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Specialist Centre Pty Ltd v State [1988] PGNC 97; [1988-89] PNGLR 22; N701 (2 December 1988)

N701

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

SPECIALIST CENTRE PTY LTD

V

INDEPENDENT STATE OF PAPUA NEW GUINEA AND OTHERS

Waigani
Woods J

25 November 1988
2 December 1988

PRACTICE AND PROCEDURE - Declaration of right - Procedure for obtaining - Writ of summons or originating summons - Plaintiff may choose - National Court Rules, O 4, rr 2(3), 3.

Held

Whilst it is more appropriate to commence proceedings for a declaration of right by means of an originating summons, the effect of the National Court Rules, O 4, rr 2(3) and (3), is that a plaintiff may choose between an originating summons and a writ of summons.

Motion

This was an application to strike out a writ of summons seeking declaratory relief, on the ground that the form of procedure adopted was not proper.

Counsel

Z G G Gelu, for the applicant/defendant.
K V Kapa, for the respondent/plaintiff.
L Gavara-Nanu, for the sixth defendant.
Cur adv vult

2 December 1988

WOODS J: The plaintiff in this matter has issued a writ of summons claiming what is in effect a declaration of right.

The defendants are applying to have the writ struck out on the ground that the action is not a proper action to be commenced by writ of summons.

Whilst it is more appropriate to commence such an action by originating summons, the National Court Rules do not prevent a party using a writ of summons. Order 4, r 2(3), does not prohibit the use of a writ of summons and O 4, r 3, provides that a plaintiff may choose.

Order 4, r 2 and r 3, provide as follows:

"2. Where writ of summons required

(1) Proceedings shall be commenced by writ of summons:

(a) where a claim is made by the plaintiff for any relief or remedy for any tort;

(b) where a claim made by the plaintiff is based on an allegation of fraud;

(c) where a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or independently of any contract or any such provision), and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person in respect of damage to any property; and

(d) where a claim is made by the plaintiff for damages for a breach of promise of marriage.

(2) In the last preceding sub-rule ‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition.

(3) Sub-rule (1) of this Rule does not apply to proceedings commenced by a person who desires to apply for:

(a) a declaration of right;

(b) an immediate injunction;

(c) an immediate appointment of a receiver; or

(d) immediate orders under Rule 10 of Order 14 (the preservation of property).

3. Where plaintiff may choose:

(1) Except in the case of proceedings which by these Rules or by or under any Act are required to be commenced by writ of summons, proceedings may be commenced either by writ of summons or by originating summons as the plaintiff considers appropriate.

(2) Proceedings:

(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law;

(b) in which there is unlikely to be a substantial dispute of fact; or

(c) in which a person is authorised by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,

are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons."

Of course, having chosen a writ of summons, the plaintiff must then follow with pleadings and a full trial and even if the plaintiff wins he would have to bear the extra costs incurred by the defendants in complying with the rules for writ of summons.

In this case I fail to see the relevance of the lengthy affidavits at this stage.

I dismiss the application but I exercise my discretion not to award costs.

Application dismissed

_______________

Lawyers for the plaintiff: Kila Kapa & Associates.
Lawyer for the defendant: State Solicitor.
Lawyers for the sixth defendant: Les Gavara-Nanu & Co.