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Petkol Trading Ltd v Community Development Services Ltd [2013] PGNC 232; N5517 (8 November 2013)

N5517

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 645 OF 2012

BETWEEN:

PETKOL TRADING LIMITED
Plaintiff

AND:

COMMUNITY DEVELOPMENT SERVICES LIMITED
First Defendant

AND:

RAGA KAVANA, Registrar of Titles
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kariko, J
2013: 6th & 8th November

PRACTICE AND PROCEDURE – preliminary issue raised as to correctness of name of defendant – whether originating summons in proper form - substantial and important parts of the Forms omitted in the purported originating summons filed by plaintiff - amendments would not be appropriate - name of first defendant is amended - whole of these proceedings are set aside as being irregular.

Cases cited:

Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085
Modilon General Hospital Board of Management v Dianne Liriope (2012) N4772
Paul and Mary Bal v Kenny Taiya and Others (2003) N2481

Counsel:

Mr S Japson, for the plaintiff
Mr M Nandi, for the first defendant
Mrs B Potane, for the second & third defendants

RULING

8th November, 2013

1. KARIKO, J: These proceedings concerns a dispute over legal title over an area of land described as Allotment 23 Section 22 Mendi SHP. There exists two State Leases in respect of the land - one in favour of the plaintiff company Petkol Trading Ltd and the other granted to Paldir Community Development Services Ltd. The main claim by the plaintiff is for a declaration that it has the valid title.
   
2. Pursuant to a notice of motion filed on 15th October 2013, an application was moved for the dismissal of the proceedings pursuant to O12 r40 of the National Court Rules (the Rules) for failing to disclose a reasonable cause of action, for being frivolous and vexatious and for being an abuse of process. An alternative application was for the proceedings to be dismissed for want of a notice pursuant to section 5 of the Claims By and Against the State Act (the Claims Act).
   
3. Before Mr Nandi of counsel for the first defendant Community Development Services Ltd embarked on the submissions in respect of the applications, he raised two preliminary issues.
   

Defendant wrongly named

4. Firstly, he asked the Court to note that there is no evidence showing that there exists such a company as Community Development Services Ltd or that such an entity has any interest over the disputed property. It is clear from the evidence before the Court that the competing claims over the property are those of the plaintiff and Paldir Community Development Services Ltd. It would seem therefore that Paldir Community Development Services Ltd rather than Community Development Services Ltd ought to be the first defendant.
   
5. In my view, the incorrect name is a matter that I would allow to be cured by an appropriate amendment pursuant to O8 r50(3). Notwithstanding this incorrect name, Nandi Lawyers entered an appearance for the first defendant although in fact instructed by Paldir Community Development Services Ltd. No prejudice would be caused by the amendment.
   

Originating summons not in proper form

6. Secondly, it was pointed out to the Court that the plaintiff did not file the proper form as prescribed by the Rules for initiating proceedings by way of an originating summons. The form that was filed merely sets out the relief claimed before being signed off by the lawyer for the plaintiff. To my mind this questions the competency of the proceeding.
   
7. The Rules state that a person wishing to commence proceeding by originating summons may use Form 6 stating an appointment of hearing or Form 7 for a hearing to be appointed. See O4 rr 25-27.
   
8. Apart from setting out the relief sought, Form 6 also includes:
   
   • A warning to the defendant that judgement may be ordered against him if he fails to attend the hearing at the specified time and place
   • An advice to the defendant to give notice of his intention to defend the claim before attending the hearing
   • Provision for the time and place for the hearing
   • Where time is abridged, provision for the appropriate endorsement
   • Provision for details of the plaintiff and his lawyer
   • Provision for the address of the registry
   • An advice on the manner of giving notice of an intention to defend
     
9. From 7 on the other hand includes:
   
   • A warning to the defendant that judgement may be ordered against him if he fails to file his intention to defend within 30 days after service of the summons on him
   • Provision for details of the plaintiff and his lawyer
   • Provision for the address of the registry
   • An advice on the manner of giving notice of an intention to defend
     
10. The plaintiff admitted not filing the originating summons in the proper form but argued that this defect could be corrected by way of an amendment.
    
11. The fact that neither of the prescribed Forms was used not only means that the plaintiff has not complied with the Rules but in my opinion, the proceedings are defective and irregular.
    
12. A similar situation arose in the case of Modilon General Hospital Board of Management v Dianne Liriope (2012) N4772 where the originating summons was not in the prescribed format (Form 6 or Form 7). In that case her Honour Davani J firstly noted O1 rr8 and 9. O1 r8 states that non- compliance with the Rules does not render proceedings void unless the Court directs but the proceeding may be set aside as irregular or may be amended, while O1 r9 provides that an application to set aside proceedings for irregularity must be made within a reasonable time or without the applicant having taken any fresh steps with knowledge of the irregularity. Even though there was no application to set aside the proceeding as irregular, her Honour held that the Court had an inherent jurisdiction to control proceedings before it (relying on the authorities of Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 and Paul and Mary Bal v Kenny Taiya and Others (2003) N2481), and having found that the proceeding was a nullity ordered that it be set aside.
    
13. I am inclined to take the same approach. As substantial and important parts of the Forms were omitted in the purported originating summons filed by the plaintiff, I am of the view that amendments would not be appropriate. The Court also notes that while there was no application under O1 r8 the only steps taken by Mr Nandi for his client since entering an appearance has been to pursue the application to dismiss the proceeding.
    

Conclusion

14. Having concluded that these proceedings must be set aside, I deem it not necessary to consider the arguments for dismissal of the proceedings based on O12 r40 and section 5 of the Claims Act. The plaintiff is of course at liberty to file a fresh action.
    

Orders

15. The Court accordingly orders that:
    
    • (1) The name of the first defendant is amended to read "Paldir Community Development Services Ltd"
      
    • (2) The whole of these proceedings are set aside as being irregular.
      
    • (3) The plaintiff shall pay the defendants' cost of these proceedings, to be taxed if not agreed.

____________________________________________________________
Japson & Associates: Lawyers for the Plaintiff
Nandi Lawyers: Lawyers for the first Defendant
Solicitor-General: Lawyers for the second & third Defendants