N10606
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1752 OF 2019

BETWEEN:
MELI MUGA and CHRISTINE COPLAND
Plaintiffs

AND:
JOSEPHINE WANARIU
First Defendant

AND:
JACOB POPUNA
PUBLIC CURATOR as the PUBLIC CURATOR & OFFICIAL TRUSTEE of Papua New Guinea
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:   Bre, AJ
2023: 	17th November, 01st December

CIVIL PRACTICE AND PROCEDURE - Application for summary disposal to  strike out Defence  – default in complying with Discovery notice and Court Directions – Discretionary principles considered – twelve months default – last minute application to extend time not granted.

PROBATE JURISDICTION – application by Writ of Summons – revocation of Letters of Administration – National Court Rules Order 19 rule 42 – evidence challenging credibility of initial evidence to obtain Letters of Administration – deceased had a will – Probate effected – unknown to Court at time Letters of Administration granted -correct mode of proceedings – caution in allegations of fraud – merits of case considered – revocation of Letters of Administration granted.

Cases Cited
Estate of Hengebe Haluya [2020] PGNC 64; N8257
Korowa v Kala [2004] PGNC 22; N2760
Kave v Yakaso (2014) N5693 and Aweto v Tobias [2020] PGNC 284; N8480
Yai-Pupu v Yai-Pupu [2023] PGSC 16; SC2364 

Counsel
Mr I Shepherd appearing with Mr M Muga  in person, for the Plaintiffs
Mr S Mulaga, for the First Defendant
No Appearance Second and Third Defendants

RULING	

01 December 2023

1.     BRE, AJ: 	INTRODUCTION: The Plaintiffs apply to dismiss the First Defendant’s Defence for non-compliance and to summarily dispose of the proceedings on grounds of alleged failure by the First Defendant to comply with the Court’s Directions Orders of 5 September 2022 and for failure to comply with the Plaintiff's Notice of Discovery filed 18 August 2022.

Preliminary Matter

2.	The First Defendant filed a Notice of Motion a day before the hearing of the Plaintiffs application seeking extension of time to comply with the Directions and attaching an Affidavit of the First Defendant seeking too that the Executrix of the Will relied on by the Plaintiffs should be joined as a party. The application was opposed on the basis that it was not promptly made, there are no good reasons for the non-compliance as the First Defendant has been represented by lawyers and the Plaintiffs application was outstanding since 24 October 2022 with the Notice for Discovery dated 18 August 2022, outstanding for twelve months.

3.	I agreed with the Plaintiffs submission that the application was not brought promptly and I refused the First Defendant’s application and proceeded to hear the Plaintiffs Notice of Motion filed 24 October 2022 as amended by Notice of Motion filed 05 October 2023.

BACKGROUND

4.	The substantive proceedings concern a dispute over title to plantation land that was acquired in 1928 during the colonial era by one Audrey Grace Stanfield who died on 13 April 1982 in Turramura, NSW, Australia and the subsequent transfer and other matters are in dispute. The property is described as Portion 799 Milinch Balgai, Kavieng, New Ireland Province.

5.	The Plaintiff seeks relief to assert its right as the registered title holder while the First Defendant challenges the circumstance of the grant of title to the Plaintiffs and relies on Letters of Administration issued to the Second Defendant, Public Curator on 30 June 2015.

EVIDENCE

6.	The Plaintiffs rely on the Affidavit of Christine Copland sworn on 9 October 2023 filed on 12 October 2023.

7.	The First Defendant filed Affidavits at the last minute on 16 November 2023, a day before the hearing which was objected to for short service which I refused to accept. However, I have taken into account other Affidavits on the Court File in my deliberations.

SUBMISSIONS

8.	Mr Sheperd for the Plaintiffs submits the last minute application is admission and that there has been unreasonable delay with no good reasons by the First Defendant in failing to comply with the Plaintiffs Notice for Discovery filed on 17 August 2022 and, compliance with Court Directions of 05 September 2022, and the First Defendant’s Defence be dismissed and the proceedings summarily disposed.

9.	Mr Malaga for the First Defendant urged the Court to consider the merits of the Defendant’s Defence and allow the First Defendant to comply with the Court Directions. He explained that the First Defendant was not aware of the Orders as she was out of Port Moresby.     

ISSUE
10.The issues for consideration are:

1)	whether there has been delay without good reasons and a failure by the First Defendant to comply with directions.

2)	Whether the interest of justice require a consideration of the merits of the Defence?
LAW
11.	The laws relied on by the Plaintiffs to move its motion are Order 9 rule 15 and Order 10 rule 9A of the National Court Rules (‘NCR’)
Order 9 rule 15 (1)(b) NCR reads:
“15. Default. 
(1) Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit, including—
	(a)…
	(b) if the proceedings were commenced by writ of summons 		and the party in default is a defendant—an order that his 			defence be struck out and that judgement be entered 				accordingly.”
Order 10 rule 9A NCR reads:
“15. Summary disposal.
	(1) The Court may summarily determine a matter:
	  a. on application by a party; or
          		…
	(2) The Court may summarily dispose of a matter in the following 	situations:
	a. for want of prosecution since filing the proceedings or since the 	last activity on the file; or
	b. for a failure to appear at any of the listing or directions hearing 	by a party or his lawyer; or
	c. for non-compliance of any order or directions previously made 	or issued by the Court at any of the listing processes.
	d. under any of the grounds set out in Order 12 Rule 40 and Order 	8 Rule 27 of the National Court Rules.
         		e. on any competency ground relating to non-compliance with the`		National Court Rules or any other relevant rules of Court.”

ANALYSIS

12.	The application requires an exercise of discretion by the Court on proper principles. In terms of failure to comply with the Notice for Discovery filed on 17 August 2022 and served on 24 August 2022 the guiding principles have been set out in Korowa v Kala [2004] PGNC 22; N2760 (21 December 2004) as:
1)	the extent or seriousness of the default;
2)	whether there are good reasons for the default;
3)	the terms of previous orders made by the Court;
4)	whether there are any unresolved issues in the case;
5)	the conduct of the lawyers; and
6)	the interests of justice.    

13.	Considerations for summary disposal are similar and are set out in Tani v Motor Vehicles Insurance Ltd [2010] PGNC 96; N3984 (12 April 2010) at [18]. 
The principles are sourced from the leading cases of Vivisio Seravo v. Jack Bahafo (2001) N2078 and followed in Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845 and John Niale v. Sepik Coffee Producers Ltd & Ors (2004) N2637.

1)	The default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim; 

2)	There is no reasonable explanation given for the delay; 

3)	The delay has caused injustice or prejudice; 

4)	The conduct of the parties and their lawyers warrants; 

5)	It is in the interests of justice. 
 
 14.	There are additional considerations where there is a failure to comply with a discovery notice as set out above, however, most considerations relate to delay, reasons for the delay ( if any), conduct of the parties, prejudice and the interest of justice which apply to both relief being sought.

15.	Before considering the principles, I take note that the neither the Second nor Third Defendant have filed their Defence and the application principally concerns the First Defendant's conduct of the proceedings. I turn now to consider the principles and its application to the facts.

1)	The extent of the First Defendant’s default or delay

16.	The Notice for Discovery was served on the First Defendant’s lawyer on 24 August 2022. The Court issued directions on 05 September 2022 for parties to file their affidavits by 09 September 2022 and for the matter to return to Court on 12 September 2022 for further directions. The Court Directions were served on the First Defendant’s lawyer next day on 06 September 2022.

17.	The Court issued directions on 05 September 2022 for parties to file their affidavits by 09 September 2022 and for the matter to return to Court on 12 September 2022 for further directions. The Court Directions were served on the First Defendant’s lawyer next day on 06 September 2022.

18.	This application was filed on 24 October 2022 and served a month later, on the First Defendant's lawyers  on 14 November 2022. The First Defendant has not taken steps to respond to the Discovery Notice nor this application for nearly eleven months. 

19.	The Plaintiffs amended their Notice of Motion on 05 October 2023 to correct the jurisdictional basis and served the amended motion to the First Defendant on 19 October 2023.

20.	There was no activity by the First Defendant except to change lawyers sometime in October 2023, with the lawyers filing a notice of change of lawyers on 08 November 2023.

21.	On 16 November 2023, on the eve of the hearing of the application, the First Defendants lawyers filed an application to dispense with service and seek an extension of time to comply with the outstanding Directions Order and the Notice of Discovery.

22.	I find that the First Defendant had ample time since receipt of the Notice of Discovery on 24 August 2022 and the Court Directions Order of  05 September 2022 and the Plaintiffs Notice of Motion served on 14 November 2022, to take any steps it may have taken, including seeking an extension of time, but did not. A period of more than 14 months passed without any activity. The delay and inactivity on the Defendants part is inordinate and unreasonable. 
 
2)	Any reasonable explanation provided by the First Defendant for the Default or delay.

23.	The First Defendant has not provided any reasonable explanation for the delay. I find the last minute application for extension an abuse of process and an admission of not having any good reasons for the 14 months delay.

3)	The delay or default has caused prejudice.

24.	The Defendant’s default in complying with the Notice of Discovery and Court Directions has prejudiced the Plaintiff in progressing their suit to trial and prolong uncertainty over their title to the property.

4)	The conduct of the First Defendant

25.	The First Defendant has not proactively responded to the notices and court order of 05 September 2022. Non-compliance of Court orders are a serious matter shows a disrespect for the Court and must be ruled against the non-compliant party. The Court held in Kave v Yakasa (2014) N5693 and Aweto v Tobias [2020] PGNC 284; N8480 (28 July 2020).
26.	The terms of the Court Order of 05 September 2022 are plain and obvious. Parties are to file their Affidavits the following week on the 09th of September 2022. The Plaintiffs filed the Affidavit of Christine Copland on 09 September 2022 and served on the First Defendant’s lawyer on 12 September 2022. The First Defendant has not filed any Affidavit nor the other Defendants taken any steps despite being served with matters arising from this proceedings.

28.	To seek the Court’s discretion at the eleventh hour to grant an extension is wanting and cannot be encouraged by the Court. I note the First Defendant changed lawyers in October 2023 however, that does not provide any reasonable explanation of the more than 12 months period the Defendants had, to respond to the Discovery notice nor comply with the Court Order of 05 September 2022. The extension of time was sought very late and not promptly, which should have been days or weeks after been served the Court Order and the Direction Order. See Post PNG Ltd v China Nanjing International Ltd (2023) N10500 at [19] and [20].

5)	The interest of Justice   

29.	The Court must guard against abuse of its process. The Court is often slow in dismissing proceedings in fraud cases. However, dismissal for want of compliance with mandatory court processes falls outside the rule in Order 12 rule 37 NCR. The Court clarified this in Paiko v Mondoro [2022] PGNC 382 at [51].  The interests of justice do not support a party that fails to comply with Court directions and mandatory processes of the Court such as the non-compliance of the Discovery Notice. See Aweto v Tobias [2020] N8480.

30.	The interest of justice also requires the Court to exercise caution in summarily dismissing proceedings based on allegations of fraud. In Lord & Company Ltd v Inapero, the Supreme Court cautioned at [59].
" In our view the cautious approach ... that care needs to be taken in giving default judgment where fraud or deceit are alleged ... In our view similar principles are applicable in cases involving summary disposal, even those outside the scope of Order 12 Division 4 of the National Court Rules."   

31.	In taking heed of this caution, I have considered the evidence of parties, the nature of the dispute and merits of the case to consider whether the substantive relief sought by the Plaintiffs for the Letters of Administration issued by the Court on 30 June 2015 should be revoked under Order 19 rule 42 NCR.

32.	I note from the Affidavits filed and especially that of the Affidavit of Christine Copland filed on 9 September 2022, that the Plaintiffs have filed evidence showing the deceased Audrey Grace Stanfield had not died intestate but had in fact died on 13 April 1982 leaving a will and codicil which was registered with the New South Wales Court in Australia. Probate was then registered with this Court on 12 December 1985 and a transmission record entered on 20 July 1987 on the record of the title register to the Property in the name of the Executrix.

33.	If the First Defendant had conducted due diligence and uncovered these records, she would have realised that there was a Will and there was no point in obtaining Letters of Administration from the Court as Audrey Grace Stanfield did not die intestate but died on13 April 1982 leaving a will. It is apparent that the Court was misled into granting the Letters of Administration and the First Defendant's and others actions in obtaining the Letters of Administration is tantamount to committing perjury.

34.	I turn now to consider the legal basis to revoke the Letters of Administration and refer to Order 19 rule 42 NCR  and the cases of Yai-Pupu v Yai-Pupu [2023] PGSC 16; SC2364 (16 March 2023) and Estate of Hengebe Haluya [2020] PGNC 64; N8257 (18 March 2020). These cases provide that the correct mode of seeking relief to revoke Letters of Administration is by Writ of Summons in accordance with Order 19 rule 42 NCR .  Order 19 rule 42 NCR provides:

	“Commencement of contentious proceedings
Proceedings for the revocation of a grant shall, be commenced by writ of summons. ”

35.	The Plaintiffs have commenced this proceeding correctly to challenge the grant of the Letters of Administration in WPA 30 of 2014 and obtain its revocation. The Second and Third Defendant have not filed any Defence to defend themselves nor made any appearance in the proceedings. The First Defendant filed her Defence alleging fraud and competency in bringing proceedings but has not taken any steps to file interlocutory applications to challenge the suit within the 14 months of inactivity or earlier nor respond to the Notice of Discovery and Court directions.  

36.	There is sufficient jurisdictional basis to grant the substantive relief sought to revoke the Letters of Administration granted to the Second Defendant in WPA 30 of 2014. 

CONCLUSION

37.	I have carefully considered each aspect of the principles guiding the exercise of discretion and the case for and against granting the relief sought. The findings I make are that there was an inexcusable delay of 14 months to comply with the Courts Directions and the Plaintiffs Notice of Discovery. The delay has prejudiced the Plaintiffs in litigating and in asserting their claim to the property in dispute. 

38.	I particularly find the conduct of the Plaintiff and her then lawyers in not complying with this Court's directions order a serious matter that warrants a ruling in favour of striking out her Defence.

39.	The interest of justice requires this Court to guard against abuse of its processes and exercise caution in summarily disposing of matters. I have taken heed of that caution and perused the merits of the case to make an adverse ruling against the Defendants regarding the evidence used in the grant of the letters of Administration in WPA 30 of 2014.

40.	For the foregoing reasons, the Plaintiffs application is granted and the Letters of Administration are revoked.      

COSTS

41.	Costs are discretionary. Each party bears their own costs.

ORDER

42.	The formal Orders of the Court are:

1)	The First Defendants Notice of Motion filed on 16 November 2023 is refused.

2)	The Plaintiffs Amended Notice of Motion filed on 05 October 2023 is granted. 

3)	The First Defendant’s Defence is struck out for default in complying with the Notice of Discovery filed on 17 August 2022 and the Court Directions Order of 05 September 2022. 

4)	The grant of the Letters of Administration in the estate of Audrey Grace Stanfield in WPA 30 of 2014 to the Second Defendant is revoked pursuant to Order 19 rule 42 of the National Court Rules. 

5)	The entire proceedings are summarily disposed pursuant to Order 9 rule 15 and Order 10 rule 9A of the National Court Rules.

6)	The Court file is  to be closed and archived after the mandatory appeal period expires.

7)	Each party bears their own costs.

8)	Time of entry is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

Orders Accordingly.
_______________________________________________________________
Simpson Lawyers: Lawyers for the Plaintiffs
Sanol Malaga Lawyers: Lawyers for the First Defendant