K. K. Kingston Ltd v Tuckayo [2019] PGNC 442; N8186 (9 December 2019)

N8186
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1008 OF 2018

BETWEEN
K. K. KINGSTON LIMITED
Plaintiff

AND
BILLY TUCKAYO
Defendant

Lae: Murray, J
2019:02^nd & 9^th December

PRACTICE & PROCEEDURE- application for extension of time to file additional affidavit- Or. 12 Rule 8 (4) of National Court Rules –not appropriate – Or. 1 Rule 15 of National Court Rules appropriate- application dismissed.

Cases Cited:

Siune vs. Rimua (2013) N5281

Counsel:

Ms Poki, for the Plaintiff

Mr. E. Asigau, for the Defendant

9th December, 2019
DECISION

1. MURRAY, J: This is an application by the plaintiff to vary Order 1 of the Court Orders of 17^th September 2019, to allow the plaintiff to file and serve an additional affidavit by a new date.
   

2. The orders of this Court made on 17^th September 2019 are in the following terms: -

(i) The plaintiff has until 27^th September 2019 to file and serve additional

affidavits on the defendant.

(ii) The parties shall consider and settle the statement of agreed and disputed facts and issues for trial and for the plaintiff to file and serve the defendant by Friday, 27^th September 2019.

(iii) The requirement to file and serve a pleading book are dispense with.

(iv) The matter is adjourned to 1^st October 2019 for pre-trial conference and listing before Justice Murray.

3. The plaintiff did not comply with Order 1 of the said orders and now bring this application.

4. In support of its application the plaintiff relies on the following affidavits:

(i) Affidavit of Jeffery Mesa sworn and filed on 30^th September 2019 and
(ii) Affidavit of Keith Kingston sworn and filed on 10^th October 2019.

5. The relevant facts deposed to in the said affidavits can be summarized as follows: -

Affidavit of Jeffrey Mesa

• He is Counsel who has carriage of the matter for the Plaintiff.
  
• In accordance with Order 1 of the orders of this Court made on 17^th September 2019 a further affidavit of Keith Kenneth Kingston was prepared. However due to the unavailability of Mr. Kingston who was out of the country at the relevant time, the affidavit could not be verified and as a result it was not filed on Friday, 27^th September 2019 as ordered by the Court.
  
• At 9.05 in the morning of Friday 27^th September 2019, he became aware of Mr. Kingston’s return to Lae from Singapore and so he sent to Mr. Kingston through email a copy of his affidavit.

• The size of the email including the affidavit and its annexures was 233 pages in length and 16 megabytes in size. As a result of the large size of the document there was a long delay of its delivery to Mr. Kingston.
  
• The transmission had to be done at least 3-times before the entire document was received.
  
• Given the electronic transmission issues, he anticipated that the affidavit would not be ready to be filed on Friday 27^th September 2019 as ordered by the Court and so he contacted Mr. Asigau of counsel for the defendant on the same day and informed him of the challenges that he faced with respect to the transmission. In the conversation he had with Mr. Asigau, Mr. Asigau put him on notice that, if the affidavit was not filed in time he would object to the use of that affidavit.
  
• He also called Mary Apure of the Lae National Court Registry and informed her of the difficulty he faced with getting the affidavit across.
  
• When the affidavit was finally received by Mr. Kingston here in Lae, Mr. Kingston was not able to get it sworn before Mr. Nigel Merrick because Mr. Merrick was not available that day. As a result, the affidavit could not be signed and commissioned until Sunday 29^th September 2019, and filed on Monday 30^th September 2019.
  

Affidavit of Keith Kenneth Kingston

• He is the Managing Director of the Plaintiff company.
  
• He confirms the matters deposed to by his lawyer Jeffrey Mesa as to the problems faced firstly with the transmission of his affidavit to him on 27^th September 2019 and secondly, the unavailability of Mr. Merrick of Warner Shand Lawyers.
  
• He was informed and he’s aware of the conversation that his lawyer Mr. Mesa had with Mr. Asigau of counsel for the defendant and the position taken by Mr. Asigau.
  
• He was also informed and aware of the conversation his lawyer had with Mary Apure, of the Lae National Court Registry.
  
• The affidavit that his lawyer seeks to file deposes to substantive matters that the plaintiff will rely on trial.
  
• He believes that if the affidavit is not allowed to go in, the plaintiff’s claim would be severely prejudiced.
  

6. The defendant, through his counsel, Mr. Asigau, opposed the application and asked that it be dismissed firstly on the ground that it is incompetent and secondly on the ground that, the plaintiff has had ample time to file its affidavit but failed to do so.

Issue

7. The following issues arise for this Court to determine:

(1) Whether the application should be dismissed as being incompetent.

(2) If it is not incompetent, whether it should be granted to allow the plaintiff to file and serve an additional affidavit of Keith K Kingston by a new date.

Determination

First Issue: Is the application incompetent and therefore must be dismissed

8. The defendant submits that the plaintiff’s Notice of Motion is incompetent as it cites the wrong or incorrect jurisdictional authority of the Court to grant the orders sought in the Notice of Motion.

9. The Plaintiff cites Order 12 Rule 8 (4) of the National Court Rules as the jurisdictional authority to make the application.

10. Order 12 Rule 8 (4) of the National Court Rules relates to the Court’s exercise of power to set aside and vary orders previously made.

11. Mr. Asigau submits, the plaintiff’s application effectively seeks an extension of time to comply with directional orders issued by this Honorable Court. Accordingly, he submits that the appropriate provision to be relied on to make such an application is Order 1 Rule 15 of the National Court Rules and not Order 12 Rule 8 (4) of the Rules.

12. Ms. Poki of Counsel for the plaintiff submitted, the plaintiff has properly invoked this Court’s jurisdiction and also relied on the case of Siune v Rimua (supra).

13. The application is made pursuant to Order 12 Rule 8 (4) of the National Court Rules. It reads: -

“In addition to its powers under sub-rules 1, 2 & 3, the Court may, on terms, set aside or very any order (whether/not part of a judgment) excepts so far as the order determines any claim for relief or determines any question (whether of fact or law or both) rising on any claim on relief and accepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief”.

14. In Siune vs. Rimua (2013) N5281, the Court, per Cannings J, held:

It is appropriate to vary an original order under Order 12, Rule 8 (4)...if the Court is not altering in a substantive way the order and if the purpose and effect of the variation is given effect to, complement or enforce the original order.

15. The findings by Justice Cannings in Siune vs. Rimua (supra) establishes two circumstances or situation where it would be appropriate to vary an original order under Order 12, Rule 8 (4) of the Rules. The two circumstances are:

• Where the Court is not altering the order in a substantive way and
• Where the purpose and effect of the variation is to give effect to, complement or enforce the original order.
  

16. As there is no issue with the finding by Justice Cannings, I, with respect agree with His Honour, and apply the position he has taken here. The circumstances in the present case is that, several directional orders were made on 17^th September 2019 for certain things to take place before pretrial conference and listing. One of those orders was for the plaintiff to file and serve its additional affidavit by 27^th September 2019. However, the plaintiff failed to do that and is now in essence, asking this Court for an order to extend the time given by the Court on 17^th September 2019 to file its additional affidavit. To ask for an extension of a time period that has lapsed, in my view is altering order 1 of 17^th September in a substantive way, because, that was an order dealing with time which has lapsed. Therefore, it cannot be varied. Further, the purpose and effect of an order to extend time that has lapsed, in my view, cannot be a variation to give effect to, complement or enforce the original order. The original order in this case is: The plaintiff has until 27^th September 2019 to file and serve additional affidavits on the defendant.

17. That clearly relate to “time” for filing of additional affidavits. I therefore, agree with Mr. Asigau that, the situation or circumstance in this case is not one that is appropriate to bring under Order 12, Rule 8 (4) of the Rules. Instead, Order 1 Rule 15 of the National Court Rules is without doubt the appropriate rule to be relied by the plaintiff and not Order 12 Rule 8 (4) of the National Court Rules

18. Order 1 Rule 15 of the National Court Rules states:

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

19. It is glaringly obvious that, where a party seeks to extend a time for doing something, the correct jurisdictional basis is Order 1 Rule 15. In this case the plaintiff’s application for extension of time to file its additional affidavit, is brought under Order 12 Rule 8 (4) which deals with setting aside or varying a judgment or order to give effect to, complement or enforce the original order or put differently, to cure any ambiguity or vagueness in the orders, as submitted by Mr. Asigau. Order 12 Rule 8 (4) is therefore inappropriate. It follows therefore that the plaintiff’s motion filed 30^th September is incompetent and must fail for this reason alone.

20. As I have found the plaintiff’s application is incompetent, it is not necessary to determine the next issue.

21. Formal Orders of this Court is that: The plaintiff’s application is dismissed with costs to the defendant.
__________________________________________________________________
Corrs Chambers Westgarth: Lawyer for the Plaintiff
Pacific Legal Group: Lawyer for the Defendant