Fuliva v Wagambie [2007] PGNC 120; WS 1406 of 2006 (22 May 2007)

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FRANCIS FULIVA, BRUNO JOHN, BENEDICT KUNURA, SAM WINGAVI,
AWIMBA LIKA on behalf of themselves and the 1281 victims of Madang settlers
Plaintiff

Counsel
E. Hampalekie, for the plaintiffs
K. Isare, for the first defendant
J. Haiara, for the second and third defendants

1. DAVANI .J: Before me for hearing are several motions filed by various parties in these proceedings. These are;

1. Notice of Motion filed by Narokobi Lawyers on 1 March, 2007 seeking default judgment or alternatively summary judgment or alternatively, for the defendants to provide the plaintiffs, through their lawyers, a schedule of payment.

2. Cross-Notice of Motion filed by Steeles Lawyers for and on behalf of the second and third defendants on 8 March, 2007 seeking leave to file their Defence out of time or alternatively that the pleadings be struck out for lack of representative capacity because there are no proper consents and authorities before the court showing that Francis Fuliva, Bruno John, Benedict Kinura, Sam Wingavi and Awimba Luke were properly authorized by the 1281 settlers to represent them.

3. Amended Notice of Motion filed by the Acting Solicitor-General on 9 March, 2007 seeking leave to file the first defendants Defence out of time. The original motion was filed on 19 February, 2007.

3. Although Mr Isari of the Department of Police appeared for the first defendant and Mr Haiara appeared for the second and third defendants, when the matter was first mentioned before me on 14 March, 2007, there was on file Notice of Intention to Defend filed by the Acting Solicitor-General on 9 March, 2007, stating that the Acting Solicitor-General will defend the action for and on behalf of all defendants. After hearing all counsel on the issue of representation, I directed that all defendants counsel file the relevant documentation confirming that they act for the various defendants. Thereafter, on 14 March, 2007, Steeles Lawyers filed Notice of Change of Lawyers, stating that they are instructed to act for the second and third defendants. On 14 March, 2007, the Acting Solicitor-General also filed a Notice of Ceasing to Act for the second and third defendants. Because the Lawyer for the Police Legal Services signed the Notice of Motion filed by the Acting Solicitor-General for and on behalf of all defendants on 19 February, 2007, I also directed that the Police Legal Services file Notice of Ceasing to Act for the second and third defendants. This they did on 22 March, 2007. The Notice also stated that they will act only for the first defendant. Although the Notice was defective in form, I accepted it because it confirmed representation for the first defendant and also stated an address for service. I considered that sufficient for purposes of Notice to the Court and all parties.

4. Mr Hampalekie for all plaintiffs when moving his motion, relies on several affidavits which I will refer to throughout. In opposing the application and in seeking leave, both counsel for defendants also rely on several affidavits, which I will refer to.

5. Although Mr Hampalekie’s motion referred to O. 14 r. 25 of the National Court Rules (‘NCR’) as the rule on which he relies, he pointed out that this was the wrong provision, that the order should read O. 12 r. 25. He sought that the original order be amended to include the correct one which I granted because I noted that neither defendants counsel were misled or prejudiced by this error.

6. Applications for default judgment are effectively the plaintiffs way of saying the defendants had not complied with the rules of court, so judgment should be entered. It is based purely on technical grounds and does not in any way mean that the plaintiff properly proved his claim, before obtaining judgment. Which means that applicants must ensure that all requirements for default judgment are properly established and proven. If the applicant fails to prove one component e.g proper service of Writ of Summons and statement of claim, then default judgment should not be granted. The courts have a duty to ensure that proper submissions are made on all aspects before grant of default judgment e.g service, search etc. In fact, it is a draconian procedure and arises as I have said, because of the failure of the other party to show interest in the proceedings. I will discuss and form conclusions on whether the applicants, through their lawyers, have properly complied with process and whether default judgment can be granted.

7. First, the plaintiffs lawyer submits that the defendants should not have taken any steps in these proceedings without first, obtaining leave of the court. They submit this relying on O. 7 r. 2 of the National Court Rules (‘NCR’) that "subject to these rules, a person shall not, except by leave of the court, take any steps in any proceedings unless...he has given a Notice of Intention to Defend in the proceedings", effectively that the defendants should not appear because they have not filed Notice of Intention to Defend. But O. 7 r. 2 states that this is "subject to these rules". Which means O. 7 r. 2 must be read together with O. 1 r. 15 and O. 7 r. 6 (1) of the NCR. Order 1 Rule 15 of the NCR gives the court the discretionary power to extend time fixed by the rules either before or after the time expires. Order 7 Rule 6 (1) of the NCR states that a defendant may give a Notice of Intention to defend at any time without leave. It states further that if a defendant gives a Notice after the time limited for doing so, that he shall not file a Defence or do anything unless the court otherwise orders.

8. Because the application of O. 7 r. 2 is subject to O. 7 r. 6 (1), they can appear and make application but that they must seek leave of the court to file a Defence, effectively, an extension of time within which to file a Defence. The defendants have filed such application which I will consider together with the application for default judgment.

9. What should the plaintiff prove to be given default judgment? The plaintiffs’ application for default judgment is made pursuant to O.12 r. 25 of the NCR, that default judgment should be entered because of the Defendants’ failure to file Notice of Intention to Defend and Defence. O. 12 r. 25 reads;

(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply expired by he has not given the notice; or

(b) where he is required to file a defence and the time for him to his defence has expired by he has not filed his defence; or

(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired by he has not so verified his defence."

10. On hearing the plaintiffs lawyer, I note that he relies very much on O. 12 r. 25 (a) and (b) of the NCR.

11. Are the defendants in default for not filing Notice of Intention to Defend within time? Upon my perusal of the court file, I note that the defendants filed Notices of Intention to Defend on the following dates;

i. 8 March, 2007 - Filed by Steeles Lawyers for and on behalf of second and third defendants.

ii. 9 March, 2007 - Filed by Acting Solicitor-General for and on behalf of all defendants

iii. 19 March, 2007 - Filed by Acting Solicitor-General for and on behalf of second and third defendants.

12. When can a Notice of Intention to Defend be filed? Order 4 rule 9 (1) of the NCR states that an originating process shall bear a note that the defendant/s is/are liable to suffer judgment against him/her/them unless the prescribed form of Notice of his intention to defend is received in the registry. Order 4 rule 9 (2) states further that the note under sub-rule (1) shall specify the time limited for the giving of the notice.

13. Order 4 rule 11 of the NCR states when a Notice of Intention should be given. It reads;

The time limited for a defendant to give a notice of intention to defend shall be –

14. Although, in the case of a writ of summons and statement of claim, O. 4 r. 11 (i) states that a Notice of Intention to Defend must be filed not less than 30 days after service, that this will apply only to claims against individuals, corporations and business names. However, in claims against the State or a State-owned entity, the relevant rules to apply are those contained in the Claims By and Against the State Act (‘Claims Act’). Section 9 of the Claims Act applies in this case. Section 9 of the Claims Act reads;

Notwithstanding anything in any other law, in any proceedings for a claim against the State, the time within which the State shall be required to file a defence or appear in response to a summons on complaint (as the case may be) shall be –

(i) where the statement of claim is endorsed on the writ – before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend; or

(ii) where the statement of claim is not endorsed on the writ – before the expiry of 60 days from the date of service of the statement of claim; or

(b) where a cross-claim is made against the State – before the expiry of 30 days from the date of service of the cross-claim; or

(c) in an application under section 57 of the Constitution – before the expiry of 90 days from the date of service of the application; or

(d) in a claim made in the District Court – before the expiry of 90 days from the date of service of the summons,

or such further time as the court before which the action is instituted, upon sufficient cause being shown, allows."

16. But I have already found that where Notice of Intention to Defend has been filed, but not within the stipulated period, that all the defendants need to do is to apply for leave to file their Defences out of time. But I must first consider whether service of the Writ of Summons and Statement of Claim (the ‘Writ’) was properly effected upon all defendants and to then determine when time should run.

17. Upon perusal of the writ, I note that the first defendant is not being sued in his personal capacity. He is being sued as a servant and agent of the State, that he whilst employed as a policeman and Operations Commander, conducted and supervised the eviction exercise of settlers in Madang between 11th and 17 December 2003. In fact, the plaintiff pleads at par 1 (e) of the Statement of Claim that the third defendant is vicariously liable for the actions of the first and second defendants. Therefore the Claims Act applies. However, in relation to service upon him, the NCR applies. He should be personally served as is the requirement. (see O. 6 r. 6 of NCR).

18. In relation to service upon the first defendant, Mr Hampalekie submits that the first defendant was personally served on 1 November, 2006. He referred the court to Blaise Waninara’s affidavit sworn on 1 November, 2006 which deposes to that and to which is attached Narokobi Lawyers service form which was signed by the first defendant upon his receipt of the writ. I consider that to be sufficient service.

19. Having considered service to be sufficient service, is the first defendant required to file a Notice of Intention to Defend before the expiration of 30 days and a Defence before the expiration of 15 days in accordance with the NCR or should he file a Defence before the expiry of 60 days after the date of expiry of the time limited for him to give Notice of Intention to Defend, to be done in accordance with s. 9 (a) (i) of the Claims Act? In this case, the first defendant is being sued as a servant and agent of the State. A finding on the first defendants vicarious liability, as pleaded, will be based on a finding on the tort of negligence, committed by the first defendant as an employee of the Royal Papua New Guinea Constabulary (‘RPNGC’), as an agent of the second defendant Provincial Government and who are all representatives of the State, the nominal defendant. Incidentally, the RPNGC is not named as a defendant. Additionally, the first defendant would be prejudiced if the second and third defendants were successful in defending this application, being faced with a default judgment which has no basis in law for it to meet. In any event, to answer the question posed earlier, s. 9 of the Claims Act is specific that "Notwithstanding anything in any other law, in any proceedings for a claim against the State...", which in this case it is, s. 9 (a) (i) of the Claims Act applies. The first defendant is required to file his Defence 60 days after the time within which to file his Notice of Intention to Defend i.e 30 days after receipt of the writ, then thereafter file his Defence within 60 days.

21. Order 2 Rule 3(1) of the NCR states that court vacation commences on 20 December of each year to the 31 day of January next year, both inclusive.

22. Order 2 Rule 3(iii) states that the vacation period shall not be counted for filing and delivering and pleading unless directed by a Judge.

23. Therefore, time will run from 2 December 2006 to 19 December 2006 then from 1 February 2007 onwards, a period of 60 days, computated as follows;

•	2 December 2006 to 19 December 2006	= 18 days
•	1 February 2007 to 28 February 2007	= 28 days
•	1 March 2007 to 14 March 2007	= 14 days
		60 days

24. Mr Hampalekie referred me to affidavit of service, sworn on 5 October, 2006 by Benjamin Mano, who deposed that on 29 September, 2006, he served a sealed copy of the writ upon Henry Hantan, the Assistant Provincial Clerk of the Madang Provincial Government, at the Provincial Government Building.

25. Mr Hampelekie could not tell me if the Assistant Provincial Clerk was authorized to receive service of originating process, in this case, the writ, for and on behalf of the second defendant provincial government.

26. He also could not refer me to the relevant legislation and provision governing service of originating process upon Provincial Governments. Although I referred Mr Hampalekie to the Organic Law on Provincial and Local Level Governments, Mr Hampelekie could not refer me to the relevant provision on service because he did not have that Act with him in court. I consider that to be very careless because when lawyers appear in court, they must ensure to have all relevant legislation and authorities to support their submissions. They cannot expect the court to do the work for them. In an application such as this, the applicant is saying the rules in relation to service have been properly complied with and that the defendants have not complied. That is why the applicant wants judgment. Therefore, the onus is upon the applicant to show that, no matter how trivial or simple. But the applicant has not done that. He has failed. He has not shown that the Assistant Provincial Clerk is authorized to accept service of originating process, in this case, the writ.

27. But if the court had found that service was properly effected, when should the second defendant file Notice of Intention to Defend and Defence? Again, I will illustrate by computation of the time limit.

28. Noting that court vacation commences on 20th December of each year to the 31 January, next year both inclusive and that vacation period shall not be counted, 60 days within which the second defendant shall file its Defence is computated as follows;

•	30 October 2006 to 19 December 2006	= 51 days
•	1 February 2007 to 9 February 2007	= 9 days
		60 days

29. Mr Hampalekie referred the court to Blaise Waninara’s affidavit sworn on 9 October, 2006 deposing to service of the writ upon the senior executive assistant at the Attorney-Generals Office, Linda Wonuhali, on 3 October, 2006.

31. The court accepts that this is proper service, done in accordance with s. 9 (a) (i) of the Claims Act. When should Notice of Intention to Defend and Defence be filed? Again, I illustrate by computation of the time limit.

32. Sixty (60) days is calculated from 3 November, 2006 excluding the vacation period from 20 December 2006 to 31 January 2007. I will illustrate by computation of the time limit.

•	4 November, 2006 to 19 December, 2006	= 46 days
•	1 February, 2007 to 14 February, 2007	= 14 days
		60 days

33. On hearing all lawyers, both Messrs Haiara and Isare submit that Mr Hampalekie’s calculations are incorrect because he took into account the vacation period when that should not be the case. They both submit that the application for default judgment is premature. In response to these submissions, Mr Hampalekie relies on his affidavit sworn on 1 March, 2007, where he deposes that by letter of 26 January, 2007, to the Acting Solicitor-General, he advised that the time period within which "the State" was to have filed its Notice of Intention to Defend and Defence lapsed on 4 January, 2007. But Mr Hampalekie is not specific as to which defendant had not filed within time. He only states that "the State" had defaulted. I consider that there is a high degree of carelessness and negligence by Mr Hampalekie in the manner in which he presented his case for default judgment to the Acting Solicitor-General, considering this is a claim for K24,802,565.00

34. I say this because, there are 3 separate defendants. The plaintiffs’ lawyer only gives notice to the nominal defendant, being the third defendant. Counsel have a duty to ensure that proper process is complied with in relation to all parties named in court proceedings. The courts also must be vigilant in ensuring that the lawyers have properly complied with mandatory, stipulated procedures, especially in applications for default judgment.

35. In relation to the question posed as to whether plaintiffs’ lawyer is correct in his computation of time, I refer to Mr Hampalekie’s affidavit sworn on 1 March 2007 which he relies on in support of the application for default judgment. The relevant paragraph is 6 (xii) where he deposes to the various affidavits of service that I refer to herein and a file search conducted on 6 December, 2006 (par. 6(xi)). At par 6 (xii) of his affidavit, Mr Hampalekie refers to a letter that he sent to the Solicitor-General dated 26 January, 2007 which letter gave notice that because the 90 day period had expired that he would shortly apply for summary or default judgment. It is necessary that I set out in full the contents of that letter. It reads;

"The Writ of Summons was filed on 28th September 2006 and served on the Attorney-General on 3rd October 2006.

On 6th December 2006, a file search was conducted at the Madang National Court Registry and it was established that the State has not filed its Notice of Intention to Defend nor has it filed its Defence.

You will note that the 90 days mandatory time required for the State to file its Defence lapsed on 4th January 2007. Therefore this letter serves as a Notice to your office that we have instructions to apply for Default Judgment and/or Summary Judgment and we will do so without further notice."

36. In that letter, Mr Hampalekie refers to "the State" as not having filed its Notice of Intention to Defend and Defence. But the letter is misleading because there are two other defendants who were served on different occasions and to which there is no mention. Mr Hampalekie’s affidavit does not attach other letters giving notice to the two other defendants. One can argue that because all defendants did not file Notice of Intention to Defend, that it is not necessary to give them notice or to forewarn them. However, if Mr Hampalekie had properly complied with procedure in relation to service, he would have noted, as I did, that the search conducted on 6 December, 2006 for any defendant was premature. As illustrated above, the following should have occurred;

1 December 2006	Notice of Intention to Defend should be filed.
9 March 2007	Notice of Intention to Defend filed.
14 March 2007	Defence should be filed.

29 October 2006	Notwithstanding the irregularity of service, Notice of Intention to Defend should be filed.
8,9,19 March 2007	Notices of Intention to Defend filed.
9 February 2007	Defence should be filed.

3 November 2006	Notice of Intention to Defend should be filed.
8,9,19 March 2007	Notices of Intention to Defend filed.
12. February 2007	Defence should be filed.

37. I have already pointed out that the plaintiff, in its bid to obtain judgment against the nominal defendant, in this case the third defendant, did not name the RPNGC in the proceedings. Its application for default judgment is against "the defendant". No specific defendant is named, considering there are three defendants. I note the submissions for default judgment are directed towards the third defendant. But submissions must be supported by pleadings, which in this case, they are not. Again I say this, the application for default judgment is directed at a nominal defendant for the actions of the first defendant who is employed by the RPNGC but who has not been named in the proceedings. Until such time as the RPNGC is named, the plaintiffs claim against the "defendant" for judgment cannot proceed because the proceedings are defective, hence the application being premature.

38. So, on the face of it, even if the plaintiff is correct in its computation of time for parties’ failure to file their Notices of Intention to Defend for all defendants within time stipulated by the rules, the court can still exercise its discretion in refusing the application.

39. In applications for default judgment, the court has a wide discretion to enter default judgment. Order 12 Rule 32 of the NCR gives the court that power. Even when proof of due service of process on a defendant and proof of the default is established by the plaintiff/applicant, the court still has a discretion to refuse to enter default judgment in cases, where for instance, the effect of the default judgment would prejudice the rights of other co-defendants or that the pleadings are so vague or do not disclose a reasonable cause of action or that the default judgment cannot be sustained in law. (see Kante Mininga v the Independent State of Papua New Guinea (1996) N1458, Injia .J).

40. In this case, I am of the view that default judgment cannot be sustained in law for the following reasons;

1. the RPNGC is not a party to the proceedings. A default judgment taken out against the nominal defendant, in this case the State, will be done on proceedings erroneously filed and are defective because the RPNGC has not been named. More specifically, the claim for vicarious liability will not have been properly made out, based on the statement of claim now before me. (see Bala Kitipa v Vincent Uali (1998) N1773);

2. The application for default judgment is not against any particular defendant but is against the ‘defendant’. I find that this application is vague because it does not state who the claim for default judgment is against. Any application must be very clearly set out so the other side properly prepares its submissions in response and not be caught unaware. It also places the court in a position where it knows exactly the kind of remedies that are or is being sought and whom it is against.

41. Exercising the court’s discretionary power available to me, I refuse the application for default judgment against the nominal defendant being the State, as this is the order sought in the application. Additionally, even if the plaintiff were to have applied for default judgment against all defendants, I would still refuse the application, because of the reasons raised.

42. Generally, the first, second and third defendants motions seek leave to file their respective Defences out of time. The second and third defendant’s motion seeks additional orders, that the pleadings be struck out for lack of representative capacity. I deal first with the cross-Notice of Motion filed by Steeles Lawyers on 8 March, 2007 seeking various orders more particularly, the latter part of the second and third defendants’ motion which is that all or part of the pleadings be struck out for lack of representative capacity. If I find in favour of the second and third defendants, then I need not consider the application for leave to file Defence out of time.

43. On hearing submissions from Mr Haiara for the first and second defendants, I note that when he referred to "pleadings" in his Notice of Motion that he in fact was referring to the Writ of Summons and Statement of Claim. The plaintiffs’ lawyer does not take issue with that.

44. In making that application, Mr Haiara relies on O. 5 r. 8 (2) of the National Court Rules and O. 8 r. 33 of the National Court Rules which reads;

(1) Where a claim is made by the plaintiff for damages for breach of duty, and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person the statement of claim endorsed on the writ of summons shall set forth full particulars of the claim, including, without limiting the generality of the foregoing -

(b) a statement in summary form, of the material facts relied on as giving rise to the cause of action;

(c) particulars of the injuries alleged to have been sustained by each plaintiff;

(d) where relevant, a statement in summary form of the medical treatment received by each plaintiff;

(e) where relevant, a statement as to whether or not with respect to each injured plaintiff that plaintiff has sustained any permanent disability and, if so, particulars of that disability;

(g) details of each item of special damages claimed, including wages and other economic loss, both present and future;

(h) particulars of the alleged negligence of a defendant, where negligence is alleged;

(i) where relevant, the average weekly earnings (less income tax) of each plaintiff during the twelve months previous to the injury and the period employed during those twelve months;

(j) where relevant, the average weekly amount which each plaintiff is earning or is able to earn in some suitable employment or business after the injury;

(k) where relevant, particulars of the persons dependent upon the plaintiff’s earnings.

(2) The claim shall conclude with a summary of the relief claimed, without quantifying either general damages or costs.

(3) In this rule, "personal injuries" includes any disease and any impairment of a person’s physical, nervous or mental condition.

(4) The particulars of claim referred to in sub-rule (1) of this Rule shall, for all purposes of these Rules, be treated as a statement of claim.

(5) Sub-rules (3), (4) and (5) of Rule 13 of this Order shall apply, with appropriate modifications, to the particulars of claim referred to in sub-rule (1) of this Rule."

Have the plaintiffs been properly named in the Writ of Summons and Statement of Claim?

45. The plaintiffs are described as "Francis Fuliva, Bruno John, Benedict Kunura, Sam Wingavi, Awimba Luke on behalf of themselves and 1281 victims of Madang settlers."

46. In support of these submissions, Mr Haiara referred the court to Simon Mali v the State (2002) SC 690, where the Supreme Court said;

"We accept the State’s submission that in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it writ of summons, originating summons or statement of claim endorsed on a writ. In this respect, pursuant to the National Court Rules, each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs."

47. In relation to their representative capacity, there are rules and procedures in place to ensure that parties are properly named. A plaintiff should not be prejudiced from lodging his complaint. Similarly, a defendant should not be prejudiced from presenting his defence. With that in mind, it should be noted that in Simon Mali (supra), the State was sued for the acts and omissions of its servants or agents in conducting an illegal police raid in the respective villages of Simon Mali and others causing what were alleged to be substantial damage to personal properties. In such a case, it is necessary for obvious reasons, that the parties are properly identified and named and each of their claims are properly pleaded. (My emphasis)

48. Order 5 Rule 13 (1) of the NCR is in similar terms to O. 15 r. 12 of the Rules of the Supreme Court (UK). In O. 5 r. 13 (1) of the NCR, where numerous persons are represented whether as plaintiffs or defendants, that they should "have the same interest" in the proceedings. It is not enough to have similar interests.

49. Relying on the Supreme Court Practice (UK) the learned editors said; "it is an essential condition of a representative action that the persons who are to be represented and the person or persons representing them should have the same interests in the proceedings." (see Roche v Sherrington [1982] 2 All ER 426) that for a competently constituted representative action, inter alia, the plaintiff must be suing on behalf of himself and others. The fact that the plaintiff is suing on behalf of himself and the others should be stated in the title of the pleading, and not merely in the endorsement on the writ or statement of claim. (see Re. Tottenham [1896] UKLawRpCh 51; (1896) 1 Ch 628; Worraker v Pryer [1876] UKLawRpCh 35; (1876) 2 Ch D 109). (My emphasis).

50. In other words, insofar as it applies in this case, Francis Fuliva and each and everyone of the plaintiffs including 1281 others must have the same (not similar) interests to be able to maintain a representative action. Although the 1281 plaintiffs are named in the schedule to the Writ, neither Francis Fuliva nor Bruno John or Benedict Kinura or Sam Wingavi or Awimba Luke, were authorized by each of the 1281 others to file court action for and on their behalf. I say this because of various reasons, one of which is that the statement of claim only states this;

(a) the plaintiffs whose names are attached to this Writ of Summons as Schedule 1 are victims of the 2003 Madang Settlers evictions and can individually sue and be sued in their name, style and capacity."

51. That paragraph does not even state how and the basis on which Francis Fuliva, Bruno John, Benedict Kunura, Sam Wingavi and Awimba Luke are suing. Secondly, against all established principles in a representative action, the plaintiffs have only stated on the endorsement on the writ, the capacity in which they are suing. They do not state that in the body of the writ, contrary to established principles of pleading. (see O. 5 r. 13(1) of NCR and O. 15 r. 12 of the Rules of the Supreme Court UK).

52. In the case Eliakim Laki on behalf of himself and 167 others and other former block holders of Kavugara Oil Palm block, West New Britain Province v Maurice Alaluku, Secretary, Department of Lands, Utula Samana, Secretary, Department of Agriculture and Livestock and Independent State of Papua New Guinea (2000) N2001 Sevua .J held that the named plaintiffs must be authorised by the 167 plaintiffs named in the schedule to the writ, to file Court action for and on their behalf.

Were Francis Fuliva or Bruno John or Benedict Kinura or Sam Wingavi or Awimba Luke authorised to file this action for and on behalf of the 1281 victims?

53. Mr Narokobi referred the court to Francis Fuliva’s affidavit sworn on 14 March, 2007 to which is attached a Power of Attorney. To that power of Attorney is attached a list of names, being the plaintiffs. Mr Hampaleki submits that the Power of Attorney is sufficient authority to act for and on behalf of the 1281 victims. This Power of Attorney is not dated but is attached to an affidavit sworn in March, 2007.

54. The issue is whether the Power of Attorney is sufficient consent and authority from all the plaintiffs. A Power of Attorney is defined by Halbury’s 4th Edition vol. 1 as;

"a Power of Attorney is a formal instrument by which one person, the donor of the power, confers on another, the donee, power to act on behalf of the donor in the performance of a specified act or classes of act or generally." (pg. 279, par. 67)

1. The Writ of Summons and Statement of Claim was filed on 28 September, 2006. The Power of Attorney was filed in court a year later. Clearly, it was filed well after the Writ was filed. It should have been filed together with the writ.

2. A Power of Attorney is to enable a person to act for another. In this case, Francis Fuliva, Bruno John, Benedict Kinura or Sam Wingavi or Awimba Luke all filed claims for themselves and for 1281 others. The Power of Attorney is not a document by which a representative action can be filed. (My emphasis)

56. I note also on perusing the Statement of Claim that the plaintiffs claim are very general. For example, at par. 2, the plaintiffs plead that the first defendant together with policemen and employees and agents of the second defendant, destroyed the plaintiffs houses and properties and personal possessions. The claim is pleaded as;

""2. Between the 11th December, 2003 and 17th December, 2003, the Police under the Command of the first defendant together with the employees and agents of the Second Defendant in a proposed eviction exercise unlawfully entered and destroyed the plaintiffs’ houses, properties and personal possessions.

58. It does not state who sustained these injuries. Obviously, not all the plaintiffs would have sustained the same injuries as described above.

60. These have not been particularized at all nor do the particulars relate to any particular plaintiff. They are all very general claims.

61. Each plaintiffs claim must be properly pleaded setting out his or her claim as against all defendants. No doubt, this claim is very badly pleaded, contrary to O. 8 r. 35 of the NCR.

62. The matter is still in its preliminary stages. Exercising my discretion under s. 155 (4) of the Constitution to ensure that justice is done under the circumstances, the pleadings can be amended to rectify these serious anomalies. As to the costs of the application, the defendants have been dragged to court on a matter and application that plaintiffs counsel did not give proper thought to. The writ is not only badly pleaded but the application for default judgment is very premature. The orders I make are a reflection of what is contained in my reasons.

63. In relation to costs, the defendants were dragged to court to defend an application that was not only prematurely made but made on a Writ of Summons and Statement of Claim that was very badly pleaded. The plaintiffs must pay the costs, assessed on a solicitor/client basis.

1. Within 40 days from today, the plaintiff shall file an Amended Writ of Summons and Statement of Claim in which he shall plead the claims of all plaintiffs;

2. Together with the Amended Writ of Summons, he shall file Consent and Authority to Act from each plaintiff;

3. The Amended Writ of Summons shall also name the Royal Papua New Guinea Constabulary as a defendant;

4. Within 21 days after receipt of the Amended Writ of Summons and Statement of Claim, the defendants shall file their Notices of Intention to Defend and Defence and Cross-claim (if any);

5. All plaintiffs shall pay the costs of all defendants to be assessed on a solicitor/client basis i.e costs in relation to the application for default judgment and the costs in relation to the amendments, also on a solicitor/client basis;

Narokobi Lawyers : Lawyer for the plaintiffs/applicants
Police Association : Lawyer for the first defendant
Steeles Lawyers: Lawyer for the second and third defendants

National Court of Papua New Guinea

Fuliva v Wagambie [2007] PGNC 120; WS 1406 of 2006 (22 May 2007)