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Sios v Kelegai [2018] PGNC 98; N7189 (4 April 2018)

N7189

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 663 OF 2016

BETWEEN
JANET ROLAND SIOS
Plaintiff

AND
PHILMA KELEGAI
First Defendant

AND
KAREN BUSHELL
Second Defendant

AND
SALLY NAPOLIONI
Third Defendant

AND
ALEX TONGAYU, REGISTRAR OF COMPANIES
Fourth Defendant

Waigani: Dingake J
2018 : 4^th April

EX TEMPORE RULING

Counsel:

Michael Koimo, for Plaintiffs.
No appearance, for Defendants.

4^th April, 2018

1. DINGAKE J: The plaintiff/applicant in this matter describes herself as a former director of PNG Fashion Week Limited since 30^th of January 2012. The application, in essence, concerns the applicant’s status as a Director and Shareholder of PNG Fashion Week Limited.
   
2. By way of notice of motion filed with this Court on the 4^th of April, 2018, the applicant seeks wide ranging relief, that includes the dispensation of the requirement of service of notice of motion pursuant to Order 4 Rule 42 of the National Court Rules & Section 155(4) of the Constitution.
   
3. The applicant has filed an affidavit in support of the application sworn by herself.
   
4. It is trite law that in an urgent application seeking an order to dispense with the requirement to serve the notice of motion, leave should not be granted unless the evidence in the affidavit shows the urgency of the matter and or reasons why service of the motion is not necessary and or that it is impractical to serve the documents.
   
5. The affidavit in support of the application, is with respect least helpful. It does not set out explicitly the circumstances which render the matter urgent and why the application cannot be afforded substantial redress at a hearing brought in the normal cause.
   
6. On the basis of the affidavit filed in support of the application, the urgency in this matter seems self-created as the applicant knew about her removal – the basis of the application, on or about October 2017.
   
7. There is no averment in her affidavit as to when she knew that the event she seeks to restrain is proceeding on the 5^th of April, 2018 and when exactly the lawyers were instructed to interdict or restrain same.
   
8. In all the circumstances of this case, the applicant has failed to give sufficient evidence showing that the matter is urgent, requiring this Court to dispense with the requirement of the rules of this Court as to service.
   
9. In my mind the mere fact that there is an event taking place on the 5^th of April, 2018, cannot on its own be a sufficient basis to dispense with the requirement of service as required by the rules. This Court must guard against possible abuse of Order 4 Rule 42 of the National Court Rules, by encouraging lawyers to bring applications, ostensibly under Order 4 Rule 42, on the eve of the event sought to be restrained or stopped, believing that this would be sufficient.
   
10. In all the circumstances of this case the applicant has failed to lead sufficient evidence showing the urgency of this matter and or reasons why service of the motion is not necessary and or that it is impractical to serve the documents in this matter.
    
11. In the result the application to dispense with service of the notice of motion and supporting affidavit under Order 4 Rule 42 of the National Court Rules and Section 155(4) of the Constitution is refused.

____________________________________________________________
Kipes Law, Lawyers & Consultants: Lawyers for the Plaintiffs
No Appearance for the Defendants