Tapame v Patrick [2020] PGNC 55; N8249 (24 February 2020)

N8249

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 421OF 2019

BETWEEN
ELLIE TAPAME
Plaintiff

AND
PATRICK PATRICK as a Nursing Officer at Alotau General Hospital
First Defendant

AND
BILLY NAIDI as the Chief Executive Officer of the Milne Bay Provincial Health Authority
Second Defendant

AND
MILNE BAY PROVINCIAL HEALTH AUTHORITY
Third Defendant

AND
THE INDEPENDENT STATE OF PAUA NEW GUINEA
Fourth defendant

Alotau: Toliken, J
2019: 5^th December
2020: 24^th February

PRACTICE & PROCEDURE – Motion to file defence out of time – Factors for grant of motion considered – Two months not inordinate delay – legal defence on the merits – No explanation for delay – Interest of justice lies in favour of extension – Claims by Against the State Act 1996, s 9.

Motion for Default judgment – Denied as consequence of allowing motion to file defence out of time.

Cases Cited

John v NHC (2005) N2770
Kara v Public Curator of PNG (2010) N4048
PNG Power Ltd v Augerea (2013) SC1245
SCR NO.1 of 1998, Resonation Pursuant to Section 15 of the Supreme Court Act (2001) SC 672
Tipaiza -v- Yali, Governor for Madang (2005) N2971
Walaun v Wilson (2016) N6272
Wamena Trading Company Ltd. v CAA of PNG (2006) N3058

Counsel

K Kil, for the plaintiff
Nil appearance by First, Second & Third Defendants
C Tolo’ube, for the Fourth Defendant

RULING

24^thFebruary, 2020

1. TOLIKEN J: Two Motions came before me on 5^th of December 2019. The first being a Notice of Motion by the Plaintiff for default judgment and the second a Notice of Motion for Extension of time to file a defence out of time by the State. The State’s Motion was filed on the 14^th October 2019 while the Plaintiff filed her Motion on 13^th September 2019. I heard the Motions together. This is my short ruling.
   
2. I will deal with the State’s Motion first because the outcome there will have a direct impact on the Plaintiff’s Motion.
   
3. The State (4^th Defendant) bases its application for Extension of time to file its defence out of time on Section 9 (a)(1) of the Claims By and Against the State Act which empowers the Court to grant an extension upon sufficient cause being shown.
   
4. The Writ of Summons in this matter was filed on 18^th April 2019 and duly served on all defendants. The State was served on 30^th April 2019. The State then filed its Notice of Intention to Defend on 9^th of October 2019, well outside of the 90 days it is allowed to do, which would have been on 18^th of May 2019. The Plaintiff then applied for Default Judgment on 13^th September 2019.
   
5. Apart from the State, the First, Second and Third Defendants did not file any Notice of Intention to Defend, let alone any defence for that matter.
   
6. So, should the State be allowed further time to file its Defence? The law is settled that there are four things or considerations that must be satisfied before an extension may be granted. As held by Cannings, J. in Tipaiza -v- Yali, Governor for Madang (2005) N2971, these are:

(i) What is the extent of the delay?
(ii) What are the reasons for the delay?
(iii) Do the defendants appear to have a good defence?
(iv) Where do the interests of justice lie?

7. In that case, there was a protracted time in applying for leave even though the defendants did file initially but their application was struck out before filing again.
   
8. The State there did not give any convincing reason for failing to file its defence. Notwithstanding that the Court found that the defendants appeared to have good defence and further that the interests of justice required that the people of Papua New Guinea, through the State, have the opportunity to put forward a defence. There, the application was filed 7 months out of time.
   
9. In Walaun v Wilson (2016) N6272, the application for extension of time was also filed 7 months out of time and even though the other requirements were not met, the Court nonetheless allowed and granted extension of time as the defendant appeared to have a good defence on the merits.
   
10. So, what was the extent of the delay in this case? It was only 2 months which can hardly be said to an inordinate a delay. Hence, the application for extension is not inordinate.
    
11. What about the reason for the delay? In his supporting Affidavit, Mr Tolo’ube deposed that another officer in the Solicitor-General’s Office namely Robbie Kebeya had carriage of the matter. However, when the plaintiff served her Motion for Default Judgment of the Solicitor General the file was transferred to him (Tolo’ube) on 4^th October 2019 and he immediately took steps to defend the matter. Mr Tolo’ube, however, did not state any reason why his colleague did not act on the matter when it was on his brief or docket, nor did he explain whether Mr Kebeya was still employed by the Solicitor General. And while Mr Tolo’ube may have belatedly taken carriage of the matter, there is no explanation why the State did not file a defence while the file was with Mr Kebeya.
    
12. Does the State have a good defence? Mr Tolo’ube advanced what clearly is a legal defence – that the Milne Bay Provincial Health Authority is not the State. Counsel relies principally on SCR NO.1 of 1998, Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC 672. There, the Supreme Court set out six criteria in deciding whether a Provincial Government can be included in the State. These are –
    

(a) The subject entity is established by the Constitution.

(b) The subject entity is part of the three-tier structure of government established with the Constitution.

(c) The subject entity is constituted by elected representatives.

(d) There is National Government political, administrative and financially control over the subject entity.

(e) The subject entity falls within the definition of “government body” as appears in the Constitution.

(f) Judgment debts are recoverable from monies allocated by the State through the budget process.

13. Mr Tolo’ube further relies on cases of the National Court where certain entities such as the NHC, the Civil Aviation Authority and the Public Curator were held not to be included in “the State” and hence no statutory duty under the CBASA was required to be given to the State. (John v NHC (2005) N2770; Wamena Trading Company Ltd. v CAA of PNG (2006) N3058; Kara v Public Curator of PNG (2010) N4048).
    
14. It is to be noted, however, that the term “Government Bodies” has recently been defined by the Supreme Court in PNG Power Ltd v Augerea (2013) SC1245 to mean the National Government, a Provincial Government or any department, agency or instrumentality of the National Government or a Provincial Government, or a body set up by a Statute or Administrative Act for Government or Official Purposes. And the test whether an entity is a Government Body is whether there is some form of government control and ownership and funding for an important public purpose or function irrespective of whether the entity has a private corporate status.
    
15. While I am not required at this stage to decide the issue of whether or not the Milne Bay Health Authority is part of the State or not, it does appear that the State (4^th Defendant) has a good defence.
    
16. Lastly, where does the interest of justice lie? In all suits against the State or State instrumentalities, it is ultimately the people who is being sued. And because of the huge financial liabilities that often attach to these suits, the people through the State must be allowed to file a defence unless the conduct of its officers who have carriage of the matter is so unsatisfactory and totally reckless and negligent, thus warranting a refusal to allow the filing of a defence. In such a case, the interest of justice must lie in favour of the Plaintiff, who too is entitled to redress. In the current case, I would think, however, that the interest of justice requires that the people through the State be allowed to file a defence.
    
17. Having said that, I note that the First, Second and Third Defendants have neither filed a Notice to Defend nor a Defence for that matter. These defendants are sued separately. The First Defendant is the principal tortfeasor, the Second defendant is her immediate supervisor and Chief Executive Officer of the Third Defendant, which entity is established under the Provincial Health Authorities Act 2017 which Act also binds the State (See Section 4 of the Act).
    
18. Despite the fact that these defendants had not applied for extension of time to file defences, the interest of justice requires in my opinion that they, at the very least instruct a lawyer, who could very well be the Solicitor General, and that they also file defences for that matter. The Milne Bay Health Authority is a Corporate body established under the Public Health Authorities Act 2017. Despite its corporate status, it is nonetheless a Government Body whose functions and purpose are for public benefit and good, and whose operations are funded principally if not entirely by and through the Government budgetary process. Any judgment against it and its officers and employees would be a judgment against the people and hence it and its officer the 2^nd Defendant and employee (1^st Defendant) ought to be allowed to file defences as well.
    
19. For the above reasons, I will allow all defendants to file defences. The effect of this is that the Plaintiff’s Motion for default judgment will be denied.
    
20. My orders therefore are:
    
    1. The Plaintiff’s Motion for default judgment is denied.
    2. The 4^th Defendant’s Motion for extension of time to file

defence out of time is granted.

3. In the interest of justice, the 1^st, 2^nd & 3^rd Defendants

are also allowed to file their defences out of time.

4. Pursuant to Orders (2) and (3) above, the Defendants are directed to file their defences within 14 days from today i.e. no later than Monday 8^th March 2020.
   
5. The costs incidental to these two motions shall be paid by the 3^rd and 4^th Defendants in equal portion which will be taxed if not agreed upon.
   
6. The matter is returned to the Registry for continuation of pleadings.

Ordered accordingly.

_______________________________________________________________
Yansion Lawyers: Lawyer for the Plaintiff
Nil Appearance for the First, Second & Third Defendants
Solicitor General: Lawyer for the State