N5353

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1934 OF 2005

BETWEEN:
 
JOE AITSI & ANTHONY AITSI t/a YUMI INDUSTRIES
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Hartshorn, J.
2007: November 23rd,
2008: January 21st

Amendment of Writ of Summons - Order 8 Rules 50 and 53(3) National Court Rules -Amendment including Addition of Parties - Expiration of period of Limitation 

Cases cited:

Sullivan v. Van der Broek [1999] NSWSC 1177

Counsel: 

Mr. V. Narokobi, for the Plaintiff 
Mr. A. Chillion, for the Defendant

21st January, 2008

1. HARTSHORN, J: The plaintiffs, Joe Aitsi & Anthony Aitsi trading as Yumi Industries (Yumi) apply for leave to amend their Writ of Summons and Statement of Claim pursuant to Order 8 Rule 50 National Court Rules. 

2. The proposed amendments are set out in an annexure to a supporting affidavit that has been filed. The effect of the proposed amendments inter alia, is to add 9 persons as 5 new defendants to the proceedings in addition to the existing defendant, the State (the proposed new 5th defendant consists of 5 persons).

3. It is not in dispute that the period of limitation within which Yumi could commence proceedings to prosecute their cause of action has expired. As to when the period of limitation expired is in dispute but that question is not relevant to this application.

4. Order 8 Rule 53 relevantly is as follows:

(1) Where any relevant period of limitation expires after the date of issue of a writ of summons and after that expiry an application is made under Rule 50 for leave to amend the writ by making the amendment mentioned in any of Sub-rules (2), (3), (4) or (5), the Court may in the circumstances mentioned in that Sub-rule make an order giving leave accordingly, notwithstanding that that period has expired.

(2)

(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.

5. Counsel for Yumi contends that the addition of the defendants is in their respective representative capacities only and not in their personal capacity and that in the circumstances the addition of the defendants as set out in the proposed amendments together with the proposed amendments, should be allowed.

6. I have not been able to locate any Papua New Guinean case authorities on Order 8 Rule 53(3). The New South Wales Supreme Court case of Sullivan v. Van der Broek [1999] NSWSC 1177 concerns the equivalent Rule in that jurisdiction and is particularly on point. Rule 20.4(3) is the same as our Order 8 Rule 53(3). Sullivan's case (supra) considers the English and Australian authorities and concludes that they do not allow the addition of parties after the relevant limitation period has expired, only the substitution of parties where certain categories of mistake are established. That is not the case here.

7. Given that our National Court Rules are similar to the New South Wales Supreme Court Rules and the rules of the Supreme Court of England, the case authorities from those jurisdictions are persuasive in our jurisdiction. The rationale for their interpretation of the subject rule to my mind, is apparent. Where it can be shown that the intention was to name a particular party but that a mistake was made in the naming of the party, the mistake should be allowed to be rectified with the effect that the plaintiff is not penalised. That is different from adding a new party. 

8. In this instance, the plaintiff is seeking to add numerous new defendants, almost 2 years after the 6 year period of limitation has expired. To my mind it is not appropriate that this should be permitted. As Windeyer J. said in Sullivan's case (supra):

"This seems a hard case but limitation cases often are and Limitation Acts have a proper purpose."

9. Given that the amendments that Yumi seeks leave to make contain numerous references to the proposed new defendants as well as adding the new defendants, the proposed amendments are not appropriate.

10. Accordingly the application of the plaintiff in the notice of motion filed on 5th of September 2007 is refused. The plaintiff is at liberty to further apply to amend its writ of summons and statement of claim without the proposed amendments seeking to add defendants.

11. The plaintiff shall pay the costs of the defendant of and incidental to the motion.

Narokobi Lawyers: Lawyers for the Plaintiff 
Office of the Solicitor General: Lawyers for the Respondents