N8484

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 92 OF 2017

BETWEEN:
ANDREW OIYA, MON MOSES MARK, DIMAS DAT for themselves and on behalf of 96 block holders of ASS Mambu Market, Back Road, Lae
Plaintiff

AND:
DANIEL KAIA, Task Force Commander, Lae
First Defendant

AND:
NEMA MONDIAI, Metropolitan Superintendent, Lae
Second Defendant

AND:
ANTHONY WAGAMBI, Commissioner of Police
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Lae: Dowa AJ
2020:  15th July & 25th August

PRACTICE AND PROCEDURE – application by defendants seeking to dismiss plaintiffs proceedings for disclosing no reasonable cause of action – second motion by plaintiff seeking leave for substitute service, and for an amendment of the pleadings -law under Order 12 rule 40 considered -  Court should be slow in exercising its summary jurisdiction so as not to drive the Plaintiffs from the judgment seat prematurely – defendants application to dismiss plaintiff proceedings is refused – plaintiffs granted leave to do substitute service of Writ - Plaintiffs can file and serve amended Statement of Claim without leave under Order 8 Rule 51 of the National Court Rules, especially where the pleadings are not closed
Cases Cited:

Catholic Diocese of Wabag Board &Trustees v Enga Provincial Government 
Maku v Mali Wolo (2012) 
PNG Forest Products and another v The State and Genia (1992) PNGLR 85 
Kiee Toap v The State, (2004) 2731
Wabia v BP Explorations Co. Ltd (1998) PNGLR 8 
Ben Maoko v Ling (2008) N3293 
Mt Hagen urban LLG v Sek No.15 SC 1007
Wambunawa v ANZ Bank (2020) N8310 
Memafu v National Housing Corporation (2020) N8317

Counsel:

T. Cook, for the Plaintiff
B. Tomake, for the Defendants

RULING

25thAugust, 2020

1.	DOWA AJ:	This is a ruling on two motions, filed by the parties.  The First Notice of Motion is filed by the Defendants seeking to dismiss the proceedings on the grounds, that the pleadings do not disclose a reasonable cause of action.  The second Notice of Motion is filed by the Plaintiffs, seek leave for substitute service, and for an amendment of the pleadings.

	Facts

2.  	The Plaintiffs instituted these proceedings seeking damages against the Defendants for damage and loss they suffered in a property destruction that took place at Taraka, Lae on 3rd and 4th June 2011. 

3.      The First and Second Defendants were the Senior Commanding officers of the Royal PNG Constabulary based in Lae at the material times.

4.      It is alleged that there was death of a man from Kabwum, Morobe Province.  It was alleged the death was caused by some people from Western Highlands.

5.      It is alleged, the Kabwum people, led or encouraged by the First and Second Defendants caused substantial damage to properties belonging to the Plaintiffs.

6.     It is alleged that the Police led by the First and Second Defendants who were under duty to protect and preserve the Plaintiffs and their properties neglected, their constitutional duty, resulting in the loss suffered by the Plaintiffs.

Defendants Application

7.      I will deal with the Defendants application first.  If the application is successful.  That will end the Plaintiffs proceedings.

8.     The Third and Fourth Defendants move on their Notice of Motion filed 3rd July 2020, seeking to dismiss the proceedings under Order 12 Rule 40(1)(a) of the National Court Rules.  The application is supported by the Affidavit of Benny Tomate also filed 3rd July 2020.

Law

9.      The relevant Rule is Order 12 Rule 40(1)(a) of the National Court Rules and I quote:

40.	Frivolity, etc.  (13/5)

(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

a)	No reasonable cause of action is disclosed; or
b)	The proceedings are frivolous or vexatious; or
c)	The proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

10.      Mr Tomake submits the facts pleaded do not disclose a reasonable cause of action.  He submits that the Defendants do not owe a duty of care to the public at large.  If the First and Second Defendants were involved in taking sides or encouraging one faction against the Plaintiffs, then the First and Second Defendants have acted outside of their course of duty and were on a frolic of their own.  The Third and Fourth Defendants cannot be held liable.

11.      Mr Tomake relies on the authority of the cases of Catholic Diocese of Wabag Board and Trustees v Enga Provincial Government & Others and Maku v Mali Wolo (2012); whereby the Court have held that at common law, the police owe no duty of care to the public at large, and secondly, for public policy reasons that deployment of police personal and resources and how they carry out their duties be left totally to the discretion of police.

12.	Mr Cook for the Plaintiffs opposed the application.  He submitted, the pleadings are sufficient, and any lack can be cured by an amendment.  He submitted, they have filed a motion for amendment which is before the Court.

13.	I have considered the submissions of Mr Tomake carefully.  I note the principles settled in the Supreme Court were made after trial and calling of evidence. The pleadings in the present case are still continuing.

14.	On 12th July 2010, I granted leave to the Third and Fourth Defendants to file their Defence within 14 days.  I note from the court file, the Third and Fourth Defendants have not filed their defence.  The time given for filing their Defence lapsed on 26th June 2020.  Whilst I do not consider this conduct against the Third and Fourth Defendants, I stress this to indicate that the pleadings are not closed.

15.	The test to apply when dealing with an application to dismiss proceedings on the grounds of the pleadings disclosing no reasonable cause of action is:  whether or not, on the facts pleaded, it is plain and obvious that, even proved, will not entitle the Plaintiff to what he is claiming.  The use of discretion to dismiss is confined to cases where the cause of action is obviously and incontestably bad.  See PNG Forest Products and another v The State and Genia (1992) PNGLR 85, Kiee Toap v The State, (2004) 2731, Wabia v BP Explorations Co. Ltd (1998) PNGLR 8, Ben Maoko v Ling (2008) N3293, Mt Hagen urban LLG v Sek No.15 SC 1007, Wambunawa v ANZ Bank (2020) N8310, Memafu v National Housing Corporation (2020) N8317.

16.	In the present case, I have carefully studied the Statement of Claim.  The pleadings make general allegations against the Defendants for breach of their professional and constitutional duty to protect life and property.  However, they lack detailed particulars.  Nevertheless, this is not a clear case that should be struck out at this stage.  As I said, in the Wambunawa v ANZ (supra), the Court should be slow in exercising its summary jurisdiction so as not to drive the Plaintiffs from the judgment seat prematurely.

17.	For this reason, I refuse the application by the Third and Fourth Defendants.

	Plaintiffs Notice of Motion

18.	I now turn to the Plaintiff’s application.  By Notice of Motion filed 13th July 2020, the Plaintiffs seek the following orders:

a)	Leave for substitute service of Court documents on the First and Second Defendants pursuant to Order 6 Rule 12 of the National Court Rules, by leaving the Court documents at the Office of the Provincial Police Commander, Lae, Morobe Province.

b)	Leave to Amend the Statement of Claim, pursuant to Order 8 Rule 50(1) of the National Court Rules.

19.	The Plaintiffs rely on two affidavits of Dimas Dat filed 18th June 2020 and 13th July 2020 respectively.

20.	Mr Dat deposes, the Plaintiffs do not know the whereabouts of the First Defendant.  Mr Dat says, the Second Defendant left Morobe, and is in the Highlands and its risky for the Plaintiffs to effect service.  They are having difficulties effecting personal service on the First and Second Defendant.  He has not elaborated what these risks are.

21.  	In my view, the Plaintiffs have not tried hard enough to effect service on the First and Second Defendants.  If they are serious in pursuing their claim, they would have taken all steps necessary to effect service.  I am not persuaded that substitute service of Court documents on the First and Second Defendants by leaving the documents at the Provincial Police Commanders Office, in Lae is effective service.  

22.	The purpose for service is based on the principles of natural justice and fair play.  A defendant must be made aware of the allegations made against him and be given an opportunity to defend the proceedings.  A defendant cannot be ambushed especially where the consequences can be grave, resulting in substantial injustice.  There are other ways of substitute service which the Plaintiffs have not considered; for example substitute service by publication in the daily Newspapers.  They opted for the less expensive and ineffective mode of service.
23.	For these reasons, I am reluctant to grant their request.  Instead, I will grant leave to the Plaintiffs to serve the documents by way of publication in one of the daily Newspapers in Papua New Guinea on the First and Second Defendants.

24.	I now turn to the Plaintiffs application for amendment of the Statement of Claim.  The application is made pursuant to Order 8 Rule 50 (1) of the National Court Rules.

25.	The application is supported by Mr Dat’s affidavit sworn and filed 13th July 2020.  Mr Dat’ s affidavit is a bare statement at paragraph 3.  He does not set out the particulars of the amendment.  There is no draft amendment attached to the Notice of Motion or the affidavit of Mr Dat.

26.	The Plaintiffs have not demonstrated to Court that the amendment is necessary for the purposes of determining real questions raised, or otherwise correcting any error or defects in the proceedings.

27.	For these reasons, I will refuse the application.

28.	Secondly, I am of the view that the application for amendment sought under Order 8 Rule 50(1) is misconceived.  The Plaintiffs can file and serve an amended Statement of Claim without leave under Order 8 Rule 51 of the National Court Rules, especially where the pleadings are not closed.

29.	Nevertheless, in order not to delay the conduct of these proceedings further, I will give directions to the Plaintiff under Order 12 Rule 50 of the National Court Rules, to amend the Statement of Claim by providing further and better particulars of claim.

30.	In respect of cost, I am of the view that the Plaintiffs are slow in prosecuting their claim with due diligence.  This results in these various interlocutory applications.  I will therefore award cost against the Plaintiffs.

31.	The final Orders of the Court are:

1.	The Defendants’ Notice of Motion filed 03rd July 2020 is refused.
2.	The Plaintiffs’ Amended Notice of Motion filed 13th July 2020 is refused.
3.	Leave is granted to the Plaintiffs to serve copies of the Writ of Summons on the First and Second Defendants by publication in one of the daily Newspapers in Papua New Guinea within 14 days.
4.	The Plaintiffs shall file further and better particulars of their claim within 30 days from the date of these Orders.
5.	The Plaintiffs shall pay the Cost of the applications.
6.	The matter will return to Court for mention on 1st October 2020, at 9:30am.
7.	Time be abridged.
________________________________________________________________
Cook & Co.  Lawyers:		Lawyer for the Plaintiff
Solicitor General Lawyers:	Lawyer for the Defendants