parts), for our present purposes, is in the following terms:
44.     Conduct of proceedings generally
(1)      Subject to this Division, the proceedings on a cross-claim shall follow as nearly as may be the course of proceedings on a writ of summons.
(2)      Subject to this division, and without limiting the generality of sub-rule (1) of this Rule, these Rules apply to a cross-claim and the proceedings arising from it as they apply to a writ of summons and the proceedings arising from it.
(3)      Sub-rules (1) and (2) of this Rule apply as if -
a)       the cross-claim were a writ of summons;
b)       the cross-claimant were a plaintiff; and 
c)       the defendant to the cross-claim were a defendant
(4)      ......
(5)      .......
(6)      .......
Order 12 NCR provides the rules for Judgments and Orders. The general relief provision is under Rule 1, which provides that:
The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.
The particular relief sought by the plaintiffs under this Order is as provided for under Division 4 - Summary Disposal. Rule 38 is in the following terms:
38.     Summary judgment
(1)      Where, an application by the plaintiff in relation to any claim for relief or any part of   any claim for relief of the plaintiff -
(a)      There is evidence of the fact on which the claim or part is based; and 
(b)      there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,
the Court may, by order, direct the entry of such judgment for the plaintiff on that claim or part as the nature of the case requires.
(2)      Without limiting sub-rule (1) of this Rule, the Court         may under that sub-rule direct the entry of judgment for the plaintiff for damages to be assessed.
(3)      In this rule, "damages included value of goods.
It is instructive to set down briefly at this juncture the background to this application. The plaintiffs filed a class action in this National Court against the defendants by way of a Writ of Summons, The Writ registered as WS. No. 626 of 1997 was issued on 11 July 1997.
The plaintiffs, in their individual and representative capacities, claim damages for what is collectively described as loss of property, livelihood and violation of human rights. It is the contention of the plaintiffs that the damages they seek arise directly out of the incidents of the police operation conducted in and around the villages of Watarais, Marawasa, Ragitzaria, Marasasa and Atzunas, under the overall command of the first defendant on the 3rd and 4th February 1996, in purported discharge of official legal duties and functions.
In support of their application, the plaintiffs rely upon the affidavit of Stephen John Carter sworn 15 July 1998 and filed 7 August 1998. That affidavit traces the history of this proceedings from the filing of the subject Writ of Summons up to the filing of this notice of motion. The deponent, the lawyer having the carriage of this matter, as well as tracing the history, deals with the processes, or purported processes, filed on behalf of the defendants. In this respect, it is instructive also to formally note these processes or documents.
It should be noted here that from the material before me (duly filed), and as deposed to by the deponent, the Writ of Summons was duly served on the two defendants on the 14th and 16th July 1997 respectively (paras. (4) and (5).) The Solicitor General duly filed a Notice of Intention to Defend on 11 August 1997 on behalf of the defendants. Between the filing of the Notice of Intention to Defend and 29 May 1998, the defendants or their lawyers had not filed the required Defence within the statutory period. On 2 June 1998, Pato Lawyers filed with this Court a Notice of Change of Lawyers dated 28 May 1998 concurrent with the Notice of Ceasing to Act of even date filed by Mr Kila Maino. On 9 June 1998 the Solicitor General filed, on behalf of the two defendants their Defence and Cross-Claim dated 5 June 1998. This had been preceded by the lawyers for the plaintiffs serving on the lawyers for the defendants a notice (by way of a letter dated 29 may, 1998) to apply for entry of Default Judgment if no Defence was filed 5 June 1998.
The plaintiffs do not challenge the Defence as being filed out of the extended period accorded by their letter of 29 May 1998 (served 3 June 1998), only because of the brevity of the notice (2 days), as acknowledged by the deponent (para. (11). Further extension was requested and granted (see para. (12).) As will be discussed in due course here, the plaintiffs, in support of their application, challenge the Defence, or purported Defence, only as to its adequacy vis-à-vis the NCR.
On behalf of the plaintiffs, their learned counsel Mr Pato handed up his written submissions which he spoke to. And I have also had the benefit of oral submissions by learned counsel for the defendants, Ms Kiele. Both counsel made helpful references to the pertinent case law in this jurisdiction and other common law jurisdictions, firstly, on the law governing an application to strike out a Defence, and secondly, pleadings in Cross-Claims.