Piari v Mapusa [2015] PGNC 106; N6004 (15 May 2015)

N6004

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No 1219 OF 2013

BETWEEN:

NATHAN PIARI
First Plaintiff

AND

ESTHER TIANGAN PIARI
Second Plaintiff

AND

JOHN MAPUSA as Director General for the National Narcotics Bureau
First Defendant

AND

NATIONAL NARCOTICS BUREAU
Second Defendant

AND

THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Ipang, J
2015: 19th March & 15th May

PRA CTICE AND PROCEDURE – application for default judgment for failing to file defence within time – defendants also file motion seeking leave to file defence out of time – extent of delay, defence on merits and the interest of justice considered – plaintiffs application dismissed – defendants granted leave to file defence out of time – s155 (4) Constitution, Order 12 Rules 25 (b), 26(a) and 28 of the Nation Court Rules, Order 4 Rule 49 sub rule 17 of the Motions (Amendment) Rules 2005
Cases cited
Joe Tipaiza & James Hela Pora & Ors v James Yali & Ors (2005) N 2971
Counsel
Mr S. Soi, for the Plaintiffs
Ms A. Nasu, for the Defendants

15 May, 2015

1. IPANG J: By motion dated 16th December, 2014 the First and Second Plaintiffs seek the following orders:
   
   • That the notice of motion dated the 8th of July,2014 filed by the First, Second and Third Defendants be dismissed for want of prosecution pursuant to Order 4 Rule 49 sub rule 17 of the Motions (Amendment) Rules 2005
     
   • That default judgement be entered in favour of the plaintiffs with damages to be assessed pursuant to Order 12 Rules 25 (b), 26(a) and 28 of the Nation Court Rules and s.155(4) of the Constitution.
     
   • First, Second and Third Defendants to pay Plaintiff's cost
     
2. Plaintiffs rely on the affidavit of Nathan Piari filed on the 17th December, 2014 and the Affidavit of Ure Hane filed on the 17th December, 2014.
   
3. Plaintiffs commenced this proceeding against the defendants on the 31st of October, 2013. The sealed and filed writ of Summons was served on the defendants on the 13th of November, 2013.
   
4. On the 11th of November, 2013 only the First and the Second Defendants filed their Notice of Intention to Defend (NOID). On the 31st of January, 2014 the Third Defendant filed its Notice of Intention To Defend. And served a copy on the plaintiff on the 05th of January, 2014. On the 08th of July, 2014, the Defendants filed their notice of Motion seeking leave to file their defence out of time. On the 12th November, Soi and Associates Lawyers entered appearances for the plaintiff. On 20th November, 2014 Soi & Associates Lawyers wrote and advised the defendants their notice of motion filed on the 8th of July, 2014 is still pending after four ( 4) months and made its intention known to the defendants to file for dismissal of the motion for want of prosecution . Plaintiff says on the date of swearing of his affidavit the defendants notice of motion is pending four (4) months after it was filed on the 08th of July, 2014. A file search was conducted on the 16th of December, 2014 at the National Court Registry revealed the motion was still pending for more than four ( 4) months after it was filed on the 08th of July, 2014. A file search conducted on the 16th of December, 2014 at the National Court Registry revealed the motion still pending.
   

DEFENDANT'S MOTION

5. The First, Second and Third Defendant's motion dated the 08th of July 2014 to file the defence out of time is moved under section 9 (a) (1) of the Claims By And Against The State Act 1996.
   

"9 FILING OF DEFNCE BY THIS STATE

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-

(a) In a claim commenced by writ in the National Court-

• (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; "
  

In support of the First, Second and Third Defendant's motion is the affidavit of Alice Nasu filed on the 08th of July, 2014. Ms Nasu submitted that the Defendants were delayed by two (2) months and 20 days to file their defence. They say that the delay is not too lengthy and should not prejudice the interest of the plaintiffs.

6. Ms. Nasu said she joined the office of Solicitor General on the 07th of January, 2013 after her admission to practice on the 23 November, 2012. She said the plaintiffs served their Writ of Summons at the office of Solicitor General on the 13th of November, 2013. She filed the Defendants Notice of Intention to defend on the 31st of January 2014 and served it on the plaintiffs on the 5th January, 2014. She said on the 14th of March 2014, she wrote to the Director General for the Narcotic Bureau advising of the service of the Writ of Summons and for the Director to provide instructions to file the defence. She therefore, said the cause of the delay was because the First Defendant did not provide the office of Solicitor General his instructions on time for the Defendant's defence to be filed.
   
7. Ms Nasu, the counsel for the defendants said there is no cause of action against the defendants because the initial residential lease agreement is between Esther Taingan as the lessor and Paito Towo Piari as the lessee. Defendants say that the first and the second defendants did not enter into any form of agreement with the plaintiffs. Therefore, they say the plaintiffs have no cause of action against the defendants. Defendants have defence on Merit.
   

Discretion to grant leave to file defence out of time

8. There are three (3) considerations the court should take into account when considering deciding whether to grant leave.
   
   • What is the extent of the delay?
   • What are the reasons for the delay?
   • Does the defendant appear to have a good defence?
     
9. In Joe Tipaiza & James Hela Pora & ors v James Yali & Ors (2005) N2971 Cannings, J had one more requirement:
   
   • Where does the interest of justice lie?
     

Extent of Delay

10. On the 13th of November, 2013 the plaintiffs served the Writ of Summons (WS) on the Solicitor General. Defendants have 90 days to file their defence but have not done that. The delay by the defendants were substantial.
    

Explanation

11. The factor which caused the delay was from the First Defendants not providing instructions on time to the office of the Solicitor General so that Defendants' defence can be filed.
    

Defence on Merits

12. Ms A Nasu, the counsel for the defendants submitted that the defendants have a good defence in that there is no cause of action against the defendants, Defendants say they did not enter into an agreement with the plaintiffs. Defendants say the plaintiffs have no cause of action in law. I see the defendants have raised valid defence in law and defence with merit. There will be substantial issues to argue about at a trial.
    

Interest of Justice

13. The First Defendant is the head of the Second Defendant, which is one of the State instrumentalities. The Third Defendant represents the people of Papua New Guinea. They will stand to lose more than K4 million if I refuse this application. I hold the same view expressed by Cannings, J in Joe Tipaiza & Ors v James Yali & Ors (supra) in which His Honour stated:
    

" I do not think it is in the public interest to refuse the people the opportunity to put defences to this claim, especially as the defences seem worthwhile and as I ruled when refusing the application for default judgement, it is not clear that the plaintiff have a solid cause of action"

Consideration

14. The first and second requirements (Extent of delay and Reasons for delay) favour the plaintiffs. The third and fourth requirements favour the defendants. I will exercise my discretion under is out of time with the following conditions.
    
15. The First, Second and Third Defendants shall be subject to the strict time compliance and will be penalised for lack of due diligence. The defendants must pay all the costs of the plaintiffs in these proceedings to date, irrespective of the final outcome of the case.
    

Orders

16. The following is the order of this court:
    

(1)The First, Second and the Third Defendants are subject to the following orders, grated leave to file their defence out of time.

(2) The Defendants shall file their defence by Friday 29th of May 2015 and serve it on the Plaintiffs by the 05th of June 2015.

(3)The First, Second and Third Defendants shall pay all the Plaintiffs cost of these proceedings to date, irrespective of the outcome of the substantive case, to be taxed if not agreed.

_______________________________________________________________
Soi & Associates: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants