N8212

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 591 OF 2019

RE: THE ESTATE OF SIR GEORGE CONSTANTINOU LATE OF PO BOX 120 PORT MORESBY BUSINESSMAN NOW DECEASED

SIR THOEPHILUS GEORGE CONSTANTINOU
First Plaintiff

SIR KOSTAS GEORGE CONSTANTINOU
Second Plaintiff

Waigani:  Kariko, J
2020: 11th&18thFebruary

PROBATE– administration of estate – application to vary ex parte order – whether court has jurisdiction – application by interested person – meaning of “party’ – O12 r8 National Court Rules

Cases Cited:

Ango v Kaluvia (2017) SC1628
Inugu v Maru(2019) SC1873 
Malt v Queen(2009) N3577
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126
Smith v Ruma Constructions Ltd (2002) SC695
Thomas Barry v Joel Luma (2017) SC1639 
Thomas Rangip v Peter Loko (2009) N3714 
Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

Legislation:

Frauds and Limitations Act 1988
National Court Rules
Wills Probate & Administration Act, Ch.291

Counsel:

Mr M Goodwin, for the Applicant
Mr M Webb, SC with Ms J Nigs, for the Plaintiffs

DECISION

18th February, 2020

1.	KARIKO, J: The applicant Christina Josephine Cragnoli seeks to join this proceeding and have the orders of this Court issued 3rd September 2019 (the Order) varied.

2.	As a preliminary matter, I invited counsel to address me on whether I had jurisdiction to hear the applications. Arguments were presented and this is my ruling.

Background

3.	I think it helpful to first describe this proceeding OS 591 of 2019. 

4.	It relates to the administration of the estate of the late Sir George Constantinou (the Estate) who died in 2008. The plaintiffs Sir Theophilus Constantinou (Sir Theo) and Sir Kostas George Constantinou (Sir Kostas) are sons of the deceased and are half-brothers of the applicant.

5.	The applicant is one of the beneficiaries of the Estate.

6.	The deceased left a will (the Will) in which he nominates Sir Theo as executor and trustee to administer the Estate, and should Sir Theo not be able to discharge the required duties, then Sir Kostas shall replace him. 

7.	Sir Theo was duly approved by this Court as the executor and trustee of the Estate when probate was granted on 20th March 2009.

8.	Subsequently, he became critically ill, and when medical opinion confirmed he was no longer able to discharge his functions as executor and trustee, this proceeding was filed on 28th August 2019 and its urgent hearing requested.

9.	The Originating Summons essentially sought to have Sir Theo discharged as the executor and trustee, have him replaced by Sir Kostas in accordance with the Will, and for him to assume the responsibilities of administering the Estate. 

10.	The application was heard and granted on 3rd September 2019.

11.	An undisputed fact (from the bar table) is that Sir Theo died seven days after.

Jurisdictional issue

12.	The key jurisdictional question is whether or not this Court has power to vary its ex parte orders.

Consideration

13.	The hearing on 3rd September 2019 was to decide if it was proper to discharge Sir Theo as executor and trustee of the Estate and have him substituted by Sir Kostas.  The application was based on s.65 Wills Probate & Administration Act, Ch.291, which states:

65.	Discharge or removal of personal representative.

(1)	Notwithstanding anything in any other law, where an executor or administrator to whom probate or administration has been granted, or an administrator who has been appointed under this section—
(a)	remains out of the country for more than two years; or
(b)	desires to be discharged from his office of executor or administrator; or
(c)	after the grant or appointment
(i)	refuses to act, or is unfit to act, in that office; or
(ii)	is incapable of acting in that office,
a Judge may, on application in a summary way by summons in Chambers, order—
(d)	his discharge or removal; and
(e)	if the Judge thinks fit, the appointment of some proper person as administrator in his place,
on such terms and conditions as the Judge thinks proper and may make—
(f)	all necessary orders—
(i)	for vesting the estate in the new administrator; and
(ii)	as to accounts; and
(g)	such order as to costs as the Judge thinks proper.
(2)	Notice of an application under Subsection (1) shall be served on such persons (if any) as the Judge directs.
(3)	From the date of the order, an executor or administrator removed or discharged under Subsection (1) ceases to be liable as such for acts and things done after that date.
(4)	On an appointment under this section, the property and rights vested in, and the liabilities properly incurred in the due administration of the estate by, the personal representative discharged or removed are vested in and transferred to the administrator appointed by the order, who, as such, has the same privileges, rights, powers, duties, discretions and liabilities as he would have if probate or administration had been granted to him originally.(My underlining)

14.	The applicant does not challenge the appointment of Sir Kostas as the replacement executor and trustee, at least not in her notice of motion, but she argues that as a beneficiary of the Estate and therefore an interested party, she ought have been served notice of the proceeding, so that she could have attended and addressed matters referred to in s.65(1)(f) including the accounts of the Estate. In short, she argues that s.65 was not properly considered and she therefore seeks to vary the Order.

15.	The application by the plaintiffs was based specifically on s.65(1)(b),(c), (d) and (e). Applications based on these particular provisions usually involve at least the applicant (who may or may not be the executor or the administrator), and perhaps the person seeking to be the replacement executor or administrator. If the Court thinks other persons should be also notified, it may order accordingly under s.65(2). In the present matter, that was not a relevant consideration, given the circumstances warranting the urgent application (as disclosed by the material before the Court), and in particular:

•	That the executor was gravely ill; and
•	That his proposed replacement was in accordance with the Will, which had not been contested.

16.	For the same reasons, the issue of the accounts of the Estate was also not a relevant consideration then.

17.	Returning to the jurisdictional issue, I refer to O12 r8(3)(a) National Court Rules which relevantly reads:

(3) 	The Court may, on terms, set aside or vary an order—

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or” 

18.	The applicant relies on the authority of Thomas Rangip v Peter Loko (2009) N3714 where Hartshorn J considered the law in respect of the New South Wales equivalent of O12 r8 and found that the National Court does have jurisdiction to set aside an ex parte order that dismisses an action for want of prosecution. His Honour determined that O12 r8 provides some exceptions to the general rule that a court ordinarily has no power to set aside a final order once it has been passed and entered, and one of those exceptions is where the judgment or order has been made ex parte, and the power to set aside applies to both interlocutory and final orders. 

19.	The plaintiffs urged me to instead follow the Supreme Court authority of Thomas Barry v Joel Luma (2017) SC1639 which contrasts Thomas Rangip v Peter Loko, and instead affirms the proposition consistent with the doctrine of finality of litigation, and that is the power to set aside or vary under O12 r8 applies only to interlocutory orders and not final orders. That contrasting view has been endorsed in cases such as Smith v Ruma Constructions Ltd (2002) SC695 and Malt v Queen (2009) N3577.

20.	The two differing views continue to be expressed by different courts including the Supreme Court. Kirriwom, Yagi and Ipang JJ decided Thomas Barry v Joel Luma on 3rd November 2017. On the same day, another Supreme Court (Salika DCJ, Higgins and Lindsay JJ) in the case of Ango v Kaluvia (2017) SC1628 approved the position promulgated by Hartshorn J. That opinion again found favour with Kirriwom, Yagi and Collier JJ very recently in Inugu v Maru(2019) SC1873 (13 November 2019). This most recent judgement provides a thorough and instructive discussion of the issue and concludes at [70] that “there is no limitation in Order 12 rule 8(3) as to the type of orders which the National Court can set aside, if the relevant orders were made in the absence of a party. Whether the ex parte orders were “final” or not, is irrelevant for the purposes of Order 12 rule 8(3) and the powers granted by that Rule.” (My emphasis)

21.	I subscribe to that view. As O12 r8(3) also gives the Court power to vary an ex parte order, the proposition explained in Inugu v Maru applies equally to that power. 

22.	But does the applicant have standing to make this application under O12 r8?

23.	Mr Webb for the plaintiffs suggested that the term “party” in the context of O12 r8 refers to a “party to the proceeding” while Mr Goodwin for the applicant submitted that the term covered “an interested party”.

24.	I accept the argument by Mr Webb and therefore agree that the expression “absence of a party” found in O12 r8(3) means “absence of a party to the proceeding”. To accord the provision the interpretation submitted by Mr Goodwin would lead to mischief. To allow any person who claims to have an interest in a court decision challenge that decision would run against the doctrine of finality of litigation, and frustrate the speedy disposition of a case.

25.	It is obvious from reading the National Court Rules, that the submission by Mr Webb is in harmony with other provisions. Under O5 r8 an interested person being “a person who is not a party” must apply to join or “be added as a party”. A distinction is therefore made between an interested person and a party. That person can only be considered a party if and when he becomes a party to the proceeding.  Order 12 r8 is clearly concerned with orders made in the absence of a party to the proceeding, not an interested person.

Conclusion

26.	I am therefore unable to hear the application to vary the Order made ex parte, as the applicant has no standing to make the application. The application must be dismissed as being frivolous or vexatious, or an abuse of the process of the court: Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844. 

27.	In respect of the joinder application, the applicant would need to satisfy the Court that:

(i)	she has sufficient interest in the proceeding; and 
(ii)	the joinder will assist in properly settling the dispute in the proceeding. 

(PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126)

28.	In the circumstances of this case, the application would be of no utility and is untenable for the simple reason that the joinder would not assist in resolving the issue for determination in the proceeding, namely whether Sir Theo should have been replaced by Sir Kostas. That has been decided. As intimated to counsel during submissions, the concerns of the applicant regarding the administration of the estate may be raised separate to this proceeding. She is not prejudiced by this decision. 

29.	In relation to the concern based on s.19 Frauds and Limitations Act 1988, I quickly make this point. I would accept that interpretation that the time-period of 12 years prescribed by that provision runs from the date the administration of the personal estate of a deceased person is finalized. A person affected by the administration can properly consider whether it has any claim against the estate only when the estate has been fully administered.

30.	I will now hear parties on costs.

________________________________________________________________
O’Briens:  Lawyers for the Applicant
Dentons:  Lawyers for the Second Plaintiff