N3342

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 395 OF 2005

TEPEND JACK
Plaintiff

AND

MOTOR VEHICLE INSURANCE LIMITED
Defendant

Mount Hagen: Makail AJ
2008: 13 March
20 March

INTERLOCUTORY RULING

PRACTICE AND PROCEDURE - application to set aside writ of summons - writ of summons not served on defendant within two (2) years - effect - invalid or stalemate - National Court Rules - Order 4, rule 13 - claim for personal injuries - adult male - motor vehicle accident - claim for damages against third party insurance - National Court Rules - Order 4, rule 13 similar to New South Wales Supreme Court Rules - Part 7, rule 7 - reason for not serving writ of summons on defendant - negotiations to settle claim out of court - not a good reason for not serving writ of summons on defendant within two (2) years - filing of amended writ of summons a day before expiry of two (2) years - whether amended writ of summons is fresh proceeding - plaintiff required to commence fresh proceeding - National Court Rules - Order 4, rule 13(3) - filing of amended writ of summons does not disclose any new matters except for new date of filing - National Court Rules - Order 4, rule 13 not subject to rules on amendments under Order 8, rules 50 to 59 - filing of amended writ of summons amounts to irregularity -original cause of action time barred - expiry of six (6) years - Frauds & Limitation Act 1988 - section 16 - amended writ of summons set aside - effect of set aside - entire court proceeding is frivolous, vexatious and abuse of process - entire court proceeding dismissed - orders accordingly.

Legislations:

National Court Rules
New South Wales Supreme Court Rules
Frauds & Limitation Act 1988

Cases cited:

Rust -v- Barnes [1980] NSWLR 726

Counsels:
Mr P. Kopunye, for the Plaintiff 
Mr K. Peri, for the Defendant

20 March, 2008

1. MAKAIL AJ: Introduction: This is an application by the Defendant by Amended Notice of Motion filed on 13 March 2008 to set side the Amended Writ of Summons filed on 22 March 2007 in this court proceeding on the basis that it has gone stale or invalid under Order 4 rule 13 of the National Court Rules.

2. The application is opposed by the Plaintiff.

EVIDENCE

3. In support of the application, the Defendant relies on the Affidavit in Support of Robert Doko sworn on 9 October 2007 and filed on 12 December 2007. 

THE LAW

4. The relevant Order is Order 8 rule 13 of the National Court Rules which states as follows. 

"13	Validity for service

(1)	For the purpose of service, an originating process shall be valid for two years from the date on which it is filed. 

(2)	The Court shall not extend the period of two years mentioned in Sub-rule (1).

(3)	This Rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process."

PARTIES’ SUBMISSIONS

5. Mr Peri of counsel for the Defendant submitted that it is clear from the evidence of the Defendant and also the Plaintiff that the Plaintiff has not served the Writ of Summons within the two (2) years of the date when the Writ of Summons was filed on 23 March 2005. The two (2) years expired on 23 March 2007. The Plaintiff should have served the Writ of Summons by or before 23 March 2007.

6. He contended that, Order 4 rule 13 is in mandatory terms. This is because of the use of the word "shall". It requires the Plaintiff to serve the Writ of Summons on the Defendant within two (2) years from the date of filing of the Writ of Summons. 

7. In this case, the Plaintiff did not serve the Writ of Summons on the Defendant within two (2) years. Instead the Plaintiff filed an Amended Writ of Summons on 22 March 2007 and served it on the Defendant on 16 April 2007. The Plaintiff’s original Writ of Summons filed on 23 March 2007 should have been served on the Defendant on or before 23 March 2007. Otherwise, the Writ of Summons is no longer valid for service. The Plaintiff can only file an Amended Writ of Summons, if the original one was served on the Defendant.

8. The amendment rules start from Order 8 rules 50 to 59 of the National Court Rules. By looking at Order 8 rules 50 to 59, the Plaintiff cannot take any further steps to amend the original Writ of Summons or any other document, unless the Writ of Summons is first served on the Defendant. The Plaintiff cannot amend the Writ of Summons, if it has not been served on the Defendant within the two (2) years. 

9. He further submitted that Order 4 rule 13 of the National Court Rules is not to be read subject to Order 8 rule 50 of the National Court Rules. This is because there is no legal proceeding between the parties if the Writ of Summons is not served. In other words, without service, there is no legal proceeding between the parties. Any amendment can only be done after the Writ of Summons is first served.

10. He further submitted that Order 4, rule 13 of the National Court Rules permits the Plaintiff to commence a fresh action if the Plaintiff does not serve the Writ of Summons on the Defendant within two (2) years and there is no discretion for the Court to extend the period of two (2) years.

11. He further submitted that the Court must be mindful that after the Writ of Summons is served, a lot of considerations apply to the Defendant for example, the Defendant is required to file its Notice of Intention to Defend and Defence within a certain time and for the Plaintiff to file a Reply and any other documents within a certain time as required by the National Court Rules.

12. He finally submitted that the Plaintiff was allegedly injured on 10 May 1999. His cause of action was extinguished on 10 May 2005 by virtue of the time limitation of six (6) years under section 16 of the Frauds and Limitation Act 1988. If the Court is satisfied, that the original Writ of Summons was not served within two (2) years, the Plaintiff’s cause of action would have been extinguished by section 16 of the Frauds and Limitation Act 1988.

13. The consequential order, the Defendant seeks, is for the entire proceeding to be dismissed, and the Plaintiff be ordered to pay the Defendant’s costs of the proceeding.

14. Mr Kopunye of counsel for the Plaintiff on the other hand submitted that it is not disputed that the Plaintiff did not serve the original Writ of Summons on the Defendant within two (2) years. However, the Plaintiff did serve the Amended Writ of Summons on the Defendant. The reason being, the Plaintiff was negotiating out of Court settlement of the claim and was hoping that the Defendant would settle the claim. It came to a point where the Defendant was not going to settle the claim and by that time the two (2) years was up. As a result, the Plaintiff filed an Amended Writ of Summons and served it on the Defendant in order to ensure that the court proceeding was still alive so that the Plaintiff could pursue the claim against the Defendant.

15. He submitted that the Plaintiff was entitled to file an Amended Writ of Summons and serve it on the Defendant because by Order 8, rule 51(1) of the National Court Rules, it permits the Plaintiff to amend any pleadings such as the Writ of Summons in this court proceeding at any time without the leave of the Court.

16. As to the amendment of the Writ of Summons, he submitted that the only amendment made to the Writ of Summons was the date of filing. The date of the original Writ of Summons of 23 March 2005 was amended to 22 March 2007 in the Amended Writ of Summons with all the particulars in the Statement of Claim remaining the same.

17. He further submitted that the Court should allow the Amended Writ of Summons to stand by exercising its power under Order 12, rule 1 of the National Court Rules. 

RULING

18. I am grateful to both counsel for their very helpful written submissions on this fundamental issue which I do not think this Court or the Supreme Court has had the occasion to consider before.

19. As I stated earlier, the Defendant brings this application to set aside the Amended Writ of Summons filed on 22 March 2007 in this court proceeding on the basis that it has gone stale or invalid under Order 4 rule 13 of the National Court Rules.

20. Whilst I accept that the basis of the application to set aside the Amended Writ of Summons is found under Order 4 rule 13 of the National Court Rules, I am of the view that the Court’s power to set aside the Amended Writ of Summons is found under Order 1, rules 9 and 10 of the National Court Rules.

Order 1, rule 9 of the National Court Rules:

"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."

Order 1, rule 10 of the National Court Rules:

"10.	Objection of irregularity.

Where an application is made to set aside any proceeding for irregularity the several objections intended to be insisted on shall be stated in the notice of motion."

21. And so, I will consider the application to set aside the Amended Writ of Summons filed on 22 March 2007 in this court proceeding based on Order 4 rule 13 of the National Court Rules and also Order 1, rules 9 and 10 of the National Court Rules.

Effect of non service of original Writ of Summons.

22. The first issue I have to determine is whether or not an Amended Writ of Summons amounts to commencing a fresh court proceeding within the meaning of Order 4, rule 13(3) of the National Court Rules.

23. I have considered the evidence and the submissions of both parties very carefully and I have reached the conclusion that the Plaintiff’s Amended Writ of Summons does not amount to a fresh court proceeding within the meaning of Order 4, rule 13(3) of the National Court Rules. I accept the submissions of Mr Peri of counsel for the Defendant that first, by operation of Order 4, rule 13(3) of the National Court Rules, the Writ of Summons filed on 23 March 2005 must be served on the Defendant within two (2) years.

24. I accept this submission because of the use of the phrase in Order 4 rule 13(1): 

"For the purpose of service, an originating process shall be valid for two years from the date in which it is filed." Then by Order 1, rule 6 of the National Court Rules, an originating process is defined as: "a writ of summons, or an originating summons or where a cross claim is made against the person not previously a party to the proceedings in which the cross claim is made, the cross claim." 

And so, a Writ of Summons is one of the originating processes. (Emphasis is added).

25. As a Writ of Summons is one of the originating processes, it is valid for two (2) years but becomes invalid after two (2) years if it is not served on the Defendant. That is, it becomes stale.

26. Further, Order 4, Division 1 rule 1 of the National Court Rules provides for the mode of beginning civil proceedings. Under this Part, proceedings shall be commenced by a Writ of Summons or Originating Summons.

27. In this case, it is not disputed by the parties that the Plaintiff filed the original Writ of Summons on 23 March 2005 but did not serve it on the Defendant within two (2) years. It is also not disputed that instead of serving the original Writ of Summons on the Defendant, the Plaintiff filed an Amended Writ of Summons on 22 March 2007 and served it on the Defendant on 16 April 2007. I suppose the Plaintiff was too late to serve the original Writ of Summons on the Defendant at its registered office in Port Moresby by 23 March 2007 and opted to simply file an Amended Writ of Summons on 22 March 2007, a day before the two (2) years expired on 23 March 2007.

28. In my opinion, Order 4, rule 13 is very clear. It is the original Writ of Summons that must be served within two (2) years from the date of its filing. The original Writ of Summons is the one to kick start or commence the court proceeding against the Defendant. That is why Order 1 rule 6 of the National Court Rules specifically states that a Writ of Summons is one of the originating processes and Order 4, rule 13(1) uses the word originating process. An Amended Writ of Summons is not an originating process. In other words, it is not an Amended Writ of Summons that kick starts the court process. Litigants do not file an Amended Writ of Summons or any other Amended originating process to kick start or commence court proceedings for that matter.

29. In fact, it is unthinkable, absurd and also unheard of to suggest that a litigant can file an Amended Writ of Summons to commence a court proceeding against a Defendant. And so it follows that secondly, I accept the submission of Mr Peri that Order 4, rule 13 of the National Court Rules cannot be read subject to Order 8, rule 50 of the National Court Rules. This is because, the Plaintiff cannot take any further steps to amend the original Writ of Summons or any document unless the Writ of Summons is first served on the Defendant. The reason being, there is no legal proceeding between the parties if the Writ of Summons is not served even though it has been filed.

30. The case of Rust -v- Barnes [1980] NSWLR 726 which Mr Peri referred to in his written submissions is in my view directly on point. There, the Court discussed Part 7, rule 7 of the New South Wales Supreme Court Rules which is similar to our National Court Rules.

Part 7, rule 7 of the New South Wales Supreme Court Rules provides as follows:

"(1)	For the purpose of service, an originating process shall be valid for two years from the date on which it is filed. 

(2)	The Court shall not extend the period of two years mentioned in sub-rule (1).

(3)	Nothing in this rule prevents the plaintiff from commencing fresh proceedings by filing another originating process."

31. I note that Part 7, rule 7 of the New South Wales Supreme Court Rules was considered and applied in the Rust -v- Barnes’ case (supra). The facts of the case are that in June 1970, the Plaintiff was injured in the course of his employment in a collision with another motor vehicle, which was driven by the Defendant. A Statement of Claim was filed on 22 October 1975, but was not served within two (2) years thereafter.

32. In 1979, the Plaintiff instructed new Solicitors, and they caused the Statement of Claim to be served personally on the Defendant on 18 August 1979. The Defendant appeared conditionally and moved to have the service of the Statement of Claim served on the Defendant on 18 August 1979 set aside. The Court held that failure to serve an originating process within two (2) years from the date on which it was filed as required under Part 7, rule 7 of the New South Wales Supreme Court Rules, constitutes a failure to comply with the requirement and must be treated as an irregularity.

33. The case, although, decided in 1980 is good law, as the National Court Rules adopted the New South Wales Supreme Court Rules in 1983, which forms part of the rules of he National Court of this country. Although it is of persuasive value only, I find that it is not inconsistent with any other laws and I adopt the principle in that case and apply to this present case. In so doing, I find that the Plaintiff did not serve the Writ of Summons within two (2) years of the date of issue. If the original Writ of Summons was served within two (2) years, the Defendant would not have brought this application.

34. I do not accept the submissions of Mr Kopunye of counsel for the Plaintiff that the Plaintiff did not serve the original Writ of Summons on the Defendant by or before the expiry of two (2) years because the Plaintiff was negotiating an out of Court settlement of the claim with the Defendant. To my mind, this is not a satisfactory explanation for the delay by the Plaintiff to serve the original Writ of Summons on the Defendant. It was incumbent on the Plaintiff and his lawyers to promptly serve the original Writ of Summons on the Defendant and then continue any out of Court settlement negotiation with the Defendant.

35. As the Plaintiff had not done so, it is apparent to me that Plaintiff and his lawyers upon realizing that the expiry date of the Writ of Summons was drawing closer proceeded to file an Amended Writ of Summons to first avoid the need to spent another K50.00 filing fee to file a fresh Writ of Summons and secondly and most importantly to avoid the risk of having the claim being time barred under section 16 of the Frauds and Limitation Act 1988 if the Plaintiff were to file a fresh Writ of Summons.

I would find that the Amended Writ of Summons is not a nullity but is an irregularity and should be set aside pursuant to Order 1 rules 9 & 10 and Order 4 rule 13 of the National Court Rules.

Should the entire court proceeding be dismissed?

36. The question is, whether or not the Court should dismiss the entire court proceeding as being frivolous, vexatious and abuse of process on the basis that the claim is time barred.

37. As I have ruled that the Amended Writ of Summons be set aside on the basis that it is an irregularity, it follows that there is no court proceeding on foot and so the entire court proceeding should also be dismissed.

38. Quite apart from its irregularity, there is no doubt in my mind that the Plaintiff filed the Amended Writ of Summons in an attempt to avoid the need to file a fresh Writ of Summons because if he was to do so, the fresh Writ of Summons will be caught by section 16 of the Frauds and Limitation Act 1988. That is, I accept the submissions of Mr Peri that the alleged cause of action arose on 10 May 1999. The six (6) years time limitation ran from 10 May 1999 and expired on 10 May 2005. If the Plaintiff were to issue a fresh Writ of Summons, he would obviously be well and truly out of time.

ORDERS

The Orders of the Court I make are as follows: 

1.	The Defendant’s application by Amended Notice of Motion filed on 13 March 2008 is granted.

2.	The Plaintiff’s Amended Writ of Summons filed on 22 March 2007 is set side.

3.	The Plaintiff’s entire court proceeding is dismissed.

4.	The Plaintiff pay the Defendant’s costs of the application and the entire proceeding.
_______________________________________

Kopunye Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant