SC863

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 3 OF 2006

BETWEEN:

MOTOR VEHICLES INSURANCE LIMITED
Appellant

AND:

SOSSIE JOE
Respondent

Waigani: Injia, DCJ, Manuhu, J. and Hartshorn, J.
2007: 2nd May

PRACTICE AND PROCEDURE - National Court Rules O 7 r 6(2) - O 8 r 4(1)(a) - Filing Defence when Notice of Intention to Defend not filed within prescribed time

Case cited:

Luke Tai v. ANZ Group (PNG) Limited N1979.

Counsel:

R. Thompson, for the Appellant
G. Epor, for the Respondent

10 May 2007

1. 	BY THE COURT: Introduction: This appeal was heard on 2 May 2007. The Appellant (MVIL) appeals the National Court decision that it required leave to file its defence. The Respondent (Sossie Joe) opposes the appeal. At its conclusion this Court upheld the appeal, awarded the costs of the National Court application to the MVIL and ordered that each party bear their own costs of the Supreme Court proceedings. The Court said that it would give its reasons which it now does. 

Facts

2. Sossie Joe is suing MVIL for damages for personal injury. MVIL filed its notice of intention to defend after the 30 day time limit. Its attempts to file its defence within 14 days thereafter were refused by the National Court Registry on the basis that having failed to file its notice of intention to defend within time, it could not file a defence without leave. MVIL applied to the National Court for the National Court Registry to accept the filing of its defence without leave. The National Court decided that MVIL did require leave and granted MVIL leave to file its defence. The decision of this Court has no bearing on the National Court proceedings apart from the question of costs, but it is important on the particular point raised. 

Issue

3. Whether MVIL, which has filed its notice of intention to defend out of time, is entitled to file its defence without leave within 14 days of the expiry of the prescribed time limit? 

Consideration of the issue 

4.	Sossie Joe contends that Order 7 Rule 6(2) of the National Court Rules requires a defendant to obtain the leave of the Court to file its defence if it has given a notice of intention to defend after the time limited for doing so, which is 30 days. Order 7 Rule 6 provides:

"(1) A defendant may give notice of intention to defend at any time without leave. 

 (2) Where a defendant gives a 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 a notice of intention to defend within time."

5.	Sossie Joe says that he is supported in his contention by the comments of Kapi, DCJ (as he then was) in Luke Tai v. ANZ Group (PNG) Limited N1979. That case was an application for default judgment where the Defendant had filed its defence almost 20 months after the time ordered by the Court. In the course of his judgment, Kapi, DCJ commented that:

"…if a Defendant files notice outside the prescribed period, he may not file a defence…without the leave of the Court (O 7 r6(2)). A defence filed without leave in these circumstances would be invalid". 

6. 	Sossie Joe’s argument is misconceived. The Defendant in Luke Tai’s case was clearly in default. It had filed its defence a considerable time after the required time limit. Therefore, the decision to be determined in that case required a different consideration to that required here. 

7.	In this instance, it is not in dispute that MVIL attempted to file its defence within the time prescribed by pursuant to O 8 r 4(1)(a) of the National Court Rules. MVIL was entitled to file its defence. It was incorrectly prevented from doing so by the National Court Registry. Order 8 Rule 4(1)(a) relevantly provides: 

"… a Defendant shall file and serve on the Plaintiff his defence… 	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; …".

8. 	If the interpretation of Order 7 Rule 6(2) contended by Sossie Joe is accepted, it renders nugatory the latter part of that Order and it conflicts with the right bestowed upon the Defendant by O 8 r 4(1)(a). 

9. The natural and ordinary meaning of O 7 r 6(2) in our view, is quiet clear. It is to ensure that the Defendant does not have further time to file a defence or do any other thing because he gave a notice of intention to defend after the prescribed time. It does not penalise the Defendant by requiring him to seek the leave of the Court to file his defence if he has failed to file his notice of intention to defend within time. 

10.	Thus, a Defendant can file his defence anytime within the total period of 44 days, regardless of whether he has filed a Notice of Intention to Defend within time. If the Defendant attempts to file his defence more than 44 days after the writ is served upon him, he requires the leave of the Court, regardless of whether he has filed a notice of intention to defend within time. 
 
11. The late filing of a notice of intention to defend does not of itself extend the time for filing a defence. A Defendant must seek the leave of the Court to extend time to file his defence. The leave of the Court is not required if he files his defence within the total time prescribed for filing a notice of intention to defend and defence.

Conclusion

12.	Accordingly, the National Court Registry was incorrect in refusing MVIL’s defence and the National Court erred in concluding that MVIL required leave. For these reasons the appeal is upheld. 
____________________________________________

Young & Williams: Lawyers for the Appellant 
Steeles Lawyers: Lawyers for the Respondent