N7061

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (CC4) No.1484 of 2014

BETWEEN:
KENDO KARI and WANPIS DIAWA
Plaintiffs

AND:
PNG POWER LIMITED
Defendant

Waigani:  David, J
2017:  7 June & 8 September

PRACTICE AND PROCEDURE – application for leave to make application out of time to be substituted as a plaintiff in place of deceased - whether applicant has made out a case to be substituted as plaintiff in place of deceased - person with interest in deceased’s estate entitled to make application within 3 months of death of deceased party -  where application is made after 3 months, court has discretion to grant such an application to do justice – discretion should be exercised on proper grounds and may impose conditions - Factors to consider include mechanics of establishing claim or defence, availability of witnesses and evidence and prejudice to the other party or parties - applicant has not provided reasonable explanation for delay in making application - applicant has not made out a case to be substituted as plaintiff in place of deceased – plaintiff at liberty to seek service of public curator as substitute for plaintiff – plaintiff’s application dismissed - Order 1 Rule 7, Order 12 Rule 1 and Order 5 Rules 10 and 12 of the National Court Rules.  

Cases cited:

Bill Misivet Vevo v the State (2011) N4348
Lepanding Singut v Kelly Kinamun (2003) N2499
Niugini Mining Limited v Joe Bumbandy (2005) SC804
Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677
Thomas Kaidiman v PNG Electricity Commission (2002) N2343

Counsel:

Robert Awalua, for the Plaintiffs 
Emma Minimbi, for the Defendant

RULING
8 September, 2017

1.	DAVID, J:   INTRODUCTION: On 27 January 2009, the plaintiffs were part of a group of males at Aiyura National High School, Eastern Highlands Province replacing old flags with new flags on a flag pole when the aluminium extension ladder they were using made contact with high voltage power lines above the flag pole injuring both of them whilst two others namely, Ray Diawa and Simon Kari died instantly from electrocution.  By writ of summons endorsed with a statement of claim filed on 27 November 2014 and subsequently amended by the filing of an amended writ of summons endorsed with an amended statement of claim on 29 May 2017, the plaintiffs claim damages against the defendant in an action founded on negligence.   Wanpis Diawa, one of the plaintiffs is now deceased (the deceased) and his death has resulted in the application now before the Court.

2.	By notice of motion filed on 28 March 2017, one Rieme Alo makes application for leave to make this application out of time and to be substituted as a plaintiff in the place of the deceased pursuant to Order 1 Rule 7, Order 12 Rule 1 and Order 5 Rules 10 and 12 of the National Court Rules.  At the hearing, Rule 7 of Order 1 was invoked by consent of the defendant through Ms Minimbi of counsel by way of an amendment to paragraph 1 of the notice of motion.  The application is supported by three affidavits and they are by:

(a)	Rieme Alo sworn on 28 March 2017 and filed on the same date;
(b)	Robert Awalua sworn and filed on 28 March 2017;
(c)	Joe Kua sworn on 23 May 2017 and filed on 24 May 2017. 

3.	The defendant contests the application.  It does not rely on any affidavit.

SUMMARY OF APPLICANT’S EVIDENCE

4.	In his affidavit, Rieme deposes that:
	
(a)	he was initially the plaintiff when the proceedings were commenced, but was removed to allow for the current plaintiffs to personally pursue their claim therefore he was well aware of the facts surrounding the case.
(b)	he was the legal guardian of the plaintiffs and two others namely, Ray Diawa and Simon Kari who were also under his care whist he was the Principal of the Aiyura National High School when they were electrocuted on 27 January 2009. 
(c)	Kendo Kari and the deceased suffered extensive electric burns to their bodies whilst Ray Diawa and Simon Kari died instantly.
(d)	he had been liaising with the defendant for compensation even after transferring to Kerevat National High School in East New Britain Province in 2012 as the school’s Principal, but received no favourable response from the defendant.
(e)	he sought legal advice from his lawyers towards the back end of  2013 after which these proceedings were instituted.
(f)	sometime in June 2014, he received a call from Mendi that the deceased had died.
(g)	details of the death of the deceased were hard to obtain due to the remoteness of their village which was located many kilometres away from Ialibu Station and only accessible by foot. 
(h)	he could not attend the funeral of the deceased at home as students were preparing for the National Written Expression examinations.
(i)	he only went home after the trial was vacated about a month before the execution of his affidavit and got the deceased’s Medical Certificate of Death dated 25 December 2014 which is annexure “A” to his affidavit.   
(j)	according to the Medical Certificate of Death issued by Dr Anna Lyllipo based at the Accident & Emergency Department, Mendi General Hospital on 25 December 2014 (Medical Certificate of Death), the deceased died on arrival (DOA) at 9:00 am on 10 December 2014 at the Accident & Emergency Department and the cause of death was septicaemia due to electrocution and other conditions including multiple renal failure.
(k)	as he was not aware of the legal requirements for substituting a deceased person as a party where his cause of action survived his death and consequences until advised by the plaintiffs’ lawyers, he did not inform his lawyers about the death of the deceased.
(l)	it was only in late January 2017 after he was contacted by his lawyers that they required the plaintiffs to sign affidavits when he revealed the news of the death of the deceased to them. 
(m)	the trial fixed for 13 February 2017 was vacated as a result  
(n)	he was then requested by his lawyers to obtain the deceased’s death certificate and identify the next of kin in order to apply for substitution of the deceased as a plaintiff.
(o)	he travelled home and talked to the deceased’s parents who are old and in their late 50s and obtained the death certificate from them.
(p)	the deceased’s parents cannot be substituted as they are both old.
(q)	he and the deceased’s father are biological brothers.
(r)	the deceased’s only brother Roy Diawa died when he was electrocuted.
(s)	he is the only able person and a close relative of the deceased who can communicate with the lawyers as he has been doing all along and makes this application although done belatedly more than three months after his death for reasons he has given.
(t)	the delay in making the application was also caused by the fact that he was of the view that the plaintiffs’ claim would be settled from negotiations entered into by the plaintiffs lawyers and the defendant for which he was constantly informed by the plaintiffs’ lawyers.

5.	In his affidavit, Robert Awalua deposes that:

(a)	he is the lawyer who has carriage of the plaintiffs’ case.
(b)	his firm was not aware of the demise of the deceased.  
(c)	he contacted Rieme on his mobile phone sometime in late January 2017 to arrange for the plaintiffs to sign their affidavits.
(d)	it was then that Rieme told him about the death of the deceased which is confirmed by the Medical Certificate of Death.
(e)	the trial scheduled for 13 February 2017 was vacated due to the death of the deceased.
(f)	Rieme initially instituted these proceedings on behalf of the plaintiffs and the other two boys who were electrocuted, but was removed as a party after the writ of summons endorsed with a statement of claim was amended.  

6.	In his affidavit, Joe deposes that he served the notice of motion and the affidavits of Rieme and Robert Awalua on the defendant’s lawyers at their office located at Level 4, Mogoru Moto Building, Champion Parade, Port Moresby on 22 May 2017 at 1:25 pm.

APPLICANT’S SUBMISSIONS

7.	The applicant through Mr Awalua of counsel submits that the application should be granted for the following reasons.

8.	First, even if the application has not been made within three months of the death of the deceased, Order 5 Rules 10 and 12 of the National Court Rules gives the Court a wide discretionary power for the addition of a party in substitution for the deceased party to be exercised on proper grounds and may impose conditions.    This would include the power of the Court to dispense with a non-compliance of the National Court Rules by virtue of Order 1 Rule 7 and Order 12 Rule 1 of the National Court Rules.   Mr Awalua referred the Court to the decisions in Thomas Kaidiman v PNG Electricity Commission (2002) N2343, Lepanding Singut v Kelly Kinamun (2003) N2499 and Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677 to support his submissions.

9.	Secondly, in deciding how to exercise its discretion, the Court should take into consideration the following matters:

(a)	the applicant is the only able heir to the late Wanpis Diawa’s estate.
(b)	the applicant has “substantial maintainable interests” in these proceedings.
(c)	proof of the claim was substantially based on documentary evidence in the form of witness’ statements which were already in the possession of the applicant and should be readily available to the parties hence the action be prosecuted without any great difficulty.  

DEFENDANT’S SUBMISSIONS

10.	Ms Emma Minimbi for the defendant submitted that the application should be refused and proceedings be dismissed for want of prosecution on the basis that:

(a)	the applicant had knowledge of the death of the deceased, but failed to inform the plaintiffs’ lawyers of that fact prior to them contacting him;
(b)	the defendant had no prior knowledge of the death of the deceased  and therefore was unable to file an application to dismiss the deceased’s claim under Order 5 Rule 12(1) of the National Court Rules; 
(c)	the plaintiffs including the deceased have not filed any affidavit to be relied on at trial;
(d)	substantial prejudice would be caused to the defendant in its defence of the plaintiffs’ claims generally including that of the deceased’s for lack of documentary evidence such as supporting affidavits of the plaintiffs and their witnesses and relevant medical reports whether recent or otherwise concerning injuries allegedly sustained by the plaintiffs and the right to cross-examine the deceased would not be accorded in the circumstances;
(e)	the alleged accident giving rise to the plaintiffs’ action occurred in January 2009 and the action having been commenced by writ of summons and statement of claim in November 2014 and amended once in May 2015 has yet to be tried 8 years on notwithstanding that the matter was fixed for trial on two occasions, but vacated each time.      

ISSUE

11.	The main issue for me to consider and determine is whether the applicant has made out a case to be substituted as a plaintiff in the place of the deceased?

THE LAW

12.	The Court is vested with jurisdiction to entertain an application for the substitution of a person in lieu of a deceased party whose cause of action survives by virtue of Order 5 Rules 10 and 12 of the National Court Rules.  These rules state:

“10.	Death, transmission, etc. (8/10)
(1)	Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.
(2)	Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the proceedings.
(3)	The Court may act under Sub-rule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.

12.	Failure to proceed after death of party. (8/12)
(1)	Where —
(a)	a party dies but a cause of action in the proceedings survives his death; and
(b)	an order under Rule 10 for the 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 proceedings 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 thereon, as the case may be, survives on the death.
(2)	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.”

13.	According to these rules, a person who has an interest in the deceased’s estate is entitled to make an application within 3 months of the death of a deceased party, but where an application is made after 3 months, the court has a discretion to grant such an application to do justice which should be exercised on proper grounds and may impose conditions: Thomas Kaidiman v PNG Electricity Commission; Lepanding Singut v Kelly Kinamun.  Factors to consider in considering how to exercise the discretion include the mechanics of establishing the claim or defence as the case might be, availability of witnesses and evidence and prejudice to the other party or parties:  Lepanding Singut v Kelly Kinamun.  An applicant seeking substitution of a deceased party must provide a reasonable explanation for the delay in making the application:  Thomas Kaidiman v PNG Electricity Commission.   It has also been held that the court on its own motion may order the substitution by another party of a deceased party:  Public Officers Superannuation Fund Board v Sailas Imanakuan.  In addition, it has also been held that an application made well after 3 months of the date of the death of the deceased party may be allowed where the opposing party has failed to exercise its right to apply for a dismissal of the proceedings in accordance with Order 5 Rule 12(1):  Bill Misivet Vevo v the State (2011) N4348. 

14.	Order 12 Rule 1 of the National Court Rules is a general provision and does not contain a concise reference to the court’s jurisdiction to grant the order specifically sought.  

15.	Order 1 Rule 7 of the National Court Rules is a rule of general application to all the rules in the National Court Rules and the interest of justice is the paramount consideration in exercising the discretion vested in the Court by the rule:  Niugini Mining Limited v Joe Bumbandy (2005) SC804.  The Supreme Court in that case considered Order 1 Rules 7 and 8 of the National Court Rules and cautioned that the discretion under those rules must be exercised with restraint or sparingly for to do otherwise could make a complete mockery of the rules and introduce double standards in dealing with compliance issues.  

REASONS FOR RULING

16.	At the outset, I have to say that the defendant has to be excused for not making an application to dismiss the deceased’s claim under Order 5 Rule 12(1) simply because it was unaware of the death of the deceased until early this year on 13 February 2017 when the trial fixed for that day was vacated for that reason.  There is no evidence to the contrary before the Court.

17.	 Has the applicant provided a reasonable explanation for the delay in making the application?

18.	Evidence from two principal affidavits, one from the applicant Rieme himself and other from his lawyer, Mr Awalua, is relied on to support the application.

19.	The evidence from Mr Awalua essentially is that his firm was not aware of the death of the deceased until he was told by the applicant in late January 2017 when he contacted him by mobile phone to arrange for the plaintiffs to sign their affidavits. 

20.	I have summarised Rieme’s evidence earlier on in the ruling and make the following observations on certain matters that arise from the evidence and the applicant’s submissions which I think are pertinent to the exercise of my discretion:

(a)	he claims to be the legal guardian of the deceased and the surviving plaintiff Kendo Kari and two others who allegedly died from electrocution arising from the same accident, but no cogent or convincing evidence has been produced to substantiate that assertion; merely residing with him and under his care at the Aiyura National High School is not the same as being a legal guardian.  
(b)	in relation to the death of the deceased, the Medical Certificate of Death shows that the deceased died on arrival at the Accident & Emergency Department, Mendi General Hospital on 10 December 2014 whereas contrary to that piece of evidence, Rieme deposes that sometime in June 2014, he received a call from Mendi (without giving details of the caller) that the deceased had died.
(c)	the application was filed well outside 3 months of the death of the deceased; if he died in June 2014 or before that, the delay will be more than 2 years and 9 months; if he died on 10 December 2014, the delay will be more than 2 years and 3 months.   
(d)	apart from the parents of the deceased who he states are old and in their late 50s, he has not stated as to whether or not the deceased has female siblings and if so their details as he states that Roy Diawa was the deceased’s only brother.
(e)	he is not the heir to the estate of the deceased.
(f)	there is no evidence as to why the Public Curator or a legally recognised personal representative should not be substituted.
(g)	there is no cogent or convincing evidence of any consent or authority written or otherwise given by the deceased’s parents or siblings if any or any heir to the estate of the deceased or the Public Curator for him to be substituted in the place of the deceased.   
(h)	he may be the biological brother of the deceased’s father or the only able and close relative to communicate with lawyers, but they do not in themselves authorise him to be the representative of the deceased.   
(i)	the submission that the applicant has “substantial maintainable interests” in the proceedings connotes that the applicant has a personal interest other than the interest of the deceased or his estate.
(j)	he states that he has been constantly informed by the plaintiffs’ lawyers about the state of settlement negotiations, but gives no details as to when he last made contact with the plaintiffs’ lawyers after he became aware of the death of the deceased and why he did not disclose the information about the death of the deceased when the opportunity to do so was there.
(k)	he states that he never told his lawyers about the death of the deceased as he was unaware of the requirement to substitute a deceased party where a cause of action survived which may be excused, but again it raises the question as to why that fact was not made known to the plaintiff’s lawyers when they were in contact with him about the state of settlement negotiations.
(l)	if the applicant has had in his possession certain documentary evidence in connection with the plaintiffs’ claims, then they should have been made available to the parties already to assist determine the proceedings or otherwise make himself available as a witness for the plaintiffs.  

21.	The delay in making the application after the death of the deceased in the present case is by more than 2 years.  It is a substantial period.  In that regard, I concur with the defendant’s submission that the defendant will be substantially prejudiced with respect to the deceased’s claim given the alleged accident occurred in January 2009 and no doubt would have a bearing on the type and quality of evidence to be called and the right to cross-examination of the deceased has been lost.  However, the defendant’s submissions on the lack of documentary evidence such as the filing of supporting affidavits of the plaintiffs or their witnesses and relevant medical reports whether recent or otherwise are not supported by affidavit evidence.     

22.	Given these, it suffices to say that in all the circumstances of this case and in the exercise of my discretion and given the paucity of evidence in support of the application and the presence of questionable evidence produced by the applicant, I am not satisfied that the applicant has provided a reasonable explanation for the delay in making the application.  In addition, it will not be in the interest of justice to dismiss the deceased’s claim as proposed by the defendant when the Public Curator of Papua New Guinea who has a direct interest in administering estates of persons dying intestate has not been given an opportunity to consider pursuing the deceased’s claim, unless a personal representative has been properly and lawfully appointed to pursue the claim in the meantime.     The applicant has not made out a case to be substituted as a plaintiff in the place of the deceased.  The application is refused. 

23.	The formal orders of the Court are:

(a)	the relief sought by the applicant in the notice of motion filed on 28 March 2017 are refused,
(b)	the applicant shall bear the defendant’s costs of the application.
(c)	a copy of this order shall be served on the Public Curator within seven days of this order.
(d)	any further application for substitution of the deceased as a party under Order 5 Rules 10 and 12 of the National Court Rules shall be made within one month from today failing which the claim by the deceased shall stand dismissed for want of prosecution.   	

_________________________________________________________
Kimbu & Associates:  Lawyers for the Plaintiffs                                
Ashurst: Lawyers for the Defendant