Gavara-Nanu v O'Neill [2018] PGNC 447; N7562 (2 November 2018)

N7562

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1161 OF 2014

BETWEEN
HON. JUSTICE LES GAVARA-NANU
Plaintiff

AND
HON. PETER O’NEILL, MP
First Defendant

AND
HON. BELDEN NAMAH, MP
Second Defendant

AND
HON. POWES PARKOP, MP
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Dingake J
2018: 11 May, 6 July & 4 September

PRACTICE AND PROCEDURE –notice of motion filed by defendants – application seeking extension of time to file defence out of time -principles governing application for leave to file defence out of time discussed - applicant must provide reasonable explanation for failure to file defence out of time – applicant to provide reasonable explanation for delay – applicant must demonstrate defence on merits – interest of justice - no reasonable explanation for delay given – application dismissed.

Cases Cited:

Hilary Singat v Commissioner of Police (2008) SC910
Ruth Kaurigova v Dr. Russo Perone (2008) SC 964
Tzen Pacific Ltd v Innovest Ltd (2010) N4640
Urban Giru v Luke Muta (2005) N2877

Counsel:

Mr. Robert Bradshaw, for the Applicant/Plaintiff
Mr. Desmond Kipa, for the Respondents/Defendants

2^nd November, 2018

1. DINGAKE J: There are two (2) motions serving before this Court. This judgment deals only with the second motion. The parties agreed that it is convenient to deal with the first and fourth defendant’s application first and that the plaintiff’s application will be dealt with at a later stage, if the first and fourth defendants’ application does not succeed.
2. The first is a notice of motion filed by the plaintiff, pursuant to Order 8 Rule 27(1) (c) of the National Court Rules and the Court’s inherent jurisdiction to control proceedings to strike out the first defendant’s defence (filed out of time).
3. The second motion filed with this Court, by the first and fourth defendants on the 9^th of November, 2017, seeks principally the following orders:
   • 3.1 Pursuant to Order 1 Rule 7 and Order 12 Rule 1 of the National Court Rules and or Section 9(a) of the Claims By and Against the State Act 1996 the requirements of Order 8 Rule 4 (1) (a) of filing and service of defence be dispensed with, and the first defendant’s defence filed 27^th September, 2017, herein and served on the plaintiff on Thursday, 28^th September, 2017 be accepted and deemed as being filed and served in compliance with the said Rule.
   • 3.2 Further or alternatively, pursuant to Section 9(a) of the Claims By and Against the State Act 1996 and or Order 1 Rule 15(1) and Order 12 Rule 1 of the National Court Rules the time for filing and service of the first and fourth defendants defence be extended.
4. I have read all the affidavit material in support and in opposition to this application.
5. The principles governing an application for leave to file defence out of time are as follows:

5.1 The applicant must provide a reasonable explanation for the failure to file the defence out of time.

5.2 If there is delay in bringing the application, reasonable explanation for the delay should be given.

5.3 The applicant must demonstrate a defence on merits; and

5.4 The interests of justice. (Duma v Hriehwazi (2004) N2526; Jackson Walaun v Royal Wilson (2016) N6272; Workers Mutual Insurance (PNG) Ltd v Sivakumarau (2012) N4637).

6. The material facts relevant in considering the relief sought by the defendants are that a writ of summons herein was served on the first defendant on the 9^th of October, 2014. The first defendant duly filed a notice of intention to defend on the 21^st October, 2014.
7. As the first defendant notice remained outstanding as at the 28^th of November, 2014, the plaintiff through his lawyers dispatched a warning letter to the first defendant.
8. It is common cause that the last day for the first defendant to file his defence was on the 23^rd of November, 2014.
9. The first defendant’s defence was finally filed with this Court out of time on the 27^th of September, 2017, and without leave of the Court. The first defendant was out of time by close to three (3) years – about two (2) months short of three years.
10. The explanation for the delay is explained by the first defendant’s lawyer, Mrs. Twivey Nongorr. Such explanation is impermissible on account of it being hearsay. The reasons for the delay are matters peculiarly within the personal knowledge of the first defendant and such cannot be deposed to by his lawyer.
11. It is not acceptable that lawyers must depose to evidence that is peculiarly within the knowledge of their clients, save only in limited circumstances where they can depose to matters that came to their personal knowledge as a result of their professional involvement with a matter.
12. This application, filed on the 9^th of November, 2017, was filed close to three (3) years late and no sufficient and or reasonable account or explanation is given why the first defendant took so long to approach the Court to permit him to file the defence out of time.
13. I have read the affidavits of the first defendant and of that of Mrs. Nonggorr in support of this application, and the draft defence filed of record, and the defence proposed does not seem to me to be meritorious.
14. I have also considered where the interests of justice in this matter lie. The phrase “interests of justice” is one which judges employ frequently in exercise of their discretion. It is hardly defined – wisely so, because it depends in large measure on the circumstances of each case. In my mind it is not necessary to unpack the phase other than to say it connotes the principle of fairness. At the end of the day the ends of justice in each case must be done in accordance with the law. To this extent, the positions of the parties before the Court is irrelevant because justice is blind to such considerations.
15. With the above explanation in mind, given the clear provisions of the rules that outline the time frames to file a defence, the case law governing the circumstances under which a party may be permitted to file Court process late and the inordinate delay in this matter, the explanation of which is mainly hearsay, the interests of justice favour the refusal of the application.
16. I turn briefly to the facts that are applicable to the fourth defendant in relation to the relief sought.
17. The fourth defendant was served with the writ of summons on the 25^th of September, 2014.
18. The State filed its notice of intention to defend two (2) years after the required deadline to do so, being the 26^th of October, 2014. It has to date not filed a defence.
19. The fourth defendant has not given any reasonable explanation for the delay.
20. In the result, I am satisfied that the defendants in this matter have failed to meet the required test, outlined earlier, at paragraph 5 governing an application – to be permitted to file the defence out of time. It follows that their applications ought to be dismissed.
21. The application is dismissed with costs.

_______ ____________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiff
Twivey Lawyers: Lawyers for the Defendants