Kuk v Yanga [2005] PGNC 167; N2764 (31 January 2005)

N2764

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO 473 OF 2002

PETER BOB KUK
Plaintiff

AND

JOSEPH YANGA
First Defendant

AND

THE PROVINCIAL POLICE COMMANDER
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

LAY J.
MT. HAGEN : 14th December 2004
PORT MORESBY : 31st January 2005

PRACTICE & PROCEDURE - Default Judgement –application to set aside – irregular service - Claims by and Against the State Act s7 – effect of Notice of Intention to Defend - National Court Rules O1 r1, O4 r13, O4 r36, O6 r2(1), O6 r2(3), O7 r7, O8 r60, O12 r35.- striking out – want of prosecution - inordinate delay in setting action down for assessment of damages – abuse of process of the court.

Counsel:
Mr J Amanu for the Applicant Defendants
No appearance for the Plaintiff

Facts

The Plaintiff filed an affidavit of proof of service of the Third Defendant by post but filed no evidence of personal service on any of the Defendants. The Solicitor General filed a Notice of Intention to Defend for all Defendants but no Defence. Judgement was entered in default of a Defence. The Defendants sought to set aside the judgement on the basis (a) that service of the writ had not been affected personally as required by s7 of the Claims by and Against the State Act and National Court Rules O6 r2(1) or (b) service had not been affected at all in respect of the 1st and 2nd Defendants and (c) because no warning had been given of the intention to apply for judgement. The Defendants also sought to have the proceedings struck out for failing to serve within the 2 years of validity of the writ authorised by O4 r 13; and for want of prosecution pursuant to O4 r 36.

Held:

(1) There is no conflict between the National Court Rules and s7 of the Claims by and Against the State Act and thus no need to say one over rules the other. S7 of the Act provides how service is to be effected; O6r2(3) of the Rules provides a method of evidencing that service;

(2) filing of a Notice of Appearance is evidence of personal service in terms of O6 r2(3), it is an admission that personal service has been effected, a lawyer has ostensible authority to make this admission for a client;

(3) evidence that service has been effected by post prior to filing of A Notice of Intention to Defend is not evidence that personal service was not affected and does not displace the deemed personal service evidenced by the Notice of Intention to Defend;

(4) If positive evidence of lack of personal service is available at the time of the purported service the Defendant should apply pursuant to O7 r7 to set aside service of the writ;

(5) If after filing of the Notice of Intention to Defend it appears to the Defendant it ought not to have been filed, application should be made for leave to withdraw it pursuant to O8 r60;

(6) There being insufficient evidence to displace the deemed personal service, the judgement could not be set aside or struck out on the basis of lack of proper service;

(7) There was no evidence to show there had been lack of warning prior to the application for judgement; judgement would not be set aside on this basis;

(8) There was inordinate unexplained delay by the Plaintiff in setting the matter down for assessment of damages such as to be an abuse of the process of the Court and pursuant to O4 r 36 the proceedings were ordered to be struck out.

(9) The official publication reference should be cited to reported cases in preference to any other reference.

Cases Cited:
Pinoko & Ors v The State N1529 (1997)
Paul Marinda v The State N1026 (1991)
Kabil Worm & 101 Ors v Seargent Koken & The State [1996] PNGLR 58
Pokowan Kandaso v Kandaso Akap & 3 Ors N1993 (2000)
John Bokin & Ors v The State & Ors N2111 (2001)
Mali Pyala v Chief Inspector Leo Kabilo N2493 (2003)
Roland and Angela Chang trading as Red Rose Restaurant v Aviat Social and Sporting club (Lae) Incorporated N913 (1990)
MVIT v Salem [1991] PNGLR 305
Frank A Griffin v Westpac Bank [1993] PNGLR 352 Kapi DCJ Los J, Konilio J
Christoper Smith v Ruma Constructions Ltd (11/10/2002) SC695
PNG National Stevedores Pty. Ltd and Bank of South Pacific Limited v The Honourable Andrew Baiang, PNG Harbours Board and The State N1705 (9/4/98)
Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Limited SC505
Bank of South Pacific v Spencer [1983] PNGLR 239
Green & Co Pty. Limited (In Liquidation) v Green [1976] PNGLR 73
The Government of Papua New Guinea v Barker [1977] PNGLR 386
North Solomons Provincial Government v Pacific Architecture Ltd [1992] PNGLR 145
Pora Ume v Martin Beni [1978] PNGLR 71
Polling v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 228
PNG Mapmakers Pty. Limited v Broken Hill Pty. Ltd [1987] PNGLR 78
Thomas Paraka v Mathew Kewa & the State N1987
Nicholas v Commonwealth New Guinea Timbers Limited [1986] PNGLR 133
General Accident Fire and Life Assurance Corporation Limited v Ilimo Farm Products Pty. Limited [1990] PNGLR 331 SC

Overseas Authorities:

Wallingford v Directors of the Mutual Society (1880) 5 AC 685

Sharples v Northern Territory [1988] NTSC 20; (1988) 55 NTR 35

LAY, J By Notice of Motion filed 15th September 2004 the Defendants made application for:

1. The Default Judgement granted on 20th September 2002 to be set aside;
2. Alternatively that the proceedings be dismissed for irregularity or want of prosecution;

3. That the Defendants be granted leave to file a Defence out of time.

The action is one for damages for loss of property arising out of a motor vehicle accident. From the affidavit of service of Robert Maki sworn 23 August 2002 the writ was served by registered post on the Solicitor General on 24th April 2002 and a copy handed to the Solicitor General’s office in Mt Hagen on the same day. The Solicitor General entered a Notice of Intention to Defend on 1st May 2002. Judgement in default of filing a defence was entered on 19th November 2002. The affidavit in support of the application for judgement annexed a letter from the Solicitor General dated 7th February 2002 addressed to the lawyer for the Plaintiff, which reads in part:

"I refer to and accept your letter dated 8th November 2001 as notice under Section 5 of the Claims by and Against the State Act."

Nothing further occurred in the matter until the present lawyers for the Defendants filed a change of lawyers in January 2004.

On 12th November 2004 the Court ordered substituted service of the Defendants Notice of Motion by way of advertisement in a newspaper within 7 days of order being 19th November 2004 when an advertisement appeared. Affidavits in support of the application for substituted service stated that the Plaintiff’s lawyer was no longer practicing.

There was no appearance for the Plaintiff when the motion came on for hearing.

The Plaintiff relies on a number of affidavits which I have read. I have disregarded the submissions and argument contained in many of the affidavits. The place for argument and submissions is in submissions, not in affidavits where it is of no assistance to the Court. From the evidence I find the facts to be:

Veronica Jeme was a passenger in the State vehicle involved in the collision with the Plaintiffs vehicle. She says the Plaintiffs vehicle was on the wrong side of the road and this was the cause of the accident.

Jasper Amanu says there is no affidavit evidence filed to prove that the writ was served on the First and Second Defendants. He has perused the Solicitor General’s office file in Port Moresby and has drawn certain conclusions from that perusal. I do not accept those conclusions as fact. His conclusions are only what appear to him from perusal of the file, which may or may not be complete. I note he is not an employee of the Solicitor General and he has not had carriage of this matter in the Solicitor General’s office. He refers to the affidavit of service of Robert Maki sworn 23 August 2002.

Buri Ovia of the Solicitor General’s office in Mt Hagen previously had carriage of the matter in Mt Hagen for the Solicitor General. He has checked the Solicitor General’s Mt Hagen file and found the writ was served personally on the Mt Hagen office of the Solicitor General. He draws an inference about service on the Solicitor General in Waigani from the correspondence on file, but I reject that as fact as he is in no better position than the Court to draw inferences from correspondence.

Paul Rimbu’s affidavit of 10th August 2004 adds nothing to the evidence already mentioned.

Francis Kuvi, Acting Solicitor General says that the reason a Defence was not filed in time was that:

"from the time the Writ of summons was served on the State to the date the matter was briefed out to Paul Paraka Lawyers, my office could not or was unable to file a Defence ...because ...(the office) was not furnished with the necessary instructions...(and) the Solicitor General’s Office is understaffed and as such individual police officers who were involved in the alleged act could not be located quickly to obtain statement to draft the Defence."

He goes on to say that the Writ of Summons:

"...has not been appropriately served on the Second and Third Defendants according to law..."

Joseph Yanga says he was the Police Officer driving the State vehicle involved in the accident. He slowed down to approach a sharp corner on a wet and slippery road. As he came around the corner he found the Plaintiffs vehicle on the wrong side of the road. The driver of the Plaintiff’s vehicle swung to the left but the State vehicle’s bumper caught the bus in the side and "because of the force, the bus was thrown off the road...".

Submissions

The Defendants submit that I should accept that the writ was not served on the First and Second Defendants and was served on the Third Defendant only by registered post to the Solicitor General, all contrary to O6 r2(1) of the National Court Rules, which requires personal service of originating process; and in relation to the Third Defendant contrary to s7 of the Claims by and Against the State Act ("the Act") which requires personal service on the designated officers. The Defendants say I should not follow Brown Pinoko & Ors v The State[1], in that it was there held that filing a Notice of Intention to Defend was submission to the jurisdiction of the Court, because it would "open the floodgates" to service by registered post. It is submitted that I should follow Paul Marinda v The State[2] where an application for default judgement was refused because of failure to serve in accordance with s4 (now s7) of the Act; Kabil Worm & 101 Others v Seargent Koken & The State[3] where default judgement was set aside because the writ was not personally served and because the Plaintiff failed to prove the default of the Defendant; Pokowan Kandaso v Kandaso Akap & 3 Ors[4] where default judgement was refused against those defendants on which the writ was not personally served; and by analogy John Bokin & Ors v The State & Ors[5] where the whole proceedings were struck out because of failure to personally serve the notice of intention to make a claim pursuant to s5 of the Act.

The Law

1. Service

I will not set out s5 (Notice of Claim) and s7 (service of the writ) of the Act which are now well known. However those provisions were not enacted in a vacuum in so far as the National Court Rules are concerned. The relevant National Court Rules which were in existence prior to ss5 & 7 of the Act are as follows:

Order 6

2(3) Where a defendant to any originating process serves a notice of intention to defend under Order 7, the originating process shall be taken to have been served on him personally on the date on which that notice is filed or on such earlier date as may be proved.

Order 7

7. Conditional notice.

(1) The giving of a notice of intention to defend does not constitute a submission to the jurisdiction of the Court.

(2) A defendant shall be entitled, either before giving notice of intention to defend or within 14 days after giving that notice, to serve a notice of motion to set aside the service on him of the writ or of notice of the writ or to discharge the order authorizing the service on the ground that—

(a) the Court has no jurisdiction to determine all or part of the plaintiff's claim;. or

(b) the issue or service of the writ was irregular; or

(c) an order giving leave to serve the writ or notice of the writ out of the jurisdiction ought not to have been made; or

(d) the defendant has been served as a partner in a firm of which he was not a partner or liable as such at any material title.

(5) After the service of the notice of motion the plaintiff shall not be entitled to enter judgement in default of defence or take any other step in the action without the leave of the Court.

8. Setting aside originating process, etc. (11/8)

The Court may, on motion made by a defendant under Rule 7, by order—

(a) set aside the originating process; or

(b) set aside the service of the originating process on the defendant; or

(c) declare that the originating process has not been duly served on the defendant; or

(d) ...

Order 8

60. Withdrawal of notice of intention to defend. (21/1)
    

A party who has given notice of his intention to defend may withdraw the notice at any time with the leave of the Court.

I do not see any conflict between these Rules and s7 of the Act and consequently no need to say that one overrules the other. The Act specifies how service is to be affected. O6 r2(3) of the Rules provides for one way of giving evidence of that service, namely by filing a Notice of Intention to Defend. If, at the time of purported service the Defendant is aware that service has not been affected in accordance with law, the Defendant should make an application pursuant to O7 r7 to set aside the service. In this regard my views respectfully differ from those expressed in Kabil Worm & 101 Others v Seargent Koken & The State[6] in that I am of the view, that if a Notice of Intention to Defend is filed by the State, then the Plaintiff is relieved from proving that personal service was effected, because the Notice of Intention to Defend is an admission that personal service was effected. It is within the ostensible authority of the lawyer acting for the State to make that admission and if made, in my opinion the State is bound by what its lawyers has done on its behalf.[7] If at some later date after service the Defendant realizes that for some valid reason it should not have filed a Notice of Intention to Defend, then it should make application to withdraw that Notice pursuant to O8 r60. The Rules do not purport to override the statute law, but establish a procedural framework within which the requirements of the law are evidenced.

Setting Aside a Default Judgement.

The law on setting aside a judgement entered by default is well settled. The jurisdiction to do so is exercised under either O12 r8 or O12 r35. The principles are the same in either case. The jurisdiction does not include a power to review the entry of judgement by the judge before whom the application for judgement came[8].

If the judgement is irregularly entered in such a way that it is a nullity then the Defendant is entitled to have it set aside as of right. In all other cases, including those where there is an irregularity in entry of judgement not amounting to a nullity, the applicant Defendant must show:

1. the application is within a reasonable time of judgement becoming known to the defendant, and this applies equally to cases of irregularity[9];
2. an explanation as to why judgement was allowed to be entered by default;
3. a defence on the merits.[10]
   

Where the irregularity is fundamental and thus a nullity the Court must set aside the judgement. But where the irregularity is for example non compliance with a Rule of the Court, the Court has a wide discretion as to how to deal with it.[11] That the statement of claim does not disclose a good cause of action is not an irregularity of a kind upon which an application to set aside judgement can be founded.[12] Any motion to set aside a process of the Court on the basis of an irregularity must set out the particulars of irregularity on which the applicant relies.[13]

To show a defence on the merits a proposed draft defence is not sufficient.[14] The Applicant must "condescend upon particulars"[15], that is, not just plead but set out statements of material fact by affidavit evidence which support the pleading and which are sufficient to satisfy the Court that the Applicant has a prima facie defence and that it is reasonable that the Applicant should be allowed to raise that defence[16]. And that affidavit evidence must be sworn by persons with knowledge of the facts and not the lawyer for the applicant.[17] An affidavit sworn by a lawyer that there is a good defence is generally not sufficient.[18]

Where an appearance has been entered a motion for judgement must be served[19]. Before the motion for judgement is filed written notice of the intention to make application should be given to the Defendant’s address for service. If it is not it may be a ground for setting aside the judgement.[20]

Analysis of the Evidence – Application of the Law

Service

In so for as the evidence relates to service or lack of it in respect of the writ, it amounts to this:

1. An appearance was entered for all defendants and they are thus deemed to have been personally served pursuant to O6 r2(3);
2. There is evidence that the writ was served by post, but that is not evidence that it was not also personally served before or after the service by post.
3. Various deponents draw inferences of lack of personal service from correspondence, files and the affidavit of Mr. Maki but I do not accept that those inference are fact nor that such inferences can displace the effect of O6 r2(3);
4. None of the Defendants deny personal service nor do they seek to set aside service or withdraw their appearances.
5. The Solicitor General says the writ was not appropriately served but it is impossible to place on those words the positive assertion that the writ was not personally served.
   

I depart slightly from the statement of Sevua J that filing a Notice of Intention to Defend is submission to the jurisdiction[21], because O7 r1 provides that it is not. However consistent with the sense in which His Honour used that phrase I do hold that a Notice of Intention to Defend is evidence of proper personal service, of course subject to the qualification that the Defendants have not filed a Notice of Motion pursuant to O7 r7 to set aside service, which the Defendants did not do in this case. Davani J took the same view in Mali Pyala vChief Inspector Leo Kabilo[22] that O6 r2(3) operates to deem person service effected when a Notice of Intention to Defend is filed.

The evidence does not establish that the Defendants were not personally served in accordance with law and consequently the Notice of Intention to Defend and the effect given to it by O6 r2(3) are not displaced. If there was no Notice of Intention to Defend then an inference could have been drawn from the evidence, that the only service was the defective service by post. But that inference is displaced by the Notice of Intention to Defend.

If there was positive evidence from the Defendants that they were not personally served then the proper course would be to make application pursuant to O8 r60 for leave to withdraw the Notice of Intention to Defend[23]. Following such a procedure gives proper regard both to the Act and the Rules. Such an application may be faced with arguments such as estoppel by record[24] or that the application is not made within a reasonable time[25]but this is not an appropriate time to explore those issues.

I distinguish Paul Marinda v State[26] and Pokowan Kandaso v Kandaso Akap & 3 Ors on their facts, because in those cases there had been no Notice of Intention to Defend filed and it was proven that service did not comply with what is now s7 of the Act. I do not follow the case of Kabil Worm & 101 Others v Seargent Koken & The State [27] to the extent that it can be said to hold that the filing of a Notice if Intention to Defend has no evidentiary or procedural effect in the face of the requirements of s4 (now s7) of the Act for the reasons stated above. I note that s7 is in slightly different terms to the former s4 considered by His Honour in that case, as s7 provides specifically that personal service is required on the designated officer or their personal secretary which the former s4 did not provide. I do not consider that John Bokin v. The State[28] can be applied by analogy, it deals with s5 of the Act notice before suit and there is no National Court Rule applicable to service of a s5 Notice.

Setting Aside the Judgement

I reject the Applicant Defendants submission that the judgement should be set aside pursuant to O12 r 35 for failure to comply with s7 of the Act because I find they have not established it to be the case that service was not affected in accordance with s7 of the Act or against the First and Second Defendants.

The next submission is that the judgement should be set aside because of the Plaintiff’s failure to forewarn the Defendants, who had entered a Notice of Intention to Defend. The applicants rely upon PNG Mapmakers Pty. Limited v Broken Hill Pty. Ltd[29] and Thomas Paraka v Mathew Kewa & The State[30].There is no evidence that there was no forewarning. I must therefore reject that submission. I note here also that in the written submissions the unreported judgement reference was given to PNG Mapmakers Pty. Limited v Broken Hill Pty. Ltd. Whenever a case is officially reported that reference should be given in preference to other references.

Dismissal of the Proceedings

The Applicants submit the proceedings should be declared void for non compliance with O4 r13 or dismissed for want of prosecution pursuant to O4 r36.

The O4 r13 submission proceeds on the basis that the writ must be served within 2 years, it was not served and now more than two years have elapsed, so that the writ cannot be served. Therefore the proceedings should be dismissed. I reject this submission because of my finding of fact that the Applicants have not proven that the writ was not personally served.

The O4 r36 submission proceeds on the basis that the Plaintiff has not prosecuted the right to assessment of damages obtained by the entry of judgement within a reasonable time, there being a little over 2 years since the entry of judgement. Reliance is placed upon Nicholas v Commonwealth New Guinea Timbers Limited[31] . That case was considered by the Supreme Court in General Accident Fire and Life Assurance Corporation Limited v Ilimo Farm Products Pty. Limited[32]. The case involved an application to dismiss an appeal, but the observations of the Court are equally applicable to application under O4 r36. The Court said[33]:

"The power should only be exercised where the court is satisfied either:

(1) that the default has been intentional and contumelious, for example disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the Court;

(2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers;

(b) that such delay will give "rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or I such as is likely to cause or have caused serious prejudice to the defendants either as between them and a third party."

"Contumelious" is defined in the Encyclopaedia Brittanica Reference Suite DVD dictionary as "insolently abusive and humiliating".

In this case the Respondent does not provide any explanation for the two years delay in setting the matter down for assessment of damages. I find the delay has not been intentional or contumelious or such as to give rise to prejudice to a fair trial, in the absence of any evidence of those grounds. In relation to being able to conduct a fair trial, it appears the Defendants have now located their witnesses. There has been a delay of over 2 years for which there is no explanation from the Plaintiff. The affidavit of Jasper Amanu sworn 20th September 2004 shows that the Plaintiff’s lawyers have ceased practice. This is no doubt some explanation for the delay. However the fact that there was 20 clear days between publication of the substituted service and the hearing of the motion, with the Respondent Plaintiff not appearing, leads to the conclusion that the Respondent Plaintiff has no interest in these proceedings. On balance the delay favours the Applicants application.

I find that obtaining a judgement for damages to be assessed and then not taking any steps to have the assessment set down for trial for over two years without a satisfactory explanation is as abuse of the process of the Court and for that reason I order that the proceedings be struck out.

It is therefore not necessary for me to consider the Applicant Defendants final submission, which was that the Defendants be given leave to file a defence. However I observe that such leave cannot be given unless judgement is set aside. Although submissions were addressed on the principles of setting aside judgement pursuant to O12 r35 and reliance placed on Green v Green & Co Pty. Limited[34] the motion did not seek that judgement be set aside on that basis. There was a delay of 1 year 8 months and 2 weeks between the Defendants appearance to the writ and the Notice of Change of Lawyers by Paraka lawyers. The Solicitor General says he could not get instructions from the First and Second Defendants during that time and he is understaffed. The fact that the Act gives the State 90 days from service of the writ to enter an appearance and file a defence compared with 44 days for any other resident defendant adequately recognizes the general delay in getting instructions and staff shortages in the Solicitor General’s office. If there was exceptional difficulty with getting instructions or unusual staff shortages then the Solicitor General should condescend upon particulars of those, which he has not done except in a very general way. If it took more than 90 days to get instructions then at the least the Solicitor General should be placing in evidence the correspondence and telephone calls which have been made in an attempt to get instructions. If there have been unusual staffing restrictions then that assertion could be fleshed out with some evidence of the number of current matters being handled by his office and the number of lawyers available to do the work, compared with the number usually available. The assertion that the Solicitor General is understaffed is a conclusion of fact made without providing the Court with the evidence by which it can draw its own conclusion. A similar observation can be made regarding the assertion that the Solicitor General’s office was unable to get instructions. It is an inadequate and unsatisfactory explanation for the length of the delay.

Finally I note that there was no proof of service of the Motion for judgement on the court file. This may have founded an application to set aside the judgement if evidence had been led of the non service of the motion. However I am not prepared to set aside a judgement simply on the basis of the absence of a document from the Court file as my experience has been in Mt Hagen that documents which have been filed are not on the file.

ORDER:

That the proceedings be struck out. Costs follow the event.
________________________________________________________________

LAWYERS:
For the Applicant Defendants : Paraka Lawyers
For the Respondent Plaintiff : Not Represented

---

^[1] N1520(1997) Sevua J
^[2] N1026 (1991) Woods J
^[3] [1996] PNGLR 58 Injia J
^[4] N1993(2000) Jalina J
^[5] N2111(2001) Davani J
^[6] Supra
^[7] N913 Roland and Angela Chang trading as Red Rose Restaurant v Aviat Social and Sporting club (Lae) Incorporated (1990) Hinchliffe J; MVIT v Salem [1991] PNGLR 305 Woods J and the discussion of this issue in Frank A Griffin v Westpac Bank [1993] PNGLR 352 Kapi DCJ Los J, Konilio J
^[8] Christoper Smith v Ruma Constructions Ltd (11/10/2002) SC695 Kapi DCJ, Los J and Kandakasi J
^[9] PNG National Stevedores Pty. Ltd and Bank of South Pacific Limited v The Honourable Andrew Baiang, PNG Harbours Board and The State (9/4/98) N1705 Kapi DCJ.
^[10] Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Limited SC505, Kapi DCJ Los and Salika JJ.

^[11] O1 r8 and see Bank of South Pacific Limited v Spencer [1983] PNGLR 239 McDermot J.
^[12] See note 2.
^[13] O1 r10
^[14] See note 3.
^[15] Wallingford v Directors of the Mutual Society (1880) 5 AC 685 at p 704, Lord Blackburn first referred to in this jurisdiction in Green & Co Pty Limited (In Liquidation) v Green [1976] PNGLR 73 O’Leary AJ.
^[16] The Government of Papua New Guinea & Davis v Barker [1977] PNGLR 386 per Frost CJ and Prentice DCJ
^[17] North Solomons Provincial Government v Pacific Architecture Ltd SC422.[1992] PNGLR 145 Amet Woods and Doherty JJ.
^[18] Sharples v Northern Territory [1988] NTSC 20; (1988) 55 NTR 35, Asche C.J.
^[19] Thomas Paraka v Mathew Kewa & The State N1987, Hinchliffe J.
^[20] Mapmakers Pty. Limited v Broken Hill Pty. Limited N588 Kidu CJ and Practice Direction No 5 /97.
^[21] Brown Pinoko & Ors v The state (supra)
^[22] N2492 (2003)
^[23] See the cases in Ritchie’s Supreme Court Practice of NSW Part 21.1 page 2471 for cases on the Courts exercise of this discretion.
^[24] see for example Pora Ume v Martin Beni [1978] PNGLR 71 Pritchard J
^[25] O1 r 10 and see Polling v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 228 Wilson J
^[26] Supra
^[27] Supra
^[28] Supra
^[29] [1987] PNGLR 78 per Kidu CJ
^[30] N1987 Hinchliffe J
^[31] [1986] PNGLR 133 Woods J
^[32] [1990] PNGLR 331 Kapi DCJ Sheehan and Brown JJ
^[33] at p.333
^[34] [1976] PNGLR 73 O’Leary AJ