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Kewa v Motor Vehicles Insurance Ltd [2011] PGNC 162; N4440 (7 November 2011)

N4440

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1506 OF 2010

BETWEEN

MALT KEWA by his next friend JEREMIAH POPUNA
Plaintiff

AND

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Mount Hagen: Makail, J
2011: 04th & 07th November

PRACTICE & PROCEDURE - Competency of proceeding - Objection of - Striking out of - Grounds of - Proceedings brought on behalf of disabled person - Person suffering from mental disability - Filing of certificate by his solicitor verifying no committee or curator appointed for disabled person - Failure of - Effect of - Objection dismissed - National Court Rules - O 5, rr 20, 21 & 22.

PRACTICE & PROCEDURE - Urgent matter - Priority matter - Setting down matter for trial - Application for dispensation of directions hearing and call-over requirements - Considerations of - National Court Rules - O 1, r 7, O 10, rr 3 & 4 & National Court Listing Rules, 2005 - O 10, r 9A3, 8 & 11.

Facts

The plaintiff was allegedly injured in a motor vehicle accident. As a result, he is mentally disabled. He commenced proceeding against the defendant for damages. The defendant filed an application objecting to the competency of the proceeding on the basis that the plaintiff had failed to file a certificate by his next friend as being appointed a committee or curator of the plaintiff or a certificate by his solicitor that he knew or believed that there was no committee or curator appointed for the plaintiff pursuant to O 5, r 22(3) of the National Court Rules.

The plaintiff opposed the application and submitted he had filed a consent to act by his next friend verifying that his next friend had no interest in the proceeding at the time he commenced the proceeding. He had also belatedly filed a supplementary certificate by his solicitor verifying that there was no committee or curator appointed for him. He also filed an application seeking leave to set the matter down for trial and to dispense with the requirements for the matter to be listed on the directions hearing and call-over lists and that, the matter be given priority as his mental condition had deteriorated since the alleged motor vehicle accident.

Held:

1. The requirements of O 5, rr 21 & 22 of the National Court Rules are mandatory in a case where the plaintiff is a disabled person. A failure to comply with these requirements would render the proceeding incompetent and can be struck out.

2. In the present case, the plaintiff had substantially complied with the requirements of O 5, rr 21 & 22 of the National Court Rules, except for the certificate by his solicitor verifying that there was no committee or curator appointed for the plaintiff under O5, r 22(3), which was belatedly filed by way of a supplementary certificate by his solicitor. As there was substantial compliance by the plaintiff and in order to do justice in the circumstances of the case, pursuant to the Court's powers under O1, rr 7 & 8 of the National Court Rules and also section 158 of the Constitution, the supplementary certificate by his solicitor was accepted: Sent Mapa -v- Motor Vehicles Insurance Limited: OS No 513 of 2007 (Unnumbered & Unreported Judgment of 27th March 2009) distinguished.

3. The application to strike out proceeding was accordingly dismissed.

4. As the plaintiff's mental condition has deteriorated since the alleged motor vehicle accident, the matter was urgent and of priority and leave was granted to set the matter down for trial and the requirements for directions hearing and call-over under O 10, rr 3, 4 of the National Court Rules and O 10, r 9A3, 8 & 11 of the National Court Listings Rules, 2005 were dispensed with.

5. In order to expedite the matter, appropriate directions were issued and the matter was returnable for mention for allocation of a trial date in December 2011.

Cases cited:

Sent Mapa -v- Motor Vehicles Insurance Limited: OS No 513 of 2007 (Unnumbered & Unreported Judgment of 27th March 2009)

Counsel:

Mr P Dowa, for Plaintiff
Mr K Peri, for Defendant

RULING

07th November, 2011

1. MAKAIL, J: On 19th February 2006, the plaintiff was allegedly injured in a motor vehicle accident. He was a pedestrian and was knocked down by a Toyota bus bearing registration number P.353Y. As a result, he is mentally disabled. On 01st December 2010, he commenced proceeding through Paulus Dowa Lawyers against the defendant for damages. At the time Paulus Dowa Lawyers filed the writ of summons, they also filed a certificate by his solicitor and consent to act as next friend by a Jeremiah Popuna in accordance with O5, rr 20 & 21(6) of the National Court Rules.

2. On 21st September 2011, the defendant filed a notice of motion seeking to strike out the proceeding as being incompetent for failure to comply with the requirements of O 5, rr 21 & 22 of the National Court Rules. Alternatively, for dismissal of the proceeding for being frivolous and vexatious pursuant to O 12, r 40(1)(b) of the National Court Rules. The plaintiff also filed a notice of motion on 06th September 2011 seeking leave to set the matter down for trial and to dispense with the listings requirements of directions hearing and call-over pursuant to O 10, rr 3 & 4 of the National Court Rules and for the matter to be given priority for listing for trial pursuant to O 10, r 9A3, 8 & 11 of the National Court Listings Rules, 2005.

3. The basis of the objection to the competency of the proceeding is that the plaintiff is a disabled person as he was rendered mentally disabled following the alleged motor vehicle accident and can only commence proceeding through a next friend. In order for the next friend to commence proceeding on his behalf, it was submitted, there must be a certificate by his solicitor filed by Paulus Dowa Lawyers that there is no committee or curator appointed on behalf of the plaintiff at the commencement of the proceeding. That was not done, thus the proceeding is incompetent and should be struck out. I accept that in cases where a plaintiff is a disabled person, proceedings must be commenced by a next friend. This is a mandatory requirement under Order 5, r 20 of the National Court Rules. It states:

"20. Conduct of proceedings by next friend. (63/3)

(1) Subject to these Rules, where a disabled person is a party to any proceedings, anything which would, if he were not a disabled person, be required or authorized by these Rules to be done by him shall or may be done by his next friend.

(2) A next friend must act by a solicitor."

4. In this case, there is no dispute the plaintiff is a disabled person because he has been rendered mentally disabled following the alleged motor vehicle accident. A disabled person is defined by O 1, r 6 of the National Court Rules as "a minor or a mentally disordered person". It was submitted by the defendant as the plaintiff was mentally disabled prior to the commencement of the proceeding, there is no evidence establishing that the plaintiff had a committee or curator and the committee or curator had given authority under an Act, to bring the proceeding on behalf of the plaintiff.

5. There is merit in the defendant's objection because it is not disputed the plaintiff has not filed a certificate by his solicitor that he knew or believed that there is no committee or curator appointed for the plaintiff and the date when committee or curator was appointed at the time Paulus Dowa Lawyers commenced proceeding on 01st December 2010.

6. Order 5, rule 21 states:

"21. Appointment of next friend generally. (63/4)

(1) Subject to Sub-rule (5) and to Rules 22 and 24 an order appointing a next friend is not necessary.

(2) A disabled person may not be a next friend and a corporation may not be a next friend. but otherwise, and subject to Sub-rule (3), any person may be a next friend.

(3) A person may not be a next friend of a disabled person in any proceedings in which he has an interest adverse to the interest of the disabled person.

(4) A person shall not be made a next friend without his consent.

(5) Where a person has been or is next friend for a disabled person in any proceedings, no other person may, except on appointment by the Court, act as next friend for the disabled person in those proceedings.

(6) A person shall not take any step in any proceedings as next friend for a disabled person unless beforehand there have been filed -

(a) his consent to act; and

(b) a certificate by his solicitor that the next friend has no interest in the proceedings adverse to that of the disabled person". (Emphasis added).

7. There are public policy considerations for this requirement in our National Court Rules and they are first, where a plaintiff is a disabled person, it is necessary that his interest is protected from abuse by persons with adverse interest. Secondly, it is to protect the defendant from being exposed to multiplicity of proceedings by persons who claim to be next friend of the disabled person.

8. Order 5, rule 22 states:

"22. Appointment of next friend of mentally disordered person. (63/5)

(1) Where a mentally disordered person has a committee or curator and the committee or curator has or may be given authority, under an Act, to bring or defend proceedings on behalf of the mentally disordered person, a person other than the committee or curator shall not, unless the Court otherwise orders, act as next friend of the mentally disordered person in proceedings which the committee or curator has or may be given authority to bring or defend.

(2) Where, after the commencement of proceedings, a party becomes a mentally disordered person, no step in the proceedings shall be taken by or against the mentally disordered person until a next friend for him has been appointed by the Court.

(3) A person shall not take any step in any proceedings as next friend for a mentally disordered person unless he has been appointed next friend by the Court or unless there has been filed (in addition to the documents mentioned in Rule 21(6)) -

(a) in a case to which Sub-rule (1) applies - a certificate by the next friend that he is committee or curator for the mentally disordered person and specifying the date on which and the manner by which he became committee or curator; or

(b) in a case to which Sub-rule (1) does not apply-a certificate by his solicitor that he knows or that he believes that that sub-rule does not apply and giving the grounds of his knowledge or belief." (Emphasis added).

9. In support of its application, the defendant relied on the case of Sent Mapa -v- Motor Vehicles Insurance Limited: OS No 513 of 2007 (Unnumbered & Unreported Judgment of 27th March 2009) where David, J struck out the plaintiff's proceeding seeking leave to give notice to the defendant under section 54(6) of the Motor Vehicles (Third Party) Insurance Act, Ch 295 for failure to file a certificate by his solicitor and consent to act as next friend pursuant to O 5, rr 21(6) & 22(3) (supra). His Honour stated at p 9 of the judgment that the terms of 5, r 21(6) and r 22(3) are mandatory. He concluded at p 10 that:

"It is clear from the evidence before the Court that the proceedings were instituted without the mandatory requirements for the appointment of a next of friend being complied with. The breach of the mandatory requirements cannot, in my view, be cured by invoking O.1 r 7, nor O.1 r.8 as the breaches are fundamental."

10. His Honour held that the proceeding was incompetent and struck it out. I agree with his Honour's observation. I consider the requirements of O 5, rr 21 & 22 are mandatory in a case where a plaintiff is a disable person. A failure to comply with these requirements would render the proceeding incompetent and can be struck out.

11. It is clear from the judgment of Sent Mapa's case (supra), the plaintiff was a mentally disordered person prior to the commencement of the proceeding and yet commenced proceeding in his own capacity. No next friend was appointed to act for him. This is where I distinguish that case from this case. In this case, Paulus Dowa Lawyers correctly commenced proceeding for the plaintiff through a next friend, Jeremiah Popuna. In my view, they have made it very clear at the out-set of the proceeding that the Jeremiah Popuna is the plaintiff's next friend when they filed the certificate by his solicitor and the consent to act as next friend by Jeremiah Popuna.

12. I am, therefore, of the view that, this is not a case where the plaintiff has blatantly ignored or deliberately failed to comply with the mandatory requirements of O 5, r 21(6) and r 22(3) (supra). Rather this is a case where the plaintiff has substantially complied with the requirements, albeit the filing of the certificate by his next friend as being appointed a committee or curator for the plaintiff or a certificate by his solicitor that he knew or believed that there is no committee or curator appointed for the plaintiff under O 5, r 22(3) (supra). The plaintiff's lawyers have eventually filed the missing certificate by way of a supplementary certificate by his solicitor on 01st November 2011. The relevant part reads:

"AND I believe that Sub-rule 1, Rule 22, Order 5 of the National Court Rules do not apply and the grounds of my belief are:

(a) At the time of instructions there was in existence, neither committee nor curator responsible for the affairs of the Plaintiff and no such instruction has been given to any such committee or the curator."

13. The part that has been recited above is consistent with the terms of O 5, r 22(3)(b) (supra) and its filing although was belated, has at least, rectified the default. In my view, the filing of the supplementary certificate by his solicitor satisfies the requirements of O 5, rr 21(6) & 22(3) (supra). This Court has power under O 1, rr 7 & 8 of the National Court Rules and section 158 of the Constitution in its duty to dispense justice to give paramount consideration to the dispensation of justice. In dispensing justice in this case, I will accept that the plaintiff has complied with the requirements under O 5, rr 22(6) & 23(3) (supra) by the filing of the supplementary certificate by his solicitor on 01st November 2011. I dismiss the objection.

14. Turning to the plaintiff's application, the plaintiff submitted he has filed and served all necessary affidavits to support his claim for damages against the defendant. As he is mentally disabled, it is highly unlikely he will live long to pursue his claim and seeks an expedited hearing of the matter. He therefore seeks leave to set down the matter for trial and dispense with the directions hearing and call-over requirements pursuant to O 1, r 7, O 10, rr 3 & 4 of the National Court Rules and O 10, r 9A3, 8 & 11 of the National Court Listing Rules, 2005. The defendant made no submissions in response to the application.

15. I consider that directions hearings and call-over are a means of expeditiously progressing cases towards a trial. Directions are issued for parties to prepare their respective cases for trial and call-over are for parties to appear and obtain trial dates once directions have been complied with. However, these requirements may be dispensed with on application by parties. I also consider that in an application to dispense with the directions hearings and call-over requirements, an applicant must demonstrate that the matter is urgent. What is urgent will depend on the factual circumstances of each case. I consider one of the circumstances is the deteriorating medical condition of a party to the proceedings. Where a party's medical condition has deteriorated to such an extent that he or she might not live to see the end of the proceedings, this may amount to an urgent case and the Court may, on application by the party dispense with these requirements.

16. In the present case, from the affidavit of Jeremiah Popuna filed on 06th September 2011, I note that the plaintiff is in a frail state. This is further confirmed by various photographs of a person identified as the plaintiff standing with an aid of a walking stick. The medical reports from Mt Hagen General Hospital also confirmed that the plaintiff is mentally disabled and unstable. Based on these evidence, which have not been refuted by the defendant, I am satisfied the plaintiff's mental health condition is deteriorating to such an extent that he may not live to see the end of the proceeding. As such, this case needs urgent attention of the Court and must be given priority. I grant the application and order that leave be granted to set the matter down for trial, and that, the requirement for the matter to be placed on a call-over list be dispensed with and that appropriate directions be issued to further progress the matter to trial at the earliest possible date.

17. As the plaintiff has filed and served on the defendant, all necessary affidavits he intends to rely on at trial, I shall further order that the defendant shall file and serve its affidavits on the plaintiff by or before Friday 02nd December 2011 and that, the matter shall return before me on Thursday 08th December 2011 at 9:30 am for mention. On this date, parties shall appear and obtain a trial date in December 2011.

Costs of both applications shall be in the cause.

Ruling and orders accordingly.
____________________________________
Paulus Dowa Lawyers: Lawyers for Plaintiff
Warner Shand Lawyers: Lawyers for Defendant