N10324

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1172 OF 2018

MOLEEN BELL
Plaintiff

-V-

BOARD OD DIRECTOS OF THE CATHOLIC DIOSES OF AITAPE HEALTH SERVICES
First Defendant

-AND-
CATHOLIC DIOCESE OF AITAPE
Second Defendant

Vanimo: Thoke, AJ
2022: 23rd & 24th 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:
Papua New Guinean Cases

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 
Overseas Cases

Rust v Barnes [1980] 2 NSWLR 726

Legislations Cited:

Constitution
National Court Rules

Counsel:

K. Masket, for the Plaintiff
No appearances for the Defendants

RULING

24th February 2022

1.     THOKE AJ: On the 23rd of February 2022, during the Call Over at the Vanimo National Court, this case was presented before me. Following Order 10, Rule 9A (15) (1)(b) and (2)(a) of the National Court Rules (hereinafter referred to as NCR), I dismissed the proceeding due to the fact that the Writ of Summons (hereinafter referred to as Writ”) that was filed on 02nd October 2018 was not served on the Defendant within the required two (2) years, as specified by Order 4, Rule 13 of the NCR.

2.     Herein, I provide the ratio decidendi.

BACKGROUND & ISSUE

3.    The Statement of Claim attached to the Writ filed on 02nd October 2018 alleges breach of duty of care and claims for damages from the Defendants for injuries sustained supposedly within the scope of employment. 

4. Both Defendants neither filed their respective Notice of Intention to Defend nor Defences. Why? Maybe because of lack of service of the Writ on them.

5.     When the matter first came before Justice Gora AJ (as he then was) on June 6, 2019, neither the Plaintiff nor the Defendants appeared, and it was adjourned to the next Call Over. However, when it came before Gora AJ (as he then was) again on November 4, 2019, it was adjourned further as both parties failed to appear. Neither the Plaintiff nor her lawyer sought leave from the court to extend the time to serve the Writ. 

7.     On July 7, 2021, the matter appeared before Justice Rei AJ, and once again, it was adjourned to the next Call Over. At that time, neither party appeared. 

8. Today Counsel for the Plaintiff appeared and made the claim that the Writ had been served on the Defendants, despite the lack of a properly filed Affidavit of Service to confirm it. He promised to produce but failed. 

9.     Obviously, the Court File lacked an Affidavit of Service proving that the Writ was served within two (2) years as prescribed by Order 4, Rule 13 of the NCR. Moreover, there was no evidence of an application to extend the time limit under Order 1, Rules 7 and 8 of the NCR.

10.    Simply, the only question is whether this matter can be summarily disposed of pursuant to Order 10, Rule 9A (15) (1)(b) and (2)(a) of the NCR?

RELEVANT PRINCIPLES & REASONING

11.    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”. 

12.    The application of this Rule is very popular. According to the case of Tepend Jack v Motor Vehicles Insurance Ltd [2008] PGNC 53; N3342, the writ must be served within two years from the date it was filed. The decision was made by His Honor Makail AJ (as he then was) following the principles discussed in Rust v Barnes [1980] 2 NSWLR 726. Invoking Order 10, Rule 9A (15) (1)(b) and (2)(a) of the NCR, the plaintiff's action was not allowed to proceed as the Writ of Summons was already stale.

13.      The Court has consistently followed the same path in recent decisions. This is evident in the cases of Karisa v Rahman [2020] PGNC 282; N8621 and Kalili Kokonas Estate Ltd v Soaliga [2016] PGNC 48; N6239. In each instance, the Court granted the respective Defendants' requests to dismiss the actions brought by the respective Plaintiffs. The effect of Order 4, Rule 13 was so strong that even the filing of an Amended Writ of Summons, as in the Karisa case, was not enough to overcome it.

14.     The history of this matter reveals that the lawyers from the Public Solicitor’s Office did not take any steps to serve the Writ on the Defendants since the filing of the same. Since there is no evidence that the Writ was served within the two-year required period, it is more appropriate this must be stripped of the endless benefit to be on the Call Over list continually. 

15.     Although the Plaintiff Counsel’s submission omitted it, this Court is also aware that the operation of Order 1, Rules 7 and 8 of NCR can sometimes affect the strict application of Order 4, Rule 13. Those Rules state that:

7.      Relief from Rules. (1/12)
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

8.      Non-compliance with Rules not to render proceedings void.
Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.

16.     It is better to appreciate the Supreme Court case of Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804 as an example. The case involved an appeal from a previous judgment ruling that allowed an extension of the time for serving the Writ of Summons even after the prescribed two-year period had already lapsed. The Court's decision was based on Section 155(4) of the Constitution and Order 1, Rules 7 and 8 of the NCR. The Court noted that despite the absence of an express proviso, the general powers of the Court under Rule 7 and Rule 8 of Order 1 had an overriding impact on the application of Rule 13 of Order. Additionally, the Supreme Court held that an unserved writ of summons could be regarded as an irregularity and not a nullity thereby upholding the National Court's previous ruling.

17.    But for this case, regardless of ample opportunities to make a proper application under Order 1, Rules 7 and 8 of NCR as in the Niugini Mining Ltd case, to extend the time for service of the Writ, the Plaintiff’s Counsel unnecessarily held up the Court’s precious time blatantly ministering lies without evidence of service of Writ. Had he had made the proper application to extend time before the expiry of the two years, he would have saved this case from the teeth of Order 10, Rule 9A (15) (1)(b) and (2)(a) of the NCR. 

18.     The primary purpose of National Court call over is to go through all civil pending list of cases to assess whether parties have taken all necessary steps to progress the matter to trial. The Court also has a duty to screen and ensure that all cases that come before the Court are purified and all primary processes are completed before reaching the actual trial date. Absenteeism and non-attendance by the Plaintiff and her Counsel on several Call Over dates costed them valid information that would have been accessed to help the case, at least, attaining advice to make an application to invoke Order 1, Rules 7 and 8 of NCR to extend time to service Writ, if she was actively pursuing an out of Court settlement as indicated in her Affidavit.

19.     The Plaintiff may have a genuine claim against the Defendants, but she must follow up with her lawyer to ensure that her claim is prosecuted with due diligence.  She also did not attend this court since the date of filing of her Affidavit and the Writ. 

20.     More crucially, lawyers employed by the State especially within the Public Solicitor’s Office must not only understand, but through their acts, must be seen to understand and appreciate that the Office of the Public Solicitor is bestowed with a noble and special duty to assist our people seek justice. This matter belongs to a nurse (the Plaintiff), who has served our people in the rural areas with distinct affection and generosity. Lacking the necessary legal skills to fend for herself in Court, she entrusted the Office of the Public Solicitor to lead and advocate in her cause for justice. She has a good claim to be tried. The Office of the Public Solicitor failed in the discharge of its responsibility to act diligently ensuring compliance with the mandatory requirements of the court rules within the given time period. It is disheartening to see lawyers fail to conform to the standards of practice which is taxing the benevolent trust and reliance placed on the Public Solicitor’s Office by the people of this country. 

21.    To conclude, let me say that 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 ( which is 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. 

22.    It is clear that about three (3) years and four (4) months have elapsed. Sufficient time reasonably proper for an Affidavit of Service to be filed has gone. No proper application was made to extend time pursuant to Order 1, Rules 7 and 8 of the NCR. 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 

23.     Accordingly, this Court’s Orders are as follows:

i.	This matter is dismissed for lack of service of the Writ of Summons by the Plaintiff and her Lawyers within 2 years.

ii.	The Plaintiff is at liberty to apply to re-instate the writ, if she adduces evidence to justify to this Court that the writ had been served within the 2-year period, that is from the date in which the writ was filed (2nd October 2018) to the expiry date (02nd October 2020).

iii.	Costs be in the cause.  

iv.	Time for entry of these Orders is abridged to the date and time of settlement by the Registrar, which shall take place forthwith.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff