N3141

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1127 OF 1997

BETWEEN:

MICHAEL TIPAR by himself and on behalf 
of 26 other retrenched members
 of the Papua New Guinea Defence Force
Plaintiff

AND:

BRIGADIER-GENERAL CARL MALPO,
 COMMANDER OF THE PNG DEFENCE FORCE
First Defendant

AND:

THE INDEPENDENT STATE 
OF PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn, J.
2007: 9 May, 22 June

AMENDMENT OF STATEMENT OF CLAIM – Substitution of deceased parties – Delay – Whether public curator the only person to apply for substitution of deceased party

Cases cited

Papua New Guinea Cases

POSF v. Silas Imanakuan (2001) SC677.
Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2273
Kaidman v. PNGL Elcom (2002) N2343
Lepanding Singut v. Kelly Kinamun (2003) N2499, 
John Pias v. Michael Kodi (2004) N2690

Overseas Cases

Arnison v. Smith (1889) 40 Ch. D 567

Counsel:

Ms. N. Eliakim, for the Plaintiffs 
Ms. L.M. Gari, for the Defendants

22 June, 2007

1. HARTSHORN, J.: In these proceedings the plaintiffs are suing the defendants in respect of their retrenchment in 1997. Since the proceedings were issued three of the plaintiffs have died.

2. The plaintiffs made two applications before me on 9 May 2007. The first application was for leave to amend their statement of claim pursuant to Order 8 Rule 50 National Court Rules to amend the particulars of the alleged loss and damage by inserting the words "Distress, frustration and general disappointment" and further to add the words "General Damages," in the prayer for relief. 

3. The defendants opposed the application to amend on the basis that the amendments were being made almost 11 years after the alleged cause of action arose and that this would be prejudicial to the defendants in the rebuttal evidence they would need to call. 

4. Order 8 Rule 50 is wide in its application and allows the Court, at any stage of the proceedings to order the amendment of documents. The principles to be followed are well set out in Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2273 and John Pias v. Michael Kodi (2004) N2690. 

5. The amendment is sought almost 11 years after the cause of action arose. Order 8 Rule 53 specifically provides for amendments where a period of limitation expires and allows for a new cause of action arising out of the same or substantially the same facts to be added or substituted after the relevant limitation period has expired. 

6. The plaintiffs are not adding or substituting a new cause of action, they are seeking additional relief. I am of the view that such an application can be permitted under order 8 Rule 50. The statement of claim already has a prayer seeking special damages and pleads that the plaintiffs have suffered loss or damage. In the circumstances, I am not satisfied that the defendants will be unduly prejudiced if the amendments are permitted. I am satisfied that the interests of justice are served by allowing the amendments. 

7. Accordingly, I grant the plaintiffs leave to amend their statement of claim as per the amendments in red that appear in Annexure "A" of the affidavit of Nerrie Eliakim sworn on 8 May 2007. To compensate the defendants for the prejudice that they may suffer, I order costs of this application to the defendants. 

8. The second application for the plaintiffs is for 3 of the plaintiffs who are now deceased to be substituted by 3 of their relatives pursuant to Order 5 Rule 10 and 11(1) of the National Court Rules. 

9. The defendants oppose this application as;

a)	the deceased plaintiffs died over 10, 3 and almost 2 years ago. 

This is significantly in excess of the 3 month period mentioned in Order 5 Rule 12 National Court Rules after which the Court may order the cause of action by a deceased plaintiff dismissed if an application for substitution has not been made,

b)	they contend that they are prejudiced by the availability of witnesses and lack of evidence as to facts in relation to matters in issue, 

c)	they contend that the applications are barred by s.44 Wills, Probate and Administration Act Ch 291 as the property of a deceased vests in the Public Curator until probate or administration is granted. 

10. As to (a), that the deceased died significantly more than 3 months ago;

i)	it is settled law that an application for substitution does not have to be made within 3 months, POSF v. Silas Imanakuan (2001) SC 677, Lepanding Singut v. Kelly Kinamun (2003) N2499. 

ii)	the defendants have not made any attempt to apply to dismiss the causes of action of the 3 deceased plaintiffs under Order 5 Rule 12. In addition, they have also not applied to have the whole of the proceeding struck out for want of prosecution. 

In my view the defendants’ submission carries little weight when they have not availed themselves of the specific remedies open to them. 

11. As to (b), that the defendants are prejudiced by the availability of witnesses and lack of evidence; 

(i)	given the pleadings, it is probable that most of the evidence is documentary and will be similar for all of the plaintiffs. Any prejudice to the defendants is likely to be offset by the disadvantage in proving the cases of the 3 deceased plaintiffs, 

(ii)	my comments in 10 (ii) above concerning the inaction of the Defendants are apposite here. 

12. As to (c), that s.44 Wills Probate and Administration Act prevents anyone but the Public Curator from making an application for substituting in circumstances such as the present where probate or administration has not been granted;

i)	in Imanakuan’s case (supra) and Kaidman v. PNG Elcom (2002) N 2343, personal representatives of deceased and not the Public Curator have been substituted. The decision in Imanakuan was, amongst others, a decision of the Supreme Court confirming a National Court decision to appoint a personal representative in substitution. 

ii)	Order 5 Rule 10 is not specific as to who can be the person to substitute in such circumstances. It refers, amongst others, to the interest of a party passing to another person in specific instances or otherwise. The Court may act on an application by a person to whom the interest passes. In my view the interesting proceedings of a person who subsequently dies could pass to anyone who is to be a beneficiary in the estate of the deceased. 

iii)	in much earlier English cases concerning Order 15 Rule 7 of the Rules of the Supreme Court of England, a similar provision to our Order 5 Rule 10, it was recognised that a personal representative of the deceased plaintiff may obtain an order to carry on the proceedings in his stead, Arnison v. Smith (1889) 40 Ch. D 567

iv)	it is correct that all property vests in the Public Curator pending the grant of probate or administration; s.44 Wills Probate and Administration Act. The Act does however, also contemplate situations where representation of part of the estate of a deceased is granted separately. This can be limited in anyway where the National Court thinks proper; s. 51 Wills Probate an Administration Act. Here, there is no evidence that the Public Curator has taken any action in respect of the estates as he is so empowered under the Public Curators Act. This may be because he is not aware of the deaths of each of the deceased. 

13. In this instance the persons who wish to be substituted for the deceased plaintiffs are all relatives who are likely to be beneficiaries in the respective estates of the deceased and are therefore persons to whom the interest of the deceased passes. Evidence has been given as to why it has taken so long to make the applications. Also, the defendants have not made any application to dismiss the cause of action of the deceased plaintiffs as they are entitled. 

14. In the circumstances and for the reasons stated above I grant the orders sought in paragraph 2 i), ii) and iii) of the Notice of Motion dated 6 December 2006 and further order that a copy of this order be served upon the Public Curator within 2 weeks. Evidence of such service is to be filed into Court within 4 weeks. 

Costs of this application are to be in the cause.

________________________________________

Young & Williams Lawyers: Lawyers for the Plaintiffs
Posman Kua Aisi Lawyers: Lawyers for the Defendants