N6570
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. No. 1706 OF 2015

BETWEEN

TRANS NIUGINI TOURS TRADING AS AMBUA LODGE 
Plaintiff

AND
WILLIAM BANDO, ACTING PROVINCIAL ADMINISTRATOR, HELA PROVINCIAL ADMINISTRATION 
First Defendant

AND
HELA PROVINCIAL GOVERNMENT 
Second Defendant

Tari: Ipang, J
2016:  September 26 & 30

CIVIL – MOTION– Defendants’ motion seeking leave to file their Defence out of time – Order 1 Rule 7 & 15 – Order 7 Rule 6 of the National Court Rules.
PRACTICE & PROCEDURE – Four (4) considerations to determine whether or not, leave should be granted – the extent of delay – Reasons for the delay – whether there is a draft Defence on merit – where the interest of justice lie. 
Cases cited	
Joe Tipaza & Ors v. James Yali & Ors (2005) N2971
Piari v. Mapusa [2015] PGNC 106; N6004 (15 May, 2015)

Counsel: 
A. Benny, for the Plaintiff 
N. Tipitape, for the Defendants

RULING ON MOTION

30th September, 2016	

1.	IPANG J: There are two (2) respective motions before me to be dealt with. The Plaintiff’s motion dated 13th June, 2016 seeking entry of default judgement in the liquidated sum of K199, 554.56 and the Defendant’s motion seeking leave to file the defence out of time. I have decided to deal with the Defendant's motion first and later, depending on my ruling will deal with the Plaintiff’s motion should I refuse Defendant’s application. 

2.	The Defendant’s motion filed on the 13th of July, 2016 seeks the following relief; 

(i)	Leave be granted to the Defendants to file and serve their Defence out of time pursuant to Order 1 Rule 7 & 15 and Order 7 Rule 6 of the National Court Rules and section 155(4) of the Constitution.

(ii)	Cost be in the cause. 

3.	Defendants rely on the Affidavit of William Bando sworn on the 12th July, 2016 and filed on the 13th July, 2016.  A further supplementary Affidavit of William Bando sworn on the 12th September, 2016 and filed on the 13th September, 2016.

BRIEF BACKGROUND

4.	The Plaintiff filed the Writ of Summons (WS) and the Statement of Claim on the 20th November, 2015. The Plaintiff’s claim is for the liquidated sum of money of K199, 554.56 for providing accommodation for ADR mediation team. 

5.	On the 25th February, 2016 the Writ of Summons and the statement of claim was served on the Defendants. 
  
6.	The First Defendant filed his Notice of Intention to Defend (NOID) on the 13th July, 2016. However, the First Defendant did not file his Defence. 

7.	The Second Defendant’s was supposed to file its Notice of Intention to Defend (NOID) and Defence by 21st December, 2015. Thus, the Second Defendant has failed to file its NOID and Defence within time. 

RELEVANT PRINCIPLES GOVERNING GRANT TO LEAVE TO FILE DEFENCE OUT OF TIME

8.	There are three (3) requirements the Court takes into account when considering whether leave be granted. 
(i)	the extent of the delay
(ii)	the reason for the delay
(iii)	draft Defence on merits 

9.	In Joe Tipaija& Ors v. James Yali & Ors (2005) N2971 Cannings, J add one (1) additional requirement;
(iv)	Interest of justice. 

Application of Relevant Requirements in this Case 
Extent of Delay 

10.	As stated, the Writ of Summons (WS) and the statement of claim was served on the Defendants on the 25th February, 2016. The First Defendant filed his NOID on the 13th July, 2016 and not his Defence. The Second Defendant did not file its NOID and Defence. The requirement time for the Defendants to file their NOID and Defence was by March, 2016. By the time the Defendant filed their leave application on the 13th July, 2016 they were four (4) months out of time. 

Reasons for the delay 

11.	Defendants say they had communicated to the Plaintiff that a K10 million held in Trust Account by the National Court would pay off the bill when the ADR team concluded the mediation. The First Defendant had also advised the Plaintiff not to file proceedings against the Defendants on the basis that the Defendants do not owe Plaintiff any obligation to pay off the bill. So when the Defendants received their Writ of Summons and Statement of Claim, they took the burden to explain that they are not responsible to settle the debt instead of filing the NOID plus the Defence. 

12.	The Defence say they do not owe a duty to pay the Plaintiff as there was no agreement between the Plaintiff and the Defendants for the Defendants to pay off the accommodation bill incurred by the ADR Mediation Team. 

Interest of Justice 

13.	The First Defendant is the Provincial Administrator and the Second Defendant is one of the State entity. Second Defendant represents people of Hela Province. People of Hela will stand to lose almost K200, 0000.00 if I refuse this application. 

COURT’S ANALYSIS 

14.	There is no doubt that the Defendants failed to file their Defence within the required time. There was the delay by four (4) months. Compared to Piari v. Mapusa [2015] PGNC 106; N6004, the delay was substantial. The Draft Defence raised by the Defendants do have merits and raises the question of law and legal obligations plus issue of who should be the right party or parties to be sued. The reason for the delay was that the Defendants were in communication with the Plaintiff that there was no arrangement for defendants to pay for the Plaintiff’s bill. It will not cause greater prejudice for the Plaintiff if I grant the Defendants leave to file their Defence out of time. It will cause a further delay and loss of business for a short while. The interest of justice favours granting of leave so that Defendants can filed their Defence and defend the claim. 

15.	Given the ruling, there is no need for me to deal with Plaintiff’s motion for the Default Judgement. 

16.	Application for leave to file Defence out of time is granted. Defendants are given 21 days from the date of this judgement to file and serve their Defence on the Plaintiff. Cost be in the cause. 

R. Mai & Company Lawyers	: Lawyer for Plaintiff 
Hela Provincial Legal Office	: Lawyer for the Defendants