N9436
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 888 OF 2017

BETWEEN:
BLAXCELL LIMITED
Plaintiff

AND:
HON. DR. FABIAN POK MP,
MINISTER FOR PETROLEUM AND ENERGY
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani:  Dingake J
2021:        14th February

PRACTICE AND PROCEDURE – application seeking leave to be granted an extension of time to file further affidavits – grounds of seeking leave made out – application granted for plaintiff to file affidavit out of time

Case Cited:

Pacific Energy Aviation (PNG) Ltd v PNG Air Ltd [2020] PGNC 28; N8196.

Counsel:

Ms. Vanessa Rambua, for the Plaintiff/Applicant
Mr. Guguna Garo, for the Defendants/Respondents

14 February, 2022

1.	DINGAKE J:	This is an application, by the Plaintiff, for leave to be granted an extension of time to file further Affidavits within 60 days.
2.	The application is brought in terms of Order 1 Rule 15(1), (2) and Order 12 Rule 1 of the National Courts Rules 1983 (as amended).

3.	The application is opposed by the Defendants.

4.	The material facts for the purposes of this application are that on the 19th of October, 2020, following an application by the Plaintiff/Applicant, this Court, by consent, issued Directional Orders to progress this matter.

5.	It would seem that when the Orders of the 19th of October, 2020, were issued, the Plaintiff/Applicant was at the time represented by Ashurst PNG.

6.	The current Lawyers Leah Lewin Lowin Sullivan Lawyers (LLLS Lawyers), according to the Affidavit of Vanessa Rambua, were only engaged in June, 2021.

7.	The Plaintiff did not comply with the Orders of the 19th of October, 2020, and at the Directions hearing of the 20th of September, 2021, it sought the extension of the Orders of the 19th of October, 2020, particularly term one (1) thereof ordering the Plaintiff/Applicant to file further evidence.

8.	On the 20th of September, 2021, my brother Miviri J. granted leave to extend the Directions Orders entered on the 20th of October, 2020, to Monday, 20th of December, 2021 for further directions.

9.	The Court did not sit on the 20th of December 2021, and this matter was listed for Directions hearing on the 7th of February, 2022 and since it was opposed, it was scheduled for argument on the 8th of February, 2022.

10.	It is clear from the Affidavits filed in support of this application that the Plaintiff had a few challenges that stalled progress of this matter from the time they were engaged in June 2011, as they kept on asking for extension of time on several occasions.

11.	Essentially, the Plaintiff/Applicant attributes the failure to comply with the Directional Orders of the 20th of September, 2021, to the disruptions occasioned by Covid 19, change of Lawyers and the resignation of the Plaintiff’s in-house Counsel, Mr. Kare Jones. 

12.	Ms. Rambua learned Counsel for the Plaintiff avers in her supporting Affidavit that Mr. Jones’s resignation meant that the Plaintiff’s attorneys could not promptly get instructions from the Plaintiff regarding further evidence.

13.	The Defendants oppose this application on the basis that the Plaintiff has continuously failed to file Affidavits timeously and that the extension of time from 19th October, 2020 to 20th of December, 2021, is too long a period within the meaning of Order 13.12 of the National Court Rules.

14.	The Defendants pray that the Plaintiff’s application be refused and an Order to settle the Statement of Agreed and Disputed Facts and Issues be issued and a date set for allocation of a hearing date.

15.	Order 1 Rule 15(1) (2) of the National Court Rules provides that:

“15. Extension and abridgment (2/3)
(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 times expires.”
16.	Order 12 Rule 1 of NCR which reads that:
“1.	General relief. (40/1)
The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”
17.	Defendants rely on Order 16 Rule 13(12) for their opposition.
18.	The aforesaid Order provides as follows:
“Proceedings in a Directions Hearing, Pre Trial Conference or Hearing will not be adjourned or stood over generally, even by consent. If parties require time to consider their position or negotiate a settlement, proceedings may, with the judge’s approval, be adjourned to a comparatively lengthy period, but always to a fixed date with (if appropriate) liberty to restore the matter to the Directions Hearing or Pre Hearing Conference within that time.”
19.	Before I consider whether there is sufficient evidence to grant the relief sought by the Plaintiff, I must consider what seems to be the contradictory positions between Order 1 Rule 15 (1) (2) and Order 12 Rule 1 of National Court Rules (NCR) invoked by the Plaintiff and Order 16 Rule 13(12) relied upon by the Defendants as to whether it is permissible for this Court to extend the time frames of its previous Directional Orders.

20.	I have compared and contrasted Order 1 Rule 15 (1) (2), Order 12 Rule 1 and Order 16 Rule 13(2) of the NCR. The view I take is that Order 1 Rule 15 (1) (2) and Order 12 Rule 1 are general provisions relating to the power of the Court to extend or abridge any time fixed by the Rules, Judgment or Order, whilst Order 16 Rule 13(12) is a more specific provision that applies to “Proceedings in Direction Hearing, Pre-hearing Conference or Hearing …” of a Judicial review case instituted under Order 16.

21.	It is plain to me that whilst Orders 1 Rule 15 (1), (2) and 12 Rule 1 permit the Court to extend or abridge any time fixed by the Rules, Judgment or Order and or permit the Court to adjourn a matter, Order 16 Rule 13(12) lays down a much stricter regulatory regime governing adjournment in “Proceedings in a Directions Hearing, Pre-trial Conference or Hearing”. 

22.	It provides that such hearings “will not be adjourned or stood over generally, even by consent”. The aforesaid Rule provides further that, “If parties require time to consider their position or negotiate a settlement, proceedings may, with the judge’s approval, be adjourned to a comparatively lengthy period, but always to a fixed date…”.

23.	As a matter of principle, I agree with the submissions of learned Counsel for the Defendant, Mr. Garo, that a general rule for extension of time cannot prevail over a specific rule for a specific purpose. However, I cannot agree that Order 16 Rule 13 (12) in effect totally or absolutely precludes or prohibits a judge to exercise a discretion to grant an extension of time during Directions Hearing proceedings, or to adjourn the hearing.
24.	My reasons for saying Order 16 Rule 13 (12) is not a complete prohibition is because the Rule says, proceedings in a Directions Hearing, “will not be adjourned or stood over generally, even by Consent.” 

25.	In my mind “generally” means usually, not always, it permits some exceptions. These exceptions are in accord with the general purpose and spirit of the Rules to allow the judges the necessary discretion to manage and control litigation. 

26.	In my considered view it would not be in the interest of justice to completely prohibit a discretion that ordinarily lies with a judge to adjourn a matter, abridge or extend time fixed by the Rules, Judgment or Order if circumstances so require. In any event, the view I take is that the rules are made for the Court and not the Court for the Rules. The Courts should not be unduly held hostage by the Rules to do justice to each case based on its circumstances.

27.	It is plain from Order 16 Rule 13 (12) that this Court can adjourn proceedings in a Directions Hearing in exceptional circumstances. To this extent, it is my view that any circumstances related to Covid-19, if well founded, constitute exceptional circumstances, that may allow this Court to adjourn proceedings in Directions Hearing.

28.	I have considered the factual averments in the Affidavits filed in support of this application by the Plaintiff relating to Covid-19 disruptions and I am satisfied that they constitute exceptional circumstances.

29.	I turn now to consider whether the Plaintiff is entitled to succeed or fail in the relief it seeks.

30.	I have considered the factors/considerations applicable to an application for the extension of time to file Affidavits brought in terms of Order 1 Rule 15 of NCR, set out in the case of the Pacific Energy Aviation (PNG) Ltd v PNG Air Ltd 2020 PGNC 28; N8196 (19 February 2020). 

31.	I consider that these factors are equally applicable to the present case.

32.	In the case of Pacific Energy Aviation PNG Ltd v PNG Air, in considering an application in which Order 1 Rule 15 was invoked, the Court outlined four (4) essential considerations to be taken into account. These are:

1)	whether the applicant has applied promptly;
2)	whether the applicant had sought an extension by consent;
3)	whether the applicant has provided a good explanation for not complying with the directional order; and
4)	whether there was any serious prejudice caused to such an extent that any further filing of affidavits should be refused.
33.	I am of the view that the Plaintiff has met the first consideration.

34.	Having regard to the fact that the Court on the 20th of September, 2021, extended the directions of the 19th of October, 2020, to Monday, the 20th of December, 2021 and that the Applicant made the application for the extension of the Orders granted on the 20th of September, 2021 at the earliest available opportunity and further having regard to the fact that the Court was in recess in December, 2021 and January 2022, I am satisfied that the Applicant applied promptly for the extension it now seeks.

35.	In its submissions the Applicant submits that it sought extension by consent (verbally) from Defendant’s lawyer, Ms. Marianne Tusais, who was in Court on the 21st of December, 2021 in Mr. Garo’s stead and also to Mr. Garo on the 7th of February, 2022 and the Defendants indicated their opposition to the extension. The above factual allegations are not made or deposed to in the Affidavit of Vanessa Rambua in support of this application. To the extent that this consideration may be applicable, I cannot say it has been established.

36.	As stated earlier the reasons for failure to comply with Directional Orders are attributed to disruptions occasioned by Covid 19, change of lawyers and the resignation of Mr. Jones, the in-house Counsel for the Plaintiff. I find these reasons to be valid. I accept and acknowledge the challenges wrought by Covid-19 to expeditious litigation. 

37.	As to whether there was any serious prejudice caused to such an extent that any further filing of Affidavits should be refused, the Applicant submits that the Defendants will not suffer any prejudice if the extension sought is granted. I have found no evidence of any prejudice the Defendants would suffer if the relief sought by the Applicant succeeds.

38.	On a balance, I am of the considered view that the Applicant has made out a case for the extension of Directional Orders issued by this Court on the 20th of September, 2021.
39.	It is clear from the Affidavits filed by the Applicant that they are desirous of filing further evidence, that may assist this Court to come to a proper determination of the real dispute between the parties.

40.	I am of the considered view that this Court has a duty to promote access to justice and that denying the Applicant to gather and furnish evidence to the Court, in the circumstances of this case, would run counter to the interests of justice. 

41.	In the result this Court makes the following Orders:

i)	Pursuant to Order 1 Rule 15(1), (2) and Order 12 Rule 1 of the National Court Rules 1983 (as amended), read together with Order 16 Rule 13 (12) of NCR, leave be granted to the Plaintiff for an extension of time to file further Affidavit.
ii)	The Defendants shall file and serve any further Affidavits, (if same have not been filed) not later than the 16th of May, 2022.
iii)	The Plaintiff shall file and serve Affidavits in Response (if any) not later than the 17th of June, 2022.
iv)	The parties to settle and file a Statement of Agreed and Disputed Facts and Issues for trial by the 20th of June, 2022.
v)	The matter is adjourned to Monday the 27th of June, 2022 for further directions and or of allocation of trial date.
vi)	The time for entry of these Orders be abridged to the date of settlement by the Registrar, which shall take place forthwith.
_______________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Plaintiff/Applicant Dentons PNG: Lawyers for the Defendants/Respondent