N2897

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

(1) OS 731 OF 2005

Between:

TWAIN PAMBUAI, DIRECTOR OF PERSONNEL &
ADMINISTRATION, DEPARTMENT OF AGRICULTURE & LIVESTOCK
-Plaintiff-

And:

ANTON BENJAMIN, ACTING SECRETARY, DEPARTMENT OF AGRICULTURE & LIVESTOCK
-First Defendant-

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA
-Second Defendant-

(2) OS 12 of 2005

MATHEW’WELLA B. KANUA, SECRETARY, DEPARTMENT OF AGRICULTURE & LIVESTOCK
Plaintiff

And:

ANTON BENJAMIN, ACTING DEPUTY SECRETARY (UNDER SUSPENSION)
First Defendant

And:

MATHEW SIUNE, MBE, MP, MINISTER FOR AGRICULTURE & LIVESTOCK
Second Defendant-

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani : Injia, DCJ
2005 : August 12th, 31st

Civil – Practice and procedure – Withdrawal/Discontinuance of proceedings commenced by Originating Summons – With leave of the Court – No order made to file Notice of Discontinuance/Withdrawal – Whether proceedings effectively withdrawn/Discontinued upon grant of leave – National Court Rules, O.1 r.8, r.9 & r.10 & O.8 r.60, r.61(2), r.62, r.63, r.64, r.65 and r.66.

Cases cited:
Lambon & Co. v ParKinson (1887) 35 WR 545
Musman v Bonet (1892) 66 LT 171, DC

Counsel:
Mr Parkop for the Plaintiff in OS 731/05
Mr. Wilson for the Plaintiff in OS 12/05
Mr. Alu for the First Defendant in OS 731/05
Mr. K. Naru for the First and Second Defendant in OS 12/05 
Mr. F. Kuvi for the Second Defendant in OS 731/05 and 
Third Defendant in OS 12/05

31st August 2005

INJIA, DCJ: There are two (2) Motions in two (2) related matters which were argued before me. The First Motion is by the First Defendant in OS 731/05, filed on 26 July 2005, in which he seeks the following two (2) orders:-

"2.	The orders of the National Court obtained by the Plaintiff dated the 21st of July 2005 be set aside pending the outcome of an internal Department disciplinary procedure under the Public Service Management Act which has not been exhausted.

"3.	The originating proceeding instituted by the Plaintiff be set aside pending the outcome of the internal department disciplinary proceeding under the Public Service Management Act which has not been exhausted."

The Second Motion is from the Plaintiff in OS 12/05 filed on 30 June 2005, in which he seeks the following orders:

"(1)	The proceedings herein be reinstated.

(2)	The injunction granted by this Honourable Court on 12th January 2005 be deemed to be reinstated from the date as from 3rd February 2005.

(3)	A finding of fact be made that the Defendants have been in breach of the said injunction in the last preceding paragraph by this Honourable Court since 3rd February 2005.

(4)	Until further Order, a supplementary injunction restraining the Defendants their servants and/or agents from suspending or otherwise interfering with the rights of the Plaintiff in the circumstances."

In OS 12/05, the order sought in para 1 of the Notice of Motion above relates to an order made on 25 February 2005 in the following terms:

"1.	The Plaintiff is granted leave to withdraw this proceeding against the Defendants.

"2.	That the Second Defendant shall pay the Plaintiff’s costs of this proceeding.

"3. 	The time for entry of the orders be abridged to the time of settlement by the Registrar which shall take effect forthwith."

In the First Motion, the order sought in para 3, raises the issue of whether the interim injunctive order granted ex parte on 21st July 2005, should not have been granted in that it was based on a non-disclosure by the Plaintiff that the proceedings in OS 12/05 in which an interim injunctive order was issued against the First Defendant, had been discontinued by the Plaintiff on 28 February 2005. This argument then necessitated the order sought in para 1 of the Second Motion in OS 12/05 to be argued. In OS 12/05, on 12 January 2005, the Court issued an interim injunctive orders restricting the First Defendant from performing his duties. In OS 731/05, the Plaintiff had claimed that he was charged by the First Defendant in breach of that order. The first issue which relates to the First Motion is whether the proceedings in OS 12/05 were discontinued and consequently, the interim order granted on 12th January 2005 was non-existent and therefore, the interim order in OS 731/05 granted on 21 July 2005 was wrongly granted and it should be set aside. The second issue which relates to the Second Motion is whether the proceedings in OS 12/05 were in effect discontinued pursuant to the Order of 25 February 2005. The threshold issue common to both Motions is whether the proceedings in OS 12/05 were effectively discontinued. This issue must be determined first because its outcome will determine the outcome of para. 1 of the First Motion and para. 1 of the Second Motion. The balance of the orders sought on the two (2) Motions, as I understand, are to be argued after this issues is determined.

Mr. Parkop for the Plaintiff in OS 731/05 and Mr. Wilson for the Plaintiff in OS 12/05 joined arguments on the issue. Mr. Alu for the First Defendant in OS 731/05, and Mr. Naru for the First and Second Defendants and Mr. Kuvi for the State in OS 12/05 joined arguments on the issue.

There is no dispute that on 28 February 2005 the Registrar entered the order of 25 February 2005 and that it took effect on that day. In order to determine the background nature and effect of the above order, it is necessary to revert to the conduct of the proceedings by the parties in OS 12/05. The involvement of counsel in that matter is relevant since it is clear to me from the file endorsement and correspondences on file that the orders of 25 February 2005 was made inter partes. by consent of the parties, as communicated to the Court by counsel. The Plaintiff’s counsel was Mr. H. Nii of Nii Lawyers. Mr. Kipoi of the Solicitor-General’s office represented the Defendants. None of the counsel involved in the argument of the present two (2) motions were involved in those proceedings. I do note Mr. Kuvi is the Acting Solicitor-General and I presume he has been briefed by his sub-ordinate in Mr. Kipoi and may be well informed as to what transpired between the parties then but the Plaintiff has now engaged Warner Shand to argue the matter. Also, Mr. Alu also was not involved in OS 12/05 because as he says, he was barred from appearing in that matter. Therefore, except for the arguments by Mr. Kuvi, the arguments made by Mr. Parkop and Mr. Wilson appear to be second-hand versions of what actually transpired between the parties and counsel both before and at the hearing of the Motion which resulted in the orders consented to.

The Plaintiff in OS 12/05 and the First Defendant in OS 731/05 challenge the order of 25 February 2005 on two (2) main grounds and the arguments are:-

1.	The order is irregular and therefore it should be set aside in that Order 8 r 61(2) does not allow for an Originating Summons to be "withdrawn" but "discontinued". A withdrawal relates to an Intention to Defend (Rule 60) or defence (r.62(1) or any "subsequent pleading" or admission in a pleading (r.62(2). The entire proceedings commenced by OS can only be discontinued. Rule 64 makes a distinction between a withdrawal and discontinuance. The order was therefore misconceived and it should be set aside.

2.	Even if the order was validly made, proceedings would effectively be withdrawn or discontinued upon filing a Notice of Discontinuance (or Withdrawal) as required by Rule 64. Until such Notice of Discontinuance or Withdrawal is filed, the proceedings remain on foot. The Plaintiff chose not to file the Notice of Discontinuance. Further, where an order for costs is made, as in the present case, until these costs are paid, the proceedings continue on foot: Lambon & Co. v ParKinson (1887) 35 WR 545, DC. Musman v Bonet (1892) 66 LT 171, DC: see fn 6, pp.213; of Halsbury Laws of England 4th Edition, Vol. 37, para.383. In the present case, the Plaintiff’s costs have yet to be paid by the Second Defendant.

The Defendants argue that the orders are consent orders and final orders. They took effect when the order was entered by the Registrar and it finally disposed of the proceedings. 

The Court’s power to set aside proceedings including orders for irregularity is given by Order 1 r 8 (on the Court’s own initiative) and under O. 8 r. 9 (upon application by an aggrieved party). It is necessary to set out O.1 r .8 – 10 and O.8 r.60 – 66. 

Order 1 r. 8 – 10 provides:

"8.	Non-compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so 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.

"9.	Application to set aside for irregularity

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity."

"10.	Objection of irregularity

Where an application is made to set aside any proceedings for irregularity the specific objection intended to be insisted on shall be stated in the Notice of Motion."

Order 8 Rules 60 – 66 provides:

"60.	Withdrawal of notice of intention to defend

A party who has given notice of his intention to defend may withdraw the notice at any time with the leave of the Court.

"61.	Discontinuance.

(1)	A party making a claim for relief may discontinue proceedings so far as concerns the whole or any part of any claim for relief by him—

(a)	where the pleadings are not closed—without leave or consent; and
(b)	where judgment has not been entered—with the consent of all other parties; and
(c)	at any time—with the leave of the Court.

(2)	A party making a claim by originating summons may, with the leave of the Court, discontinue the proceedings at any time so far as concerns the whole or any part of the claim.

"62.	Withdrawal of defence, reply, etc.

(1)	A party raising any matter in a defence or subsequent pleading may withdraw that matter at any time.

(2)	Sub-rule (1) does not enable a party to withdraw the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.

"63.	Terms of leave.

The Court may give leave under Rule 61 or 62 on terms.

"64.	Mode of discontinuance or withdrawal

(1)	A discontinuance or withdrawal under Rule 61 or 62 shall be made by filing a notice stating the extent of the discontinuance or withdrawal.

(2)	Where the discontinuance or withdrawal is by consent, the notice under Sub-rule (1) must bear the consent of each consenting party.

"65.	Service

A party filing a notice under Rule 64 shall on the day of filing, serve the notice on each other party.

"66.	Effect of discontinuance

A discontinuance under this Division as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to proceedings for the same, or substantially the same, cause of action."

In my view, the challenge to the validity or regularity of the order made on 25 February 2005 appears to be misconceived because as I understand Mr. Wilson’s argument, the order was made ex parte and therefore his client was making the application under O.12 r.8. The records show that the orders were consent orders, made inter partes.

If the application is purportedly made under O.1 r.9, then the application is required to be by Notice of Motion and grounds of the objection are required to be stated on the Notice of Motion. The purpose of this Rule is to give the other party and the Court sufficient notice to address the issue. Issues of irregularity of proceedings filed or conducted in Court including court orders, is a serious matter and should not be taken lightly by parties. Any challenge to the competency of orders made in the deliberate judgment of the Court or judge and any application to set aside an order for irregularity must be by Notice of Motion, specifying the grounds of the objection "insisted on" at the hearing and supported by affidavit. In my view, therefore para. 1 of the Second Motion is itself incompetent for this reason.

In relation to the Court’s exercise of discretion under O.1 r.8, I consider the use of the word "withdrawal" in the Court order as being inappropriate when the Court is making an order under Rule 61(2). The word "discontinue" should be the appropriate word to use. Notwithstanding the use of wrong term, the context in which the word "withdraw" was used in the circumstances of the present case was that it really meant "discontinued". The ultimate effect of the consent order was that the entire proceedings in OS 12/05 were being terminated by consent of the parties. In that sense, the end result of a "withdrawal" was the same as "discontinuance". Both parties were represented and there is material on file to show that the orders were entered by consent. The intention of the parties is clear and that is to compromise the action and bring it to a finality. I appreciate the distinction between a withdrawal and discontinuance as pressed upon by Mr. Wilson and Mr. Parkop, but the distinction is irrelevant where the proceedings affected sought to be terminated is the originating process. In the present case, it was the termination of the Originating Summons and what is more important is the effect of the withdrawal or discontinuance. The issue of withdrawal does not arise at all. And so in the exercise of my discretion under O.1 r. 8, I would treat the word "withdrawal" as meaning in effect the same as "discontinuance" or termination of the proceedings.

In relation to the second issue, r.61(2), r.63, and r.64 must be read together. Where leave to discontinue proceedings in an OS is granted under r.61(2), the coming into effect of the discontinuance depends on the terms on which the leave is granted. An order granting leave, as with any other order, takes effect when it is entered by the Registrar and upon entry, the order is enforceable on its own terms except where the Court expressly stipulates terms or conditions precedent to be complied with before the order takes effect, under Rule 63 e.g the filing of the appropriate Notice under Rule 64. The filing of a Notice of Discontinuance by the Plaintiff under Rule 64 is not required upon the grant of leave, to make the order granting leave to withdraw effective, unless so ordered. If it is intended by the parties that the order granting leave to discontinue shall be effective upon the filing of a Notice under Rule 64, they must seek an order to that effect and the order must expressly say so under Rule 63. If no such term or condition is stipulated in the order, then the order granting leave is effective on its own terms and the proceedings are deemed to have been discontinued upon the entry of the order by the Registrar. The proceedings remain discontinued as from the date the orders takes effect. The emphasis here is on the finality of the order. If the final orders were to be made conditional upon the actions or occurrence of some relevant event, then the order must expressly say so.

In the present case, the filing of a Notice of Discontinuance was not a term of the order granting leave. I reject the arguments by Mr. Wilson and Mr. Parkop.

The same applies to the order for costs which I understand are outstanding. If it was intended by the parties and the Court that the withdrawal or discontinuance was conditional upon payment of costs, the order should have said so, under Rule 63. As it is, this is a general order for costs which is recoverable in the normal way costs are recovered.

For these reasons, I find that the order of 25 February 2005 was a final order, which was enforceable on its own terms, and it took effect when the order was entered by the Registrar on 28 February 2005. The proceedings in OS 12/05 inclusive of notices, interim orders and directions given therein during the currency of the proceedings stood discontinued or withdrawn as from 28 February 2005. This being the ruling on the issue, I will now hear parties on the outcome of para. 1 of the First Motion as to whether the ex parte order of 26 July 2005 should be set aside. I will also hear parties on the balance of the orders sought in that Motion. In relation to the Second Motion, I will also hear parties on the balance of the Motion.
______________________________________________________________
Lawyer for the Plaintiff		:	Powes Parkop Lawyers
Lawyer for the First Defendant	:	Warner Shand Lawyers