N523

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

RUS MONGOGL

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Pratt J

5 October 1985

PRACTICE - Pleadings - Parties to proceedings - Party suing in representative capacity - Capacity and particulars to be endorsed on writ of summons - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 32 - National Court Rules, O 14, r 20.

INFANTS AND CHILDREN - Proceedings by and on behalf of - Practice on - Pleadings - Party suing in representative capacity - Capacity and particulars to be endorsed on writ of summons - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 32 - National Court Rules, O 4, r 20.

Where a person brings proceedings in a representative capacity and on behalf of infant children:

Held

(1) The National Court Rules, O 4, r 20, requires any representative capacity to be clearly stated in the endorsement on the writ;

(2) The minimum requirement of the Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 32, which requires particulars of the persons on whose behalf and for whose benefit the proceedings are brought to be specified, are the names of the children their ages and sex.

(3) The representative capacity should be included in the titles endorsed on the writ unless the number of persons represented makes that impossible.

(4) Non-compliance with the statutory requirements does not affect the validity of the writ and may be cured by amendment where appropriate.

Case Cited

Bowler v Mowlem Co Ltd [1954] 1 WLR 1445; 3 All ER 556.

Notice of Motion

This was a motion for judgment to be entered in an action brought by the widow and infant children of a deceased the object of the proceedings being to obtain the sanction of the court to an agreed settlement on behalf of the infant children.

Counsel

P C Kopunye, for the plaintiff.

5 October 1985

PRATT J: The application before me is a motion for judgment to be entered in an action instituted by the wife (the widow of the deceased), on her own behalf and also on behalf of certain children of the marriage. In short, the matter is an infant settlement.

I have been a little concerned about this and other matters before me in the Hagen list because there is no mention in the title to the action of any children at all, or that the plaintiff is acting as a next friend or representative of any particular child. However, in some of the matters before me today there is an endorsement under s 32 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) the "Wrongs Act" which stipulates the specific children on whose behalf the action is brought. Such an endorsement seems to me to be a compliance with s 32 of the Wrongs Act and also a compliance with the National Court Rules, O 4, r 20, which requires that where a person sues in a representative capacity then such capacity must be endorsed on the writ.

However, in the present matter there is a very broad statement endorsed on the claim saying that the action is by the plaintiff in accordance with the provisions of Pt IV of the Wrongs (Miscellaneous Provisions) Act "on behalf of and for the benefit of the relatives of Kai Tenda and of such other persons as were by native custom dependent upon the said Kai Tenda immediately before his death, who was there and then a pedestrian".

First, let me say this. To my mind, such an endorsement does not appear to be a compliance with s 32 of the Wrongs Act. No particulars are given at all. Indeed it is a very open-ended endorsement and tells the defendant nothing. Secondly, it is certainly not an endorsement within the terms of the National Court Rules, O 4, r 20.

There is nothing in the title to the writ which throws any further light on the matter. Of course, the fact that a description does not appear on the title is not fatal to an action. This is made quite clear in Bowler v Mowlem Co Ltd [1954] 3 All ER 556 where Lord Denning deals with the case of a claim by an administratrix who had sought to bring proceedings for damages and issued a writ before she was appointed administratrix. Although this case and three of the five authorities which I have examined (referred to by Lord Denning at 558 of the report), deal primarily with the nullity of the writ because of the lack of capacity in the plaintiff, there is a clear inference in all of these authorities that the English equivalent of our O 4, r 20, means that where a person does sue in a representative capacity that must be quite clearly stated in the endorsement to the writ. His Lordship goes on to say (at 558) that the:

"plaintiff described herself as administratrix in the title of the action and in the statement of claim. But a misdescription in the title is not fatal. It does not make a writ a nullity any more than does a misdescription of a woman as a spinster, when she is in fact a married woman. A misdescription in the title is never fatal: it can always be cured by amendment in the same way as a misnomer. The thing which cannot be cured is the bringing of an action in a representative capacity when that capacity does not exist".

There is no suggestion in the case before me that the plaintiff lacks capacity. The only defect in the proceedings is that the plaintiff has not made it clear both within the terms of s 32 of the Wrongs Act and in the terms of O 4, r 20, of the rules the representative capacity in which she sues and more especially on whose behalf she sues. The minimum particulars which I think are required under s 32 of the Act are the names of the children, their ages and sex. As there is no question of lack of capacity, I think it would be quite in order for me to allow an amendment even at this late stage to be made to the writ to bring it into line with the rules. I do not think it would be necessary to re-serve the writ on the defendant because it is clear from the consent order which they have signed (and which is now before me as part of the application today), that they are fully aware of the representative capacity of the defendant and specific persons who are to benefit from the claim in this case. Indeed that is quite clearly set out in detail in the consent order down to the last toea. I therefore will not order any re-service of the amended writ on the defendant. I also held that the representative capacity should also be endorsed in the title unless the number of claimants makes such course impracticable.

If I am wrong in making this particular order however it can be rectified by the defendant if it feels that an injustice has been done because the order to this extent has been made ex parte and there are appropriate avenues open to the defendant if they wish to contest such an ex parte order.

Accordingly, I order firstly, leave be granted to endorse the writ of summons in compliance with the Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 32, and the National Court Rules, O 40, r 20; and I indicate that I shall enter judgment in accordance with the application made by the plaintiff if the facts of the matter satisfy me that the welfare of the children has been looked after. I note a consent order, signed by the defendant, has been tendered.

Ruled accordingly

__________________________

Lawyer for the plaintiff: P C Kopunye.