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Tipar v Malpo [2011] PGNC 48; N4272 (3 March 2011)

N4272

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 1127 OF 1997

BETWEEN:

MICHAEL TIPAR (by his customary representative, Janet Tipar for herself and the estate) and on behalf of 26 other retrenched members of the Papua New Guinea Defence Force
Plaintiff

AND:

BRIGADIER-GENERAL CARL MALPO,
COMMANDER OF THE PNG DEFENCE FORCE
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn J.
2010: 7th October,
2011: 3rd March

Application for substitution of a party - appointment of a representative of deceased persons - amendment of the statement of claim – Order 8 Rules 50(1), 53(1) and (5) National Court Rules – whether new cause of action arises out of the same or substantially the same facts

Facts:

The plaintiffs commenced this proceeding in 1997 in respect of their retrenchment by the Papua New Guinea Defence Force. They now apply to substitute a party, to appoint a representative for 2 deceased plaintiffs and to amend their statement of claim.

Held:

1. The application to substitute Brigadier General Francis Augwi as first defendant in place of Brigadier General Carl Malpo is appropriate and the order sought is granted.
   
2. There is no evidence of the dates of death of the deceased and no evidence from the respective families of the deceased or the Public Curator as to whether they consent or oppose this application. In the circumstances, given the paucity of evidence in support of the application, it is refused.
   
3. The new cause of action for wrongful termination does not arise out of the same or substantially the same facts that are relied on for the cause of action pleaded in the statement of claim. Therefore, the requirements of Order 8 Rule 53 (5) National Court Rules have not been met to enable this court to grant leave to make the amendments sought. Consequently, the application to amend the statement of claim is refused.
   

Cases cited:

Luke Niap v. PNG Harbours Ltd (2009) N3672

Counsel:

Mr. K. Frank, for the Plaintiffs
Mr. F. Waleilia, for the Defendants

3rd March, 2011

1. HARTSHORN J: The plaintiffs commenced this proceeding in 1997 in respect of their retrenchment in 1997 from the Papua New Guinea Defence Force. They now apply for the substitution of a party, the appointment of a representative for 2 deceased plaintiffs in joined proceedings and for an amendment to the statement of claim.

Substitution of first defendant

2. The application to substitute Brigadier General Francis Augwi as first defendant in place of Brigadier General Carl Malpo is not opposed by the defendants. The substitution is sought as Brigadier General Augwi is the current Commander of the Papua New Guinea Defence Force. The application is appropriate. I grant the orders sought in paragraph 3A of the plaintiffs' further amended notice of motion filed 17th June 2010.

Appointment of representative

3. The plaintiffs apply for Mr. Rochus Lokinap, a plaintiff, to be appointed the representative of 2 deceased plaintiffs in joined proceedings. The reason for the application apart from these 2 plaintiffs being deceased is that no application has been made in these proceedings to date for a representative to be appointed on their behalf.

4. The defendants oppose the application as there is no evidence as to why the Public Curator or a legally recognised personal representative should not be appointed instead of Mr. Lokinap and further, there is no evidence as to whether the application has been properly brought within 3 months of each death pursuant to Order 5 Rule 12 National Court Rules.

5. In this regard I note that there is no evidence of the dates of death of the deceased and no evidence from the respective families of the deceased or the Public Curator as to whether they consent or oppose this application. In the circumstances, given the paucity of evidence in support of the application, it is refused.

Amendment of statement of claim

6. The amendments that the plaintiffs seek to the statement of claim are amongst others, that the plaintiffs were terminated, that their termination was effected on the authority of the National Executive Council, that the National Executive Council did not have authority, that the plaintiffs claim damages for wrongful termination and that the amounts received upon termination were incorrect. Details of how the payments were incorrect are also pleaded.

7. The defendants oppose the application to amend the statement of claim. They submit that the plaintiffs are seeking to introduce a new cause of action that is statute barred and that does not arise out of the same or substantially the same facts. This, they further submit, is contrary to Order 8 Rules 53 (1) and (5) National Court Rules.

8. The plaintiffs submit to the contrary that the proposed amendments only provide additional and particular detail to the original claim pleaded.

9. I had occasion to consider Order 8 Rules 50 (1), 53 (1) and (5) National Court Rules in Luke Niap v. PNG Harbours Ltd (2009) N3672.

10. Order 8 Rule 50(1) National Court Rules is:

(1)The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

11. Order 8 Rule 53(1) and (5) are:

(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.

(5) Where a plaintiff, in his writ of summons, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.

12. In Niap's case (supra), I stated that:

"The above Rules provide that an amendment adding a new cause of action may be permitted to a writ of summons notwithstanding that a relevant period of limitation has expired so long as it arises out of the same or substantially the same facts.

Order 8 Rules 51 and 53 National Court Rules are the equivalent of Part 20 Rules 1 and 4 of the New South Wales Supreme Court Rules. A significant difference however, is that Part 20 Rule 4(7) specifically provides that the powers of the Court under Part 20 Rule 1 (our Order 8 Rule 50(1)) are not limited by Part 20 Rule 4 (our Order 8 Rule 53). This requires the New South Wales Supreme Court when considering proposed amendments that would otherwise be refused for not meeting the criteria in Part 20 Rule 4, to have regard to other factors such as hardship to the plaintiff if the amendments were to be refused, prejudice to the defendants if the amendments were to be allowed, any fault of the parties and any other such circumstances, and if justice requires, to permit the amendments: McGee v. Yeomans [1977] 1 NSWLR 273.

There is no equivalent provision in our National Court Rules that provides that Order 8 Rule 50(1) is not limited by Order 8 Rule 53. On a plain and ordinary reading, it is clear that Order 8 Rule 50(1) is limited by Order 8 Rule 53.

Consequently, 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 Order 8 Rule 50 for leave to amend the writ by making the amendments mentioned in Order 8 Rule 53(2)-(5), the court may in the circumstances mentioned in any of those Sub-rules give leave accordingly. If however, the proposed amendments do not meet the circumstances mentioned in any of those Sub-rules, the court is unable to grant leave sought under Order 8 Rule 50."

13. In this case, the terminations about which complaint is made occurred in 1997 so any causes of action arising therefrom are statute barred. The cause of action of wrongful termination is new. It is not pleaded in the statement of claim. The proposed amendment pleads amongst others, that the plaintiffs were terminated, new facts concerning termination, the authorisation of the termination, how it was implemented and how entitlements were and should have been calculated and paid. The termination of the plaintiffs, how the termination was authorised and whether it was correct are not referred to in the statement of claim. The facts in the statement of claim are concerned with the Deed of Release, that the plaintiffs were retrenched, that the plaintiffs would be paid the amount set out in a Deed of Release and that there was a breach of contract.

14. To my mind the new cause of action for wrongful termination does not arise out of the same or substantially the same facts that are relied on for the cause of action pleaded in the statement of claim. Given this, the requirements of Order 8 Rule 53 (5) National Court Rules have not been met to enable this court to grant leave to make the amendments sought. Consequently, the application to amend the statement of claim is refused.

Orders

15. The orders of the Court are that:

a) the relief sought in paragraph 3A of the plaintiffs further amended notice of motion filed 17th June 2010 is granted,

b) the relief sought in paragraphs 3B and 3C of the said motion is refused,

c) the defendants' costs of and incidental to the said motion shall be paid by the plaintiffs.

_________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiffs
Posman Kua Aisi Lawyers: Lawyers for the Defendants