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Porykali v Secretary, Department of Defence [2018] PGNC 564; N7708 (5 November 2018)

N7708

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 831 OF 2017

BETWEEN:
DAVID PORYKALI
Plaintiff

AND:
SECRETARY, Department of Defence
First Defendant

AND:
DORREN JOEL – First Assistance Secretary,
Human Resources, Department of Defence
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018: 10 & 24 May, 7 Jun, 3 & 20 Jul,
20 Aug, 20 Sept, 18 Oct & 5 Nov

PRACTICE AND PROCEDURE – Application to file defence out of time by the State – application made pursuant to Order 7 Rule 6(2) and Order 8 Rule 23 of the National Court Rules and Section 9 of the Claims By and Against the State Act – whether competent – held – the only applicable provision under which the State can apply the defence out of time is Section 9 of the Claims By and Against the State Act.

Cases Cited:

Joe Tipaiza v James Yali [2006] N2971
KA Properties (PNG) Limited v Simatab [2017] PGNC 373 N7070
Lorma Construction Ltd v the State N4636" title="View LawCiteRecord" class="autolink_findcases">[2012] PGNC N4636
Peter Pena v J’s Motors Ltd [2006] SC 961

Counsel:

Mr. N Kopunye, for the Plaintiff/Applicants
Ms. M Irakau, for the Defendant/Respondents

5^th November, 2018

1. DINGAKE J: The defendants apply to be granted leave to file defence out of time pursuant to Order 7 Rule 6(2) and Order 8 Rule 23 of the National Court Rules, and Section 9 of the Claims By and Against the State Act.

2. The application is opposed by the plaintiff.
3. Mr. Kopunye, learned counsel for the plaintiff contends that the applicants have invoked the wrong provisions to seek leave to file their defence out of time.

4. Mr. Kopunye, learned counsel for the plaintiff contends the correct jurisdictional basis is Order 1 Rule 15.

5. Ms. Irakau, learned counsel for the defendants contends that Section 9 of the Claims Act provides that a court before which the action is instituted, may, upon sufficient cause being shown, permit a defence to be filed out of time.

6. Ms. Irakau, learned counsel for the defendants relies on the authorities of Lorma Construction Ltd v the State N4636" title="View LawCiteRecord" class="autolink_findcases">(2012) PGNC N4636 and KA Properties (PNG) Limited v Simatab (2017) PGNC 373 N7070, which I have had the privilege and profit to read.

7. Order 1 Rule 15 (1) of the National Court Rules provides:

“15. Extension and abridgement. (2/3)

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

8. On plain reading of the aforesaid Order, the Court is authorized to extend or oblige anytime frames fixed by “the Rules or by any Judgment or Order” (emphasis mine).

9. In this matter, however, since the defendants are State entities, it is the Claims By and Against the State Act that gives the Court the powers to extend any time frames. This is provided by Section 9 of the Claims Act that provides:

“9. Filing of defence by the State.

Notwithstanding anything in any other law, in any proceedings for a claim against the State, the time within which the State shall be required to file a defence or appear in response to a summons on complaint (as the case may be) shall be—

(a) in a claim commenced by writ in the National Court—

• (i) where the statement of claim is endorsed on the writ—before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend; or
• (ii) where the statement of claim is not endorsed on the writ—before the expiry of 60 days from the date of service of the statement of claim; or

(b) where a cross-claim is made against the State—before the expiry of 30 days from the date of service of the cross-claim; or
(c) in an application under Section 57 of the Constitution—before the expiry of 90 days from the date of service of the application; or
(d) in a claim made in the District Court—before the expiry of 90 days from the date of service of the summons,
or such further time as the court before which the action is instituted, upon sufficient cause being shown, allows.”

10. It follows in my view that the reference to the rules of the National Court in the applicant’s notice of motion is misplaced. Only Section 9 is relevant and applicable. It follows in my view that the notice of motion is not incompetent to the extent that it also invokes Section 9 of the Claims By and Against the State Act.

11. I turn now to consider the applicant’s application to be permitted to file its defence out of time.

12. In the case of Joe Tipaiza v James Yali (2006) N2971, the Court enunciated the relevant factors the Court should take into account as follows:

(i) The extent of the delay;
(ii) The reasons for the delay;
(iii) Does the defendant appear to have a good defence;
(iv) Where do the interests of justice lie.

13. The authorities also seem clear that the principal consideration is whether the applicant has demonstrated that it has a defence on the merits. (KA Properties (PNG) Limited, (supra)).

14. It is settled law that to show a defence on the merits a proposed draft defence is not sufficient. There must be more, deposed to, in an affidavit, that support the pleaded material facts. (Peter Pena v J’s Motors Ltd 2006 (SC 961)).

15. The cause of action of the plaintiff seems to be that the defendants maliciously framed charges against him which were false and tarnished his reputation resulting in his sustaining losses or damages as particularized in his statement of claim.

16. The applicants defence is that the charges were framed in good faith based on an audit report that the plaintiff was involved, in his capacity at that time, as Acting Deputy Secretary, to direct that funds totalling up to over K9 million be transferred to non existing trust account within the organization and that his action went further to influence the Secretary for the Department, at the time, to endorse those seven (7) claims to be processed as they were.

17. The defendants also aver the charges are or were not false.

18. As for the delay in filing the defence in time the applicants aver that they have not done so because of the work and other pressing government work related to APEC and other government works.

19. The defendants counsel says in her affidavit in support of the application that full instructions were not forthcoming since the delay. She avers that although the defendants were served with a writ of summons on the 24^th of August, 2017, they did not file the defence in time. The time to file the defence expired on the 4^th of December, 2017. She only received instructions to defend the matter and apply for extension of time towards the end of September 2018.

20. It follows from the above facts that the defendants delayed to file the defence by at the very least more than nine (9) months reckoned from the 4^th of December, 2017.

21. In my opinion the affidavits in support of the application do not disclose material evidence in support of the draft defence averments/pleadings. For instance, the draft evidence mentions the existence of an audit report, which is not attached – and other than merely saying the charges were not false nothing beyond that is presented in the form of affidavit evidence.

22. There is in my opinion, nothing to show any defence on the merits.

23. The delay of at least nine (9) months is not sufficiently explained. It is not adequate to simply say the relevant officers of the defendant were busy with government work and for their lawyer to say she had difficultly being instructed. This kind of explanation may be considered reasonable where the delay runs into a few months; but certainly not for over nine (9) months. I find that in the circumstances of this matter, given the bald and unsubstantiated reasons for the delay, accounting for each month as it unfolded, as to what was done to comply with court process, this court is constrained to find that the reasons given for the delay were reasonable.

24. It is in the interest of justice that court processes or rules be complied with and that they should be enforced unless they are compelling reasons to excuse non compliance. I find that the interest of justice favour that this application be refused.

25. In the result:

(a) The application by the defendants to file their defence out of time is refused, with costs.

_______ ____________________________________________________
Kopunye Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants