N2343

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 18 OF 1997

Between:

THOMAS KAIDIMAN
- Plaintiff –

And:

PNG ELECTRICITY COMMISSION
- Defendant –

LAE: INJIA, J.
2002: MAY 20

Civil – Practice and Procedure – Parties – Survival action – Death of plaintiff – Substitution of plaintiff – Application for substitution made after expiry of required three months period – Discretion to grant application - Discretion to be exercised on proper grounds – National Court Rules Order 5 Rule 10 & 12.

Cases cited:
No cases cited in the judgment.

Counsel:
Mr. D. Poka for the applicant/plaintiff
Mr. M. Mumure for the respondent/defendant

20 May 2002

INJIA, J.: The applicant in this matter, one Ms Judy Kaidiman is the first born daughter of the late plaintiff, Mr. Thomas Kaidiman, who died intestate on 7/1/98. When he was alive, he instituted these proceedings on 13/1/97, claiming damages against his former employer, PNG Elcom, for salary and other benefits, which he claimed were unpaid and outstanding at the time of his cessation of employment in April, 1992. The present application was filed on 22/3/02 under Order 5 rules 10 & 12 of the National Court Rules. The application is supported by her affidavit sworn on 21/3/02. She seeks an order that she be substituted as a plaintiff in lieu of her father to prosecute the claim on behalf of the deceased’s estate.

This application was prompted by an earlier application filed by the defendant on 6/9/01, in which the defendant sought to dismiss the action for want of prosecution, because the plaintiff’s former lawyer, Warner Shand Lawyers, on 30/3/00 wrote to the defendant’s lawyers advising the defendant’s lawyer that "our client is now deceased and we suggest we discontinue this matter." The defendant now contends that the proceedings should be dismissed for want of prosecution because since pleadings closed, the plaintiff has not taken any steps to set the matter down for trial as required by Order 10 rule 5. They say the present application of Ms Kaidiman is way too belated.

On the face of the Court record as per the Court file, it is clear to me that the plaintiff took steps to secure judgment as early as April, 1997, and actually obtained default judgment on 11/4/97. However, upon application of the defendant, this default judgment was set aside on 28/12/99 but the order actually became effective on 17/3/00 when the Registrar settled the order. Pursuant to the order, the defendant was permitted to file the defence, which it had already filed out of time on 14/4/97. The plaintiff was then given 21 days to file his reply and this period expired on 8/4/00. The six weeks allowed by Order 10 rule 5 set the matter down for trial therefore expired on or about 22 May 2000 without the plaintiff taking any steps to set the matter down for trial. Since then, no further steps were taken by the plaintiff for about 1 year 10 months before the present application was filed. Therefore, it is accurate to say that since the close of pleadings on 8/4/00, the plaintiff has not taken any steps to set down the matter for trial and prosecute the claim. We now know reason for this inaction – the deceased passed away and was unavailable to give his lawyer instructions.

Ms Judy Kaidiman explains in her affidavit that since her father died in 1998, she was in fact giving instructions to Warner Shand Lawyers and monitoring their action on the case. She says she is not a legal person and she assumed that the claim was still active. She says she was not aware that she had to make an application to be substituted as a party within 3 months from the time of her father’s death. As from October 2001, the situation has been explained to her by her new lawyer, Mr. D. Poka, of Pryke and Bray Lawyers and this prompted her to make this application. She says according to the local custom of the people of Kieta where she comes from, as the first born girl of the deceased, she ranks first in priority in assuming inheritance rights of her father’s estate and she is entitled to make this application. She says she is familiar with the deceased’s employment records and entitlements and will have no difficulty in prosecuting the claim.

Order 5 rules 10 allows for survival of actions commenced by a party prior to his death. Rules 10 – 11 provides the procedure for substituting a person in lieu of a deceased party, either on the application of an interested person or of the Court’s own motion. But rules 10 – 11 do not prescribe any time limit after the death of the party within which such an application may be made. Rule 12(1) addresses this point in the following terms:-

12.	Failure to proceed after death of party (8/12/)

(1)	Where—
(a)	a party dies but a cause of action in the proceedings survives his death; and
(b)	an order under Rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death, the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with Sub-rule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.

(2)	On making an order under Sub-rule (1), the Court shall give such direction as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceedings.

Mr. Poka who appeared for the applicant initially based his application under rule 10. During argument there was some confusion apparent from Mr. Poka’s submissions in the wording of Rule 12(1)(b), as to whether an application under Rule 10 should have been made within 3 months from the date of the plaintiff’s death.

In my view, whilst rule 10 and 12 do not expressly stipulate that an application under rule 10 must be made within 3 months of the death of a party, it is implicit in Rule 12(1)(b) that a person who has an interest in the deceased’s estate is entitled to make such an application within 3 months of the death. If the application is not made within 3 months, but it is made outside the 3 months, then the Court may still entertain the application and make an order substituting a party but subject to certain conditions stipulated in rule 12(1).

An order under rule 12(1) is discretionary and it is exercised on proper grounds. In the present case, I am satisfied that the applicant is an heir to the estate of the late plaintiff, that she has a direct interest in the proceedings on behalf of the estate of the late plaintiff and that she has acted promptly in making this application after being advised of her legal rights. I am also satisfied that the nature of the claim is such that proof of the claim is substantially based on documentary evidence in the form of records of employment which records should be readily available to both parties and that the action may be prosecuted without any great difficulty.

For these reasons, I order that the applicant be substituted as a plaintiff in lieu of her later father. I further order that a copy of this order be served on the defendant and the Public Curator of PNG, who has a direct interest in administering the estate of persons who die intestate, within 30 days from the date of this order. I also order that the applicant take steps to set this matter down for trial within 3 months from the date of this order. Should the applicant fail to comply with any of these orders, the proceedings shall stand dismissed for want of prosecution.

Consequently, the defendant’s motion is refused.

Each party shall bear their own costs of both applications.
________________________________________________________________________
Lawyer for the plaintiff	:	Pryke & Bray Lawyers
Lawyer for the defendant	:	Gamoga & Co. Lawyers