N9660

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(HR) NO. 05 OF 2022 (IECMS)

BETWEEN:

FIDELIS WAIPMA AS THE CHIEF EXECUTIVE OFFICER, MADANG PROVINCIAL HEALTH AUTHORITY
Plaintiff

V

DR. CHARLES KALANA AS THE CHAIRMAN OF THE BOARD OF THE MADANG PROVINCIAL HEALTH AUTHORITY
First defendant

AND:

MEMBERS OF THE BOARD OF MADANG PROVINCIAL HEALTH AUTHORITY
Second Defendant

Madang: Collier, J
2022: 9th June

PRACTICE AND PROCEDURE – originating summons – application to dismiss proceeding because of defect in originating summons - application to set aside previous interim orders stemming from defective originating summons - whether non-compliance with National Court Rules in originating summons is nullity or irregularity – where originating summons does not specify time for filing of intention to defend pursuant to Order 4 Rules 25, 26 and 27 – where originating summons endorsed as filed in incorrect Registry – where urgent originating process not filed in accordance with Form 6 Order 4 Rule 26 – where defendant not served with originating summons soon after filing - Order 1 Rule 9 National Court Rules – Order 1 Rule 8 National Court Rules – whether Court has discretion to set aside due to irregularity or must set aside as nullity – principles in Hannet v ANZ Banking Group (PNG) Ltd [1996] SC505 – consideration of Modilon General Hospital v Liriope [2012] N4772 – where originating summons could be amended pursuant to Order 8 Rule 50 of the National Court Rules and Malewo v Faulkner (2009) SC960 - application to set aside under Order 1 Rule 9 will not be allowed if party has taken fresh step with knowledge of irregularity – whether fresh step taken in proceedings with knowledge of irregularity.

The plaintiff filed an originating summons on 22 February 2022 seeking relief in respect of his position as the Chief Executive Officer of the Madang Provincial Health Authority. Both the plaintiff and the defendants subsequently filed extensive material, including notices of motion seeking, inter alia, interim relief. Two earlier notices of motion filed in the proceedings came before the National Court, and the Court granted interim relief to the plaintiff on both notices of motion. Relevantly, the defendants then filed a notice of motion seeking, inter alia, an order that the originating summons filed by the plaintiff did not comply with the forms under Order 4 Rule 26 (Form 6) or under Order 4 Rule 27 (Form 7) of the National Court Rules, and accordingly the originating summons was a nullity or invalid and should be dismissed. In particular, the defendants relied on the decision of the National Court in Modilon General Hospital v Liriope [2012] N4772 as authority that an originating summons which did not ask or warn the defendants to file a Notice of Intention to Defend was a nullity. The defendants also claimed that interim orders made earlier by the National Court were based on a defective originating summons, and should be set aside or dismissed. The plaintiff submitted that, pursuant to Order 1 Rule 8 of the National Court Rules, if the originating summons was affected by irregularities it was not void unless the Court directed. In any event, the plaintiff submitted that the defendant’s notice of motion was filed several months after the originating summons, without explanation for the lateness of the filing of the notice of motion, and accordingly the notice of motion did not comply with Order 1 Rule 9 of the National Court Rules. The plaintiff further relied on the decision of the Supreme Court in Hannet v ANZ Banking Group (PNG) Ltd [1996] SC505 as authority that the originating summons was not a nullity.

Held:

(1)	Applying principles explained by the Supreme Court in Hannet v ANZ Banking Group (PNG) Ltd [1996] SC505, the originating summons was not a nullity. To the extent that Modilon General Hospital v Liriope [2012] N4772 was authority to the contrary, it should not be followed.

(2)	The originating summons was affected by minor irregularities which could be cured by amendment: Order 8 Rule 50 National Court Rules, s155 (4) of the Constitution and Malewo v Faulkner (2009) SC960.

(3)	The non-compliance of the originating summons with the National Court Rules and resultant irregularities attendant on the summons did not render the summons void: Order 1 Rule 8 National Court Rules.

(4)	The notice of motion filed by the defendants was not filed within a reasonable time as required by Order 1 Rule 9 National Court Rules, and was not accompanied by an explanation by the defendants of the lateness of filing.

(5)	The National Court has a discretion under Order 1 Rule 8 National Court Rules to set aside proceedings where there has been non-compliance with the Rules, however the Court was not persuaded that it was appropriate to so order in this case.

(6)	The Court has power to set aside earlier interim orders made in the proceedings, however those interim orders were not founded on wrong principles and as such should not be set aside.

(7)	Costs should follow the event.

Cases Cited:

Department of Works v In re International Construction (PNG) Ltd [2009] SC1051
Ekepe v Gaupe [2004] N2694
Hannet v ANZ Banking Group (PNG) Ltd [1996] SC505
Kalan Constructions v Chegg [2014] N5665
Kaupa v Independent State of Papua New Guinea [2004] N2491
Malewo v Faulkner (2009) SC960
Modilon General Hospital v Liriope [2012] N4772
Polling v Motor Vehicles Insurance (PNG) Trust and Bowmans Bougainville Pty Ltd and Bougainville Development Corporation Ltd [1986] PNGLR 228
Sukiri Investment Ltd v Luma [2021] N9193
Wamena Trading Ltd v Civil Aviation Authority [2006] PNGLR 1
Wellcons Engineering Ltd v Yawari [2008] N3443
Wialu v Kaltakumb [2012] N4709
Yamanka Multi Services Ltd v National Capital District Commission [2010] N3904

Statutes Cited:

Constitution 
National Court Rules 1983

Counsel:

Mr G Haumu, for the Plaintiff
Mr Y Wadau, for the Defendants 

JUDGMENT
9th June, 2022

1.	COLLIER, J:  BACKGROUND: Before the Court is a notice of motion filed on 31 May 2022 in which the defendants sought the following orders:

1.	Pursuant to Order 1 Rule 7 and Order 4 Rule 42 of the National Court Rules, the requirement for service of the notice of motion and the affidavit in support be dispensed with and this matter be heard forthwith.

2.	Pursuant to Order 12 Rule 40 (1)(c) of the National Court Rules and Section 155 (4) of the Constitution, the originating summons filed is not prescribed in the forms either, under Order 4 Rule 26 (Form 6) or under Order 4 Rule 27 (Form 7) of the National Court Rules and such proceeding under the originating summons is a nullity, invalid and be dismissed.

3.	Pursuant to Section 155 (4) of the Constitution and Order 12 Rule 35 and Order 12 rule 40 (1)(a) of the National Court Rules; the interim order of 25/02/2022 and the second interim order of 26/03/2022 based on the defective originating summons be set aside or dismissed.

4.	The costs of this application be in favour of the Defendants on party to party basis.

2.	As is plain from prayer 1 of the notice of motion, the defendants originally sought that the notice of motion be heard ex parte.  At the hearing however the plaintiff’s lawyer submitted that the plaintiff had been served with the notice of motion, and that service was not in issue. The defendants accordingly did not press prayer 1.

3.	The Court proceeded to hear the balance of the notice of motion.

4.	The notice of motion relates to an Originating Summons filed by the plaintiff on 22 February 2022 in which the plaintiff claimed the following relief:

The Plaintiff/Applicant Claims that:

1.	An order in the nature of declaration that the Plaintiff/Applicant is the legitimate Chief Executive Officer of the Madang Provincial Health Authority.

2.	An order and a declaration that the proper process for the appointment and or removal of a Chief Executive Officer of a Provincial Health Authority is provided in the Contract of Employment and the Provincial Health Authority Act 2007.

3.	An order in the nature of declaration that the decision of the Second Respondent to orchestrate and facilitate the appointment of the new Chief Executive Officer without giving the Plaintiff the right to be heard is breach of his right enshrined under Section 59 of the Constitution.

4.	An order in the nature of declaration that the actions of the First Respondent and the Third Defendant in circulating rumors [sic] and levelling allegations against the Plaintiff without giving him the right to be heard in relation to those allegations is improper, illegal and is in breach of his right to be heard under Section 59 of the Constitution.

5.	Further to paragraph three (3) hereof this relief; the actions of the First Respondent with the aid and support of the other members of the Board without the following the proper process in raising allegations against the Plaintiff is not a good governance as provided for under Section 15 and 16 of the Provincial Health Authority Act 1997.

6.	An Order in the nature of Declaration that the actions of the First Respondent including his members of the Board in trying to appoint a new Chief Executive Officer of Madang Provincial Health Authority without first giving the Plaintiff his right to be heard in relation to whatever allegations levelled against him in denying his rights to employment as provided for under Section 48 of the Constitution.

7.	An Order in the nature of declaration that the First Respondent’s correspondence to the Bank of South pacific and further other commentaries made on social media and any other forms of media communication is tantamount to character assassination Plaintiff and therefore is defamatory in nature.

8.	An Order in the nature of Declaration that the entire actions of the First Respondent including that of the members of the board is not a governance as envisaged under Section 15 and 16 or the Provincial Health Authority Act, 1997 and therefore is harsh and oppressive pursuant to Section 41 of the Constitution of the Independent State of Papua New Guinea.

9.	An Order in the nature of Declaration that the First Respondent does not have the delegated power of the members of the Board of the Madang Provincial Health Authority and therefore cannot facilitate any interest of the Board without a proper resolution of the Board.

10.	An Order in the nature of Declaration that the First Respondent’s conduct and/or actions in facilitating the appointment of the new Chief Executive was without the Board’s resolution and therefore any damages so arising out of the actions of the First Respondent is sole responsibility.
11.	An order or order in the nature of interim and permanent injunctions restraining:

a)	the First Respondent including his servants, agents and/or assignees are restrained from tempering [sic] with the Operational accounts of the Madang Provincial Health Authority in any form or manner.

b)	the First Respondent including his servants, agents, and/or assignees are restrained to change any signatories to all operational accounts of the Madang Provincial Health Authority held at the Bank South Pacific.

c)	The servants and/or agents of the Bank South Pacific uplift the half placed on the operational account Madang Provincial Health Authority held at Bank South Pacific for it to continue its normal operation.

12.	The Cost of this proceedings be in the cause.

13.	Time abridgement.

14.	Any other such further orders as the court deems fit and proper in the circumstance.  

5.	This proceeding has been the subject of extensive activity, including the filing of multiple notices of motion. Interim orders have been made by the National Court on 25 February 2022 and 26 March 2022. Specifically:

•	On 25 February 2022 Acting Justice Wurr made interim orders to the effect that the first defendant be restrained from tampering with operational accounts of the Madang Provincial Health Authority (Authority), and that it be restrained from changing any signatories to operational accounts of the Authority. Her Honour also ordered, on an interim basis, that the halt placed on the operational account of the Authority held at Bank South Pacific be uplifted for the Authority to continue its normal operations.

•	On 26 March 2022 Justice Cannings considered a notice of motion filed by the plaintiff, and ordered, inter alia, that the suspension of the plaintiff as the Chief Executive Officer of the Madang Provincial Health Authority by notice of motion dated 2 February 2022 be stayed pending determination of these proceedings, and that the plaintiff remain in that office until further order of the Court.

SUBMISSIONS OF THE PARTIES

6.	The defendants relied on an affidavit sworn on 27 May 2022 by their lawyer, Mr Young Wadau, in support of their notice of motion. They also relied on filed submissions.

7.	In summary they submitted:

•	The originating summons is engrossed “originating summons (human rights)”, Madang National Court, but was registered as filed in the Waigani Registry. This is incorrect as the relevant Register is kept in Madang.

•	The requirement for the plaintiff to file the proceeding suggested it to be urgent, however the originating summons was not in accordance with Form 6 of Order 4 Rule 26.
•	The defendant was not served with the originating summons and affidavits soon after it was filed in the Court, which was a denial of justice in accordance with s 37 (1) of the Constitution.

•	A originating summons that does not conform with Order 4 Rules 25, 26 and 27 of the National Court Rules, and is not endorsed with a warning to file a notice of intention to defend, is a nullity: Modilon General Hospital v Liriope [2012] N4772. It follows that the originating summons before the Court is a nullity and must be dismissed.

•	The notice of motion filed on 22 February 2022 was not served on the defendants and was an abuse of process. The second notice of motion filed on 22 March 2022 was premised on a defective originating summons, and was a nullity. Orders sought in both motions should be dismissed.

•	The plaintiff’s lawyers are confused as to what mode was required to commence the proceedings, and have filed a proceeding which fails to comply with the requirements of the National Court Rules.

•	Even if Order 1 Rule 8 of the National Court Rules applies, that Rule gives the Court a discretion to strike out the relevant originating summons for irregularity: Modilon General Hospital.

•	The plaintiff’s lawyer filed a proceeding which is clearly an abuse of process, and is vexatious and frivolous.

8.	The plaintiff submitted in summary:

•	The plaintiff may have overlooked the upload of the relevant page required under Order 4 Rule 26 of the National Court Rules when filing the proceedings using the IECMS, and that this may have caused an irregularity.

•	Notwithstanding this irregularity, the defendants have taken fresh steps in progressing the matter to trial, and the matter is now substantially ready for trial.

•	The defendants have not complied with Order 1 Rule 9 of the National Court Rules in filing the present notice of motion.

CONSIDERATION

9.	The defendants relied on section 155 (4) of the Constitution, which provides:

155. The National Judicial System.
… 
…
(4)	Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

10.	Rules of the National Court on which the defendants relied were as follows:

•	Order 1
7. Relief from Rules.
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
•	Order 4

26. Summons stating appointment for hearing. 

(1) This Rule applies to proceedings commenced by originating summons in Form 6 stating an appointment for hearing.
(2) The appointment for hearing to be stated in a summons under this Rule may be fixed by the Court, or, if not fixed by the Court, shall be obtained from the Registry.
(3) Where there is a defendant, the summons shall, unless the Court otherwise orders, be served not less than five days before the date of the appointment for hearing.
(4) Where the appointment for hearing is obtained from the Registry and the summons is to be served outside Papua New Guinea, the date of the appointment shall be not less than one month after the date of filing of the summons.
(5) Where the Court makes an order under Sub-rule (3), the summons shall bear a note of the order made.

27. Summons for hearing to be appointed. 

(1) This Rule applies to proceedings commenced by originating summons in Form 7, for a hearing to be appointed.
(2) Where there is no defendant, the plaintiff may at any time obtain from the Registry an appointment for hearing.
(3) Where any defendant has given notice of intention to defend or has made default in giving that notice, the plaintiff may obtain from the Registry an appointment for hearing.
(4) Where a plaintiff does not obtain an appointment under Sub-rule (3) within seven days after becoming entitled to do so, a defendant may obtain from the Registry an appointment for hearing.
(5) The Court may, on application by a party, make an appointment for hearing at any time, whether or not an occasion has arisen for obtaining an appointment under Sub-rule (2) or (3).

•	Order 12

40. Contents of notice.

(1) Notice of a motion shall
(a)	state the date and time when, and the place where, the motion is to be moved; and
…
(c)	state concisely the nature of the order which is sought; and
…
(3) Notice of motion shall be in Form 11.

41. Persons under disability.

Where the applicant or his solicitor is aware that the respondent is an infant or a person of unsound mind the fact shall appear on the face of the notice of motion.

42. Time for service of notice. 

Where notice of a motion is required to be served, it shall, unless the Court otherwise orders, be served not less than three days before the date named in the notice for hearing the motion.

11.	Turning to the case of the defendants currently before the Court I make the following observations.

12.	First, the defects in the originating summons identified by the defendants are arguably minor, debatable, or have become redundant through the evolution of this litigation since the originating summons was filed in February 2022. So, for example:

•	the submission of the defendants that the originating summons failed to comply with Form 6 in relation to the warning to the defendant to file a notice of intention to defend seems to raise a stale issue in circumstances where a notice of intention to defend was actually filed by the defendants on 23 March 2022, and the defendants themselves filed a notice of motion on 23 March 2022 seeking relief;

•	the submission of the defendants that the originating summons was defective in that it was titled “In the National Court of Justice Madang” and sealed at “National Court of Justice Waigani” Registry, such that the defendants were not properly informed of where the Court proceeding was held, seems somewhat irrelevant given that the originating summons was filed almost four months ago and there has been considerable activity on the file by all parties since then; and

•	similarly, the defendants’ complaint that the defendants were not served with the originating summons and affidavits “soon after it was filed in the Court” seems to be somewhat redundant, again given the amount of activity on the file since the originating summons was filed and served.

13.	Second, insofar as the defendants claim by their notice of motion that the originating summons is a nullity, I note that in an earlier notice of motion filed by the defendants on 23 March 2022, their second and third prayers for relief were:

1.	Pursuant to Order 1 Rule 9 of the National Court Rules, the claims in the proceeding entitled OS (HR) No. 5 of 2022 are irregular.

2.	Pursuant to Section 155 (4) of the Constitution and Order 4 Rule 49 (9) of the National Court Rules, the Originating Summons entitled OS (HR) No. 5 of 2022 be dismissed.

14.	It does not appear that this notice of motion has been dealt with by the National Court. The orders of Cannings J of 26 March 2022 related to notices of motion filed by the plaintiff. It is unclear whether the defendant’s notice of motion filed on 23 March 2022 has been abandoned, particularly in light of the notice of motion presently before the Court. 

15.	Third, both Counsel have raised Order 1 Rule 8 and Order 1 Rule 9 of the National Court Rules.

16.	Order 1 Rule 8 provides:

8.	Non-compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.

17.	Order 1 Rule 9 provides:

9.	Application to set aside for irregularity

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity.

18.	In Department of Works v In re International Construction (PNG) Ltd [2009] SC1051 the Supreme Court observed in relation to Order 1 Rule 8:

25.	Furthermore, Order 1 Rule 8 of the National Court Rules clearly provides that proceedings are not to be vitiated merely for want of form. The Courts have been consistently exercising its discretion along that line so as not to prevent a party from seeking his or her rights in accordance with law.

(emphasis added)

19.	See also Polling v Motor Vehicles Insurance (PNG) Trust and Bowmans Bougainville Pty Ltd and Bougainville Development Corporation Ltd [1986] PNGLR 228.

20.	Order 1 Rules 8 and 9 were considered by the Supreme Court in Hannet v ANZ Banking Group (PNG) Ltd [1996] SC505, where the Supreme Court also examined the concept of “nullity” in relation to those Rules. Materially, the Supreme Court found that Order 1 Rule 8 of the National Court Rules does not save an originating process which is a nullity. In particular, their Honours observed:

In the instant case the plaintiff did have a right to serve the writ and, as I have found, he did serve it, and assuming that there was an irregularity in service it was an irregularity consisting only of a non-compliance with O 10 r 1. It would follow that entry of judgment, if it were tainted with such an earlier irregularity, would be irregular in the same way - an irregularity falling within O 93 r 17 which says, as I have already in substance remarked:

'Non-compliance with these rules...shall not render any proceedings void..'

(The emphasis is of course mine)"   

The reference to the rules in this passage relate to the old rules. The equivalent under the current rules is O 1 r 8 of the National Court Rules:

"8.      Non-compliance with the Rules not to render proceedings void.

Non-compliance with any of the Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court s directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such manner, and on such terms, as the Court thinks fit."

Where a judgment is regularly obtained the manner in which the Court may exercise its discretion to set aside such a judgment is set out in Barker v The Government of Papua New Guinea, Davis and Bux [1976] PNGLR 340, namely:

1.	There must be an affidavit stating facts showing a defence on the merits;

2.	There must be reasonable explanation why judgment was allowed to go by default; and

3.	The application must be made promptly and within a reasonable time.

In dealing with judgments entered irregularly which fall within the equivalent of current O 1 r 8, Graville Smith J. in Page P/L v. Malipu Balakau (supra) said:

"This leaves open the matter of a judgment obtained irregularly. In my opinion, ordinarily the same rules apply in the case of an irregularity which falls within the ambit of O 93 r 17."

He concluded that the practice in relation to judgments obtained regularly should apply to judgments obtained irregularly that fall within O 1 r 8. This he concluded comes within the "untrammelled discretion with a view to doing justice."

It is necessary to explore this matter further.  The equivalent of Order 1 r 8 is to be found in the old English Rules O 71 r 1 of RSC 1883.  The application of this rule was considered by the Court of Appeal in In re Pritchard, dced. Pritchard v. Deacon and Others [1963] Ch 502.  This case is important because it sought to clarify the types of cases that fall within the rule and those that fall outside it.  A distinction is made between proceedings which may result in a mere irregularity and proceedings that can be said to be a “nullity”.  In respect of the first category, they come within the rule and the Court has a wide discretion given by the rule.  Where a proceeding is a nullity, it is not covered by the rule and the Court must as a matter of law set aside the proceeding.

There has been confusion over the meaning of what is a “nullity”.  At page 516 Lord Denning said:

“We were referred to many cases on nullity and irregularity.  They are most confusing because of the loose way in which the word “nullity” is used:  and the sooner it is put in its proper place the better.  Often a proceeding has been said to be a “nullity” when it would have been more correct to say that, if the irregularity has not been waived, it will be set aside ex debito justitiae. Thus, a judgment by default which is signed irregularly will be set aside ex debito justitiae:  see Anlaby v. Praetorius (188) 20 QBD 764; 4 TLR 439 CA Hughes v. Justin [1894] 1 QB 667; 10 TLR 291, CA, particularly when it is signed in defiance of an express rule:  see Hamp-Adams v. Hall [1911] 2 KB 942; 27 TLR, CA, but it is not a nullity.  Even when an order is obtained without due service of process, it is not a nullity (despite what was said in Craig  v. Kanssen) [1943] 1 KB 256; [1943] 1 All ER 198, CA; but it will be set aside ex debito justitiae, if it has not been waived:  see Hewitson v. Fabre (1888) 21 QBD 6; 4 TLR 510 DC; (where the headnote is wrong in saying it was a nullity), and Wiseman v. Wiseman [1953] P. 79; [1953] 2 WLR 499; [1953] 1 All ER 601, CA.  There are many cases which show that non-service can be waived:  for it a man knows of the process and allows execution to be levied against him without complaint, and does not apply to the court to set it aside within a reasonable time, he may be too late to get any relief:  see Holmes v. Russel (1841) 9 Dowling 487 (where there is a most instructive judgement by Coleridge J.), Emerson v. Brown (1844) 8 Scott NR 219:  Archbold’s Practice (1866), pp. 211-212.  The case of Fry v. Moor (1889) 23 QBD 395, CA seems to me a simple illustration where the defendant had not in fact been served, and yet it was held that he had waived the irregularity. Even Smurthwaite v. Hannay [1894] AC 494, 498, 501, 506; 10 TLR 649 HL is not a case of nullity.  There was a misjoinder of causes of action contrary to the rules then in force.  Mr. Finlay Q.C. argued that it was “a mere iregularity” and that “the application was not made within reasonable time within Ord. 70, r. 2.”  Note he only put it on Ord. 70, r. 2.  The House rejected that argument and went on to restore the order of the Queen’s Bench which was clearly based on Ord. 70, r. 1.  There was a non-compliance with the rules and the court dealt with the proceedings by allowing the plaintiffs to amend and elect as to which claim they would proceed with.  Clearly the proceedings were not held to be a nullity; because you cannot amend a nullity.  No other cases give rise to any difficulty.  In most of them, I am glad to say you will find that the courts have refused to set aside process for technical irregularities:  see MacFoy v. United Africa Co. Ltd. [1962] AC 152, 160, Pontin v. Wood [1962] 1 QB 594.  The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead:  see Tetlow v. Orela Ltd. [1920] 2 Ch 24, or non-existent:  see Lazard Bros. v. Midland Bank [1933] AC 289, 206; 49 TLR 94 HL; and I would like to see the word “nullity” confined to those cases in future.”

Lord Upjohn after setting out the effect of a nullity said at page 520:

“I am not so sure that it is so difficult to draw a line between irregularities, by which I mean defects in procedure which fall within Ord. 70, and true nullities, though I agree no precise definition of either is possible.  I think part of the difficulty is that the phrase “ex debito justitiae” has been taken as being equivalent to a nullity, but, with all respect to Lord Greene’s judgment in Crag v. Kanssen [1943] 1 KB 256, 258 ef seq., it is not.  The phrase means that the plaintiff is entitled as a matter of right to have it set aside.  Let me quote an analogy.  The right to wind up a company is by statute a discretionary right.  Yet the books and authorities point out that in many cases as against the company an unpaid creditor on a winding-up petition is entitled to a winding-up order ex debito justitiae.  This means no more than that, in accordance with settled practice, the court can only exercise its discretion in one way, namely, by granting the order sought.  So in many of the cases where there are defects of procedure, even if the defects are mere irregularities for the purposes of Ord. 70 so that the court has a discretion, it must follow that the applicant, if he is in no wise estopped by conduct or waiver, is entitled to say:  “I am entitled under Ord. 70 to have the “order made upon me set aside ex debito justitiae.”  Indeed, the only difference between a nullity and an irregularity, to which such a principle applies, is where, being a nullity, it is too late to start again.

I propose to mention one or two of the earlier authorities, for I think they are no  more than examples of irregularities where the court, exercising its discretion, was bound to set aside the proceedings because the irregularity was such that the applicant ex debito justitiae was entitled to it.  Thus in the earliest case in date cited to us by counsel, Anlaby v. Praetorius 20 QBD 765, CA, judgment was signed before the time limited for defence expired and so was held bad.  Of course it was.  It was said that the parties were entitled ex debito justitiae to have it set aside, and I would have thought (with all respect to the judgment of Fry L.J. and Lopes L.J.) that this was really a case where it could be said that there had been a mere failure to comply with the rules, and that judgment was obtained in default of defence when in fact the time for defence had not expired.  But it was plain that the defendant was entitled to have the judgment set aside ex debito justitiae, he not having waived the point or taken any further step in the action.  Suppose in Anlaby v. Praetorius the defendant, instead of applying to set the judgment aside, had compounded with the plaintiff and agreed to pay off the judgment by instalments upon the terms that if he fell into arrear the whole of the judgment debt should become due, could it be said that on the happening of that event the plaintiff could not proceed to enforce his judgment and levy execution?  I should have thought in such a case that the defendant would have been held to have waived what would have been an irregularity and there would be jurisdiction in such a case under Ord. 70 to make such order as might be just.”

The distinction made is between proceedings that are a nullity and those that are mere irregularity.  To the first, O 1 r 8 is not applicable and the Court has no discretion but to set it aside.  If it is an irregularity within the meaning of O 1 r 8, the Court has a wide discretion to deal with it under the terms of the rule.  That the phrase “ex debito justitiae” is not to be confused with a “nullity”.  A party who asks for a judgment to be set aside ex debito justitiae simply is asking the Court to exercise its discretion in one way, namely, to set aside judgment in the circumstances.  This falls within the latter category.

There is no dispute that the judgment in this matter was obtained in breach of provisions relating to service of originating process under O 6 r 3 of the National Court Rules. It is therefore an irregularity which falls within O 1 r 8.  It is not a nullity.  We conclude from this that the Chief Justice did not fall into error when he directed the second appellant to show evidence of a defence on the merits.  The discretion to set aside in respect of the latter is subject to the practice that an applicant must show a defence on the merits.  In this regard we adopt the opinion of Graville Smith in Page P/L v. Malipu Balakau (supra).

21.	Critically, in the present proceedings the defendants claim that the originating summons is a nullity, and rely on the decision of Davani J in Modilon General Hospital v Liriope [2012] N4772 as authority for that proposition.

22.	In Modilon General Hospital a plaintiff had filed an originating summons seeking various forms of relief. Justice Davani found that the originating summons was not in the form prescribed by either Order 4 Rule 25 or Order 4 Rule 26 of the National Court Rules, in that the summons did not ask or warn the defendants to file a notice of intention to defend. The defendants did not file a notice of intention to defend, and the plaintiff obtained orders on that summons. The defendants brought an application to set aside those orders obtained by the plaintiff, and the plaintiff submitted that the defendants could not take any steps in the proceedings because they had not filed a notice of intention to defend.

23.	Justice Davani observed:

24.	On a perusal of the Originating Summons filed by Thomas Ilaisa Lawyers on 24th November, 2011, I note that it is not in the format regulated and prescribed under O.4 R.26 which is Form 6 and nor is it in the format regulated and prescribed by O.4 R. 27 which is Form 7.

25.	Order 1 Rules 8 and 9 provide for what occurs when a party does not comply with the provisions of these rules. It reads:

O.1 R.8 Non- compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit."

O. 1 R.9 Application to set aside for irregularity.

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity.

26.	The National Court can exercise its discretion to rectify these anomalies. Which means the plaintiff cannot ask for orders on an originating summons which is clearly defective and irregular. The Originating Summons must be corrected by an amendment or it can be dismissed. I discuss this further below.

(emphasis added)

24.	 Her Honour continued:

27.	This then takes me to Mr Mapiso's submissions that the defendants cannot take any steps in the proceedings because they have not filed Notice of Intention to Defend.

28.	It is indeed a real concern that the plaintiffs have not taken any steps since the proceedings were filed in November 2011, to raise this irregularity in the proceedings. The defendants have also not questioned the regularity or not of the Originating Summons. The both parties have filed applications and taken out orders on what is clearly an irregular proceeding.

29.	The next question I should ask is whether the proceedings are a nullity because the Originating Summons is not in the proper form. Firstly there is no application before me to set aside proceedings either for irregularity or for it being a nullity. Even then, can I still exercise my discretion to set aside?

30.	The law is that the Court must control the proceedings before it. It must do so because it has wide powers to control the conduct of proceedings before it.

31.	The National Court has a wide discretion to screen and weed out claims and that the Court can exercise that discretion on its own initiative with or without application by an interested party (see Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085; Paul and Mary Bal v Kenny Taiya and Others (2003) N2481).

32.	Technically because the summons has not requested the filing of a Notice of Intention to Defend, it is defective. One can argue that this being the case, the defendants need not file a Notice of Intention to Defend. However, as is standard practice, the defendants are required to file and serve a Notice of Intention to Defend done in compliance with Order 4 Rule 27.

33.	Clearly the proceedings are a nullity and must be set aside. Orders have been take out on defective proceedings, so they also must be set aside.

(emphasis added)

25.	Her Honour observed however that the parties had serious grievances which the Court should address, and accordingly her Honour exercised powers under Rule 5(2) of the Mediation Rules to refer the matter to mediation.

26.	In Modilon General Hospital Davani J held that the absence of the warning to the defendant to file a notice of intention to defend on the originating summons in that case resulted in the originating summons being a nullity, and it followed that the proceedings did not fall within the parameters of Order 1 Rule 8 of the National Court Rules (or, presumably Order 1 Rule 9). 

27.	On the authority of Hannet’s case, however, and in particular the discussion of the distinction between a nullity and an irregularity in respect of compliance with the Rules of Court, I am not persuaded that defects in the plaintiff’s originating summons in this case made the summons a nullity rather than attended by irregularities, such that the originating summons was void. I note that, in Modilon General Hospital, Davani J did not refer to Hannet, or the principles discussed by the Supreme Court in that case as to when a proceeding was a nullity. In particular, I note that in Hannet the Supreme Court contemplated that a proceeding was a nullity where, for example, the proceedings could not be amended, or where the sole plaintiff or sole defendant was dead, but a proceeding was an irregularity where for example a judgment was obtained in breach of provisions relating to service of originating process under O 6 r 3 of the National Court Rules. Similar principles were applied in Kalan Constructions v Chegg [2014] N5665, where Sawong J found that the relevant proceedings were a  nullity as the plaintiff was an unregistered business name and the defendants were not proper defendants as having died several years before the proceedings were filed. 

28.	Insofar as I can ascertain, the authorities and principles referred to in Hannet were not considered by the Court in Modilon General Hospital. I am not persuaded that it is appropriate for me to follow her Honour’s decision in that case, and find that failure to include a warning referable to a notice of intention to defend constituted the originating summons in the present case a nullity.

29.	In this case the originating summons has not been finally determined by judgment of the Court. I am satisfied that, were it necessary to so order, the originating summons filed by the plaintiff could, even now, be amended by order of the National Court. Order 8 Rule 50 of the National Court Rules empowers the National Court to make an order amending originating process, and the decision of the Supreme Court in Malewo v Faulkner (2009) SC960 is authority for that proposition. I further note that s 155 (4) of the Constitution grants the National Court inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. This extends, in my view, to an order amending originating process in the National Court. I am not persuaded however that the irregularities in the originating summons before the Court are such that amendment should be ordered at this late stage. As the plaintiff correctly submits, the proceedings are ready for trial. Ordering amendment at this stage would be a pointless exercise, for reasons I have already canvassed in respect of the evolution of this litigation during the period since the originating summons was filed. 

30.	Fourth, to the extent that the originating summons was affected by irregularity, there is ample authority that, in light of Order 1 Rule 9, an application to set aside a proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or after the party applying has taken any fresh step with knowledge of the irregularity. That the words of Rule 9 should be construed according to their meaning in plain English is evident from such cases as Hannet v ANZ Banking Group (PNG) Ltd [1996] SC505, Kaupa v Independent State of Papua New Guinea [2004] N2491, Wialu v Kaltakumb [2012] N4709, Wellcons Engineering Ltd v Yawari [2008] N3443 and Yamanka Multi Services Ltd v National Capital District Commission [2010] N3904.

31.	In this case the notice of motion presently before the Court was not filed until almost 4 months after the originating summons. As I have already noted, extensive activity has taken place on this file during that time. It can scarcely be said that the present notice of motion was filed “within a reasonable time”. Further, no explanation has been advanced by the defendants as to why the notice of motion has only been filed now, notwithstanding the activity on the file and the passage of time. In the circumstances of this case I am not satisfied that the defendants filed the present notice of motion within a reasonable time, such as to warrant the exercise of the Court’s discretion making orders in the terms the defendants seek. 

32.	Fifth, insofar as the defendants seek orders to set aside earlier interim orders made, the National Court plainly has jurisdiction or power to set aside earlier interim orders in appropriate circumstances: Ekepe v Gaupe [2004] N2694. This includes, for example, where it is subsequently discovered by the Court that the interlocutory order was founded on wrong principles: Wamena Trading Ltd v Civil Aviation Authority (2006) PNGLR 1, Sukiri Investment Ltd v Luma [2021] N9193 at [10]. In the present case, however, I am not persuaded, at least insofar as the interim orders were made referable to the originating summons filed by the plaintiff, that those interim orders were founded on wrong principles. Accordingly this form of relief as sought by the defendants is refused.

CONCLUSION

33.	As I have already observed, it is unnecessary for me to make any order as to prayer 1 of the notice of motion before me. In relation to the other orders sought:

•	I am not persuaded that the originating summons is a nullity, invalid and should be dismissed, and

•	I am not persuaded that the interim order of 25 February 2022 and the second interim order of 26 March 2022 were based on a defective originating summons, and should be set aside or dismissed.

34.	Finally, Order 22 Rule 5 of the National Court Rules recognises that the Court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings. Both parties accept that costs should follow the event. In my view it is appropriate to make an order in those terms.

THE COURT ORDERS THAT:

(1)	The Notice of Motion filed by the defendants on 31 May 2022 (Notice of Motion) is dismissed.

(2)	The defendants pay the plaintiff’s costs of and incidental to the Notice of Motion on a party-party basis, such costs to be taxed if not otherwise agreed.

(3)	The matter be listed for the July call-over in Madang for mention and for further directions, and to allocate a date for the matter to proceed to trial.

Judgment accordingly.
________________________________________________________________
Chesterfield Lawyers:  Lawyer for the Plaintiff 
Young Wadau Lawyers:  Lawyer for the Defendants