N5714

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 908 OF 2011

BETWEEN

ORI PAI ALSO KNOWN AS ORI PUTI
Plaintiff

AND:

TALA OBOKO, IN THE CAPACITY AS THE ENFORCEMENT
OFFICER OF THE KAVIENG URBAN LOCAL LEVEL GOVERNMENT
First Defendant

AND:

KAVIENG LOCAL LEVEL GOERNMENT
Second Defendant

AND:

PETER TOBATA, DICKSON SARIMAYA & CHRIS NIMIAN, IN THEIR CAPACITY AS THE MEMBERS CONSTITUTING KOPKOP URBAN VILLAGE COURT
Third Defendants

AND:

BONNIE CHAN, IN HER CAPACITY AS THE CLERK OF COURT OF KAVIENG DISTRICT COURT
Fourth Defendants

AND:

ORIM KARAPO, IN HIS CAPACITY AS THE KAVIENG DISTRICT COURT MAGISTRATE
Fifth Defendants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendants

Kokopo: Oli, AJ
2013: 19th December,
&
2014: 6th August.

CIVIL JURISDICTION- PRACTICE AND PROCEDURES – Application by Sixth Defendant and on behalf of other five Defendants seek leave to file amended defence –Pursuant to Order 8 Rule 50 of the National Court Rules – Relevant considerations favours the application – The defendants were granted leave to file an amended defence.

Cases Cited:

Kewa and Others v Kombo (unreported, WS No 1036 of 2000,
The Papua Club Inc. v Nusauam Holdings Ltd and Others (2002) N2273
Pais v Kodi [2004] PGNC 84

Counsel:

Ms. Natasaha Aisi, for Plaintiff
Mr. Austin Edo, for the Defendants

RULING ON MOTION
4th August, 2014

1.	OLI, AJ: The sixth Defendant on behalf of the other five co-defendants files a motion and seeks following relief that:

1. 	Pursuant to Order 8 Rule 50 of the National Court Rules, that the defendants be granted leave to amend their Defence.
2.	 Cost be reserved.
3. 	Any further orders the court deems fit.

FACTS AND STATEMENT OF CLAIM

2.	The brief facts and Statement of Claim surrounding the circumstances of this case are as follows:

1.	The Plaintiff is an adult person of full capacity residing at Raval Settlement, Kavieng town, New Ireland Province who is able to sue and to be sued in his own personal name and capacity.

2.	The First Defendant is the Enforcement Officer for Kavieng Urban Local Level Government and is sued in such name and capacity.

3.	The Second Defendant is the Kavieng Urban Local Level Government which is established under the Organic Law on Provincial and Local Level Governments and has corporate status to sue and to be sued in its own name and style. The Second Defendant is vicariously liable for the actions of the First Defendant in his capacity as an enforcement officer of its laws.

4.	At all material times the Third Defendants were the members constituting the Kopkop Urban Village Court and are sued in such name and capacity.

5.	The Fourth Defendant is the Clerk of Kavieng District Court and is sued in such name and capacity.

6.	The Fifth Defendant was at the material time a Magistrate of Kavieng District Court and is sued in such name and capacity.

7.	The Sixth Defendant is the Independent State of Papua New Guinea and has capacity to sue and to be sued in its own sovereign name and style. The Sixth Defendant is vicariously liable for the actions of all the Defendants who serve under or are part of its three (3) arms of Government.

8.	At all material times the Plaintiff is a betelnut seller who makes his living from the sale of betelnut to the public who has carried on betelnut sales from the premises of Tan Hardware situated at allotment 10 section 15 Kavieng town, New Ireland Province.

9.	At all material times the company Tan Hardware and the premises from which the company carries on business is owned by the Plaintiff's elder brother Aubuku Jude.

10.	At all material times the sale of betelnut from the premises of Tan Hardware by the Plaintiff has been done with the permission of the Plaintiff's brother Aubuku Jude. The Plaintiff has engaged in sale of betelnut from the said premises for over 10 years without any complaint or notice preventing him from doing so from the second Defendant, its Officers or any other persons.

11.	On the date in mid-2007 the Plaintiff was informed by the First Defendant that there were town council laws of the Second Defendant prohibiting the sale of betelnut in public places other than designated places. The Plaintiff was also informed by officers of the Second Defendant that to engage in the business of selling betelnut from private premises he had not have a peddlers licence which could be obtained by payment of a sum of K50.00 for a period of one (1) year from the office of the Second Defendant.

12.	On 5th November 2007, the Plaintiff through his wife Ruti Ori paid K100.00 to the Second Defendant for being payment for a Peddlers Licence to allow the Plaintiff and his wife to sell betelnut from the premises of Tan Hardware for a period of two (2) years up to 5th November 2009, in compliance with advice received from the Second Defendants Officers in relation to payment for such licence. The Plaintiff's wife was issued with a receipt for K100.00 and told that the said receipt constituted the Peddlers Licence.

13.	On a day in early August 2008, the Plaintiff was charged by the First Defendant for illegal sale of betelnut from the premises of Tan Hardware contrary to Section 7 of Law 12 of the laws of the Second Defendant.

14.	The Plaintiff's case was heard by the Third Defendants who sat as the Kopkop Urban Village Court on 13th August 2008. The Plaintiff was found guilty and fined K100.00 which fine he paid on 1st October 2008.

15.	On 26th August 2008, the Plaintiff appealed against the decision of the Third Defendants to the Kavieng District Court on the ground that the Court was not properly constituted.

16.	On 2nd September 2008, the Plaintiffs appeal was quashed by the Kavieng District Court presided over by His Worship Ignatius Kurei. The Village Court decision was confirmed and costs were ordered to be in the cause. No reasons were published or made available to the Plaintiff forming the basis for the appeal been quashed.

17.	Between the end of 2008 and 2009, the Plaintiff was charged by the First Defendant on three (3) other occasions under the same laws of the Second Defendant. The matters were heard by the Third Defendants who sat as the Kopkop Urban Village Court.

18.	On each of the three (3) other occasions, the Plaintiff was found guilty and fined K100.00 which fines he paid. This was despite the Plaintiff arguing on each occasion that he had a valid Peddlers Licence to sell betelnut from Tan Hardware premises.

19.	In the last case which was brought against the Plaintiff on 15th April 2009, he was summonsed to appear before the Kopkop Urban Village Court, on 21st April 2009. The Plaintiff appeared on the said date, was found guilty and fined K100.00 to be paid within one (1) week or by 28th April 2009. The Plaintiff paid the fine ordered on 27th April 2009.

20.	The Third Defendant in ordering the Plaintiff to pay a fine of K100.00 within a week also ordered him to stop selling betelnut from such place but did not specify which place and what was to happen if he breached the second part of the Orders.

21.	On 4th August 2009, without any legal cause to do so the Fourth and Fifth Defendants issued a Warrant of Commitment and a Warrant of Imprisonment at the request of the First and Second Defendants to have the Plaintiff jailed for alleged breach of Village Court Orders made by the Third Defendants on 21st April 2009.

22.	On 7th May 2009, the Plaintiff was picked up by Kavieng Police on Execution of the Warrants and taken to Kavieng Jail where he was jailed for ten (10) weeks in hard labour.

23.	The Plaintiff claims his imprisonment was illegal and amounted to false arrest and imprisonment in breach of his rights under the PNG Constitution.

Particulars of False Arrest/Unlawful Detention and Imprisonment

(a)	The Plaintiff had paid the K100.00 fine ordered on 21st April 2009 within time and was not in breach of the said Court Order.

(b)	The part of the order preventing the Plaintiff from selling betelnut from such place did not state the place or that he be jailed for ten (10) weeks if he breached the order.

(c)	No other proceedings were taken up before a Court of competent jurisdiction against the Plaintiff for breach of the Kopkop Urban Village Court Orders and no orders were in existence at the time the request for the Warrants of Commitment and Imprisonment were made by the First and Second Defendants.

(d)	The Warrants were requested and issued without the Plaintiff been charged for any alleged breach of the Kopkop Urban Village Court Orders, without him been found guilty of such charges and without him been punished by a penalty of imprisonment for ten (10) weeks in hard labour by a Court of competent jurisdiction.

(e)	The Warrants of Commitment and Imprisonment were defective and illegal in that the Plaintiff had not failed to comply with the Village Court Orders of 21st April 2009.

(f)	The period of ten (10) weeks imprisonment of the Plaintiff which was determined by the Fourth and Fifth Defendants was imposed without a valid Court Order from a Court of competent jurisdiction and without any credible evidence been made available for the issuance of the Warrants and the imposition of the term of ten (10) weeks imprisonment.

3.	The Plaintiff also claims that all the four Court Proceedings that were brought against him for alleged breaches of the Town Council Laws of the Second Defendant and the procedure adopted to bring the proceedings and to have the Plaintiff found guilty and penalized were illegal and in breach of the Plaintiff's rights under the PNG Constitution.

Particulars of Illegality of Court Proceedings.

(a)	There were no laws in place at that time under which the Plaintiff was charged, tried, found guilty and fined on each of the four (4) occasions.

(b)	The purported law which the First and Second Defendants enforced against the Plaintiff was not legally in force at the material times.

(c)	The Third Defendants who sat as the Kopkop Urban Village Court did not have the jurisdiction to interpret and apply Local Level Government Laws such as the laws of the Second Defendant and should not have presided over and heard the matters.

(d)	The Third Defendants did not have the jurisdiction to make findings of guilt and did not have the jurisdiction to impose the penalties imposed against the Plaintiff.

(e)	The Plaintiff had a valid Peddlers Licence or receipt for the licence to carry on the sale of betelnut from the private premises of Tan Hardware, a business owned by his brother, Aubuku Jude. The said Peddlers Licence was paid for and issued to the Plaintiff for him to engage in the sale of betelnut from the said premises in accordance with instructions received from the First Defendant and other officers of the Second Defendant.

4.	The Plaintiff further claims that the Defendants owed him a duty of care to act within the limits allowed by law at all material times.

Particulars of Duty of Care

(a)	The First and Second Defendants owed a Duty of Care in their official capacity and generally to members of the Public and residents of Kavieng town including the Plaintiff to enforce laws of the Second Defendant that were legally in force.

(b)	The First and Second Defendants owed a Duty of Care in their official capacity and generally to members of the Public and residents of Kavieng town to ensure that enforcement of the laws of the Second Defendant and alleged breaches thereof were taken up before a Court of competent jurisdiction and not otherwise.

(c)	The Third Defendants owed a Duty of Care in their official capacity and generally to members of the Public and residents of Kavieng Town to only preside over matters and make decisions over those matters that were within the jurisdiction of the Urban Village Court under the Village Courts Act, as amended.

(d)	The Third Defendants owed a Duty of Care in their official capacity and generally to members of the Public and to residents of Kavieng town not to hear cases in which they had no jurisdiction and to determine the question of jurisdiction in every case coming before them as preliminary matter on their own or when raised by the parties coming before the Court.

(e)	The Fourth and Fifth Defendants owed a Duty of Care in their official capacity and generally to members of the Public and residents of Kavieng town to ensure that District Court Warrants for Commitment and Imprisonment for failure to comply with Court Orders were only raised when there was valid basis to do so.

(f)	The Fourth and Fifth Defendants owed a Duty of Care in their official capacity and generally to members of the Public and residents of Kavieng town to act diligently in attending to requests from members of the Public for the raising of Warrants for Commitment and for Imprisonment or any other Warrants for alleged failure to comply with Court Orders and to refrain from raising such Warrants when there was no valid or legal basis to do so.

5.	The Plaintiff says the Defendants while acting in their respective official capacities and generally breached the duty of care owed to him by instituting the various Court Proceedings against him, having the proceedings determined, penalties pronounced against him and Warrants raised for his imprisonment.

Particulars of Breach of Duty of Care.

(a)	The First Defendant while acting in his official capacity and generally brought Court Proceedings against the Plaintiff for alleged breaches of a law that he knew were not legally in force. In doing so he acted negligently.

(b)	The First Defendant while acting in his official capacity and generally brought complaints against the Plaintiff before the Third Defendants when it was a known fact to him that the said Court did not have jurisdiction to deal with such cases. In doing so he acted negligently.

(c)	The First Defendant while acting in his official capacity and generally was aware and had knowledge that the law he sought to enforce was not legally in force and that it was wrong to enforce it but he did not refrain from instituting various Court Proceedings against the Plaintiff. In doing so he acted negligently.

(d)	At all times the First Defendant acted in his official capacity and generally on behalf of the Second Defendant but on each occasion the Second Defendant failed to prevent the First Defendant from acting in the manner he did. In doing so the Second Defendant acted negligently.

(e)	The First and Second Defendants on each of the occasions and while acting in their official capacity and generally were deliberate to avoid the Kavieng District Court to file the complaints against the Plaintiff. By doing so they achieved the results they desired namely convictions without questions as to the jurisdiction of the Court before which the matters were brought. In doing so they acted negligently.

(f)	The various Summonses that were issued against the Plaintiff from Kopkop Urban Village court in relation to interpretation and application of town council laws of the Second Defendant were issued without jurisdiction and the officers who issued them on every occasion were negligent towards the Plaintiff when it was apparent that Kopkop Urban Village Court did not have jurisdiction over the matters complained of.

(g)	The Third Defendants failed in their official duties and generally and acted negligently when they refused to hear the matter after the issue of Want of Jurisdiction was raised by the Plaintiff on the first occasion and on their own accord on three (3) other occasions afterwards when it was clear from the contents of the Summonses before them that the matters concerned the interpretation and application of Town Council Laws of the Second Defendant. In doing so they acted negligently.

(h)	On each of the occasions the Third Defendants failed in their official duties and generally to make decisions in relation to the same matter over which they knew very well that they had no jurisdiction over. They also failed to acknowledge or concede that Kopkop Urban Village Court was the wrong Court and to advise the parties but especially the Plaintiff about it. By doing so they acted negligently.

(i)	In requesting the Warrants for Commitment and Imprisonment the First and Second Defendants failed in their official duties and generally when they failed to first summon the Plaintiff for alleged breach of Court Orders and to have him prosecuted for such breach. Without having done this they requested the Warrants knowing there was no Court Order in place to request the Warrants and in doing so acted negligently.

(j)	The Fourth Defendant failed in her official duty and acted negligently when she prepared or raised Warrants of Commitment and Imprisonment on Village Court Orders when such orders had not been breached and when the said orders or new orders did not authorize that the said Warrants be raised.

(k)	The Fourth Defendant failed in her official duty and acted negligently when she raised the Warrants of Commitment and Imprisonment on the basis of Village Court Orders and not Orders of the District Court of Kavieng of which she was the Clerk and when fully aware that she was not allowed to do so.

(l)	The Fifth Defendant failed in his official duty and acted negligently to sign the Warrants of Commitment and Imprisonment and to allow the Fourth Defendant to impress the District Court Stamp on the Warrants to give legal effect when he could have refused to do so as the attaching Village Court Order did not state that the Plaintiff be jailed for ten (10) weeks and when there was no other valid new Court Order to establish that the breach had been prosecuted and the Plaintiff found guilty and penalized with punishment of ten (10) weeks jail.

(m)	At the time of raising and issuing the Warrants of Commitment and Imprisonment the Fourth and Fifth Defendants knew that the Warrants been raised or issued were illegal and the Orders relied upon to raise or issue them did not support the raising of the Warrants. The Fourth and Fifth Defendants also knew that the resulting imprisonment for ten (10) weeks was illegal. They failed to advise the First and Second Defendants accordingly or refrain from raising the Warrants.

6.	The Plaintiff further claims punitive damages on the basis that the actions of the First, Second, Third, Fourth and Fifth Defendants were intentional and deliberate at all material times.

Particulars of Punitive Damages.

(a)	The First and Second Defendants knew that the law sought to be enforced did not have legal effect but went ahead anyway to bring various court proceedings against the Plaintiff for alleged breach of the law.

(b)	The First and Second Defendants deliberately failed to advise the Plaintiff or the Third Defendants or concede that the law they sought to enforce was not legally in force.

(c)	The First and Second Defendants deliberately sought to bring the various court proceedings against the Plaintiff before the Kopkop Urban Village Court and especially before the Third Defendants to achieve the results intended.

(d)	The First and Second Defendants deliberately avoided to file any proceedings before the Kavieng District Court so that the said proceedings could not be dismissed for procedural irregularity.

(e)	The First Defendant colluded with the Third Defendants to hear the various court proceedings without restraint for want of jurisdiction and whilst knowing well that the Third Defendants did not have jurisdiction or were not properly constituted to hear the cases.

(f)	When the First and Second Defendants requested the Fourth Defendants to raise Warrants of Commitment and imprisonment for alleged breach of Village Court Orders of 21st April 2009 they knew fully well that it was improper and illegal to do so but deliberately went ahead to ensure that the Warrants were raised, signed by the Fifth Defendant and enforced it to jail the Plaintiff which result they intended to achieve when requesting the Fourth Defendant to raise the Warrants.

(g)	The Fourth Defendant acted deliberately in breach of her official duties to raise the Warrants requested without a valid Court Order setting out the breach and without a Statement setting out the particulars of the breach and when he could have refused to do so as the proper officer of the Kavieng District Court.

(h)	The Fifth Defendant could have checked that the Warrants were properly raised before signing them and before allowing the Fourth Defendant to impress the Kavieng District Court Stamp on the said Warrants but did not.

(i)	The First, Second, Third, Fourth and Fifth Defendants did not at any stage refrain from acting in the respective manners in which they did when it was apparent that their respective actions were illegal and negligent.

7.	As a direct result of the Defendants actions including failures, negligence and illegalities the Plaintiff suffered special damages.

Particulars of Special Damages.

(a)	K100.00 paid towards a Peddlers Licence as advised by the First Defendant.
(b)	K400.00 paid towards fines imposed by the Third Defendants on him.
(c)	Expenses incurred towards the defence of the various court proceedings particulars which will be provided at trial as if pleaded herein.
(d)	Expenses incurred towards travel, accommodation and related costs between Kavieng and Kokopo and while at Kokopo to give instructions to his lawyers and to follow up until the filing of the Writ, particulars of which will be provided at trial as if pleaded herein.

8.	As a direct result of the Defendants actions including failures, negligence and illegalities the Plaintiff also suffered mental distress which was foreseeable at all times.

Particulars of Mental Distress.

(a)	The Plaintiff felt distressed on each occasion he was charged and taken to Court when he demanded to know or to be shown copies of the laws he was alleged to have breached and why he was taken to a Village Court and not the District Court but none of the First, Second and Third Defendants gave him any explanation on each of those occasions.

(b)	The Plaintiff felt distressed when he asked why he was been charged when he had a Peddlers Licence valid for two (2) years and no one gave him any answers whereas the First and Second Defendants could have verified this to him since it was their advice which caused him to obtain the said Licence.

(c)	The Plaintiff suffered great distress when arrested and taken to jail for ten (10) weeks for breach of Village Court Orders whereas he had not breached such orders and no alleged breach had been proven and no one gave him any explanations as to why he was jailed or gave him a copy of the Warrants or allowed him to see a Lawyer in relation to how his rights under the constitution were affected.

(d)	The Plaintiff suffered great distress when in jail doing hard labour knowing well that he had done nothing wrong and none of the First, Second, Third, Fourth and Fifth Defendants could assist him and when no other agent or servant of the Sixth Defendant could assist him until he served his full term in jail.

9.	At all material times the Defendant acted in unison and for one common purpose, namely to try the Plaintiff before a Court where a conviction was easy to obtain, have convictions entered against the Plaintiff and to have him fined or jailed without any regard for and adherence to the due processes of the law.

10.	At all material times the resultant effects of the failures, negligence and illegal actions of the First, Second, Third, Fourth and Fifth Defendants were foreseeable but they took no steps to avoid such effects by restraining to act in the manner they did.

11.	As a direct result of the actions of the First, Second, Third, Fourth and Fifth Defendants for which the Sixth Defendant is vicariously liable the Plaintiff suffered loss and damage.

12.	Pursuant to National Court Orders granted on 15th November 2010 the Plaintiff has given notice of his claim to the Sixth Defendant on 26th November 2010 as required under section 5 of the Claims by and Against the State Act 1996.

AND THE PLAINTIFF CLAIMS:

1.	General Damages
2.	Exemplary Damages
3.	Punitive Damages
4.	Special Damages
5.	Damages for Mental Distress
6.	Interests pursuant to Statute
7.	Costs of the Proceedings
8.	Such further or other Orders deemed fit by the Court.

13.	The defendants counsel in support of the motion submit that it is in the interest of justice, public policy and public interest considerations that impacted greatly on the State agents in the performance of their statutory duties that brings about this case on foot. Hence, the justice of the case so requires that the sixth defendant, who is the nominal defendant by default, is dragged into this action over alleged breach and depravation of constitutional rights to have the opportunity to defend it. 

14.	It is a trite law that under principles of vicarious liability the State has been sued under s. 5 of the Claims By And Against the State Act. It is only fair and just that sixth defendant, as nominal defendant be given the opportunity to defend the interest of the Independent State of Papua New Guinea at all cost, hence seek leave to file amended defence particulars, in response to the alleged breaches of rights by its agents, in the performance of their respective statutory powers, as alleged by Plaintiff in his detailed statement of Claim in this case.

15.	The Plaintiff, whilst opposes the motion generally submits that court should refuse the motion and set the matter down for trial proper. The plaintiff counsel submit that parties will still have the opportunity and can argue their legal positions during the trial proper, in view of the substantive Statement of Claim for damages is sought from five substantive heads of damages and consequential monetary statutory interest and cost, if defendants are found liable.

ISSUE

The issue is whether the defendants, in particular, the sixth defendant in its capacity as the nominal defendant, should be granted leave to provide further amendments to their defence particulars already filed?

LAW

16.	The sixth defendant on behalf of the other five defendants file the motion under Order 8 Rule 50 of the National Court Rules to seek leave of the Court to file amended defence particulars in respect to the Statement of Defence filed on 23rdNovember 2011. The Order 8 Rule 50 under Division 4 of the National Court Rules provides:

Division 4.—Amendment.

Oder 8 Rule 50.    General. (20/1)

(1)     The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

(2)     All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3)     Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.

(4)     This Rule does not apply to the amendment of a minute of a judgement or order.

APPLICATION OF LAW TO THE FACTS

17.	The brief history of the case present a very interesting way of judicial interest and significant dramatic events that trouble the Plaintiff so much in his quest to seek justice through the sixth defendant over its established agencies in Kavieng Township. The Plaintiff claim that he was not accorded the principle of natural justice neither fair hearing before the District Court on appeal from Kavieng (Kopkop) Urban Village Court. The matter gets to the point where Plaintiff was imprisoned by the District Court for ten weeks for failing to comply with Kavieng (Kopkop) Urban Village Court order of which he claims is not true. The Plaintiff claims that this was in breach of his Constitutional right because he owes the Kavieng (Kopkop) Urban Village Court no unpaid Court fines, for breach of Kavieng Town Council Rules on total ban on betelnut sale in the Kavieng Township Urban area, in particular Tan Hardware premises. Hence, the Plaintiff files this action against the defendants, including all law enforcing agencies in Kavieng Township, including in particular, Urban Kavieng Town Council, Kavieng (Kopkop) Urban Village Courts and District Courts in Kavieng including the nominal defendant the Independent State of Papua New Guinea.

18.	The motion by the sixth defendant and on behalf of the five other defendants is supported by an affidavit of resident Solicitor General Mr. Austin Edo, sworn and filed on 12th December 2013. The affidavit by Mr Edo clearly outline the Amended Defence intended to do is to address the legal issues raised by the Plaintiff's counsel in respect to law governing Local level Government, as well as the application of certain provisions of Village Court Act, and also application of certain appellate jurisdictional provisions and procedures under the District Court Act, that impact on time limitation plus the issue on the legal immunity on judicial officer relating to performing their judicial statutory powers and functions according to the law. The motion is essentially to cover these legal areas in the Amended Defence attached, which were omitted in the initial particulars of defence filed earlier and other related matters, in so far as the defendants in their endeavour in performing their statutory powers are concerned.

20.	The sixth defendants counsel and on behalf of the five other defendants seek leave of the Court to file amended defence particulars pursuant to Order 8 Rule 50 of the National Court Rules. The Order 8 Rules 50 (1) & (2) of the National Court Rules provides: 

50.    General. (20/1)

(1)     The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

(2)     All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. (Emphasis is mine)

RELEVANT CONSIDERATIONS RE-EXERCISE OF DISCRETION

21.	In the case of Pais v Kodi [2004] PGNC 84, Canning, J considered the effect of Order 8, Rule 50 of the National Court Rules is to give the court discretion, when it is required to determine an application for an order to amend a document, including any pleadings. There have been many PNG cases on such applications. They were conveniently summarised by Gavara-Nanu, J in The Papua Club Inc. v Nusauam Holdings Ltd and Others (2002) N2273. In the Papua Club case the Court granted an application by the Plaintiff to amend its Statement of Claim on the third day of a trial that was due to last more than four days. Gavara-Nanu J reviewed the authorities, both in PNG and overseas and succinctly summarised the policy considerations underlying the broad discretion given to the court by Order 8 Rule 50 of the National Court Rules.

22.	His Honour summarised, at pages 12-13, five considerations the Court should weigh in the balance when determining such applications. They are:

1.	Will the amendment enable the Court to determine the real question in controversy between the parties?
2.	Will the amendment correct any defect or error in the proceedings?
3.	Will the amendment cause real prejudice or injustice to other party?
4.	Is the application for such amendment made mala fide or bon fide?
5.	Can the other party be fairly compensated with costs for the amendment?

23.	To those considerations, His Honour Canning J, add three others which his Honour recently applied in the case of Kewa and Others v Kombo (unreported, WS No 1036 of 2000, National Court, Mt Hagen, 15. 10. 04):

6.	Is the party applying for the amendment prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?

7.	Where do the interests of justice lie?

8.	Is the proposed amendment efficacious? That is, is it a proper amendment?

APPLICATION OF RELEVANT CONSIDERATION

24.	I find the above considerations appropriate and apply them in this case.

1.	The proposed amendment will tend to enable the Court to determine the proper amount of damages the plaintiff is likely to be entitle to if defendants are found liable. This consideration therefore favours the exercise of the Court's discretion to make an order under Order 8 Rule 50 of the National Court Rules, that the defendants be granted leave to amend the defence particulars.

2.	There has been lack of active participation by the 1st, 2nd, 3rd, 4th and 5th defendants apart from sixth defendant, who is the nominal defendant, the State being represented by Solicitor General Office. The lack of proper instructions from the other five defendants, who were directly involved with the plaintiff, whose actions has been the subject of this proceedings. The Counsel for the defendants has verify in his affidavit that, though Notice of Intention to defend was file with defence particulars, however, upon further assessment of the plaintiff's Statement of Claim reveal that there are multiple players in this case. They are Kavieng Urban Local Level Government, Kopkop Village Court Magistrates, District Court Registry Staff and District Court Magistrate, therefore the amendment to the defendants defence for further particulars is calculated to correct these errors that may have been omitted, in respect to these three different collective players participatory role. So this is another consideration supporting the exercise of the Court's discretion.

3.	The plaintiff, in my view, will not be prejudice by the amendment.

4.	The application is made bona fide, to correct unfortunate errors important matters not pleaded in the defence case filed on 23rd November 2012 and to progress the matter to trial.

5.	The plaintiff can be adequately compensated by an order for costs, if defendants are found liable.

6.	I do not consider that the defendants are prevented by their conduct from amending the amended defence particulars. Clearly there is a lack of communication between the five defendants from Kavieng and sixth defendants Counsel here in Kokopo due to unfortunate geographical location. The matters are even made worse by the fact that the fifth defendant is the Senior Magistrate Mr. Orim Karapo, who has passed on already in late 2012 or thereabout. However, lack of communication that culminated into lack of proper consultation between various major players in this case and for Solicitor General's Office in Kokopo to muscle in and compile all requisite and relevant information, is quite a surmountable challenge, in order to made out a meritous and credible amended defence case may not be a good reason to deny an application of this sort. (see Wessey v Aigilo [2005] PGNC 84)

7.	The history on case precedent shows that Courts in PNG have been quite flexible when dealing with these sorts of applications, for good reason. I find this case is quite unique in that action against the State, usually involves police brutality for violation of human rights and Constitutional breaches. The State agents involved in this case are very rear. Whilst I am mindful of the fact that the Courts should be as far as possible be the forum for meaty, substantive issues. That is how justice is dispensed. However, if the Courts are tied to technicalities, they lose focus on what justice is all about. The State agents in this case against whom the serious allegations are made want to be given the opportunity to have their say and justify their conduct in open court. That is a laudable desire. Whilst, the plaintiff on the other hand has all the opportunity at his disposal, to challenge the judicial decisions of the fifth defendants through the appeal process before the National Court. The court record, however, shows that this legal review option was not explored by the plaintiff. Hence, this action now before the court.

8.	I consider that the proposed amendment is a proper one.

25.	I am satisfied that all of the above considerations favour the granting of the application to amend the defence. I therefore grant the application.

CONCLUSION

26.	The Court having arrived at the above conclusion, is of the view, that the justice pendulum in this case, swings in favour of the granting of the application, that the leave be granted to the sixth defendant, and on behalf of the five other defendants to file amended defence. 

ORDER

27.	The Court makes the following orders:

1.	The defendants has leave to file the document headed "amended defendants defence" in draft annexed marked "A" to the affidavit of Austin Edo of 13th December 2013, which shall hereafter be regarded as a fresh document;

2.	The defendants shall immediately file, endorse and serve the fresh document in the manner prescribed by Order 8 Rule 50 of the National Court Rules;

3.	The amended defence shall be filed and serve within 14 days after the date of entry of this order;

4.	Time for entry of these orders is abridged to the time of settlement, which shall take place forthwith;

5.	Cost be in the cause.

Court Orders accordingly.
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Donald & Company Lawyers: Lawyer for the Plaintiff
Office of Solicitor General: Lawyer for the Defendants