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Steamships Ltd v North Fly Development Corporation Ltd [2015] PGNC 72; N5999 (18 March 2015)

N5999

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 76 OF 2015

BETWEEN

STEAMSHIPS LIMITED & KIUNGA STEVEDORING COMPANY LIMITED
Plaintiffs

AND

NORTH FLY DEVELOPMENT CORPORATION LIMITED
First Defendant

AND

HENRY WASA, in his capacity as THE REGISTRAR OF TITLES
Second Defendant

AND

ROMILY KILA PAT, in his capacity as THE DEPARTMENTAL HEAD AND SECRETARY OF THE DEPARTMENT FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND

SAM WENGE (CHAIRMAN), NAWAN KIMISOPA PUPUNE, KEPO POMAT, WALTER OMA NOMBA, DR. LINUS SILPOLAKHAPULAPOLA & JOSEPHA NAMSU KIRIS in their respective capacities as MEMBERS OF THE PNG LAND BOARD MEMBERS
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Ipang, J
2015: 06 & 18 March

CIVIL MOTIONS – First Defendant filed an Amended Notice of motion without seeking leave from the Court – whether Amended Notice of Motion can be filed without Leave of Court – Order 8 Rule 50 of National Court Rules.

PRACTICE & PROCEDURE – When can a matter be transferred from one Civil Court to another Civil Court because of reason that the judge in other court has dealt with the parties previously in other related matters thus is familiar with issues.

Cases Cited:
Graham v Tonga [2023] PGNC 213; N5384 (15 May, 2013)

Text:
National Court Rules, 1

Counsel:
Mr. G. Purvey, for the Plaintiffs
Mrs. P. Nii, for the First Defendant
Mr. T.Tavasa, for second, third, fourth & Fifth Defendants (No appearance)

18 March, 2015

1. IPANG, J: On the motion day, which was the 5th of March, 2015 Mr. Geoffrey Purvey of Counsel for the plaintiff turned in court at 9.30am and sought to have the matter adjourned to the 18th of March. He gave the reason that he has prepared the necessary documents and yet to get his client to sign before the documents can be sealed, registered and served to the respective parties to this proceeding.
   
2. At the time the plaintiff's counsel sought the adjournment no other counsels representing other parties were present in court. It was later through the motions that Mrs. Nii of counsel for the First Defendant appeared. Mrs. Nii told this court that she had an urgent motion to make. The court then informed her that the matter was adjourned to the 18th of March, 2015 at 9.30am. I then had the matter re-called back to the 6th of March, 2015 at 2.00pm. I further directed that Mrs. Nii file and serve copies of her urgent application to the other parties.
   

06th March at 2.00pm

3. Mrs. P. Nii moved her Amended Notice of Motion filed on the 27th of February, 2015. She sought for an order under clause 1 of the motion which states, "that the Court file of this proceeding be transferred from Civil Court 4 to Civil Court 2 to be heard before Justice Kandakasi pursuant to Order 12 Rule 1 of the National Court Rules. The o.12 r. 1 NCR provides:
   

"1.General relief (40/1)

The court may, at any stage of the proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for the relief extending to that judgement or order in any originating process..

4. In support of the Amended motion, Mrs. Nii relied on the affidavit of Otto Avorosi sworn and filed on the 27th of February, 2015. The grounds relied on to move this motion is contained in paragraphs 3 – 12 of Avorosi's affidavit referred to above. I will re-state these grounds:
   

3. There were two (2) previous matters involving the same parties over issues in relation to title over a same portion of land described as Allotment 30, Section 6, Kiunga, Western Province.

4. The previous 2 related proceedings were all dealt with in Civil Court No. 2 by Justice Kandakasi. The two (2) previous proceedings were known as O.S No. 217 of 2013 and OS. No. 08 of 2014.

5. On all occasions, Justice Kandakasi dealt with the two (2) cases and made orders. Because of this, His Honor is well versed with the facts and issues concerning the dispute between the same parties. It would be convenient for all parties as well as the Court, that Justice Kandakasi, who is well versed with the issue of the two (2) previous related proceedings to be in a position to speedily deal with this current matter.

7. In relation to the Amended Notice of Motion filed on 27th February, 2015, Mrs. Nii informed the Court that they appeared before His Honor, Justice Ipang on 27th February, 2015 and His Honor stated in his ruling that he wanted the other side to also file Affidavits for him to understand the case and make a proper ruling and ruled that there was no urgency to hear the matter. Except for paragraph 1 of that Notice of Motion which was heard and determined, the balance of the Notice of Motion remained to be heard at a later time. Annexed hereto and marked as Annexure "A" is a copy of the file endorsement of 27th February, 2015.

8. However due to the urgency of the case, Nii said she was instructed to file for an order to have the matter transferred to Justice Kandakasi who had presided over the 2 previous matters and would need less time to understand the issues and to deal with the matter speedily as the urgency of the case requires.

9. The urgency is that due to the Restraining Orders of the Plaintiff of 20th February, 2015, the Land Board indicated that they will not proceed with determining our client's application for land title before it, unless the orders are set aside.

10. The First Defendant's land title application was scheduled to be heard on Thursday, 26th February, 2015. After being aware of the Plaintiff's said restraining orders, she said they filed the application to set aside the restraining orders on Wednesday, 25th February, 2015. We waited for a time to be scheduled by the Court on that day as well as on Thursday, 26th February but our application was not listed. It was listed to be heard on Friday, 27th February.

11. Because of the restraining orders, the officials from the Land Board have indicated that they will hear the First Defendant's application at any time during the current land board sittings if the restraining orders are set aside.

12. Another reason for the urgency is that the Land board, in this case, sits only once a year. The last Land Board sitting was in January, 2014 and this is the second time in which the First Defendant's application would be considered. The First Defendant is very concerned that if it misses out on the current land board meeting, then its application or land title will be heard most probably in January next year, 2016. More precious time would be lost.

5. Mr. G. Purvey of counsel for the plaintiff raised a preliminary objection. He argued that the counsel for the first Defendant is moving not the original motion filed on the 25th of February, 2015 but an amended motion filed on the 27th of February, 2015. Mr. Purvey submitted that the First Defendant through Counsel needs to seek Leave of the Court in order to file their amended Notice of Motion. The plaintiff's counsel referred this court to the case of Graham v Tonga [2013] PGNC 213; N5384 (15 May, 2013)
   
6. This was the case which ruled on an objection by the continuous on the filing and service of an Amended Originating Summons and an Amended Statement of Charge filed on the 9th of May, 2013 on the eve or just before the trial of this matter was due to commence as previously scheduled on Friday 10th May, 2013 at 9.30am. The plaintiff contested the objection. In this case David, J had to deal with the issue; whether should His Honour disallow the amendments and reject the amended documents because the plaintiff has failed to obtain the Leave of the Court?
   
7. His Honour referred to Order 8 Rule 51 NCR (Amendment of pleading without leave 20/2) and ruled that this rule applies only to pleadings and secondly said an amendment to a pleading may be made without Leave before pleadings are closed and thirdly His Honour said a pleading may be amended only once. Thus, His Honour ruled that for purposes of Order 8 Rule 50 NCR, the Statement of charge is a document. His Honour continued on that a Statement of charge filed to an Originating Summons cannot be a pleading for the purposes of Order 8 rule 51 NCR. His Honour ruled that leave has to be sought under Order 8 Rule 50 NCR if the Statement of Charge has to be amended. His Honour disallowed the amendments and rejected the amended document on the basis that leave has not been obtained.
   
8. For the purpose of the objection by the Plaintiff in my view Order 8 Rule 50 NCR applies. The Order 8 Rule 50 NCR provides:
   

"Division 4 – Amendments.

50. General (20/1)

(1) The Court may, at any stage of any proceedings, on application by a 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."

9. If we apply Order 8 rule 50 NCR it becomes obvious leave has to be obtained in order to amend any document in the proceedings. The Amended Notice of Motion dated and filed on the same 27th of February, 2015 was amended and filed without Leave of this Court. I will uphold the objection by plaintiff's counsel Mr. Purvey and disallow the amendments and reject the amended Notice of Motion filed on the 27th of February, 2015.
   
10. The issue whether First Defendant should have sought Leave to amend their Amended Notice of Motion filed on the 27th of February, 2015 has been resolved, I thought I should go further to discuss the grounds the First Defendant relied on to move their Amended, Notice of Motion. The first Defendant's grounds for moving their Amended motion as initially stated are capture in the affidavit of Otto Avorosi sworn and filed on the 27th of February, 2015.
    
11. Briefly Mr. Otto Avorosi deposed that the two (2) previously related proceedings known as OS. No. 217 of 2013 and OS No. 8 of 2014 were dealt with in Civil Court No. 2 by His Honour Justice Kandakasi. Avorosi said His Honour Justice Kandakasi dealt with these two (2) matters and made orders. In paragraph 5 of his affidavit, Avorosi said it will be convenient for all parties as well as the court, that Justice Kandakasi who is well versed with the issues of the two (2) previous related proceedings to be in a position to speedily deal with the current matter.
    
12. Avorosi deposed in paragraphs 9 & 10 that due to urgency of the case he has been instructed to file for an order to have this matter (OS No. 76 of 2015) transferred to Justice Kandakasi. The urgency of the matter that Avorosi is alluding to is that the Land Board that is the National Land Board will not sit to deliberate on First Defendant's application for land title because of Plaintiff's restraining order of 20 February, 2015.
    
13. In paragraphs 11 & 12, Avorosi said the Land Board will hear First defendant's application "at any time" during the current Land Board sittings and if the restraining orders are set aside. Secondly, the Land Board only sits once a year and that First Defendant's application could be heard in January, 2016. My view is that there is no affidavit material filed by Land Board of the Land Board sitting only once in a year. This in my view would only be a speculation.
    
14. Whether this matter should be transferred from Civil Court No Four (4) to Civil Court No. Two (2) before Justice Kandakasi. Whether the reason adduced by First Defendant to have this matter transferred to Civil Court No. 2 is valid.
    
15. Avorosi desposed in paragraph 10 of his affidavit that, "The First Defendant's land title application was scheduled to be heard on Thursday, 26th of February, 2015. After being aware of the Plaintiff's said restraining order, we filed the application to set aside the restraining orders on Wednesday, 25th February, 2015. We waited for a time to be scheduled by the Court on that day as well as on Thursday, 26th February but our application were not listed. It was listed to be heard on Friday, 27th February, 2015" the week beginning Monday February, 23rd and ending Friday 27th February is a Supreme Court Week. The National Court Motions (Amendment) Rules 2005, Rule 6 provides:
    

"6. Motion days

Motions are heard at times as determined by the Judge. For the time being in Waigani, Motions are heard on Monday, Wednesday and Friday, of each week except, on the Supreme Court Week.

16. I appreciate the concern of the First Defendant through Avorosi's affidavit in paragraph 10, however it was within the Supreme Court Week and I was listed in some Supreme Court matters and was only available on Friday 27th February, 2015 at 2.00pm, where the matter was then listed.
    
17. On the same token I would like to echo concern(s) raised by Chief Justice in Administrative Instruction No. 1 of 2015; Assignment of Judges to Court Tracks in Waigani and Judges in the Provinces dated 4th March, 2015. In this Administrative Instruction Chief Justice observed;
    

I have noted that several judges based in the provinces or assigned to designated court tracks in Waigani or in the provinces have assumed case files from other court tracks without proper authorization by me or the judge administrators of each track, even when their own case list is begging attention. Judges who want to assume extra workload should first ensure their own case list, particularly part-heard and reserved decision cases, are manageable and satisfactory before offering their services to others.

Further, it is these sorts of practices that give rise to –

(a) Opportunities for judge – shopping by litigants and lawyers

(b) Allows judges to offload work to other judges unnecessarily'

(c) Opportunities for judges to assume files that might interest them; or

(d) Expose a judge and the judiciary to the accusation that there is a lack of uniformity in the allocation of cases to judges and that some improper influence has been exerted in the allocation of a case to a judge.

Judges assigned to various Court tracks should confine to the cases on their case lists as per CDS listings except in the following;

1. A Judge is listed for circuit duties in the Court track or provincial location in the official Annual Court Calendar or approved by the Chief Justice by prior arrangement with the judge(s) concerned.
   
2. A Judge has swapped with the other judge for the circuit month by prior arrangement with the Chief Justice
   
3. A judge has by prior agreement with the Judge Administrator of the court track or the provincial location transferred the case to that judge. Even when a case is transferred to another judge, the judge so assigned will be a judge who is within that division (Civil or Crimes division) or based within the provincial location, except where the Chief Justice approves otherwise.
   
18. This Administrative Instruction No. 1 of 2015 (supra) clearly addresses the issues raised by the First Defendant in their application. In my view, the First Defendant reason(s) to have this matter transferred from Civil Court No. 4 to Civil Court No. 2 is very shallow thus amount to shopping for Judges.
    
19. As I have initially ruled, I uphold the objection by Mr. G. Purvey of Counsel for the Plaintiff. I disallow and reject the Amended Notice of Motion filed on the 27th of February, 2015. First Defendant to bear the costs of this application.
    

____________________________________________________________
Young & Williams Lawyers: Lawyers for Plaintiff
Greg Manda Lawyers: Lawyers for the First Defendant
Solicitor General: Lawyers for the Second, Third, Fourth & Fifth Defendants