Road Stabilisers PNG Ltd v Wereh [2017] PGNC 310; N6989 (4 September 2017)

N6989

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 78 OF 2014

BETWEEN:

ROAD STABILISERS
PNG LIMITED
Plaintiff

AND:
DAVID WEREH
as Acting Secretary for the
Department of Works
First Defendant

AND:
HON. FRANCIS AWESA
as Minister for Works
Second Defendant

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J.
2017: 25^th August
: 4^th September

APPLICATIONS CONCERNING SERVICE OF ORIGINATING PROCESS – Order 6 Rule 2 and Order 7 Rule 7(2) and 8(c) National Court Rules considered

Cases cited:

Kanturk Ltd v. Joe Kawage (2016) N6330

Counsel:

Mr. C. Sumba, for the Plaintiff

Mr. W. Mapiso, for the Defendants

4^th September, 2017

1. HARTSHORN J: This is a decision on a contested application for a declaration that the originating process has not been duly served upon two defendants in the proceeding and that they be personally served.

Background

2. The plaintiff Road Stabilisers PNG Limited (Road Stabilisers) claims about K57.5 million in damages against the defendants. This is in respect of alleged breaches of 79 contracts by the non-payment for work allegedly performed by Road Stabilisers. The work involved earthworks, the maintenance and patching of potholes in the National Capital District and the laying of pavements and bitumen surfacing.

This application

3. The first and second defendants, David Wereh as Secretary for Department of Works and Hon. Francis Awesea as Minister for Works, apply for a declaration that the originating process has not been duly served upon them as they were not personally served with the writ of summons and statement of claim. Further, they submit that notwithstanding that the Acting Solicitor General has filed a notice of intention to defend on their behalf as well as the State, their instructions were not obtained to do so.

4. Road Stabilisers submits that whilst it is conceded that the writ of summons and statement of claim was only served upon the office of the Solicitor General, as the first and second defendants are sued in their official capacity as a Secretary and Minister for the State and not personally, service upon the Solicitor General’s office, being service upon the State, is sufficient service upon the first and second defendants.

Consideration

5. The first and second defendants make their application pursuant to Order 7 Rule 8(c) National Court Rules. Order 7 Rule 8 provides that:

“The Court may, on a motion made by a defendant under Rule 7 ....”

6. Order 7 Rule 7(2) (b) National Court Rules relevantly provides that:

“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 ...... on the ground that-

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

7. So as a notice of intention to defend was given for all three defendants on 27^th February 2014 by the Acting Solicitor General, the defendants had until 13^th March 2014 to serve a notice of motion to set aside service of the writ of summons.

8. The first and second defendants’ notice of motion was not filed until 31^st March 2015 and is clearly out of time. There is no application before this court for an extension of time. The court referred counsel for the defendants to Order 7 Rule 7 National Court Rules. The submission was made that this court has a general discretion. No submission was made however, concerning an extension of time application. In the absence of any successful application for an extension of time within which the first and second defendants application for the relief sought in Order 7 Rule 8(c) National Court Rules may be made, the first and second defendants are not entitled to make their application. Consequently, it is refused.

9. As to the application under Order 6 Rule 2(1) for the originating process to be served personally, first, Order 6 Rule 2(1) does not provide for an application to be made under that Rule and so it should be refused.

10. Secondly, as to personal service of originating process, I refer to my decision of Kanturk Ltd v. Joe Kawage (2016) N6330 in which Order 6 Rule 2 is considered.

11. Once a notice of intention to defend has been served, Order 6 Rule 2(3) National Court Rules provides that:

“(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 the notice is filed or on such earlier date as may be proved.”

12. By virtue of Order 6 Rule 2(3) National Court Rules therefore, as the originating process shall be taken as being served upon the defendant personally, the defendant by filing his notice of intention to defend has waived any irregularity in how the originating process was served. In this regard, I note that Order 6 Rule 2(1) National Court Rules provides for personal service of originating process as follows:

“(1) Subject to any Act, and to these Rules, originating process shall be served personally on each defendant.”

13. Order 6 Rule 2(1) is subject to amongst others “these Rules” which includes Order 6 Rule 2(3). By being subject to “these Rules”, Order 6 Rule 2(1) envisages that there will be occasions when actual personal service will not be necessary for service of an originating process to be properly effected. The filing of a notice of intention to defend is one of those occasions by virtue of Order 6 Rule 2(3).

14. Consequently for the above reasons, the relief sought by the first and second defendants is refused.

Orders

15. The formal orders of the Court are:

a) The relief sought in paragraphs 2 and 3 of the notice of motion of the first and second defendants filed 31^st March 2015 is refused;

b) The first and second defendants shall pay the plaintiff’s costs of and incidental to the hearing of paragraphs 2 and 3 of the said notice of motion;

c) Time is abridged.
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Elemi Lawyers : Lawyers for the Plaintiff
Guardian Legal Services: Lawyers for the Defendants