Mirupasi v Australia New Zealand Banking Group (PNG) Ltd [2020] PGNC 46; N8215 (28 February 2020)

N8215

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1206 OF 2019 (COMM) & OS No. 856 of 2019 (COMM) (Consolidated)

VINCENT MIRUPASI
First Plaintiff

And
COURTABELLE INVESTMENTS LIMITED Trading as HOTEL HODAVA (In Receivership)
Second Plaintiff

V
AUSTRALIA NEW ZEALAND BANKING GROUP (PNG) LIMITED
First Defendant

And
DAVID JOSEPH MURRAY Receiver and Manager to COURTABELLE INVESTMENTS LIMITED
Second Defendant

Waigani: Miviri J
2020: 28^th February

PRACTISE & PROCEEDURE – Writ of Summons – Originating summons – Notice of motion – Order 1 Rule 7 NCR – Vacation trial date –– Rules not an end but means to – Strict adherence maybe dispensed – discretionary – no substantive cause demonstrated – fair expeditious resolution of matters – Justice not denied – motion denied.

Cases cited:

Anthony John Polling v MVIT & ors [1986] PNGLR 228

Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804
Counsel:

M. Pokia, for Plaintiffs
E. Anderson & M. Tusais, for Defendants

RULING

28^th February, 2020

1. MIVIRI, J: This is the Short Ruling on the Notice of Motion under Order 1 Rule 7 and 15 of the National Court Rules by the Plaintiffs to vacate the trial date today and 2^nd March 2020 and reschedule.
   
2. Rule 7 allows for the dispensation with the requirement of the rules either before or after the occasion for compliance arises which is the case here. Trial has been fixed at direction on notice and in attendance by the parties including the plaintiff on the 17^th February 2020 and on the 18^th February 2020 without the appearance of counsel for the plaintiff then to today. Counsel has explained that his bag handle broke and he was therefore late to attend and was not in attendance when the matter was called as previous set.
   
3. Plaintiff submits further that by rule 15 extension or abridgment can be made upon application made if time fixed has expired or as is the case here. He relies on and argues that Justice should not be denied by the Rules nor could the rules stand in the way of Justice: Anthony John Polling v MVIT & ors [1986] PNGLR 228 at 230.
   
4. He has a receiver appointed who he seeks by Originating summons to be released pursuant and a writ of summons alleging clogging and fettering allegedly at the hands of the defendants. He has instigated both proceedings and on the eve of trial has decided that he wants to amend his proceedings and so seeks a vacation of the trial date to allow. The matter has been accorded trial date and time after directions with his cause of action at the helm and of the defendants.
   
5. It is undisputed that the rules should not defeat Justice nor should they be a barrier or obstacle to Justice. But in their application and adherence ultimately Justice must be served to its fullest to the parties. And it is accepted that strict adherence can be dispensed if the circumstances demonstrate on the required balance that Justice overrides to so dispense: Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804 (3 November 2005).
   
6. He has not demonstrated by the material that he has filed that he would be denied justice in the both actions that he has filed. He has by his actions brought the defendants who have substantial financial interests that must be delivered Justice. In essence they have given a loan to the applicant which has been defaulted upon and so the appointment of a receiver the second defendant. The terms of the motion and the material that he relies to vacate and amend his cause upon do not show that he will be denied Justice. It is his cause he must have his day in court, but it must also be balanced that the defendants too have an interest that must be protected and balanced with his.
   
7. Weighing the two together the balance on the probabilities tilts that the trial will proceed as dated and allocated today Friday 28^th February 2020 to Monday 2^nd March 2020. And the costs will be in the cause. Justice must be accorded the cause of action that he has placed before this court and it will not be accorded if it is delayed by the application he makes.
   
8. Application is refused and cost will be in the cause. Trial is ordered as set today Friday 28^th February 2020 and proceed to Monday 2^nd March 2020 at 9.30am.
   

Orders Accordingly.

__________________________________________________________________

Mirupasi Lawyers: Lawyer for the Plaintiff Applicant

Dentons PNG: Lawyer for the Defendants