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Kemben v Nan Jiang (PNG) Holdings Ltd [2016] PGNC 295; N6497 (5 September 2016)

N6497
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No.1270 OF 2013

BETWEEN:

REX NEAPUKALI KEMBEN
for himself and on behalf of YOMBON
PATRICK, WIN TANGUPAE, and
SANDALU KEMBAIO, Principal Land
Owners of Mining Lease # ML153
Plaintiffs

AND:
NAN JIANG (PNG) HOLDINGS
LIMITED
Defendant

Waigani: Hartshorn J.
2015: 8^thOctober ,
2016: 5^th September

APPLICATION to to set aside summary judgment as service of the originating process was irregular – Order 7 Rules 7 and 8 National Court Rules

Counsel:

Mr. T. Tape, for the Plaintiffs
Mr. M. Wilson, for the Defendant

5^th September 2016

1. HARTSHORN, J: This is a decision on a contested application to set aside the summary judgment that was entered against the defendant in this proceeding. The ground relied upon to set aside the summary judgment is that the service upon the defendant of the originating process was irregular.
   

Background

2. It is pleaded that the plaintiffs are customary landowners of an area the subject of an alluvial mining lease in Kombiam, Enga Province. They allege that environmental damage has been caused by the activities of the defendant company and amongst others damages are sought. Summary judgment was entered against the defendant on 5^th March 2014 with damages to be assessed.
   

This application

3. The defendant applies for amongst others, pursuant to:
   

a) Order 7 Rule 7 (2) (b) National Court Rules, an order that service of the writ of summons upon the defendant was irregular for failure to comply with the mandatory requirements of Order 6 Rule 2 National Court Rules and s. 431 Companies Act; and

b) Order 7 Rule 8 (a), (b) and (c) National Court Rules, orders that amongst others, the service of the writ of summons upon the defendant be set aside.

4. Order 7 Rules 7 and 8 National Court Rules are as follows:
   

“7. Conditional notice.

(1) The giving of a notice of intention to defend does not constitute a submission to the jurisdiction of the Court.

(2) A defendant shall be entitled, either before giving notice of intention to defend or within 14 days after giving that notice, to serve a notice of motion to set aside the service on him of the writ or of notice of the writ or to discharge the order authorizing the service on the ground that —

(a) the Court has no jurisdiction to determine all or part of the plaintiff's claim; or
(b) the issue or service of the writ was irregular; or

(c) an order giving leave to serve the writ or notice of the writ out of the jurisdiction ought not to have been made; or

(d) the defendant has been served as a partner in a firm of which he was not a partner or liable as such at any material title.

(5) After the service of the notice of motion the plaintiff shall not be entitled to enter judgement in default of defence or take any other step in the action without the leave of the Court.

8. Setting aside originating process, etc. (11/8)

The Court may, on motion made by a defendant under Rule 7, by order —
(a) set aside the originating process; or

(b) set aside the service of the originating process on the defendant; or

(c) declare that the originating process has not been duly served on the defendant; or

(d) discharge any order giving leave to serve the originating process outside Papua New Guinea or confirming service of the originating process outside Papua New Guinea.”

5. It can be seen that Order 7 Rule 7(2) provides an entitlement to serve a notice of motion to set aside, either before giving notice of intention to defend or within 14 days after giving notice of intention to defend.
   
6. Order 7 Rule 8 provides for the court to make orders to amongst others, set aside, on a motion made by the defendant under Rule 7.
   
7. In this instance, the defendant filed a notice of intention to defend on 24^th March 2014. A purported “Amended Notice of Conditional Intention to Defend” was filed on 10^th September 2015.
   
8. Presumably, the filing of the “Amended Notice of Conditional Intention to Defend” was an attempt by the defendant to be entitled to serve a notice of motion to set aside under Order 7 Rule 7 (2) National Court Rules. There is however, no provision in the National Court Rules that permits the filing of an “Amended Notice of Conditional Intention to Defend”. There is a provision that permits a notice of intention to defend to be withdrawn with leave: Order 8 Rule 64. As far as I am aware, the defendant has not sought or been granted leave to withdraw or amend its notice of intention to defend under that Rule or at all.
   
9. Consequently, I am not satisfied that the defendant is entitled to serve a notice of motion to set aside under Order 7 Rule 7 (2) National Court Rules as it did not serve the notice of motion to set aside either before giving its notice of intention to defend or within 14 days after giving its notice of intention to defend.
   
10. As the defendant is not so entitled, this court does not have before it a “.... motion made by the defendant under Rule 7” and so is not able to make any order under Order 7 Rule 8 National Court Rules.
    
11. As the relief sought pursuant to Order 12 Rule 1 and s. 155(4) Constitution for amongst others the summary judgment to be set aside, is only for the reasons given in support of the applications made under Order 7 and Rules 7 and 8 National Court Rules, and those applications have failed, the application for this relief should also fail.
    
12. Given the above it is not necessary to consider the other submissions of counsel apart from as to costs. The plaintiffs seek their costs of this motion on a solicitor client basis if the motion fails. I am not satisfied that the plaintiffs have satisfied the requisite tests for such costs to be awarded.
    

Orders
13.

1. The notice of motion of the defendant filed 7^th September 2015 is dismissed;
   
2. The defendant shall pay the plaintiffs costs of and incidental to the said notice of motion on a party party basis to be taxed if not otherwise agreed;
   

c) Time is abridged.
_____________________________________________________________
Kandawalyn Lawyers : Lawyers for the Plaintiffs Warner Shand Lawyers: Lawyers for the Defendant