N4636

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 610 OF 2011

BETWEEN:

LORMA CONSTRUCTION
LIMITED
Plaintiff

AND:

INDEPENDENT STATE OF
PAPUA NEW GUINEA
Defendant

Waigani: Hartshorn, J.
2012: 19th, 21st and 26th March
 
Application to file a defence out of time by the State - application made pursuant to Order 1 Rule 15 (1) National Court Rules - whether Order 1 Rule 15 (1) applicable when provision is made in s. 9 Claims By and Against the State Act for the time within which the State is to file a defence

Facts:

The defendant (State) applies to be granted leave to file its defence out of time pursuant to Order 1 Rule 15 (1) National Court Rules. The application is opposed on the ground amongst others, that it is a statute that stipulates the time for the State to file a defence and the National Court Rules cannot be used to extend such a time. 

Held:

The State cannot rely upon Order 1 Rule 15 (1) National Court Rules to either extend the time within which it is required to file its defence, which time is fixed by s. 9 Claims By and against the State Act, or to be given leave to file its defence after that time. The relief sought to file its defence out of time is therefore refused.

Counsel:

Mr. J. Kennedy, for the Plaintiff
Mr. N. Tame, for the Defendant

26th March, 2012

1. HARTSHORN, J: The defendant (State) applies to be granted leave to file its defence out of time pursuant to Order 1 Rule 15 (1) National Court Rules. The application is opposed by the plaintiff, Lorma Construction Ltd. 

2. Order 1 Rule 15 (1) National Court Rules is as follows:

"(1)	The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order."

3. The plaintiff contends that amongst others, the State is not able to rely upon Order 1 Rule 15 (1) National Court Rules, as that rule only permits an extension or abridgement of any time fixed by the National Court Rules or by any judgment or order. It does not provide that it applies to any time fixed by a statute. In the case of the State, the time within which the State shall be required to file a defence in a claim commenced by writ, is fixed by statute; specifically s. 9 Claims By and Against the State Act (Claims Act).

4. Counsel for the State submitted that s. 9 Claims Act provides that a court before which the action is instituted, upon sufficient cause being shown, may allow further time to be granted to the State to file a defence. That is so, however the State's application only relies upon Order 1 Rule 15 (1) National Court Rules and not s. 9 Claims Act or any other provision. Further, no application was made to amend the State's notice of motion to include a reliance upon s. 9 Claims Act.

5. The time within which the State shall be required to file its defence is provided for in s. 9 Claims Act. Section 9 commences with the words, "Notwithstanding anything in any other law, …." The State's defence is required to be filed before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend. It is common ground that the State's notice of motion seeking leave to file a defence out of time was filed two months and 11 days after the expiry of the 60 day period. It is out of that period of time, the 60 day period, to which the State's application relates and not to any time fixed by the National Court Rules. 

6. The plain and ordinary meaning of Order 1 Rule 15 (1) National Court Rules is that any time fixed by the Rules or by any judgment or order may be extended or abridged. In the absence of any authority cited to the contrary, I am not satisfied that the State is able to rely upon Order 1 Rule 15 (1) National Court Rules to either extend the time within which it is required to file its defence, which time is fixed by s. 9 Claims Act, or to be given leave to file its defence after that time. 

7. Given this finding, it is not necessary to consider the other submissions of counsel.

Orders

8. The orders of the Court are:

a)	the relief sought in the notice of motion of the defendant filed 6th December 2011 is refused.

b)	the costs of the plaintiff of and incidental to the notice of motion shall be paid by the defendant.
_____________________________________________________

Jema Lawyers: Lawyers for the Plaintiff 
Nicholas Tame Lawyers: Lawyers for the Defendant