N9504
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 64 OF 2021

BETWEEN:
LAHONE HASU 
Plaintiff

AND:
MOSES VENAPO 
First Defendant
AND:
WINI KAKASO 
Second Defendant
Goroka: Mugugia, AJ 
2021: 14th, 15th December

PRACTICE AND PROCEDURE – Defendants’ defence filed outside the required time – Defendants not granted leave of the Court to file and serve this defence - Defendants’ motion seeking leave to amend this defence - Order 8, Rule 50(1) and (2) of the National Court Rules relied on - Defendants’ defence is not properly before the Court – Defendants’ motion to amend their defence is refused.  

Cases Cited:

Koral v. Kavie [2006] PGNC 60
Takori v. Yagari (2008) SC905

Counsel:

N. Amoiha, for the Plaintiff 
K. Pilisa, for the Defendants 
RULING 

15th December, 2021

1.   MUGUGIA, AJ: Before me for hearing on 14 December 2021 was the Defendants’ motion filed on 30 November 2021, seeking the following orders:

“1. The defence filed on 17th May 2021 be by leave of Court accepted pursuant to 	Order 1 Rule 7 of the National Court Rules as a valid and competent defence filed for purposes of defending this proceedings.   

2. Leave is granted to file an amendment to the defence filed on 17 May 2021 in terms of the draft amendments annexed to the Affidavit of Moses Venapo sworn on the 29th  of November 2021 pursuant to Order 8 Rule 50 sub rules (1) and (2) of the National 	Court Rules. 

	3. Costs be in the cause of the substantive proceedings. 

	4. Such further and other orders this Honourable Court deems fit.“

2.     The supporting affidavit is the Affidavit in Support of Moses Venapo sworn on 29 November 2021 and filed on 30 November 2021. Both the motion and the affidavit in support were served on the Plaintiff.  

3.     Leave was sought by the Defendants’ lawyer Mr Pilisa to abandon term one of his clients’ motion. I granted him leave to abandon this term. 

4.   The Defendants rely on Order 8, Rule 50(1) and (2) of the National Court Rules. The Rule states:

	“50. General. 
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity 	of proceedings.”
5.     The issue is whether the Court should grant leave to the Defendants to amend their defence filed on 17 May 2021. 

6.    Order 8, Rule 4(1)(a) states:

	“4. Defence. 

(1) Subject to Sub-rule (2), a defendant shall file and serve on the plaintiff his defence 	in Form 16-.

(a) where the statement of claim is endorsed on the writ before the expiry of 14 days after the date of expiry of the time limited for him to give notice of intention to defend.”
7.      Order 7 Rule 6 of the National Court Rules reads as follows:
(1) A defendant may give notice of intention to defend at any time without leave.

(2) Where a defendant gives notice after the time limited for doing so, he shall not, unless the Court otherwise orders be entitled to file a defence or do any other thing later than if he had given notice of intention to defend within that time

8.    Outside the 44 days, a Defendant has no right to file and serve a defence without leave of the Court. I refer to the case of Koral v. Kavie (2006) PGNC 60. I also refer to the case of Takori v. Yagari (2008) SC905, at paragraphs 18 and 19. 

9.    In the case before me, the writ of summons was filed on 26 February 2021. It was served on the Defendants on 25 March 2021. The 44 days required for the Defendants to file a defence lapsed on 10 May 2021. A notice of intention to defend was filed by Pilisa Lawyers for the Defendants on 17 May 2021. The defence was also filed on 17 May 2021. 

10.    I have considered the Defendants’ evidence together with the other materials on the court file. I have taken particular note of Mr Pilisa’s submissions. I find Mr Pilisa’s submissions unconvincing. 

11.    I am persuaded by Mr Amoiha’s submissions. He relied on his written submissions dated 7 December 2021 which was handed up to Court at the hearing. The Plaintiff’s submissions were that the application before me is misconceived. The Defendants should have filed an application to file defence out of time. The contention here is that the Defendants have filed their defence but out of time, and as such the defence is an abuse of process until corrective measures are taken. Mr Amoiha also submitted that the Defendants should withdraw their defence filed on 17 May 2021, and file an application seeking leave to file their defence out of time.

12.    I find that the Defendants’ defence filed by Pilisa Lawyers on 17 May 2021 was filed late, outside the required 44 days. The Defendants’ motion before me seeks leave to amend this defence. There is no Court Order on the Court file showing that leave was granted to the Defendants to file this defence out of time. In essence, the Defendants have no defence. The Defendants’ defence is not properly before the Court. 

13.    I am of the view that Mr Pilisa should have taken corrective measures to correct the error on his part by filing the appropriate application seeking leave to file a defence out of time instead of taking this step to seek an order for amendment to the original defence. The action taken by Mr Pilisa to file this application on behalf of his clients to seek an order to amend his clients’ defence which was filed outside the 44 days is an abuse of process. 

14.     For these reasons, I will not grant the orders sought in the Defendants’ notice of motion filed on 30 November 2021. 

 THE ORDERS OF THE COURT

15.    I make the following orders:

	1. The Defendants’ motion filed on 30 November 2021 is refused. 

2. Costs is awarded to the Plaintiff. 

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

16.   The Court orders accordingly.
________________________________________________________________
N. Amoiha: Lawyer for the Plaintiff 
K. Pilisa: Lawyer for the Defendants