N7869
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No.103 of 2014

BETWEEN:
RUBBIE LYUMBIRIP
Plaintiff

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani  :  David, J
2019:  20 May

PRACTICE AND PROCEDURE – application for leave to file defence out of time – considerations to take into account when deciding whether to grant application – exercise of discretion - application granted.

Case Cited:  
George Viritia v Alois Mabep (2011) N4236
Joe Tipaiza & Ors v James Yali & Ors (2005) N2971
Koopa Yangal v Henry Tokam (1996) N1418   

Counsel:

Darryl Kamen, for the Plaintiff
Bosky Koke, for the First Defendant
No appearance, for the Second Defendant 

RULING
20th May, 2019

1.	DAVID, J: INTRODUCTION:  This is a ruling on an application by the first defendant for leave to file a defence out of time.

2.	The application is moved pursuant to a notice of motion filed on 3 December 2014.  The first defendant relies on Order 1 Rule 15(1) and (2) of the National Court Rules and the Court’s inherent jurisdiction for the grant of the application.   

3.	In support of the application, the first defendant relies on the affidavit of Kila Egaba sworn on 5 November 2014 and filed on 3 December 2014.

4.	In opposing the application, the plaintiff relies on the affidavits of:

1.	Darryl Kamen sworn on 1 August 2014 and filed on 11 August 2014; and 
2.	Rubbie Lyumbirip sworn on 6 August 2014 and filed on 11 August 2014.

BRIEF BACKGROUND

5.	In the writ of summons endorsed with a statement of claim filed on 21 February 2014 (the writ), the plaintiff avers that by an agreement entered into in writing and partly by conduct, she was engaged by the first defendant to provide catering services to the first defendant’s counting officials at counting centres at Taurama and Goldie River Barracks for the Goilala and Abau Open Electorates respectively from 8 July 2012 to 29 July 2012 during the 2012 National Elections. The parties agreed that the meals were to be charged at K25.00 for breakfast, K30.00 for lunch and K35.00 for dinner.

6.	  In accordance with the terms of the agreement, the plaintiff provided catering services to the value of K483,050.00 by supplying:

1.	lunch packs to 160 counting officials for the Abau Open Electorate for 16 days at K30.00 per lunch pack which she claims amounted to K81,600.00.
2.	an urn on hire for 16 days for use by counting officials for the Abau Open Electorate at the rate of K200.00 per day totalling K3,200.00.
3.	breakfast packs to 210 counting officials for the Goilala Open Electorate for 19 days at K25.00 per breakfast pack totalling K99,750.00.
4.	lunch packs to 210 counting officials for the Goilala Open Electorate for 19 days at K30.00 per lunch pack totalling K119,700.00.
5.	dinner packs to 210 counting officials for the Goilala Open Electorate for 24 days at K35.00 per dinner pack which she claims amounted to K176,600.00.
6.	an urn on hire for 12 days for use by counting officials for the Goilala Open Electorate at the rate of K200.00 per day totalling K2,400.00.

7.	The plaintiff claims that an invoice for K483,050.00 dated 2 August 2012 was submitted to the first defendant for payment and on 2 July 2013, the first defendant paid K73,560.00 by bank cheque.  The amount outstanding is K409,490.00.  

8.	The plaintiff claims the sum of K409,490.00 for the outstanding invoice, general damages and interest at 8% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs.  

9.	On 28 March 2014, the first defendant, through Parua Lawyers, filed its notice of intention to defend.

LEGAL ISSUE

10.	The main legal issue that arises in this application for my decision is whether the first defendant should be granted leave to file a defence out of time?

FIRST DEFENDANT’S SUBMISSIONS 

11.	Mr Koke for the first defendant in his submissions relied on Order 1 Rule 15(1) and (2) and Order 7 Rule 6(2) of the National Court Rules when he contended that the first defendant should be granted leave to file a defence out of time as:

1.	It was not guilty of delay as after service of the writ, the Returning Officers, Phillip Ava for the Abau Open Electorate and Kila Bagi for the Goilala Open Electorate, who were employed by the Central Province Administration and had returned to their respective places of their employment and could not be located to obtain instructions about the plaintiff’s claim before the time for filing the first defendant’s defence expired.  
2.	Mr Egaba’s affidavit and the draft defence annexed to his affidavit state material facts disclosing a defence on the merits. 
3.	The plaintiff would not be prejudiced if more time is given to file the defence.  

PLAINTIFF’S SUBMISSIONS

12.	Mr Kamen for the plaintiff contends that the application for leave to file a defence out of time should be refused as:

1.	The delay of about 9 months in filing the first defendant’s application following the service of the writ on the first defendant and the filing of its notice of intention to defend was inordinate.
2.	The first defendant has not provided any reasonable explanation for the delay in filing its defence.
3.	The first defendant does not have a meritorious defence as the Returning Officers for Goilala and Abau Open Electorates supported the plaintiff’s claim.

LEGAL PRINCIPLES

13.	Order 1 Rule 15 of the National Court Rules gives the Court a wide discretion to extend any time fixed by the National Court Rules for the filing of pleadings whether or not the application for extension is made before the time expires. That rule reads:
	
15.	Extension and abridgement.
(1)	The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.
(2)	The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.
(3)	The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension.	

14.	It has been suggested that Order 1 Rule 15(1) is a general provision and the proper rule that grants jurisdiction to the Court to grant the order which is sought for the purpose of Order 4 Rule 49(8) of the National Court Rules is Order 8 Rule 23:   George Viritia v Alois Mabep (2011) N4236.  It has been held that a defence filed after close of pleadings is invalid unless leave is obtained:  Koopa Yangal v Henry Tokam (1996) N1418.   

15.	Applications for leave to file a defence out of time are usually made under Order 7 Rule 6 of the National Court Rules.  There is now a glut of case law on the principles applicable in making a successful application for leave to file a defence out of time.  One of those cases is Joe Tipaiza & Ors v James Yali & Ors (2005) N2971.  

16.	While I completely agree with the observations in George Viritia v Alois Mabep and Koopa Yangal v Henry Tokam, the underlying principles that emerge from a reading of Order 1 Rule 15(1), Order 7 Rule 6 and Order 8 Rule 23 together are; the need to obtain leave of the Court to file a defence out of time which is mandatory; and the exercise of power in considering applications for leave to file a defence out of time is always in the discretion of the Court.

17.	So in deciding whether to grant leave to extend time to file a defence out of time, the Court’s discretion must be exercised on proper principles taking into account all the circumstances of the particular case.

18.	In Joe Tipaiza & Ors v James Yali & Ors, His Honour, Justice Cannings summarised the principles to be applied in considering an application for leave to file a defence out of time as follows:

1.	the extent of the delay in making the application; 
2.	the explanation for the delay in filing a defence;
3.	the demonstration of there being present a defence on the merits; and
4.	where do the interests of justice lie?

REASONS FOR RULING

19.	As no objection was raised by the plaintiff as to the competency of the notice of motion, I will allow the first defendant’s application to proceed under Order 1 Rule 15(1) and (2).

Extent of the delay in making the application

20.	A defendant has 44 days from the date of service of a writ of summons on him to file his notice of intention to defend (30 days) and defence (14 days).  The writ was served on the first defendant by one Filton Kandani on 7 March 2014.  On 28 March 2014, the first defendant, through Parua Lawyers, filed its notice of intention to defend.  The notice of intention to defend was filed within the time limited to do so.  The first defendant had up to 20 April 2014 to file and serve its defence on the plaintiff.  However, the first defendant did not file its defence within the time limited to do so.  This application was filed on 3 December 2014.  The extent of the delay in filing the application is about 8 months. I concur with the plaintiff’s submission that the delay is inordinate.  This militates against the grant of the application.

The explanation for the delay in filing a defence

21.	I concur with the plaintiff’s contention that the first defendant’s explanation for the delay in filing a defence through the affidavit of Kila Egaba is unsatisfactory.  This militates against the grant of the application.

Demonstration of there being present a defence on the merits

22.	In his affidavit, Mr Egaba states his position and the role he plays within the framework of the first defendant’s establishment and these are:

1.	He was the Election Manager for Central Province during the 2012 National Elections.
2.	As the Provincial Election Manager, he was authorised to engage and enter into contracts with service providers on the Electoral Commission’s behalf for the Central Province during the election period.
3.	He was responsible for the Administrative Affairs of the Central Province Electoral Commission Office.
4.	His responsibilities include organising and coordinating the administrative, logistical and financial matters in the Central Province to enable the Electoral Commission to perform its responsibilities as required of it under the law.

23.	Mr Egaba states that service providers are engaged in accordance with a fixed process.  Interested service providers submit their expressions of interest to provide a particular service to the Manager-Logistics based at the first defendant’s Head Office in Port Moresby.  The Manager-Logistics then considers the applications and forwards a recommended list of applicants to the Provincial Election Manager.  The Provincial Election Manager then engages a service provider from the recommended list by entering into a formal contract of service with the service provider prior to any service being provided.  The Manager-Logistics may have recommended to him that the plaintiff was a suitable service provider, but he did not engage her services nor did he sign any formal contract of service with her.

24.	Mr Egaba also states that if the plaintiff had been engaged by the Returning Officers to provide catering services, the engagement was unlawful as the Returning Officers had no authority to engage service providers on behalf of the first defendant.

25.	  In addition, Mr Egaba states that despite the provision of catering services by the plaintiff pursuant to agreements reached with the Returning Officers acting without authority and in the absence of a valid contract for service entered into between the plaintiff and the first defendant, the plaintiff was paid K73,560.00  in full and final settlement of her claim after verifying the value of the catering services she provided.

26.	Mr Egaba also states that the plaintiff’s claim is inflated as:

1.	She was one of several service providers that provided catering services;
2.	The amount claimed for each meal pack was inflated;
3.	She only provided dinner on some of the days and not three meals a day during the period claimed; and
4.	The number of counting officials engaged in each counting centre was exaggerated.   
      
27.	In the draft defence annexed to Mr Egaba’s affidavit as annexure A, in addition to pleading of matters raised by Mr Egaba in his affidavit which go to denying liability for the amount claimed, it also raises issues of; appropriateness or sufficiency of the documents relied on by the plaintiff to constitute a valid contract;  want of compliance with Section 61 (Approval required for certain contracts) of the Public Finances (Management) Act;   and the amount of K73,560.00 was paid by the first defendant in full and final settlement of the plaintiff’s claim on a quantum meruit basis. 

28.	I have considered the plaintiff’s evidence.  Her evidence relates to facts pleaded in the statement of claim, among others, as to:

1.	the plaintiff’s engagement to provide catering services to the first defendant’s counting officials at Taurama and Goldie River Barracks for Goilala and Abau Open Electorates between 8 July 2012 and 29 July 2012 during the 2012 National Elections by way of a contract which was partly in writing through a number of correspondence (annexures RL1 to RL6 of the plaintiff’s affidavit) and partly by conduct;
2.	charges for meals provided;
3.	summary of delivery dockets and delivery dockets for Abau and Goilala Open Electorates (annexures RL7 to RL10 of the plaintiff’s affidavit);
4.	invoice submitted to the first defendant for K483,050.00 (annexures RL11 and RL12 of the plaintiff’s affidavit);
5.	payment received from the first defendant in the sum of K73,560.00 (annexures RL12 of the plaintiff’s affidavit); and
6.	demands made to the first defendant to pay the outstanding amount claimed of K409,490.00 (annexures RL13 and RL14 of the plaintiff’s affidavit).

29.	I concur with Mr Koke’s submission that the first defendant has demonstrated that it has a defence on the merits.  This favours the grant of the application.

Where do the interests of justice lie?

30.	I have considered the issue of prejudice.  However, considering the whole of the circumstances of the present case, I think it would be in the interests of justice to grant the application.  The substantive issues raised by the opposing parties can be left for determination at a trial.   This favours the grant of the application.
       
CONCLUSION

31.	The first two considerations favour the plaintiff while the second two favour the first defendant.  In the exercise of my discretion, I will grant leave and allow the first defendant to file its defence out of time.  

JUDGMENT

32.	I therefore direct the entry of judgment in the following terms:

1.	The first defendant’s application for leave to file a defence out of time moved by notice of motion filed on 3 December 2014 is granted.
2.	The first defendant shall file and serve its defence on the plaintiff within 14 days from today, i.e., by 3 June 2019.
3.	Upon service of the defence, further pleadings shall be filed in accordance with the National Court Rules.
4.	Costs shall be in the cause. 

Orders accordingly
____________________________________________________________________
Kamen Lawyers: Lawyers for the Plaintiff	 
Parua Lawyers: Lawyers for the First Defendant