N4348

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO.746 OF 2008

BETWEEN

BILL MISIVET VEVO
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kokopo: Maliku AJ
2011: 17th & 21st June

PRACTICE AND PROCEDURE: Death of original party – Application for substitution of deceased – Order 5, Rule 10, Sub Rules (1),(2),(3) - Application to be made within three month after death, or within such time as the Courts consider appropriate - Court has discretionary power- Order 5, Rule 12, Sub Rule (1), (a), (b) – Failure by opposing party to apply for dismissal of matter after death of original party is bad for the party.

Cases cited: 

Lapanding Singut-v-Kelly Kinamun & 5ors (2003) N2499 
Thomas Kaidiman-v-PNG Electricity Commission (2002) N2243
Michael Tipar-v- Brigadier General, Carl Marlpo & The State (2007) N3141

Counsels: 

Mr. N. Kubak, for the Plaintiff/Applicant
Mr. S. Koim, for the State
21 June, 2011

1.	MALIKU, AJ: On the face of the file before me this proceeding was 
commenced by a Writ of Summons and Statement of Claim by the late Bill Misivet Vevo on the 01st July 2008. The cause of action is one of breaches of Constitutional rights by the State through its employees.

2.	I am unable to locate on the file a Proof of Service of the Writ of 
Summons served on the defendant. There is however in the file a Notice of Intention to defend by the State filed on the 19th August 2008. A proof of service by one Joe Koilamas dated 24th November 2008 and Annexure "A" is also in the file. The State filed its defence on the 03rd October 2008. This confirms that the State was served the Writ of Summons.

3.	While the matter was pending Mr Kubak of Kubak Lawyers filed a 
Motion dated the 17th June 2011. This Motion is made pursuant to Order 5Rule 10 (2) (3) of the National Court Rules. This Motion names one Hazel Schulz Eremas as the Applicant who seeks an order to be added as a party to these proceedings amongst other orders sought in the Motion. There is a proof of service of the Motion served to the defendant on the file by one David Tamtu sworn on 16th June 2011.

4.	There is an Affidavit in support of the Motion by one Hazel Schulz 
Eremas dated 27th May 2011 and filed on the 06th June 2011. There is also in the file in support of the Motion an annexure "A"- Power of Attorney dated 07th June 2010 by the late Bill Misivet Vevo which contains the appointment of Mrs Hazel Schulz as legal representative of the late Bill Misivet Vevo during the negotiation with the State Solicitor, regarding the Claim under Section 5, against the State (WS 746 of 2008) Bill Misivet Vevo – v – The Independent State of Papua New Guinea, and annexure "B" dated 26th July 2010, a letter to the Public Solicitor, titled "Withdrawal of File of WS 746/ of 2008 from your office, Bill M.Vevo-v- Independent State Papua New Guinea"
There is also in the file a Medical Certificate of Death of the late Bill Misivet Vevo by Medical Officer, Tekie Purewa of Saint Mary' Hospital,Vunapope dated 01st September 2010.

5.	The matter came before me today, Mr Kubak then formally addressed the 
Court on the Motion which I have alluded to above. The Motion seeks the followings Orders:

1.	That pursuant to Order 5 Rule 10 (2) and (3) of the National Court Rules, the Applicant Hazel Schulz Eremas, the duly appointed customary representative of the estate of the late Bill Misivet Vevo be admitted as a party to these proceedings.

2.	That pursuant to Order 5 Rule 10 (2) the parties to this proceeding rearranged to show the Applicant as the Plaintiff to pursue the substantive claim on behalf of the estate of the deceased.

3.	Costs to be in the cause

4.	Time for the entry of these Orders is abridged to the date of the settlement by the Registrar of which shall take place forthwith.

5.	The State through Mr Koim objected to the Motion being entertained and instead submitted the Motion should be dismissed. Mr Koim's objection was of the following:

(i)	There is no cause of action before this Court which would enable the applicant as representative of the late Bill Misivet Vevo's estate. Mr Koim argued that the Writ of Summons and the Statement of Claim pending before this Court is for breaches of Constitutional rights by the State through its employees and not for the properties or estates of the late Bill Misivet Vevo.

6.	In response to this argument, Mr Kubak for the applicant submitted that the State should have sought leave from this Court for an application to dismiss the Motion. In the absent of such, their argument should not hold. Mr Kubak argued that the Claim is simply to compensate the late Bill Misivet Vevo of what he claims to have been done which amounted to breaches of his Constitutional rights by the State through its agents named in the Writ of Summons.

7.	With respect to the Counsel representing the State, I say he had misconstrued the words "estates" as used in the Motion to be that it refers to all estates of the late Bill Misivet Vevo ((if indeed the deceased had estates) . The word "estate" appears in Order 1 and 2 sought in the Motion. In Order One sought in the Motion the word estate is used in the following: "...... customary representative of the estate of the late Bill Misivet Vevo be added as a party to these proceedings. (Underlined is mine). The catch words are: "to these proceeding". 

8.	The proceedings referred to in the Motion in my view is that which was commenced by a Writ of Summons and a Statement of Claim and pending before this Court for alleged breaches of Constitutional rights by the State through its employees, which the Motion is seeking to have the applicant to be added in order to pursue the matter. There is no other proceeding beside that which was commenced by the Writ of Summons number 746 of 2008. This Motion is an application within the substantive claim of WS 746/2008.

9.	In the Order 2 sought in the Motion the word estate is used as follows; 
"to show the applicant as the Plaintiff to pursue the substantive claim on behalf of the estate of the deceased". The catch words here is; substantive claim (Underline is mine). The substantive claim referred to in the Motion is also that which alleged in the Writ of Summons No. 746 of 2008 against the State. There is no other substantive claim or claims besides this claim.

10.	Having said this, the objection by counsel representing the State on this 
issue does not hold and is rejected by me.

11.	The other objection Mr Koim raised is failure by the applicant to file his 
Motion on time pursuant to Order 5 Rule 12, Sub rule (1). He argued that the deceased died on the 30th August 2010 while the Motion was filed on the 06th June 2011 some six months after which is outside the time limit of three months, Order 5 Rule 12 - Failure to proceed after death of party.

"(1) Sub rule (1) (a) reads: 

(a)	Where a party dies but a cause of action in the proceeding survives his death; and

(b) an order under Rule 10 for addition of a party in substitution for the deceased party is not made within three months after the death, the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with sub rule (2), a party is added in substitution for the deceased party, the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability therein, as the case may, survives on the death.

(2) Sub rule (2) says on making an order under sub rule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceedings."

12.	Mr Koim referred me to the cases of Lepanding Singut-v-Kelly 
Kinamun & 5Ors (2003) N2499; Thomas Kaidiman-v-PNG Electricity Commission (2002) N2343; and Michael Tipar-v- Brigadier General Carl Malpo & The Independent State of PNG (2007) N 3141 which I have read very closely. These cases are relevant in regard to the time limitation in filing an application pursuant to Order 5, Rule 12, Sub rule (1),(a),(b) of the National Court Rules even though the cause of actions may be different.

13.	 In the case of Lapading Singut-v- Kelly Kinamun the cause of action 
was one based on breach of fiduciary duty as well as a claim based on conspiracy to defraud the plaintiff who was then a deceased person? This is not a case in the matter before me. However his honour Kandakasi J dealt with the issue of time limitation in which an application is to be made to the Court pursuant to Order 5 Rule12, Sub rule (1) (a), (b) of the National Court Rules. His Honour says: 

"(1) At a closer examination of the provisions of Rule 12 makes it clear that the time limit of three months need not be observed strictly. There is discretion in the Court to either dismiss or to order that steps for a substitution take place within a specific period. The Supreme Court judgement in Public Officers Superannuation Board -v- Sailas Imanakuano (2001) SC677 made it clear that an application for substitution can still be entertained by the Courts in certain circumstance, even outside the 3 months limitation. In so doing, it noted that the obligation was placed on the opposing party in which the other dies and the cause of action survives. This was inferred from the words "the Court may; on application by a party or by a person to whom liability on the cause of action survives on the death" in Order 5, rule 12 (1)."

14.	In the Supreme Court judgement which I have alluded to above, their 
Honours said:

"In our view, these words give a party who is liable on a cause of action which survives the death of a party to apply for a dismissal order if no application is made for substitution within a period of three months from the date of the death of the original party. When such application is made, the Court is not obliged to dismiss the proceedings but may make orders requiring the deceased party to be replaced within a specific period after the service of the order. In other words, the Court could order a dismissal of an action on account of the death of a party but that is not automatic. Instead, it is conditional on a party not substituting the deceased party within a period to be specified by the Court." 

15.	I note from Mr Koim's objection that he correctly told the Court that the deceased died on the 30th August 2010 and the Motion the subject of the argument was filed on the 06th June 2011, some six months after. It appears that the State was aware of the time limitation of three months requirement had lapsed but did not file an application to dismiss the matter after the deceased died, instead in my view had allowed the matter to be pending until today when it came for an application to add the applicant on the proceeding and to substitute her for late Bill Misivet Vevo as the plaintiff. This is bad on the State.

16.	Bearing that in my mind I adopt what was said by the Supreme Court in the case of Public Officers Superannuation Board -v- Sailas Imanakuano (2001) SC677 that the National Court had power under Section 155 (4) of the Constitution to order the deceased to be substituted by the applicant on the matter alleged in the Writ of Summons and the Statement of Claim. This is to enable substantive matter pending before this Court to be determined on the merits.

17.	Having assessed the arguments put before me, I have arrived at the following:

(1)	That there is substantive matter pending before this Court – Writ of Summons No. 746/2008 dated 01st July 2008 and filed also on the 01st July 2008 by Bill Misivet Vevo now deceased.

(2)	The claim is against the State for breaches of Constitutional rights of the late Bill Misivet Vevo by its employees.

(3)	That before his death the late Bill Misivet Vevo appointed (Annexure "A" – POWER OF ATTORNEY) Mrs Hazel Schulz Eremas as his legal representative during the negotiation with the State (Solicitor General's Office) regarding the claim under Section 5 against the State, (WS746 of 2008) Bill Misivet Vevo-v- The State of Papua New Guinea

(4)	That Mrs Hazel Schulz Eremas is the duly appointed customary representative of the late Bill Misivet Vevo.

(5)	That the appointment of Hazel Schulz Eremas as legal representative was for and during negotiations regarding the claim stipulated in the Statement of Claim in Writ of Summons pending before this Court for alleged breaches of Constitutional rights by the State through its employees.

(6)	That the Motion seeks that Mrs Hazel Schulz Eremas be added as a party to the proceeding and pursuant to Order 5 Rule10 (2) and further seeks the arrangement of the parties of this proceedings to show the applicant, Mrs Hazel Schulz Eremas as the Plaintiff so as to enable her to pursue the substantive claim now before this Court.

(7)	That any other claims by the applicant in respect to any estates other than that is sought in the Writ of Summons now the subject of this Motion is separate Cause of Actions and proceedings because their statement of claims would be in my view different and with different opposing parties which the applicant is at liberty to pursue.

(8)	That the State was aware of the time limitation of three months but did not make an application to dismiss the matter when the applicant failed to apply for substitution after the three months limit lapsed, and after the deceased died. 

(9)	The objections by Mr Koim to the Motions is rejected because I am of the view that the estate referred to in the Motion, is that which is sought in the Writ of Summons as compensation and is also the substantive claim, also the State had failed to file an application to dismiss the matter having been aware of the three months limit had lapsed after the death of late Bill Misivet Vevo.

18.	 I have discretion to grant an application pursuant to Order 5, Rule 
12, Sub rule (1) (a), (b) even if the application is made outside the time limit of three months.

19.	Therefore in exercising my discretion I do so in favour of the applicant. 
This is to enable the applicant to pursue the substantive matter pending to be determined on the merits.

20.	Having come to that conclusion I make the following Orders:

1.	That pursuant to Order 5 Rule 10, Sub rules (2), (3) of the National Court Rules, the applicant, Hazel Schulz Ereman, the duly appointed customary representative of the estate of the late Bill Misivet Vevo be added as a party to these proceedings.

2.	That pursuant to Order 5, Rule 10, Sub rule (2) the parties to these proceeding be rearranged to show the applicant as the Plaintiff to pursue the substantive claim on behalf of the estate of the deceased.

3.	Time for the entry of these Orders is abridged to the date of settlement by the Registrar which shall take place forthwith 

4.	Costs shall be in the cause.

______________________________________
Kubak Lawyers: Lawyer for the Plaintiff 
Solicitor General: Lawyer for the Respondent