N9887

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 790 OF 2016

BETWEEN:
NORTHERN MOTEL LTD
-First Plaintiff-

AND:
PETER ORESI
-Second Plaintiff-

AND:
PAUL KAMANI
ADMINISTRATOR FOR IJIVITARI DISTRICT
-First Defendant-

AND:
HON. DAVID ARORE, MP
-Second Defendant-

AND:
IJIVITARI DISTRICT ADMINISTRATION
-Third Defendant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fourth Defendant-

Waigani: Tamade AJ
2022: 19th August, 12th September

PRACTICE AND PROCEDURE – application to substitute second plaintiff in place of the deceased by custom – claim for outstanding motel and vehicle hire bills – Order 10 Rule 5 of the National Court Rules – substitution is a discretionary matter – applicant as biological daughter of second plaintiff – second plaintiff pleaded as managing director in statement of claim – application refused. 

Cases Cited:

Kari v PNG Power Ltd [2017] PGNC 355; N7061
Kaidiman v PNG Electricity Commission [2002] PGNC 20; N2343 
Vevo v Independent State of Papua New Guinea [2011] PGNC 91; N4348

Counsel:
	
Mr. Steven Dadada, for the Plaintiffs

12th September, 2022

1.	TAMADE, AJ: This is a ruling on an application for substitution by the Plaintiffs pursuant to Order 5 Rule 10 of the National Court Rules.

2. 	The First Plaintiff is a company in Papua New Guinea and has the capacity to sue and be sued as is pleaded in the Plaintiff’s Statement of Claim. The Second Plaintiff is pleaded as the Managing Director of the First Plaintiff and sues in that capacity.

3. 	The Plaintiffs in this matter have claimed for outstanding motel bills and vehicle hire bills against the Defendants. A default judgment was granted in favour of the Plaintiffs on 6 June 2018 and the matter now awaits a trial on assessment of damages on the matter. 

4. 	On 22 May 2022, the Second Plaintiff passed away.  The matter was mentioned before His Honour Justice Makail on 12 July 2022 and the Court directed the Plaintiffs to file an application for substitution of the Second Plaintiff by or before Tuesday 2 August 2022. The Plaintiffs have filed the Notice of Motion for substitution on 16 August 2022 and seek the Court’s leave to accept this Notice of Motion as in compliance of the Court Orders of 12 July 2022 as there were difficulties in getting the application filed within time by the lawyers for the Plaintiffs in securing instructions on the matter from the Second Plaintiff’s family and or representatives.

5. 	I will accept the application albeit filed outside of the time and consider the merits of it, nonetheless. 

6. 	The Plaintiffs essentially seek in the application that pursuant to Order 5 Rule 10 of the National Court Rules, the Applicant Ms Nikita Oresi being the customary representative and the first-born biological daughter of the deceased be granted leave to substitute the Second Plaintiff in these proceedings. 

7. 	Order 5 Rule 10 of the National Court Rules is in the following terms:

10. Death, transmission, etc

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.

8. 	The Plaintiffs have submitted the case of Kari v PNG Power Ltd which concerns the substitution of a Plaintiff who was electrocuted and suffered personal injury. After the deceased passed away, an application was made to substitute the deceased by the Applicant who claimed to be the legal guardian of the deceased and the Principal of Aiyura National High School at the time.  The Court found in that case that there was no reasonable explanation for the delay in filing the application for substitution pursuant to Order 5 Rule 12 within three months of the passing of the deceased and also based on the paucity of evidence of the applicant, the Court refused the application. Justice David said this in the Court’s ruling:

“I am not satisfied that the applicant has provided a reasonable explanation for the delay in making the application. In addition, it will not be in the interest of justice to dismiss the deceased’s claim as proposed by the defendant when the Public Curator of Papua New Guinea who has a direct interest in administering estates of persons dying intestate has not been given an opportunity to consider pursuing the deceased’s claim unless a personal representative has been properly and lawfully appointed to pursue the claim in the meantime.”

9. 	In the case of Kaidiman v PNG Electricity Commission, the Court considered an application for substitution by the eldest biological daughter of the Plaintiff in a claim where the deceased Plaintiff was claiming unpaid entitlements from his former employer ELCOM. The Applicant claimed in that matter that according to the local custom of the people of Kieta, she ranks first in priority in assuming her father’s estate. The Applicant was granted a substitution to sue on her late father’s behalf. 

10. 	In the case of Vevo v Independent State of Papua New Guinea, the Court granted an application for a duly appointed customary representative of the deceased Plaintiff to pursue a claim for breach of Constitutional rights.  

11. 	I am of the view that the discretionary powers of the Court in Order 5 Rule 10 have been exercised in the cases mentioned herein recognising custom where custom has been invoked to satisfy a representative of the deceased estate.  As custom is part of the Underlying Law of this country, considerations of the relevant customs existing in PNG pursuant to Schedule 2 of the Constitution are relevant considerations for the Court to consider in the substitution of claims before the Court. Apart from custom, I am of the view that depending on the nature of the claim where a right accrues to the name of the estate of a deceased and where the deceased dies interstate, the Public Curator under the Public Curator’s Act assumes the legal right of the estate of the deceased and or where a deceased dies living a will, his or her duly appointed administrators or executors shall be substituted in the proceedings accordingly by law. Representatives of a deceased who dies interstate should take appropriate steps with the Office of the Public Curator to be granted Letters of Administration to take charge of the interest of the deceased in the proceedings.

12. 	In this claim, the Statement of Claim pleads that the Second Defendant is sued in his capacity as the Managing Director of the First Defendant’s company. I am of the view that the substitution of the Second Plaintiff as the Managing Director should be pursuant to the provisions of the Company’s Act either by a resolution of the company being the First Plaintiff and or by another director of the Plaintiff company who is authorised by law to represent the interest of the First Plaintiff company.

13. 	The application by the biological daughter of the Second Plaintiff by custom in my view is misconceived given the capacity in which the Second Plaintiff is sued in these proceedings.

14. 	The application by the Plaintiffs is therefore refused.

15.	The Court, therefore, makes the following orders:

i)	The Notice of Motion filed by the Plaintiffs on 16 August 2022 seeking substitution of the Second Plaintiff is refused.
ii)	No orders as to costs.

Orders accordingly.

Kumbari & Associate Lawyers:		 Lawyers for the Plaintiffs