N8877
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 663 OF 2009

BETWEEN:
KIPLING GOMBO & 81 ORS
Plaintiff

AND:
THE SECRETARY FOR THE DEPARTMENT OF FINANCE-GABRIEL YER
First Defendant

AND:
THE SECRETARY FOR THE DEPARTMENT OF TREASURY SIMON TOSALI
Second Defendant

AND:
THE STATE
Third Defendant

Waigani: Miviri J
2021: 15th June

PRACTICE & PROCEDURE – Originating Summons – Notice of Motion – Order 5 Rule 10 – Application for Leave to substitute Lead plaintiff deceased–Affidavit in support – 2009 matter – Discretionary – Materials insufficient – balance not discharged – Motion denied – Cost follow event.

Cases Cited:

Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 
Kari v PNG Power Ltd [2017] PGNC 355; N7061 
Akap v Korakali [2012] PGSC 17; SC1179 
Counsel:

L. Putupen, for Plaintiff/Applicant
No appearance for Defendants

RULING
 15th June, 2021
1.	MIVIRI, J: This is the ruling on the notice of motion of the Plaintiff seeking pursuant to Order 5 Rule 10 of the National Court Rules and section 155 (4) of the Constitution that leave be granted to substitute the lead plaintiff with one Mark Taua who is now the chairman of Oro Former Provincial Assembly Members Association Inc.

2.	The lead plaintiff died of natural causes on the 12th August 2013, a medical certificate of death is attached to the affidavit filed of the 08th June 2021 by one Gilchrist Gombo second born son of the lead plaintiff in support. A warrant to bury is annexure “B” is the warrant to bury dated the 12th August 2013. And it is clear he was buried back in his home village of Uwe, Ijivitari District, Oro Province.

3.	There is no doubt the lead plaintiff is now deceased and the action is pending in the judicial review court after his demise now for 8 years since that death. Further it is an action that was first started by originating summons since 30th September 2009. It is seeking leave for judicial review for prerogative writs in the nature of mandamus. There is no activity to bring this action since that date even immediately after the death of the lead plaintiff. Particularly with the fact that judicial review is time conscious and driven. And the death of the lead plaintiff has taken 8 years for the matter to be applied in the motion today.

4.	And the present lawyers are on record since the filing of the notice to apply for judicial review filed of the 28th May 2010. It is very clear no real attempt has been made since that date to have this matter moved in the manner today. The specific order relied is in these terms, “10. Death, transmission, etc. (8/10)
(1) Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.
(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the proceedings.
(3) The Court may act under Sub-rule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.
12. Failure to proceed after death of party. (8/12)
(1) Where —
(a) a party dies but a cause of action in the proceedings survives his death; and
(b) an order under Rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death,
the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with Sub-rule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.
(2) On making an order under Sub-rule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceedings.”
5.	I set out both rules relevant here, the latter has not been pleaded by the applicant but it is relevant and read together with the former, because this is an application that is made eight (8) years after the death of the lead plaintiff. It has not been made immediately there and then, nor has it been made within 3 months after the death of the deceased lead plaintiff. But it is confirmed he is now deceased and the action he instituted is still in the records of the Court yet to be finalized. It has been allowed to drag over the years without that fact to move the case. The current lawyer is the lawyer on record since filing on 28th May 2010 the Notice of Application for Leave to apply for judicial review to the Secretary for Justice. He has not filed any affidavit or any material to explain the delay in pursuing under order 5 Rule 10 of the NCR as he does now.

6.	He relies on the affidavit of one Mark Taua filed 21st May 2021 allegedly that the action stems over unpaid entitlements as Provincial Assembly members of Oro Provincial Assembly in 2003. From that date to today is 18 years the allegation has been made outstanding not settled, nor the cause of action filed moved to finality. Judicial review seeking mandamus leave for has been outstanding since the originating summons dated the 30th September 2009. From that date to today would be a total of 12 years that this action has been in the records of the Court without any action on the part of the Lawyers for the plaintiff with their clients.

7.	It is important that this action is finalized after today’s proceedings, because there is no evidence that there was an Association such as Oro Former Provincial Assembly Members Association Inc either by an entry from the Registrar of that office who keeps record of the said association and companies. And if indeed it was pursued on that level there is no evidence of the transition of power to the intended lead plaintiff Mark Taua as the substitution of the lead plaintiff as chairman. There is no evidence to show that since death he has now being elevated by a process in that association, and therefore now has the authority to pursue the litigation left by the deceased as lead plaintiff. It would be proper to have this evidence of transition without which the substitution could be anybody: Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 (3 April 2002). It is a representative action and there must be proper authority without which the action fails and the motion would be baseless without.

8.	This is coupled with the fact that no reasonable explanation has been given by the applicant in making the application which is (8) years after the death of the lead plaintiff. The facts set out above do not support that the discretion be exercised in favour of the applicant. The lawyer on record now was acting for the deceased and did not within three months after death seek the motion that it now seeks after 8 years. Particularly when mandamus is sought in an originating summons that is now 12 years old since when it was first filed of 30th September 2009. Leave will not be granted in view of this facts following coupled with the views of this court in Kari v PNG Power Ltd [2017] PGNC 355; N7061 (8 September 2017). No reasonable material has been placed to invoke the discretion of the court to grant the motion after 8 years since death of the deceased. The motion is without merit and is denied with costs: Akap v Korakali [2012] PGSC 17; SC1179 (26 April 2012).

9.	The matter will be called at the directions listing of the court on Monday 21st June 2021 at 9.30am. In the light of the fact that the plaintiff has died for counsel to inform if there is any utility to pursue the matter. Considering also that this is not just four (4) months within for certiorari, but mandamus and it is clear life has moved on, prima facie there is likelihood of substantial hardship and prejudice to the rights of the defendants. It is therefore important also in this regard that there is appearance on record by the Solicitor General Monday 21st June 2021 at 9.30am, to assist determine this matter. Counsel on record will undertake to inform Solicitor General of this fact and file proof on record.

10.	The formal orders of the Court are:

(i)	The Notice of motion is without merit.
(ii)	It is denied in its entirety and dismissed.
(iii)	Matter will revert to the directions hearing on Monday 21st June 2021 for directions.
(iv)	Solicitor General’s office will make appearance to assist the dispensation of the matter.
(v)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Putupen Lawyers: Lawyer for the Plaintiff/Applicant		
Office of the Solicitor Generals: Lawyer for First Defendant