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Tuap v Pamben [1999] PGNC 19; N1852 (9 April 1999)

Unreported National Court Decisions

N1852

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
WS NO. 626 OF 1998
BETWEEN: JOHN TUAP ON BEHALF OF HIMSELF AND THE 1,189 PEOPLE OF WATARAIS, MARAWASA AND RAGITZARIA VILLAGES
FIRST PLAINTIFF/CROSS DEFENDANT
AND: GRAHAM NABU ON BEHALF OF HIMSELF AND THE 721 PEOPLE OF MARASASA, WANKUN AND ATZUNAS VILLAGES
SECOND PLAINTIFF/CROSS DEFENDANT
AND: MARCONI IGIS ON BEHALF OF HIMSELF AND THE 53 PEOPLE OF RAGIZUMANG, TUMUA, WARITZIAN AND RAGIAMPUN VILLAGES
THIRD PLAINTIFF/CROSS DEFENDANT
AND: BARNABAS SAGUM ON BEHALF OF HIMSELF AND THE 115 PEOPLE OF GAINARUM, TOFMORA, INTSI, ZUMARA, MARAFAU, MAIAMSARIANG, NGARUAPUM AND GUDZUAP VILLAGES
FOURTH PLAINTIFF/CROSS DEFENDANT
AND: EDDIE SARUFA ON BEHALF OF HIMSELF AND THE 72 PEOPLE OF MUTZING VILLAGE, PUBLIC SERVANTS AND MARKHAM VALLEY HIGH SCHOOL AND NGARUBURAM VILLAGE
FIFTH PLAINTIFF/CROSS DEFENDANT
AND: TITUS PAMBEN [FORMER PROVINCIAL POLICE COMMANDER - EASTERN HIGHLANDS] PPC WESTERN HIGHLANDS
FIRST DEFENDANT/CROSSPLAINTIFF
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT/CROSS PLAINTIFF

Lae

Sakora J
12 March 1999
9 April 1999

Counsel

Mr R. Pato for the Plaintiffs

Ms H. Kiele for the Defendants

9 April 1999

SAKORA J: The plaintiffs in their respective individual and representative capacities move this Court by a notice of motion filed 15 July 1998 for orders in the following terms:

THAT:

1. & The whole of ehe Defence bnce be struck out.

2. ټ There be summary jury judgement for the Plaintiffs against the Firs Secofendafor ds to sessed.

3.&#>3. &160; #160;&#160 &##160& The whol whole of the Cross Claim of the First Cross Plaintiff and Second Cross Plaintiff be struck out.

4. ـ҈ T60; The Fire First and Second Defendants pay the Plaintiffs' costs of this motio>

5. &##160;< Anyher or other order this this Honourable Court deems proper.

This motion is brought aders sought pursuant to different sets of rules under Orders 8 and 12 respectspectively of the National Court Rules (NCR). Order 8 provides the rules governing pleadings, where under Rule 27 the Court may upon the application of a party, and at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleadings be struck out where such a pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) ټ has a ts a tendency to cause prejudice, embarrassment oay inproces; or

(c)&>(c) #1660  is otherwise an abusthe prhe process of the Court

Rule 28 of Order 8 NCRibitsrty fleadingading the the general issues. And Division 2 of this Order provides the rules in rein respect of Particulars, where Rule 29 reads:

29. General

(1) ټ A partyparty pleading shall give the necessary particulars of a claim, defence or other matter pleaded by him.

(2) ......

Division 3 of Order 8 deals with the rules gove Crosims, where Rule 4ule 44 in 4 in particular (the pertinent parts), for our present purposes, is in the following terms:

44.ټ&##160;uct of proceedingedings gens generallerally

(1) & Subject to this Division,sion, the proceedings on a cross-claim shall follow as nearly as may be the course of proceedings on a writ of summons.

(2) ; Subje thissioh,without liut limi limiting ting the gthe generality of sub-rule (1) of this Rule, these Rules apply to a cross-claim and the proceedings arisinm it ey apo a wf summons and the proceedingsdings aris arising fing from irom it.

(3) ; Sub-rules (1)(and (2) of ) of this Rule apply as if -

a) &ـ t6e croe cross-clas-claim were a writ of summons;

b) � thss-claimant went were a plaintiff;tiff; and and

c)

c) & the defendanthto the crosscross-claim were a defenda>

(4) ټ .<....

(5)&#(5)&#15) ټ&#............

(6) &##160;&#16.....

Or2 NCR NCR provides the rules for Judgments and Orders. The general relief provision is under Rule 1,le 1, whic which proh provides that:

The Court may, at any stage y proceedings, on the appliapplication of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.

The particular relief sought by the plaintiffs under this Order is as provided for under Division 4 - Summary Disposal. Rule 38 is in the following terms:

38. & Summary judgmjudgment

(1) Where, an appiicaty n b plhe plaintiff in relation to any claim for relief or any part of any claim for reliethe piff -

(a)ټ&##160;; There is evis evidence of the fact on which the claim laim or paor part isrt is base based; and; and

(b) ; the evisence given by they the plaintiff or by some resporesponsible person that, in the belief of the person giving the evidence, efendas nonce t claim or part, or no defence except as to the amount of any any damagdamages cles claimedaimed,

the Court may, by order, direct the entry of such judgment for the plaintiff on that claim or part as the nature of the case requires.

(2) ـ Withoutthout limiting sub-rule (1) of this Rule, the Court may under tub-rule tirec ethe entry of judgment for the plaintiff for damages to be assessed.

(

(3) ټ&#In this this rule,rule, ges ied vaf goop> classon

The plaintiffs, in their individual and representative capacities, claim damages for what is collectively described as loss of property, livelihood and violation of human rights. It is the contention of the plaintiffs that the damages they seek arise directly out of the incidents of the police operation conducted in and around the villages of Watarais, Marawasa, Ragitzaria, Marasasa and Atzunas, under the overall command of the first defendant on the 3rd and 4th February 1996, in purported discharge of official legal duties and functions.

In support of their application, the plaintiffs rely upon the affidavit of Stephen John Carter sworn 15 July 1998 and filed 7 August 1998. That affidavit traces the history of this proceedings from the filing of the subject Writ of Summons up to the filing of this notice of motion. The deponent, the lawyer having the carriage of this matter, as well as tracing the history, deals with the processes, or purported processes, filed on behalf of the defendants. In this respect, it is instructive also to formally note these processes or documents.

It should be noted here that from the material before me (duly filed), and as deposed to by the deponent, the Writ of Summons was duly served on the two defendants on the 14th and 16th July 1997 respectively (paras. (4) and (5).) The Solicitor General duly filed a Notice of Intention to Defend on 11 August 1997 on behalf of the defendants. Between the filing of the Notice of Intention to Defend and 29 May 1998, the defendants or their lawyers had not filed the required Defence within the statutory period. On 2 June 1998, Pato Lawyers filed with this Court a Notice of Change of Lawyers dated 28 May 1998 concurrent with the Notice of Ceasing to Act of even date filed by Mr Kila Maino. On 9 June 1998 the Solicitor General filed, on behalf of the two defendants their Defence and Cross-Claim dated 5 June 1998. This had been preceded by the lawyers for the plaintiffs serving on the lawyers for the defendants a notice (by way of a letter dated 29 may, 1998) to apply for entry of Default Judgment if no Defence was filed 5 June 1998.

The plaintiffs do not challenge the Defence as being filed out of the extended period accorded by their letter of 29 May 1998 (served 3 June 1998), only because of the brevity of the notice (2 days), as acknowledged by the deponent (para. (11). Further extension was requested and granted (see para. (12).) As will be discussed in due course here, the plaintiffs, in support of their application, challenge the Defence, or purported Defence, only as to its adequacy vis-à-vis the NCR.

On behalf of the plaintiffs, their learned counsel Mr Pato handed up his written submissions which he spoke to. And I have also had the benefit of oral submissions by learned counsel for the defendants, Ms Kiele. Both counsel made helpful references to the pertinent case law in this jurisdiction and other common law jurisdictions, firstly, on the law governing an application to strike out a Defence, and secondly, pleadings in Cross-Claims.