N1088

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE UNITED STATES OF AMERICA, ON BEHALF OF THE EMBASSY OF THE UNITED STATES, PAPUA NEW GUINEA

V

WR CARPENTERS (PROPERTIES) LIMITED

Waigani
Brown J

29 June 1992

PRACTICE AND PROCEDURE - Parties - Proper plaintiff - "United States of America, on behalf of the Embassy of the United States, Papua New Guinea" - Action by defendant to strike name - Representative capacity does not affect procedural right or otherwise, in "the Embassy" to be named - Necessity to find capacity in "the Embassy" - National Court Rules O 5 r 9.

JUDGMENT AND ORDERS - Mode of proceeding - Originating summons - Declaratory orders - Choice of proceeding predicated by necessity or otherwise for pleadings - Principles - Wrong choice - Irregularity may be cured unless fundamental failure where declaratory judgment not possible on state of declaratory orders sought - Underlying power in the National Court to dismiss suit to do justice in the circumstances - Constitution s 155(4).

CONSTITUTIONAL LAW - Application of s 155(4) of the Constitution.

Facts

The United States of America sued on behalf of the Embassy of the USA seeking to enforce a lease agreement made by the latter and the defendants. The action claiming declaratory relief was by originating summons. The defendant moved to strike out the name of the plaintiff for misdescription.

Held

1. The capacity to sue is dependent on the procedural laws and the right of action on the substantive laws of Papua New Guinea.

2. The Embassy of the USA is not a legal person or "an entity" in law and, therefore, is not a proper party to an action.

3. Proceeding by way of originating summons is unsuitable where there are substantial disputes of facts to be determined and issues to be defined.

4. Where the justice of the case so requires (where prejudice to a party is shown) when the mode of instituting proceedings precludes the opportunity to identify the issues in dispute, the National Court may dismiss the suit: Constitution s 155(4).

Cases Cited

Attorney-General v Pontypridd Waterworks Co [1908] 1 Ch 388.
Commissioner for Main Roads v Reed and Stuart Pty Ltd (1974) 131 CLR 378.
Dorney v Commissioner of Taxation [1980] 1 NSWLR 404.
USA v Wagner (1867) LR 2 Chancery Appeals Cases 582.

Counsel

H Lash, for the plaintiff.
P Steele, for the defendant.

29 June 1992

BROWN J: This is a motion by the defendant to strike out the name of the plaintiff on the originating summons and subsequent proceedings. It really should relate to "documents" for the originating summons is the principle cause on foot at the moment. The defendant also seeks such other order as the Court sees fit. I gave short oral reasons at the time of these orders. I now give my written reasons.

As appears from the entitled documents, the defendant now argues that the plaintiff is misdescribed [the USA as representative of the Embassy of the United State, Papua New Guinea], that the Embassy does not admit of representation, is a non entity, and should be struck out.

Mr Lash for the plaintiff says in answer that foreign powers can sue, and that this claim for relief relates to a lease of real estate from the named defendant. The Secretary of State of the United States of America (USA) could be a named plaintiff who can sue on behalf of officers (see USA v Wagner (1867) LR 2 Chancery Appeals Cases 582: "Public property is in the State, and it and no mere officer, is the proper party to sue").

Title ultimately rests in the USA. Mr Lash was not able to provide regulations which would guide him on naming a plaintiff and in the circumstances, an adjournment not having been allowed he could not rebut the argument of the defendant. He says he does not have instructions from his client.

But Mr Lash really needs to show cause why, in the face of National Court Rules O 5 r 13, the Embassy should be named. It does not go to instructions. Local lawyers are instructed presumably with knowledge of the forum in which proceedings are instituted, which necessitates choosing a plaintiff at law recognised and enabled to sue. Whether it be the United States of America or a named person is a decision for a client on advice and in consultation with its lawyers versed in the law of the forum.

Waiting on instructions from the USA cannot affect those principles. The National Court Rules are drafted for very good reason; there must be liability for judgment sheeted home to an individual corporation or entity recognised by law. I am given no basis for recognising "the Embassy" as such an entity. At the time of institution of the suit, this plaintiff put its mind to the question whether the defendant could be sued in its corporate name or title, but seems not to have considered the question with respect to "the Embassy"; at least Mr Lash cannot now say why "the Embassy" is a proper plaintiff. It may be an address or description of a body having legal standing. I am not told. It may appear to be inappropriate but that does not disqualify it per se, if it is a corporation, for instance, or that designation is specified in some executive act or legislation of which I could have been appraised.

Mr Lash referred me to the case of USA v Wagner as support for his proposition, but that decision surely is recognition only that the USA may be a party in the circumstances of that case, and is not support for a description of a party other than the USA.
I have not proceeded to a consideration of relevant Geneva Conventions relating to capacity to sue, if that be relevant here. No question of immunity from suit arises. But an agent's status does not place him under any disability to sue as a plaintiff. No agent has been named here, rather "the Embassy" has. I consider it a matter for the domestic laws, since the issues are purely domestic, relating as they do to a contractual document, a company incorporated in Papua New Guinea, and a building here also. This application goes to the distinction to be made between the capacity to sue in an individual or entity, given by the procedural law, and a right of action provided by the substantive law. Finding, as I do, no capacity in "the Embassy" as a procedural point, the representative, USA, has no better standing. It is not a question of a right of action, which relates to substantive law, although I touch on a right of action to some extent where I deal with the mode of proceedings chosen here.

"Embassy" is shortly described in the Concise Oxford Dictionary 4th Edition as "Ambassador's function or office; his residence; deputation to a sovereign etc". It, consequently, could not be said to be the person of the ambassador or a legal entity capable of suing in its own right. I have been referred to no empowering statute or other provision to the contrary.

The rules provide that proceedings shall not be defeated by reason of the mis-joinder of a party or the non-joinder of any person as a party, but that does not mean it is no longer necessary to start proceedings with proper parties. Amendments may be made, but in this case I am of the view the action cannot succeed as originally constituted.

The mode of action, by originating summons, does not enable me to say with any certitude, that the same relief as presently sought would be obtained if the USA were substituted. The action appears to proceed on the basis of some breach of contractual documents and nowhere can it be shown, in the absence of pleadings, that the USA has right of substitution. The individual named as the lessee may seek to join the USA, or perhaps sue in his own right, but there is no application before me for joinder. This is such a case as Attorney-General v Pontypridd Waterworks Company [1908] 1 Ch 388, where proceedings were instituted by the Rhondda Council without statutory power. The attorney general was permitted to be added as a co-plaintiff, subject to a costs order in favour of the defendant. In that case, the covenant (in favour of the council in the Water Supply Act) sought to be enforced was the same whether it was A or B who commenced the action, and the enforcing of the covenant by B would give A the same benefit as A would have obtained if she had enforced it in her own action (Warrington J at 404). Here I am unable to determine concurrent rights, for there is no statement of claim with proper proceedings.

I accept the argument of Mr Steele. I do not believe it is possible to substitute the USA for this plaintiff.

The proper course is to identify a proper plaintiff, whether USA, Secretary of State referred to by Mr Lash or whoever, but not whatever.

The plaintiff is not sufficiently described to enable the defendant to know who is the responsible party. The USA has not sought to be substituted. I cannot make substitution orders in these circumstances in the absence of consent (O 5 r 8). It is appropriate that the plaintiff be struck pursuant to O 5 r 9.

The originating summons, filed 7 February 1991 (and as continued in effect following an order for directions in March 1991), seeks to rely on a registered lease, as affording the plaintiff in these proceedings some proprietary right to declarations. Clearly, that lease is not particularised, but a copy lease document forms part of affidavit material filed. That document, which corresponds by number to the lease referred to in the originating summons, names the defendant as lessor. It describes the lessee as John Ferderick Charlton, Contracting Officer, American Consulate General. Nowhere in the originating process is there a plea for relief joining the named lessee. Quite frankly, I do not see how an order substituting the present plaintiff with the USA will assist in defining any issues between the parties to the lease. In other words, there already appears a substantial dispute of fact by the very nature of the proceedings. It is for an aggrieved party to choose a cause of action, but has W R Carpenters (Properties) Limited any obligation to assist in identifying an aggrieved person? I think not. The originating summons claims:

1. A declaration that registered lease No 17957 dated 9 January 1975, as amended and further agreed from time to time, is valid and binding between the parties.

2. A declaration that the parties are bound by clause 3(c) of the said lease.

3. An order that the defendant should specifically perform its obligations under the said clause 3(c).

4. Costs.

If the lease has been amended or further agreed from time to time, what does the plaintiff now say its terms are? How can any court make declarations, in their nature discretionary, on the basis set forth in the summons? The power of the court to make declarations is very wide. Hutley JA succinctly sounds a warning, however, that its usefulness is circumscribed.

"The amplitude of the power of the Supreme Court to make declarations has been proclaimed on many occasions: eg. Forster v Jododex Australia Pty Ltd (13); Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation (16); but there are exceptions to its amplitude, as Moffitt P pointed out in the latter case (16a): 'The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to, but it may be excluded by statute in a particular type of case, e.g., where jurisdiction is conferred upon another tribunal in terms which exclude the jurisdiction of the Court.' Illustrations of this are provided by Barraclough v Brown (4) and Taylor v The Minister (24). There is a further restriction on the effectiveness of a declaration, namely that, as its name indicates, it is not a constitutive legal act as is, for example, a judgment for debt or damages; and, except by giving to existing legal relations the status of a res judicata, it cannot change them."Dorney v Commissioner of Taxation [1980] 1 NSWLR 404 at 408.

It may be all very well for this Court to say there is a subsisting lease, but what assistance will that be? It is clear from paras 3 and 4 of this originating summons that this plaintiff has a view about the meaning of a particular clause and that the defendant's actions, somehow do not correspond with that view. What the view is, or in what respect the defendant's actions fall short of the plaintiffs (whoever it is) wishes, is not made clear in the originating summons. The proceedings may properly be categorised as presuming a cause of action in contract and may properly be pleaded by a statement of claim; otherwise, the issues will never be defined.

The plaintiffs claim in its originating summons by virtue of its claim for specific performance or damages presupposes a constitutive or investative legal act by the Court. But no issues can be raised, there being no pleadings whereby this Court can make findings on facts (see c 214 P W Young's Declaratory Orders 2nd Edn Butterworths 1984). A good illustration of the use of the declaratory order in contractual matters is to be found in Commissioner for Main Roads v Reed & Stuart Pty Ltd (1974) 131 CLR 378. Exactitude in framing the declaration sought is necessary, or it may be demurrable. The originating process is in this case inappropriate.

The defendant has not demurred to the plaintiffs originating process. A claim, if it appears at all from the paragraphs which I have quoted, fails to describe with precision what construction the plaintiff seeks to place on the contract, and the particular breach alleged in the defendant. A demurrer is available to the defendant in these circumstances, but that in itself does not give the Court the right to go beyond what the defendant seeks in its motion.

Declaratory relief clearly will not suffice on the face of the plaintiffs own summons. It also seeks the equitable remedy of specific performance or, in the alternate, damages for breach of contract, remedies which go beyond the Court's discretionary power to make a declaration. They require a judgment.

I can strike out the proceedings of my own volition, intending as I do to strike out the description of the plaintiff as bad. No proper plaintiff has come forward. The originating summons has fatal flaws. The defendant would suffer unfair prejudice, being unable to adequately anticipate or appreciate the plaintiffs case, and the conduct of a trial would be hard to envisage, on the shifting sands of a judicial discretion in the absence of matters in issue, illuminated by pleadings.

The "irregularity" dealt with in O 1 r 10 does not encompass the kind of irregularity here. Here is a fundamental failure to couch claims for relief in a form which is amenable to declaratory orders. It cannot be cured by directions, even substitution of plaintiffs. I rely on my power found in s 155(4) of the Constitution to make orders as are necessary to do justice in the circumstances of a particular case. Accordingly, I make orders in terms of paragraph 1 of the motion as follows:

1. That the name of the plaintiff on the originating summons and all subsequent proceedings be struck out;

2. That the cause is, accordingly, without a proper plaintiff and is dismissed.

3. That the named plaintiff pay the defendant's costs of the application. I make no other order as to costs.

The parties shall be at liberty to uplift original exhibits or annexures forming part of the documents or affidavits filed on their part, at the expiration of the appeal period.

________________

Lawyer for the plaintiff: Judith Day & Co Lawyers.
Lawyer for the defendant: Peter Steele Lawyers.