Price v Lightfoot [2004] PGNC 260; N2509 (10 March 2004)

N2509
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

WS 708 of 2003

BETWEEN:

GRAHAM B. PRICE
(First Plaintiff)

AND

SWANITA LIMITED
(Second Plaintiff)

AND:

DAVID LIGHTFOOT,
KELLY NARU,
JOHN BEATIE,
ANGELINA SARIMAN

AND

IAN SHEPHERD

trading as partnership in the firm of

Pacific Legal Group Lawyers incorporating

Carter Newell Lawyers

(Defendants)

MADANG : SAWONG J.
2004 : 20TH FEBRUARY, 2004
10TH MARCH, 2004

PRACTISE & PROCEDURE – Effect of Non-Compliance with Rules – Power to dispense with strict compliance – when appropriate – Relevant consideration – Interest of Justice – Impact on rights of Parties – Notices of Intention to Defend and Defence filed in the name of a law firm - Notices of Intention to Defend and Defence not signed by a lawyer - National Court Rules O.1 rr 7, 8 & 9 -

PRACTISE & PROCEDURE - Notice of Intention to Defend & Defence not signed by a lawyer for the Defendant - Documents signed in the name of the law firm - National Court Rules - O.2 r 30.

CASES CITED:
Kimbun Keindip v The State [1993] PNGLR 28
Anthony Polling v Motor Vehicles Insurance Trust Ltd & Ors [1986] PNGLR 228.

Counsel:
Y. WADAU, for the Plaintiffs
L. GARI, for the Defendants

10th March, 2004

SAWONG J: By a Notice of Motion dated 11th November, 2003 and filed on the same date, the plaintiff sought the following orders:

1. That the whole statement of defence dated 22nd July 2003 and filed outside the required time which is contrary to O.7 r 6 be set aside pursuant to O.1 r 8 of the National Court Rules.
   
2. In the alternative, that the statement of defence dated 22nd July 2003 at paragraph 3, 4, 6, 7, 8 and 11 are of general denial be struck off.
   
3. That the statement of defence dated 30th June 2003 and filed on the same date, at paragraphs 1, 2, 3 and 6 is of general denial be struck off.
   
4. That the notice of intention to defend dated 17th June 2003 filed by each of the Defendants signed by Pacific Legal Group and the statement of defence filed on 30th June signed by Pacific Legal Group is contrary to O. 2 r 30 be set aside pursuant to O.1 r 8 of National Court Rules.
   
5. The costs of this Application.
   
6. Any further Order the Honourable Court deems necessary.
   

In support of the Motion, Mr Wadau relied on the affidavit of Marere Ivaharia sworn and filed on 16th December 2003 and the affidavit of Mr Wadau filed on 11th November 2003.

Ms Gari opposed the application. At the beginning of the hearing, Mr Wadau withdrew the reliefs sought in paragraphs 2 and 3 of the Notice of Motion. Further in the course of her submission Ms Gari conceded to paragraph 1 of the Motion. The only contest between the parties was in relation to paragraph 4 of the Motion.

There is no dispute as to the facts on this issue. And the facts are that the Notices of Intentions to defend and the defences (the documents) filed on behalf of each of the defendants were signed "Pacific Legal Group". These were not signed by a lawyer.

Mr Wadau’s submission is essentially that as those documents were not signed by a lawyer, this is in breach of O.2 r 30 of the National Court Rules and therefore ought to be set aside pursuant to O.1 r 8 of the said Rules. He submitted that what the defendants have filed are irregular and consequently the documents ought to be set aside.

He submitted that O.2 r 30 required that a document to be filed on behalf of a party must be signed by a solicitor and that such a document must not be signed by or in the name of a firm. He further submitted that non-compliance with the rules is fatal. He relied on the cases Kimbun Keindip v The State [1993] PNGLR 28, Anthony Polling v Motor Vehicles Insurance (PNG) Trust and others [1986] PNGLR.

He submitted that in the present case, as the said documents were not signed by a solicitor but by and in the name of the firm, those documents ought to be set aside as being irregular. He submitted that "Pacific Legal Group" is not a person nor is a "solicitor" within the meaning of that term as found in the Rules.

Ms Gari on the other hand submitted that the documents should not be set aside for a number of reasons.

First, she submitted that the combined effect of O.1 r 7, 8 and 9 is not to strike out the proceedings for any irregularity, but to allow the irregularity to be amended.

Next she submitted that almost a year has lapsed before the motion was filed. During that time the plaintiffs had not taken issue with those documents. She submitted that the application was not made within a reasonable time as required by O.1 r 9 of the Rules.

Thirdly, the plaintiff has not been misled as to who he was dealing with, for his lawyers had been dealing with the defendants all along and there was no misunderstanding of who the defendants were or are.

Fourthly the only objection by the plaintiff is that the documents were signed as "Pacific Legal Group" but that is not nor should it be treated as a serious breach. Those could still be amended by her signing on behalf of each defendant, filing and then serving them. That would require further time and such a course would unnecessarily delay the further conduct of the proceedings. She submitted that this would cause injustice to the parties.

The essence of her submission is that although the documents are irregular, nevertheless the Court has wide discretion to dispense with strict compliance of the Rules. She submitted that in the circumstances of this case, the Court should dispense with strict compliance and let the proceedings continue to the hearing of the substantive matter.

Because of the submission that has been made, it is necessary to consider in brief each of the relevant rules and the authorities relied on by counsels.

Order 1 rule 7, 8 and 9 of the Rules read:

7. Relief from Rules. (1/12)

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

8. Non-compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.

9. Application to set aside for irregularity.

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity.

I do not propose to examine each of these rules in any great length. I deal with O.1 r 7 first. Under this rule the Court has discretion to "dispense with compliance with any of the requirements of the rules either before or after the occasion for compliance arises".

The Court has discretion to dispense with any of the requirements of the rules. This is a general discretionary power given to the Court.

Order 1 rule 8 provides that non-compliance with any of the rules should not render a proceeding as being void. It also provides that non-compliance with the rules and practice should not render a proceeding void, unless the Court so directs. It also provides other options to the Court. These options include setting aside a proceeding either in part or in the whole, as being irregular, or such irregularity may be amended. This is a general discretionary power given to the Court amongst other things, setting aside a proceeding either in part or in whole, or amending such irregularity.

Rule 9 of Order 1, provides that an application to set aside a proceeding for irregularity shall not be allowed unless it is made within a reasonable time or after the party applying has taken any fresh step with the knowledge of the irregularity.

Here the Court is directed not to allow such an application if such an application is not made within reasonable time. The expression "reasonable time" is not defined. In my view, the reference to the period would depend on the circumstances. In other words, what period would amount to "reasonable time" would depend on, inter alia, the facts and circumstances of the case.

In Keindip (supra), Newell AJ, as he then was, said that O.2 r 30 requires that a pleading must be signed by a lawyer. But in my view, those views are obiter because he was making a passing remark only. I think the case of Polling (supra) is much more on the point.

In Polling (supra) one of the defendants applied to have the plaintiff’s claim dismissed, inter alia, for alleged irregularities consisting of service of the statement of claim outside the period of two years prescribed by O.4 r 13 of the National Court Rules and for failure to serve a writ of summons.

Wilson J (as he then was) held that: (from the head notes) As the National Court Rules are only a code of practise, the Court has power either inherent or deriving from O.1, rr 7, 8 and 9, in a particular case, to dispense with strict compliance with the Rules.

In the course of that judgement His Honour cited with approval what Chief Justice Sir W.P. Cullen said in Morres v Papua Rubber & Trading Co. Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141, at 143 - 144. His Honour said at p. 230,

"The judgment although dealing with irregularity in the nature of non-compliance with rules governing appeals, is useful and pertinent to the broad issue in point in this case:

"Now, I am equally satisfied that the Court has power to act, where justice requires, in the way of permitting the prosecution of an appeal notwithstanding default in compliance with the rule of serving the notice of motion upon the other side. I think that s16 of the Supreme Court Procedure Act, No 49 of 1900, enables the Court to allow the prosecution of an appeal notwithstanding default in the service of that notice. And it is extremely desirable that the rules should not be allowed to stand in the way of serving the interests of justice. If justice requires that the severity of a rule should be relaxed, then it is of extreme importance that the Court should relax it. As was said by the Master of the Rolls in the case of Re Coles & Ravenshear ([1907] 1 KB 1 at 4), ‘Although I agree that a court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by ruled, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.’ But when a party, who has neglected to observe those requirements which the rules place him under for protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules. If a rule is one merely regarding a matter of detail in which the other party can be placed in as good a position as if the rules had been complied with, then in regard to such matters of detail the Court ought not to be very strict, because, the main purpose to be served being the carrying out of the particular proceeding, the mere matter of detail ought not to stand in the way of that purpose being served. But where it is a matter which definitely affects the right of the party, then although the Court has full power to condone the breach of the rules, it would require to see that the object to be served is one that justice really requires under the particular circumstances."

With due deference to the learned Chief Justice I find much commonsense and fairness in those comments. In particular I adopt as criteria for guidance in such applications the interests of justice in the particular case and the proposition as to whether in reality the other party is in as good a position as if the rules had been complied with, or to put it another way, whether the party has been disadvantaged in regard to its rights in the matter".

I would adopt and apply those principles to the present case.

The expression "solicitor" is defined in the rules to mean, "a person admitted to practise as a lawyer under the Lawyers Act".

Mr Wadau was quite right in submitting that the documents had not been properly signed by a "solicitor" and that it was irregular as it was signed in the name of the firm. Accepting that the documents are in-fact irregular, should the Court then set them aside.

The rules relied on by Mr Wadau are not mandatory. O.1 r 7, 8 and 9 give the Court very wide discretion. These are wide discretionary powers which ought to be exercised on proper principles.

Although the documents are irregular, to the extent that these were not signed by a "solicitor", I think that to set them aside and then to allow time for the defendants to amend it, filing it and serving it etc, will delay the hearing of the substantive matter. That in my view would create injustice to the parties. I would therefore not strike out the documents filed but allow the pleadings to continue so as to bring the matter on for trial of the substantive cause of action and to have the case decided on its merits.

In addition to what I have said, O.1 r 9, is I believe exactly on point to this determination. That rule states:

"O.1 r 9 Application to set aside for irregularity.

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity".

In this matter the Notices of Intention to defend for each defendant was filed on 17th June, 2003. Mr Wadau, acknowledged service of the Notices of Intention to Defend on 19th June 2003. No objection was then raised about any irregularity on those documents. The defence for each defendant was filed on 30th June, 2003 and Mr Wadau received them on 2nd July, 2003. Again Mr Wadau did not raise any objection about any irregularity until he filed the present application. The present motion was filed on 11th November 2003, a period of almost five months. The motion was not heard until 20th February, 2004, a period of almost 3 months from the date of filing of Motion and a period of seven months since the Notice of Intention to Defend and defence was filed. During that period the plaintiffs had not raised any objections about the irregularities. In the meantime the parties have corresponded with each other and no issue has been raised in those correspondences over the irregularities. In the circumstances, I conclude that the objection have not been raised within a reasonable time.

In the circumstances of this case and for the reasons I have given, I would dismiss the application in part with costs.

I make the following Orders:

1. That the defence filed 22nd July 2003 be set aside.
   
2. Otherwise the Application is refused.
   

3. That the Plaintiff pay the Defendants Costs, to be taxed, if not agreed.
_____________________________________________________________________
LAWYER FOR THE PLAINTIFF: YOUNG WADAU LAWYERS

LAWYERS FOR THE DEFENDANT: WHITE YOUNG & WILLIAMS LAWYERS