Kenuai v Puri [2010] PGNC 104; N3906 (10 March 2010)

N3906

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 55 OF 2009

BETWEEN:

RAPHAEL KENUAI
Plaintiff

AND:

REUBEN PURI,
Education Salary Officer in Charge, Mt Hagen
First Defendant

AND:

SOLOMON NAKALO,
Mt Hagen Education Filing Clerk
Second Defendant

AND:

OTTO LOH,
Waigani National Education Salary Officer in Charge
Third Defendant

AND:

MOLY U.,
Waigani Resignation Payment Officer
Fourth Defendant

AND:

KONIO HAVEA,
Teaching Service Commission Inspector, Legislation
Fifth Defendant

AND:

MICHAEL PEARSON,
Teaching Service Commission Chairman
Sixth Defendant

AND:

DR. JOSEPH PAGELIO,
Education Department Secretary
Seventh Defendant

AND:

SOLICITOR GENERAL'S OFFICE,
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant

Mt. Hagen: David, J
2009: 14 August
2010: 10 March

PRACTICE & PROCEDURE – two motions – plaintiff's application to enter default judgment and defendants' application to file defence out of time – multiple defendants – some served with writ of summons and others not – those served with writ of summons guilty of not filing notice of intention to defend within prescribed period – one notice of intention to defend given for all defendants – effect of one notice – principles of filing defence out of time considered and applied – Court has considerable discretion - defendants' application granted – plaintiff's application refused.

Cases cited:
North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145
Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215
Leo Duque v. Aria Andrew Paru [1997] PNGLR 378
Thomas Koral v. Alex Kavie and Petrus Alex (1999) Unreported and Unnumbered Judgment of Kirriwom, J, WS 286 of 1998
Luke Tai v. Australia & New Zealand Banking Group (PNG) Limited (2000) N1979
Robin Kipane v. Felix Anton and PNG Waterboard (2003) N2429
Tiaga Bomson v. Kerry Hart (2003) N2428
Pinna Minia v. Edward Young Gisoba (2005) N2875
Joe Tipaiza & Ors v. James Yali & Ors (2005) N2971

Counsel:

R. Kenuai, Plaintiff in person
J. Y. Doa, for the Defendants

RULING ON MOTION

10 March, 2010

1. DAVID, J: INTRODUCTION: There are currently on foot two (2) motions. The first one is an application by the Plaintiff for default judgment to be entered in his favour relying on O.12 r.25 (a) and (b) and O.12 r.28 of the National Court Rules (the NCR). That motion was filed on 30 April 2009. The other is an application by the defendants seeking leave to file their defence out of time pursuant to O.1 r.15 and O.7 r.6 of the NCR or in the alternative, an order that the entire proceedings be dismissed for want of compliance with s.5 of the Claims By and Against the State Act, 1996 (the Claims Act) and O.12 r.40 (a) and (c) of the NCR. That motion was filed on 13 August 2009. At the hearing, the defendants abandoned the second relief sought.

2. I will deal with the applications in the reverse order. If the defendants' application is granted, it will not be necessary to deal with the Plaintiff's application because the result will be the converse of the ruling.

BACKGROUND

Section 5 Notice

3. The Plaintiff made application to the Court for extension of time to give his notice of intention to claim against the State pursuant to s.5 of the Claims Act in proceedings commenced by originating summons number 441 of 2008. On 19 September 2008, leave was granted for the Plaintiff to give his notice within 21 days of the date of the order. The Plaintiff served his notice upon the Solicitor General on 29 September 2008.

Writ of Summons and Statement of Claim

4. On 22 January 2009, the Plaintiff filed a writ of summons endorsed with a statement of claim (the writ) naming 8 defendants.

5. The Plaintiff claims that he is a community or primary school teacher and had been teaching for 21 years prior to his resignation on 8 April 2004. He also claims that upon his resignation the Teaching Service Commission approved of his resignation entitlements to be paid to him, but it failed to pay him until 17 September 2005, some 17 months after the effective date of his resignation. He further claims that the delay in processing his payment was due to the negligence of Education Salary officers based in Mt. Hagen and Waigani acting on behalf of the Teaching Service Commission when they misplaced the original of his "Resignation Entitlement" file. He claims that he suffered loss and damage including loss of business prospects which he particularises in his statement of claim as a result of pursuing his payment which was unnecessarily delayed due to the missing file for which he should be paid general and special damages with interest and costs.

DEFENDANTS' APPLICATION

6. As I have alluded to earlier, the defendants' application for leave to file their defence out of time is moved pursuant to O.1 r.15 and O.7 r.6 of the NCR.

7. Order 1 rule 15 reads:-

"15. Extension and abridgement. (2/3)

(1) The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.

(2) The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

(3) The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension."

8. Order 7 rule 6 reads:-

"6. Late notice. (11/6)

(1) A defendant may give a notice of intention to defend at any time without leave.

(2) Where a defendant gives a notice after the time limited for doing so, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had given a notice of intention to defend within that time."

9. The defendants rely on the Affidavit in Support of Jacinta Yoshida Doa, a lawyer employed in the office of the Solicitor General, Mt. Hagen which was sworn on 12 August 2009 and filed on 13 August 2009 to support their application. She essentially deposes that:-

1. instructions to defend the proceedings on behalf of the defendants were received from the Teaching Service Commission on 7 April 2009 through its letter to her office here dated 11 February 2009, a copy of which is annexed to her Affidavit as annexure "D";

2. a letter from the Sixth Defendant to the Eight Defendant dated 12 March 2008 which forms part of annexure "D" to her Affidavit shows that the defendants have a defence on the merits and that was translated into a draft defence which is also annexed to her Affidavit as annexure "E";

3. the defendants' notice of intention to defend dated 12 August 2009 and filed on 13 August 2009 by the Eighth Defendant, Solicitor General for and on behalf of all the defendants was filed in time and then served on the Plaintiff by forwarding sealed copies to his postal address in Kundiawa, Simbu Province;

4. the delay in making the application was not undue or unreasonable.

10. In her submissions, Ms. Doa basically regurgitated matters raised in her Affidavit in particular those that I advert to above. She however emphasised that it was incumbent upon the Plaintiff to serve all the defendants with the writ before taking further steps that would prejudice the rights of co-defendants.

11. The Plaintiff contests the application, but has not filed any Affidavit to specifically respond to the application. I will however have regard to some of the Affidavits filed by him in support of his application and they are:-

1. Affidavit of Service of Raphael Kenuai sworn on 9 February 2009 and filed on 12 February 2009;

2. Affidavit of Service of Raphael Kenuai sworn on 9 February 2009 and filed on 12 February 2009;

3. Affidavit of Service of Raphael Kenuai sworn on 9 February 2009 and filed on 12 February 2009;

4. Affidavit of Search of Raphael Kenuai sworn on 29 April 2009 and filed on 30 April 2009;

5. Affidavit in Support of Application for Default Judgment of Raphael Kenuai sworn on 29 April 2009 and filed on 30 April 2009.

12. The Plaintiff's Affidavit evidence is that:-
    
    1. he received the defendants' notice of intention to defend by post on 10 April 2009 which according to him was given within time, but that they failed to file their defence;
       
    2. despite being forewarned by his letter to the defendants' lawyer dated 27 April 2009 of the impending application for judgment by default to be made (annexure "C" of the Plaintiff's Affidavit in Support of Application for Default Judgment), the defendants failed to rectify the default.
       
13. In his submissions, he essentially said that; the Affidavit evidence of Ms. Doa was misleading; and he conceded that he did not serve the writ on the First, Second, Third and Fourth Defendants.
    

REASONS FOR RULING

14. Subject to the exceptions mentioned in O.6 r.2 (1) of the NCR, an originating process must be served personally on each defendant. The phrase "originating process" is defined in O.1 r.6 of the NCR as "a writ of summons or an originating summons or where a cross-claim is made against the person not previously a party to the proceedings in which the cross-claim is made, the cross-claim." The writ is therefore an originating process. Order 6 rule 3 sets out how personal service is to be effected upon a person, natural or legal.

15. The defendants do not take issue with service of the writ upon the Fifth, Sixth, Seventh and Eighth Defendants. They were all served on 27 January 2009. They were then required to give their notices of intention to defend not less than 30 days after service (O.4 r.11 (b)(i)), that is, by 2 March 2009. That is because the days that fall within the vacation period (20 December to 31 January inclusive) are not normally reckoned in the times allowed by the NCR for filing, delivering or amending any pleading nor judgment be entered in default. According to the Plaintiff, he received the defendants' notice of intention to defend on 10 April 2009, but the Court file indicates that the only notice of intention to defend filed in these proceedings was that which was filed on 13 August 2009 marked as document number 12. The notice of intention to defend the Plaintiff adverts to might have been filed in proceedings commenced by originating summons number 441 of 2008. Clearly the Fifth, Sixth, Seventh and Eighth Defendants were guilty of not filing their notice(s) of intention to defend within the prescribed period.

16. It is also uncertain from the writ as to the capacity in which the Eighth Defendant is being sued or the cause of action against him which appears to me to be so vague. I raise that because the description of the title of the Eight Defendant in the writ is "Solicitor General's Office – The Independent State of Papua New Guinea" whereas it is pleaded at paragraph 2 of the statement of claim that the "Solicitor General's office" is one of the defendants who 'can be sued in their names'.

17. The Plaintiff concedes that he did not serve the writ upon the First, Second, Third and Fourth Defendants.

18. This case is peculiar. In the present case, the notice of intention to defend filed on 13 August 2009 on behalf of all the defendants and served upon the Plaintiff by post to his address for service thereafter in my view has a twofold effect:-

1. firstly, O.7 r.6 (1) of the NCR permits the giving of a notice of intention to defend at any time without leave and therefore is valid in so far as the Fifth, Sixth, Seventh and Eighth Defendants are concerned;

2. secondly, by entering an appearance for the First, Second, Third and Fourth Defendants as well by that notice, the writ was deemed to have been served on them personally on the date of filing that notice (O.6 r.2 (3)) and time for them to file their defence (s) started running from that date.

19. The First, Second, Third and Fourth Defendants should therefore be allowed to file their defence.

20. As for the Fifth, Sixth, Seventh and Eighth Defendants, this is what I say. Order 7 rule 6 (2) of the NCR provides that where a defendant gives a notice of intention to defend out of time, no defence can be filed without leave of the Court. It is a mandatory requirement: see Thomas Koral v. Alex Kavie and Petrus Alex [1999] Unreported and Unnumbered Judgment of Kirriwom, J, WS 286 of 1998; Luke Tai v. Australia & New Zealand Banking Group (PNG) Limited (2000) N1979; Robin Kipane v. Felix Anton and PNG Waterboard (2003) N2429 and Tiaga Bomson v. Kerry Hart (2003) N2428.

21. Order 1 rule 7 of the NCR also gives the Court discretion to dispense with compliance with the any of the requirements of the NCR either before or after the occasion for compliance arises. That provision is in the following terms:-

"7. Relief from Rules.

The Court may dispense with compliance with any of the

requirements of these Rules, either before or after the occasion for compliance arises."

22. The combined effect of O.1 rr. 7 and 15 and O.7 r.6 (2) therefore is that; firstly, they give the Court a considerable discretion to dispense with compliance with any of the requirements of the NCR either before or after the occasion for compliance arises; and secondly, in deciding whether to grant leave to extend time to file a defence out of time as in this case, the Court's discretion must be exercised on proper principles taking into account all the circumstances of the case.

23. There is now a glut of case law on the principles applicable in making a successful application for leave to file a defence out of time for late notice. One of those cases is Joe Tipaiza & Ors v. James Yali & Ors (2005) N2971 where His Honour, Justice Cannings suggested what those principles were. They are; the extent of the delay in making the application; the explanation for the delay in filing a defence; the demonstration or presence of a defence on the merits; and where do the interests of justice lie. I adopt and apply those principles to the present case.

APPLICATION OF PRINCIPLES

Extent of the delay

24. Proceeding on the premise that the Fifth to Eighth Defendants are all servants or agents of departments or agencies of the State, they stood to benefit from the combined effect of O.4 r.11 (b)(i) of the NCR and s.9 (a)(i) of the Claims Act as to the filing of their notice(s) of intention to defend and defence(s). In other words, they had a total of 90 days from the date of service of the writ to file their notice(s) of intention to defend (first 30 days) and their defence (s) (the next 60 days). According to my calculation, the Fifth to Eighth Defendants would have had until 2 May 2009 to file their defence(s). When they had defaulted to file their notice of intention to defend, the luxury of having 60 days to file their defence(s) in my view was no longer available as a valid defence could only be filed following an application similar to this one if successful. The default in filing their defence(s) is in excess of 60 days. This militates against the grant of the application.

Explanation

25. Ms. Doa deposes at paragraph 10 of her Affidavit that her office actually received instructions from the Sixth Defendant on 7 April 2009. That was by way of a letter from the Sixth Defendant to her office here dated 11 February 2009 which is annexure "D" to her Affidavit. To that letter was attached a letter from the Sixth Defendant to the Eighth Defendant dated 12 March 2008 which contains instructions to contest the Plaintiff's demand to be paid compensation in the sum of K2 million (the letter of instruction). I note however that the amount demanded actually is not pleaded in the statement of claim. It is obvious from the date of the letter of instruction that it might have been given to the Eighth Defendant prior to the filing of these proceedings and when the proceedings were commenced and the writ served upon him, the Eighth Defendant already had standing instructions to respond immediately or soon thereafter to the Plaintiff's claim on behalf of himself and the other defendants. Even if the Eighth Defendant were to take issue with the receipt of the letter of instruction around the time indicated by the date, the service of the writ upon him as a party to the proceedings should have prompted him to either seek further instructions from the other defendants or to perhaps take other steps concerning his joinder as a party in the proceedings for the reason I have stated already. There is no explanation for the delay in filing and serving a notice of intention to defend and defence to protect the interests of the Fifth to Eighth Defendants. This militates against the grant of the application.

Defence on the merits

26. Ms. Doa deposes in her Affidavit that the defendants have a defence on the merits. That assertion appears to be based on the Sixth Defendant's instructions contained in the letter of instruction which in turn have been incorporated into the draft defence which is attached to her Affidavit as annexure "E".

27. It is trite law that a lawyer cannot assert to facts which are purely within the knowledge of the party he/she represents as his/her assertion of facts made on behalf of his/her client will be hearsay and an expression of his/her opinion unless he/she has direct knowledge of the facts: see North Solomons Provincial Government v. Pacific Architecture [1992] PNGLR 145; Leo Duque v. Aria Andrew Paru [1997] PNGLR 378; the dictum of Brown, J in Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215 and Pinna Minia v. Edward Young Gisoba (2005) N2875. On face value, the letter of instruction appears to me to disclose a defence on the merits when it states, inter alia, that:-

1. in 2004 there were over 35,000 teachers in the Teaching Service serving in public schools compared to 28 staff clerks dealing with teacher transactions, a clerk/teacher ratio of 1:1250 and therefore delays were bound to occur;
   
2. the Plaintiff was guilty of not giving the required 3 months notice of his resignation which would have given the clerks sufficient time to locate his file and take action;
   
3. the Plaintiff's claim is mostly heresy;
   

4. the Plaintiff was re-admitted to the Teaching Service on 24 January 2005 which was 9 months after his resignation on 8 April 2004.

Interests of justice

28. I think it would be in the interests of justice for the Plaintiff's claim to be proved by evidence in a trial before judgment is given on the merits.

Exercise of discretion

29. In the circumstances and in the exercise of my discretion, I am minded to grant leave to the Fifth to Eight Defendants to file their defence out of time. Consequently, the Plaintiff's application for default judgment is refused.

ORDER

30. These are the formal orders of the Court:-

1. the Plaintiff's application for default judgment is refused;
   
2. the Fifth, Sixth, Seventh and Eighth Defendants are granted leave to file their defence out of time;
   
3. the defendants shall file their defence prior to or by 10 May 2010;
   
4. costs to be in the cause.
   

Raphael Kenuai in Person
Solicitor General: Lawyer for the Defendant