[NATIONAL COURT OF JUSTICE]

JOE tipaiza and james hela pora for themselves and on behalf of 220 other former residents of the finsch road-humande road settlement

v

james yali, governor, madang province; bunag kiup, chairman, madang provincial government law and order committee; anthony wagambie, commander, task force goroka; sam inguba, commissioner of police; and the independent state of papua new guinea

madang: cannings j

31 January, 1 February 2005

PRACTICE AND PROCEDURE – application to file defence out of time – jurisdiction of court – considerations to take into account when deciding whether to grant application.

Facts

The plaintiffs filed proceedings against five defendants claiming damages for unlawful destruction of houses and other properties in the course of a squatter eviction exercise in Madang town. The first and second defendants filed a defence within time. The third, fourth and fifth defendants did not and applied for leave to file their defence out of time.

Held

1.	The Office of Solicitor-General had no good explanation to offer for the substantial delay.

2.	However, there seemed to be good defences available and the interests of justice required that the People of Papua New Guinea have the opportunity to put forward a defence.

3.	Leave was granted on terms, including an award of costs to the plaintiffs.

Papua New Guinea cases cited

Pinna Minia v Edward Young Gisoba (2005) N2875.

NOTICE OF MOTION

This was an application to file a defence out of time.

Counsel
P Kunai, for the plaintiffs
J Tindiwi, for the defendants

1 February 2005

CANNINGS J: 

Introduction

This is a ruling on an application by the third, fourth and fifth defendants to file a defence out of time.

Background

Eviction exercise

In November 2002 the Madang Provincial Government carried out a squatter eviction exercise in Madang town. A large squad of police was deployed to evict people who were allegedly squatting on land that they were not lawfully entitled to occupy. The 'eviction exercise' as it came to be known was focussed on the Finsch Road-Humande settlement. The plaintiffs – Joe Tipaiza, James Hela Pora and 220 others – say that they used to live in that settlement and that the police went there and destroyed their property in defiance of a court order that put the eviction exercise on hold.

Writ and statement of claim

On 17 November 2004 Manu & Associates Lawyers of Madang filed a writ of summons and a statement of claim on behalf of the plaintiffs. It names five defendants:

1.	James Yali, the provincial governor, the person said to have authorised the eviction and raiding of the settlers;
2.	Bunag Kiup, the provincial law and order committee chairman, who is said to have given instructions for the evictions;
3.	Anthony Wagambie, a senior officer of the Police Force, said to have been the commander of "Mobile Squad 12", which carried out the alleged raids on the settlement;
4.	Sam Inguba, the Commissioner of Police, who is said to be responsible for commanding the Police Force;
5.	the State, which is said to be vicariously liable for all acts and omissions of the other defendants.

The plaintiffs claim that on 19 November 2002 the first and second defendants gave them seven days notice to vacate the settlement. The next day they issued instructions to Puringi Lawyers to obtain restraining orders from the court. On 25 November 2002, while the lawyers were in court obtaining orders, the police moved in and started burning down their houses. The plaintiffs say that the order was obtained on 25 November 2002 but the police continued to destroy their properties on 26 and 28 November 2002. And this was despite being served the court order.

The plaintiffs are seeking special damages of K3,998,946.67 plus punitive and exemplary damages.

The writ was served on the defendants on 6 December 2004.

Events since service of writ

On 6 January 2005 O'Briens Lawyers of Port Moresby filed a notice of intention to defend on behalf of the first and second defendants.

On 8 February 2005 O'Briens filed a defence for the first and second defendants, who denied issuing instructions for the eviction and raid of the plaintiffs. They asserted that since 1997 the plaintiffs had been issued numerous notices under the Land Act to vacate the land by the provincial administrator. They assert that the plaintiffs were given ample opportunity to take their properties with them and that their removal was effected in an orderly manner. The court order of 25 November 2002 was not served on the defendants until 28 November 2002. Furthermore they assert that the plaintiffs had no title to the land they were occupying and therefore their occupation was illegal.

On 9 March 2005 the Solicitor-General filed a notice of intention to defend.

On 4 May 2005 the third, fourth and fifth defendants filed a notice of motion seeking leave to file their defence out of time.

On 10 June 2005 Sawong J dismissed that motion for want of prosecution.

On 28 June 2005 Kunai & Co Lawyers of Madang commenced acting for the plaintiffs and filed a reply to the first and second defendants' defence.

On 7 July 2005 O'Briens filed a notice to admit facts. This required the plaintiffs to admit that they are not registered titleholders of the Finsch Road-Humande Road settlement land and that the Madang Provincial Government and the State have registered State leases over that land; failing which those facts would be deemed admitted. It is not clear from the court file whether this notice was served or whether the plaintiffs responded to it.

On 21 October 2005 the plaintiffs filed a notice of motion, seeking default judgment against the third, fourth and fifth defendants.

On 28 October 2005 the third, fourth and fifth defendants filed another notice of motion seeking leave to file a defence out of time. This is the motion now being determined.

On 25 November 2005 the plaintiffs' motion for default judgment and the defendants' motion for leave to file a defence out of time came before me in Madang. Mr Waipek of Kunai & Co Lawyers appeared for the plaintiffs. There was no appearance for any of the defendants. I heard the plaintiffs' motion but not the defendants' motion.

On 14 December 2005 I handed down a ruling on the plaintiffs' motion. I refused it as the statement of claim did not disclose a clear cause of action. I ruled that the defendants' motion and any other motions be heard on 18 January 2006.

On 18 January 2006 Mr Waipek appeared for the plaintiffs but there was no appearance for the defendants and the motion was again adjourned.

The motion

The defendants' motion to file their defence out of time is moved under Order 7, Rule 6 (late notice) of the National Court Rules, which states:

(1)	A defendant may give a notice of intention to defend at any time without leave.
(2)	Where a defendant gives a notice [of intention to defend] after the time limited for doing so, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had given a notice of intention to defend within that time. [Emphasis added.]

The motion is supported by an affidavit of 20 October 2005 by John Kumura, lawyer of the office of Solicitor-General. He states that he has carriage of the matter. He refers to the earlier motion to file the defence out of time that was struck out by Sawong J. He explains why he was unable to travel from Port Moresby to Madang in June 2005 to move that motion. He relies on the affidavit he swore on 4 May 2005 in support of that motion to explain the delay in filing a defence. Essentially the explanation is:

on 20 July 2004 the plaintiffs' lawyers gave notice of their intention to make a claim against the State;

on 16 August 2004 he sought instructions from the Madang Provincial Police Commander;

on 6 December 2004 the Solicitor-General was served with the writ;

on 15 February 2005 Mr Kumura called the Acting Provincial Administrator, Robert Yass, to discuss the case;

he later travelled to Madang, met Mr Yass and other members of the provincial administration and the police and took instructions;

on 24 February 2005 he wrote to the first and second defendants' lawyers, O'Briens, to get a copy of the defence that they had filed;

on 4 March 2005 he received a copy of the defence, perused it and resolved to adopt it with minor amendments for the third, fourth and fifth defendants.

The defendants' submissions

Ms Tindiwi appeared for the third, fourth and fifth defendants, who are the applicants for the purposes of this motion. She submitted that they were not guilty of a long delay in moving the motion for leave to file the defence out of time. Mr Kumura's affidavit discloses that he was taking active steps to expedite the case. He wanted to ensure that the defence filed for the third, fourth and fifth defendants was consistent with the one already filed by O'Briens for the first and second defendants. The plaintiffs would not be prejudiced if more time was given to file the defence.

The plaintiffs' submissions

Mr Kunai asked me to refuse the motion for three reasons. First, the application was not made promptly. Secondly, no good reasons for the delay had been disclosed. Thirdly, the affidavit by Mr Kumura that he had decided to adopt the first and second defendants' defence was inadequate as such an affidavit should have been given by someone who was in a position to genuinely depose to the merits of the defence. A lawyer was not in a position to do this. Mr Kunai relied on the decision of Davani J in Pinna Minia v Edward Young Gisoba (2005) N2875 in support of that proposition.

Discretion to grant leave to file defence out of time

Mr Kunai has properly pointed to three considerations the court should take into account when deciding whether to grant leave:

·	what is the extent of the delay?
·	what are the reasons for the delay?
·	does the defendant appear to have a good defence?

To that list I would add:

·	where do the interests of justice lie?

Extent of delay

The defendants had 90 days to file a defence. The writ was served on 6 December 2004, so they had until 7 March 2005. (See the Claims By and Against the State Act, Section 9(1)(a); the National Court Rules, Order 4, Rule 11; Interpretation Act, Section 11(2).)

The first motion for leave to file a defence out of time was made two months later, on 4 May 2005. Then, after that motion was struck out on 10 June 2005, another three months passed before the present motion was filed.

These are substantial and protracted delays, which do not help the defendants' cause.

Explanation

I agree with Mr Kunai that no proper explanation for these long delays has been disclosed. All that Mr Kumura's affidavit does is to convey the impression that the Solicitor-General's office was sitting on its hands and being very slack.

It does not take much effort to file a defence. The eviction exercise was a prominent event. The pros and cons of such exercises have been played out in the country many times. The usual complaint about squatter settlements is that people are living on land that they have no title to. So the stock-standard defence is: that the people had no right to be on the land and therefore they should not complain if they are given notice to leave and they did not leave. These are simple, straightforward issues that can easily be set out in a defence of one or two pages.

It seems almost unforgivable that the office of Solicitor-General can be served a writ of this nature – in which the plaintiffs are seeking special damages of just short of K4 million – and not be able to get its act together to file a simple and straightforward defence. A writ is like a time bomb waiting to go off. It can be quickly and safely defused by prudent action. But if it is left to tick away, disaster looms large.

Clearly there is no good explanation for the delay in this case. The explanation is, with respect, rather pathetic.

Defence on the merits

Mr Kumura's affidavit has disclosed an alarming lack of diligence by the office of Solicitor-General. But it has also disclosed some important defences that appear on the face of it to have some merit: the plaintiffs were squatting on State land; they had been given numerous notices and warnings to leave; and the court order that they say was defied by the defendants was not served until after most of the plaintiffs had been evicted. These claims, if true, would appear to be good defences.

This case is different to Pinna Minia's case where the defendant's lawyer, Mr Uware, simply said in an affidavit that he thought the defendant had a good defence. He did not say what it was. Here, specific defences have been disclosed and, I reiterate, they appear on the face of it to be soundly based in law. They indicate that there will be substantial issues to argue about at a trial.

Interests of justice

I take into account here that the third, fourth and fifth defendants are, in effect, the People of Papua New Guinea. They stand to lose more than K4 million kina from this case and – if I refuse this application – this might come about simply because of a lack of diligence by the office of Solicitor-General. I do not think it is in the public interest to refuse the People the opportunity to put defences to this claim, especially as the defences seem worthwhile and, as I ruled when refusing the application for default judgment, it is not clear that the plaintiffs have a solid cause of action.

Weighing the considerations

The first two favour the plaintiffs. The second two favour the defendants. I will exercise my discretion under Order 7, Rule 6(2) of the National Court Rules and grant leave to file a defence out of time, on terms.

Terms

The third, fourth and fifth defendants will be subject to strict time limits and must be penalised in some way for their lack of diligence. First, the defendants must pay all the costs of the plaintiffs in these proceedings to date, irrespective of the final outcome of the case. Secondly, the defendants must pay into court as security for the plaintiffs' costs the sum of K50,000.00. That must be done before the defence is filed. I will set a deadline of one month, to 1 March 2006.

ORDER

The order of the court will be that:

1	the third, fourth and fifth defendants are, subject to the following orders, granted leave to file a defence out of time;

2	the third, fourth and fifth defendants shall pay into the National Court Registrar's trust account as security for the plaintiffs' costs, the sum of K50,000.00, by 1 March 2006;

3	the third, fourth and fifth defendants shall file their defence by 1 March 2006 and serve it on the plaintiffs and other parties by 8 March 2006;

4	the third, fourth and fifth defendants shall pay all of the plaintiffs' costs of these proceedings to date, irrespective of the outcome of the substantive case, to be taxed if not agreed.

Lawyer for the plaintiffs	: Kunai & Co Lawyers.
Lawyer for the 3rd, 4th and 5th defendants: Solicitor-General.