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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No. 64 OF 2003
BETWEEN:
NIUGINI MINING LIMITED
-Appellant-
AND:
JOE BUMBANDY
for himself and on behalf of CUSTOMARY LANDOWNERS OF MT VICTOR GOLD MINE AREA
- Respondent-
Waigani : Injia, DCJ; Gavara-Nanu & Lenalia JJ.
2004 : 26 July
2005 : 3 November
CIVIL – Practice and procedure – Writ of Summons - Service – Writ not served within two (2) years of filing – Whether National Court has power to extend time for service – If so, whether discretion exercised properly – Principles discussed – National Court Rules, O.1 r.7 and r.8; O.4 r.13.
PNG cases Cited:
Anthony Polling v MVIT [1986] PNGLR 228
Graham B Price and Sawanita Ltd v Pacific Legal Group Lawyers (2004) N2509;
Messie Noran v Nimrod Mark [1992] PNGLR 229
POSF v Silas Imanakuan (2000) SC677
NBC v Jeff Tole, (2002) SC694
Overseas cases cited:
Morres v Papuan Rubber and Trading Co. Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141
Battersby and Others v Anglo-American Oil Co. Ltd and Others (1944) ALL ER 387;
Holman v George Elliot & Co. Ltd [1944] ALL ER 639.
Sheldon v Brown Bayle’s Steelworks, Ltd and Another (1959) ALL ER 468.
Harkness v Bell’s Asbetos and Engineering Ltd [1960] 3 ALL ER 843
Blight v Warman and McAllan [1964] SAR 164.
Heaven v Road and Rail Wagons Ltd (1965) ALL ER 409
Bernstein and Another v Jackson and Others [1982] 2 ALL ER 806.
Kleinworth Bensons Ltd v Barbrak Ltd, the Myrto (No. 3) [1987] 2 ALL ER 289.
Waddon v Whitcroft-Scovil Ltd [1988] 1 ALL ER 996;
Counsel:
I Shepherd for the Appellant
P Mawa for the Respondent
3 November 2005
BY THE COURT: This is an appeal from an interlocutory judgment of the National Court given on 16 May 2003, in which the Court granted leave to extend time for service of the Writ of Summons (“the Writ”) after the time for service prescribed by O.4 r.13 (2 years) had already expired. The Court’s decision was purportedly made under O.1 r.7 and r.8 of the National Court Rules (“NCR”) and s.155(4) of the Constitution. Leave to appeal was granted on 16th October, 2003.
There are four (4) grounds of appeal. The appellant says the Court erred in law because the Court has no jurisdiction to extend time for service of the Writ by virtue of NCR, O.4 r.13. The Appellant says the Court also erred in the exercise of his discretion in that it took into account irrelevant circumstances and failed to take into account relevant circumstances. The Appellant seeks an order setting aside the decision on the basis that the Writ is a nullity for having been not served within time.
The facts are that on 29th August 1997 the Respondent filed a Writ claiming compensatory damages from poisoning of the river system and the surrounding environment in the Mt Victor Gold Mine area of the Eastern Highlands Province where the appellant conducted gold mining activities. Under NCR, O.4 r.13(2), the Respondent was required to serve the Writ within two (2) years. This period would have expired on 29th August 1999.
On 1st September 1997, the Respondent mistakenly served the Writ on the Appellant at the offices of KKB Ltd at Kainantu which it understood to be the Appellant’s “registered office.”
After February 2000, the Respondent’s lawyer received new information from the Appellant’s lawyers, (Blake Dawson Waldron) that the Appellant’s correct registered office was their office. Various correspondences were exchanged between the Appellants’ lawyer and the Respondents’ lawyer regarding service of the Writ. On 29th July 2000, the Respondent filed a motion for default judgment. This motion was not prosecuted. On 8th December 2000, the Respondents’ lawyer forwarded a copy of the Writ to the Appellants’ lawyer. On 14th December 2000, the Respondents’ lawyer wrote a follow-up letter to the Appellants’ lawyer. In that letter, the Respondents’ lawyer sought advice if the Appellant’s lawyer accepted service of the Writ on behalf of their client. On 19th December 2000, the Appellant’s lawyer by letter, advised the Respondent’s lawyer that they were seeking instructions from their client whether to accept service of the Writ.
On 25th April 2003, the Respondent filed an Amended Motion seeking default judgment or alternatively, leave to serve the Writ “at the Defendant’s Lawyers address or its correct registered office and proper pleadings can henceforth commence”. By this time, more than 3 years had lapsed after the period for service expired. At the hearing of the Motion, the Appellant argued that the time for service of the Writ had expired and consequently, the Writ had become “stale” and the Court had no power to renew or extend time for service of the Writ. The Appellant relied on O.4 r.13. The Respondent argued that the Court should exercise its discretionary powers under O.1 r.7 & r.8 and s.155(4) of the Constitution. During submissions the following exchange occurred between the trial judge and Mr. Shepherd:
“Mr. Shepherd: Yes....the order is fairly specific: “The Court shall not extend the period”.
His Honour: That is order 4?
Mr. Shepherd: Order 4 rule 13(2)...
Mr. Shepherd: As I said, the matter was pointed out, the defect was pointed out three (3) years ago and the Writ could have been served.
His Honour: But, what would be the utility if we go by the rule that you rely on. Your friends they just take out a fresh summons, just copy whatever they got, except for a new printout, serve it on you.
Mr. Shepherd: Exactly.
His Honour: So, it is just a technicality aspect that could be easily overcome.
Mr. Shepherd: Well there may be limitation problems, as well your Honour.
His Honour: Yes if there is a technicality problem, then it comes down to section 155.
Mr. Shepherd: To our Defence, yes..”
The Court dismissed the application for default judgment and granted leave to serve the Writ at the correct registered office. The Court gave the following reasons:
“I am more towards the merits of the case than the success on the rules. And I think the Supreme Court has taken that position in PNGBC and Jeff Tole. So rather than seeing the parties go back on the drawing board and incur another round of expenditure in filing and serving, I will order the Writ that has been filed to be served on the correct registered office now identified and settled or agreed between the parties. And the proceedings will proceed normally from that date.”
It is not clear from the above reasons for decision as to which of the three (3) provisions (NCR, O.1 r. 7and r.8 or s.155(4) of the Constitution) the Court assumed jurisdiction and exercised its discretion. Under r.7, the Court may dispense with the requirements for service of an originating process. Under r.8, the Court may on its initiative issue directions to rectify an irregularity in the proceedings by reason of failure to comply with the rules. Under r.9 the Court may make orders on application by a party, and set aside proceedings which are irregular by reason of failure to comply with the rules. Section 155(4) of the Constitution gives the Court additional powers. It is necessary to set out these provisions.
NRC, O.4 r.13 states:
“13. Validity for service. (7/7)
(1) For the purpose of service an originating process shall be valid for two years from the date on which it is filed.
(2) The Court shall not extend the period of two years mentioned in Sub-rule (1).
(3) This rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.”
NCR, O.1 r.7 and r.8 states:
“7. Relief from Rules. (1/12)
The Court may dispense with compliance with any of the requirements of these rules, either before or after the occasion for compliance arises.
Non-compliance with any of the requirements of any rule of practice for the time being in force, shall not render proceedings void, unless the Court 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”.
Constitution s.155(4) states:
“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”.
We have read the transcript of proceedings and note that there is no clear statement by the Court on its jurisdiction under s.155(4) of the Constitution. For this reason, we do not consider it necessary to deal with s.155(4) of the Constitution. We are satisfied that the case was determined under NCR, O.1 r.7 and r.8 and proceed to consider the arguments before us.
There are two main issues before us. The first is one of jurisdiction and the second is one of discretion. The first issue is whether the provisions of O.1 r.7 & r.8 apply to O.4 r.13. Mr. Shepherd for the Appellant submits they do not because this is not a case involving formal pleadings or interpretation of a rule which required the court’s exercise of discretion under O.1 r.7 and r.8 as was the case in PNGBC v Jeff Tole SCA 695. Order 4 Rule 13 is mandatory. The Court has no power to extend the period for service of the Writ. The Court erred in applying O.1 r.7 and r.8 to extend time for service of the Writ.
Mr. Mawa for the Respondent submits the trial judge had the jurisdiction under O.1 r.7 & r.8.
Given the wording of these rules, we appreciate the force in the arguments advanced by both counsel. On the one hand, there is nothing in O.1 r.7 & r.8 to limit the application of these rules to specific rules found in the NCR by making them subject to the express provision of those other rules. Rules 7 and 8 are of general application to all the rules in the NCR. Therefore, it is open the Respondent to argue that O.4 r.13 is subject to O.1 r.7 and r.8. On the other hand, the mandatory wording of O.4 r.13 supports the Appellant’s argument. On the face of this provision, it is open for the Appellant to argue that one cannot be mistaken as to what it says. Order 13 is specific on filing and service of the Writ. This Rule nullifies a Writ which is not duly served within two (2) years of its issue. The Court is expressly prohibited from extending time for service of a Writ which has since gone stale. The Court is expressly precluded from extending time for service of the stale Writ under O.1 r.7 and r.8. The only option open to the Plaintiff is to commence fresh proceedings.
The wording of our O.4 r.13 is adopted from the older version of the Supreme Court Rules of the United Kingdom (“UK Rules”) and the Supreme Court Rules of New South Wales, Australia (“NSW Rules”). The relevant provisions of the UK Rules and NSW Rules have since been amended to give the Court power to renew or extend time for service of a Writ either before or after the time prescribed for service has expired.
Order 6 Rule 8 of the UK Rules expressly gives the Court power to extend service of a Writ which is not served within the prescribed period. Order 6 rule 8(1)(a), (2) and (2A) are relevant and they provide:
“8. (1) For the purposes of service, a writ (other than a concurrent writ) is valid in the first instance—
(c) in any other case, for 4 months,
beginning with the date of issue.
(2) Subject to paragraph (2A), where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 4 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.
(2A) Where the Court is satisfied on an application under paragraph (2) that, despite the making of all reasonable efforts, it may not be possible to serve the writ within 4 months, the Court may, if it thinks fit, extend the validity of the writ for such period, not exceeding 12 months, as the Court may specify”.
Judicial opinion is not conclusive on the meaning and purpose of Order 8 rule 6 as to whether the Court has power to extend a Writ which has not been served in the prescribed period. Some cases say the Writ is a nullity, its stale and Rule 8(2) and Rule (2A), do not give the court power to extend the Writ; it can only do so during the life of the Writ or before the expiration of the prescribed period. Those cases say that the Court also has no such power even under Order 2 Rule 1 (which is equivalent of our O.1 r.8) which provides:
“(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as sit thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit ...”
In Bernstein and Another v Jackson and Others [1982] 2 ALL ER 806, the Court of Appeal held that Order 6 rule 8 provided a comprehensive Code for the renewal of a Writ. An irregularity in procedure caused by failure to renew or extend time for service of the Writ within the prescribed period, was not the kind of irregularity which Order 2 rule 1 was intended to cover. Failure to serve a Writ within the prescribed period or within the time extended by the Court made within the currency of the prescribed period, is a fundamental defect which can not be cured under Order 2 rule 1.
Then there is the broader view that O.6 r.8 and O.2 r.1 or any other rules of practice for that matter are not intended to be construed and applied strictly. Failure to serve a Writ within the prescribed period is an irregularity which can be cured by extension or renewal in the interest of justice. In Bernstein and Another v Jackson and Others [1982] 2 ALL ER 806, the, Lord Denning said:
“This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that “it is not possible ... for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.” That could not be said in 1963; see Re Pritchard (decd.) ([1963] 1 All ER 873 at 879, [1963] Ch 502 at 518); but it can be in 1966. The new rule does it.”
The same view is shared by Singleton LJ in Sheldon v Brown Bayley’s Steelworks Ltd [1953] 2 ALL ER 894 at 896 where His Lordship states:
“I do not regard it as strictly accurate to describe a writ which has not been served within twelve months as a nullity. It is not as though it had never been issued. It is something which can be renewed. A nullity cannot be renewed. The court can grant an application which results in making it just as effective as it was before the twelve months’ period had elapsed.”
The N.S.W. Rules is similar to the UK Rules in that it gives power to the Court to renew a Writ which is not served within one year of its being filed. Order 7 r.7 of the NSW Rules states:
“Validity for service
(1) Subject to subrule (1A), for the purposes of service an originating process shall be valid for 1 year from the date on which it is filed, unless the Court otherwise orders.
(1A) Where an originating process contains an application for an order under section 7 of the Family Provision Act 1982, for the purposes of service the originating process shall be valid for 3 months from the date on which it is filed, unless the Court otherwise orders.
(2) Nothing in this rule prevents the plaintiff from commencing fresh proceedings by filing another originating process.“ (our emphasis)
Thus the power to renew a writ is expressly conferred by the UK Rules and NSW Rules notwithstanding the existence in their rules the equivalent of our NCR O.1 r.7 and r.8.
Our O.4 r.13 is uniquely different from the UK Rules and the N.S.W. Rules in that the Court is not given express power to renew and extend time for service of a Writ. Instead, there is express prohibition against renewal or extension of time by the Court for service of the Writ.
The issue before us then is whether our NCR, O.1 r.7 and r.8 gives the Court the power to dispense with the requirements for service or to renew or extend a Writ for purpose of service. Counsel did not cite any PNG cases on point. In our research, we are able to locate only one case on point. It is the judgment of the National Court, Wilson J in Anthony Polling v MVIT [1986] PNGLR 228. In that case, application was made to set aside a default judgment on the basis, inter alia, that the Statement of Claim filed pursuant to an order (granting leave to file an Amended Writ of Summons) was served outside the period of 2 years which was calculated from the date of filing of the Amended Writ of Summons. His Honour found the Statement of Claim was served outside the two years prescribed by O.4 r.13. However, His Honour did not address the jurisdictional issue separately and proceeded to exercise the discretion conferred by O.1 r.7 & r.8.
In our view the answer to the issue is to be found in the wording of O.4 r.13 and O.1 r. 7 and r.8. Order 1 r.7 and r.8 appear at the very beginning of the NCR and they are intended to apply to all the succeeding rules. There is no provision in O.1 r.7 and r.8 which subjects the application of these rules to the express provision of the rules in the NCR. Therefore, O.1 r.7 and r.8 are of general application to all the rules contained in the NCR including O.4 r.13.
Likewise, there is no provision in O.4 r.13 which expressly excludes the operation of O.1 r.7 and r.8 to it. We are of the view that O.1 r.7 and r.8 apply to O.4 r.13. Therefore the Court has power under both r. 7 or r.8 to extend time for service of a Writ which has expired notwithstanding the express provision in O.4 r.13(2). Such Writ is not a nullity but an irregularity which can be cured under O.1 r.7 and/or r.8.
This interpretation is consistent with the nature of the discretion given by O.1 r.7 and r.8 and the overall purpose of the NCR which is that the rules are not intended to be an end in themselves but a means to achieving a just resolution of the dispute between the parties. They are intended to be construed and applied flexibly to ensure that they serve the interest of justice. This approach is consistent with the flexible approach adopted by the UK Courts in the cases we have cited.
On the issue of discretion, the question is whether the Court erred in the exercise of discretion given by O.1 r.7 and r.8. Mr. Shepherd submits the Court erred. The discretion is exercised in limited cases for example, in cases where parties agree to defer the service of the Writ or in circumstances where it is difficult to serve the defendant. A stale Writ will not be extended where to do so would deny the defendant of its Defence. Reasons such as delay in serving the Writ due to carelessness of the lawyer or due to time soaked up in settlement negotiations are not sufficient. Mr. Shepherd cited a number of English authorities in support of this submission: Waddon v Whitcroft-Scovil Ltd [1988] 1 ALL ER 996; Holman v George Elliot & Co. Ltd (1944) ALL ER 639; Battersby and Others v Anglo-American Oil Co. Ltd and Others (1944) ALL ER 387; Sheldon v Brown Bayle’s Steelworks, Ltd and Another (1959) ALL ER 468 and Heaven v Road and Rail Wagons, Ltd (1965) ALL ER 409. In the present case, the Court erred because the extension of the Writ deprived the Appellant of its defence of time bar under the Frauds and Limitations Act 1988.
Mr. Mawa submits the trial judge correctly exercised it in the circumstances of the case before him. He submits, this was a case where strict application of the rules was unwarranted, as was the case in a number of cases including NBC v Jeff Tole, (2002) SC694, for to do so would cause injustice to the Respondent.
We start with the principles canvassed by Wilson J in Anthony Polling’s case. His Honour considered the essential issue to be determined in that case under O.1 r.7 and r.8 to be whether the late service of the Statement of Claim was sufficient and effective compliance with the National Court Rules. His Honour adopted the principles canvassed by Chief Justice Cullen in Morres v Papuan Rubber and Trading Co. Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141. His Honour said:
“As has been noted before the Rules of Court are a code of practice and there is no doubt that where justice so requires strict adherence to the Rules can be dispensed with in the circumstances of a particular case. See also O.1, r 7 and r 8, dealing with non-compliance.
“During the course of argument I was referred by Mr. Bolam, the plaintiff’s counsel, to the case of Morres v Papuan Rubber and Trading Co Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141 at 143, 144. The judgment, although dealing with irregularity in the nature of non-compliance with rules governing appeals is useful and pertinent to the broad issue in point in this case. At 143-144 the then Chief Justice of New South Wales (Sir W P Cullen) had this to say:
“Now, I am equally satisfied that the Court has power to act, where justice requires, in the way of permitting the prosecution of an appeal notwithstanding default in compliance with the rule of serving the notice of motion upon the other side. I think that s.16 of the Supreme Court Procedure Act, No 49 of 1900, enables the Court to allow the prosecution of an appeal notwithstanding default in the service of that notice. And it is extremely desirable that the rules should not be allowed to stand in the way of serving the interests of justice. If justice requires that the severity of a rule should be relaxed, then it is of extreme importance that the Court should relax it. As was said by the Master of the Rolls in the case of Re Coles & Ravenshear ([1907] 1 KB 1 at 4), ‘although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.’ But when a party, who has neglected to observe those requirements which the rules place him under for protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules. If a rule is one merely regarding a matter of detail in which the other party can be placed in as good a position as if the rules had been complied with, then in regard to such matters of detail the Court ought not to be very strict, because, the main purpose to be served being the carrying out of the particular proceeding, the mere matter of detail ought not to stand in the way of that purpose being served. But where it is a matter which definitely affects the right of the party, then although the Court has full power to condone the breach of the rules, it would require to see that the object to be served is one that justice really requires under the particular circumstances.
“With due deference to the learned Chief Justice I find much commonsense and fairness in those comments. In particular I adopt as criteria for guidance in such applications the interests of justice in the particular case and the proposition as to whether in reality the other party is in as good a position as if the rules had been complied with, or to put it another way, whether the party has been disadvantaged in regard to its rights in the matter.”
The principles canvassed in Morres’ case were also adopted by Sawong J in Graham B Price and Sawanita Ltd v Pacific Legal Group Lawyers N2509 (2004) and Sakora AJ (as he then was) in Messie Noran v Nimrod Mark [1992] PNGLR 229. Justice Sakora noted the principles in Morris’ case were echoed by Chief Justice Nappier of the South Australia Supreme Court in Blight v Warman and McAllan [1964] SAR 164.
The principles in Anthony Polling’s case were subsequently adopted by the Supreme Court in POSF v Silas Imanakuan (2000) SC677. The Court said:
“It is now settled law that, the Rules of the Court are not an end in them but a means to an end in all matters going before the Courts. They are only a code of practice and there is no doubt where justice so requires, strict adherence to the rules can be dispensed with in the circumstances of a particular case. For more discussion: see Anthony John Polling v Motor Vehicle Insurance (PNG) Trust & Others [1986] PNGLR 228 at page 230 and The South Pacific Post Pty Ltd v Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38 at page 46. It should be borne in mind that, the Rules are designed to guide and assist the Courts and the parties to reach a fair, orderly and expeditious resolution of matters before the Courts. Their application was thus intended to be flexible.”
We adopt these principles. We reiterate the principle that the interest of justice is the paramount consideration in exercising the discretion given by O.1 r.7 and r.8. But the discretion must be exercised in favour of granting the relief with restraint, for to do otherwise could make a complete mockery of the rules and introduce double standards in dealing with compliance issues. The discretion under the rules must be exercised sparingly, in appropriate cases where it is shown by an applicant that there exists good reasons for failing to serve the Writ within time, the application to disperse with or to extend time for service of the Writ is made promptly and there is good reason to justify extending time for service of the Writ.
The English practice of employing a two-stage enquiry by the Court is helpful. We adopt a succinct summary of this practice as found in the White Book on The Supreme Court Practice 1999 (of UK) at p.55, as follows:
“The decision whether an extension to the validity of a writ should be allowed or disallowed is a matter for the discretion of the court dealing with the application.
“Applications involve a two stage enquiry. At stage I the Court must be satisfied that there was a good reason to extend time, and also that the plaintiff had given a satisfactory explanation for his failure to apply before the validity expired. If the court was so satisfied then it should proceed to stage II and decide whether or not to exercise its discretion in favour of renewal by considering all the circumstances of the case including the balance of prejudice or hardship. The two stages should not be treated as watertight compartments and matters which may be relevant at one stage may be relevant at the other (Lewis v Harewood (1996), The Times, March 11, explaining the criteria in Kleinwort Benson v Barbrak and guidelines given in Ward-Lee v Linehan [1993] 1 W.L.R 754. The court must consider in all cases, even where the limitation period has not expired and the application is made before the initial period of validity has expired whether there was a good reason for not serving the writ before the expiry of that period before moving on to the second stage of considering whether there was good reason to extend the validity. The test (is) the same whether the limitation period expired or not, though the court might apply the test with less rigour where the limitation period had not expired (Binning Bros. v Thomas Eggar Verrall Bowles [1997] EWCA Civ 2688; [1998] 1 ALL E.R. 409).”
Applying these principles to the facts of this case, we are satisfied that the discretion was exercised properly. In 1997, the Writ was served within time at the incorrect registered office of the Appellant. The Respondent genuinely believed that this office was the Appellant’s correct registered office. In 2000, when the correct registered office (which was the office of the Appellant’s lawyers) came to the knowledge of the Respondents’ lawyer, they furnished a copy of the Writ to the Appellant’s lawyer. Therefore, re-serving the Writ would have become a matter of mere technicality or formality. This was acknowledged by Mr. Shepherd before the Court below. In the circumstances, in our view, the Respondent provided a good reason for not serving the Writ at the correct registered office of the Appellant within time.
We note that the Respondent did not promptly apply to extend time for service of the Writ after time for service expired. However, this was due to time taken up by the Respondents’ lawyer in searching for the Appellants’ correct registered office and both lawyers engaging in negotiations for settlement. The issue of stale Writ was raised by the Appellants’ lawyers during negotiations but they did not institute any application challenging the validity of the Writ until the Respondents’ application was heard. In the circumstances, we do not consider the delay to be fatal to their application.
Further, if the Court refused leave, the Respondent would have been forced to commence fresh proceedings. By then, the Respondents’ claim would have become statute-barred. This was a big claim which required both issues of liability and damages to be litigated. To refuse the application would have caused prejudice and hardship to the Respondent in that their Claim would be completely extinguished. On the other hand, whilst the Appellant would have lost its defence of time bar, it would still have other defences to the claim.
For these reasons, we dismiss the appeal and affirm the decision of the Court below made on 16 May 2003. As a sealed copy of the Writ was already delivered to the Appellants’ lawyers by the Respondents’ lawyers under cover of their letter dated 8 December 2000, it is unnecessary to re-serve the same Writ. For this reason we order that normal pleadings on the Writ commence from the date of this order. The appellant shall pay the Respondent’s costs of the appeal.
The formal orders of this Court are:
________________________________________________________________________
Lawyer for the Appellant : Blake Dawson Waldron
Lawyer for the Respondents : Paul Mawa Lawyers
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