N10325

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1342 OF 2019

EZEKIEL BAWE
Plaintiff

V

DELVENE WONI
Defendant

Vanimo: Thoke, AJ
2022: 23rd February

PRACTICE & PROCEDURE – Service of originating process – Service of Writ of Summons – Writ of Summons failed to be served on the Defendant within 2 years – National Court Rules, Order 4, Rule 13 – No Affidavit of Service filed

PRACTICE & PROCEDURE – Summary dismissal, National Court Rules, Order 10, Rule 9A (15) (1)(b) and (2)(a)

Cases Cited:

Karisa v Rahman [2020] PGNC 282; N8621 
Kalili Kokonas Estate Ltd v Soaliga [2016] PGNC 48; N6239 
Niugini Mining  Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804 
Tepend Jack v Motor Vehicles Insurance Ltd [2008] PGNC 53; N3342 

Legislations Cited:

Constitution
National Court Rules
Counsel(s):

No appearances

RULING

23rd February, 2022

1.    THOKE AJ: This matter came before me on the 23rd of February 2022 at the Vanimo National Court during the Call Over. Pursuant to Order 10, Rule 9A (15) (1)(b) and (2)(a) of the National Court Rules (hereinafter referred to as NCR), I dismissed the proceeding on the grounds that the Writ of Summons (hereinafter referred to as Writ”) filed on 24th October 2019 was not served on the Defendant within 2 years as required by Order 4, Rule 13 of the NCR. 

2.     Presently, I provide the reasoning.

BACKGROUND & ISSUE

3.    Writ was filed on 24th October 2019. The enclosed Statement of Claim purportedly has a cause of action arising in breach of contract and misrepresentation and/or debt recovery. However, the Court File did not contain an Affidavit of Service attesting service of the Writ. There was no application evident either to seek an extension of time with the help of Order 1, Rules 7 and 8 of the NCR.

4.      Simply, the only question is whether this matter can be summarily disposed of pursuant to Order 10, Rule 9A (15) (1) (b) of the NCR?

RELEVANT PRINCIPLES & REASONING

5.     Order 4, Rule 13, particularly sub-rules (1) and (2), provides that “for the purpose of service, an originating process shall be valid for two years from the date on which it is filed” and “the Court shall not extend the period of two years”. 

6.     At the outset, it is important to embrace the binding decision of the Supreme Court in Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804, which discussed at length the application of Order 4, Rule 13 and Order 1, Rules 7 and 8 of the NCR. It was an appeal from an interlocutory judgment where the National Court granted leave to extend time for service of the Writ of Summons after the 2 years prescribed time for service had already expired. The Court’s decision was purportedly made under Order 1, Rules 7 and 8 of the NCR and Section 155(4) of the Constitution. It was held that the Court's general powers under Order 1, Rules 7 and 8 had an overarching effect on Order 4, Rule 13 in the absence of express proviso. Further, the Supreme Court held that an unserved writ of summons would not be a nullity but regarded as an irregularity, whilst affirming the decision of the National Court.

7.     Let us now look at cases where the Plaintiffs failed to invoke Order 1, Rules 7 and 8:

•	In the case of Tepend Jack v Motor Vehicles Insurance Ltd [2008] PGNC 53; N3342, His Honor Makail AJ (as he then was), maintained in a contested hearing that a writ is to be mandatorily served within two years counting from the date it had been filed. His Honor further included analogous principles discussed in the case of Rust v Barnes [1980] 2 NSWLR 726. Consequently, Makail AJ refused to allow the Plaintiff to proceed with his action as the Writ of Summons was already stale. 

•	The Court’s recent decisions have followed the same route. The cases of Karisa v Rahman [2020] PGNC 282; N8621 and Kalili Kokonas Estate Ltd v Soaliga [2016] PGNC 48; N6239 attest to this. In both cases, the Court upheld the respective Defendants’ application to dismiss the actions of the respective Plaintiffs. Even a filing of an Amended Writ of Summons, as was in the Karisa case, could not hold water against the effect of Order 4, Rule 13.

8.      The filing of a Writ of Summons endorsed with a Statement of Claim ignites the engine. Once the vehicle is started, the gear has to be engaged for the vehicle to be in motion. The significance of the gear’s engagement is likened to that of proper service prescribed under the NCR within 2 years from the date of filing. Where service has not been duly effected within the period granted, the Plaintiff has no choice but to turn off the engine and re-ignite the process as allowed by sub-rule (3) of Order 4, Rule 13 or apply for an extension pursuant to Order 1, Rules 7 and 8, if the claim is not statute barred. 

9.     This matter before this Court is far from any of the matters studied above. Two years and about four (4) months have elapsed. Sufficient time reasonably proper for an Affidavit of Service to be filed has gone. Hence, given the Court’s influx of cases and busy schedules, it is most appropriate that this Court utilize its discretionary jurisdiction under Order 10, Rule 9A (15) (1)(b) and (2)(a) of the NCR to summarily dismiss this matter.

DECISION SUMMARY 

10.     Accordingly, the Court’s Orders are as follows:

i.	The Plaintiff’s Writ of Summons filed 24th October 2019 is set aside;

ii.	The Plaintiff’s entire Court proceeding stands dismissed.

iii.	The National Court Registry in Vanimo shall advise the Parties of this Order.

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