N7044

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WPA No.81 of 2013

IN THE ESTATE OF THE LATE JOSEPH KUBAK DEMAS of Vunairoto, East New Britain Province (and formerly of Allotment 11 Section 487 Port Moresby,, National Capital District), Public Servant, Deceased. 

AND:
IN THE MATTER OF AN APPLICATION BY HARRIET DEMAS for Letters of Administration of the Estate of the late
JOSEPH KUBAK DEMAS
Plaintiff

Waigani: David, J
2016: 24 March
2017: 19 April 

PRACTICE AND PROCEDURE- application by Public Curator to be added as a party – application granted – Constitution, Section 158(2), Wills, Probate and Administration Act, Sections 39, 42, 44, 46 and 84 -  Public Curator Act, Section 14 - National Court Rules, Order 4 Rule 49(17),  Order  5 Rule 8(1)(b).

Cases cited:

PNG International Hotels Pty Ltd & Anor v The Registrar of Land Titles and Ors (2007) N2307
Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718
AGC (Pacific) Ltd v Sir Albert Kipalan & 4 Ors (2000) N1944
Kara v Public Curator of Papua New Guinea (2010) N4048
PNG Deep Sea Fishing Ltd v Critten (2010) SC1126
Eki Investments Limited v Era Dorina Limited; Era Dorina Limited v Eki Investments Limited (2006) N3176
Ken Norae Mondiai v Wawoi Guavi Timber Company Limited (2006) N3061
IPA v Canopus No. 16 Ltd (2012) N5316
Public Curator of PNG v Konze Kara (2014) SC1420
Julius Pololi v Bryan James Wyborn (2013) N5253
Public Curator v Bank of South Pacific Limited (2006) SC832
Ken Owa v Jacob Popuna (2015) N6111

Counsel:

Gertrude Kubak, for the plaintiff
Jason Rotep, for an interested party, the Public Curator 

RULING

19th April, 2017 

1.	DAVID J: This is a ruling on a motion filed on 22 June 2015 by a person who is not a party namely, the Public Curator, Jacob Popuna seeking an order for him to be added as a party to these proceedings.

2.	These proceedings concern the estate of the late Joseph Kubak Demas.  He died on 3 May 2013 at the Port Moresby General Hospital.  The deceased’s biological sister, Harriet Demas has applied for the grant of letters of administration of the estate of the deceased to her. 

3.	The Public Curator relies on the affidavits of:

(a)	Jacob Popuna sworn on 9 April 2015 and filed on 10 April 2015;
(b)	Meira Demas sworn on 17 February 2016 and filed on 18 February 2016;
(c)	Jason Rotep sworn on 17 February 2016 and filed on 18 February 2015.

4.	The plaintiff contests the application.  In the same vein, the plaintiff also filed a notice of motion on 2 February 2016 seeking a number of orders including an order to dismiss the Public Curator’s application relying on Order 4 Rule 49(17) of the National Court Rules. The other main relief sought seeking an order to replace Harriet Demas by Meira Demas was abandoned at the hearing.  The plaintiff relies on the affidavits of:

(a)	Norbert Bunbun Kubak sworn on 11 October 2013 and filed on 17 October 2013;
(b)	Norbert Bunbun Kubak sworn on 4 March 2015 and filed on 18 March 2015;
(c)	Norbert Bunbun Kubak sworn on 19 November 2015 and filed on 2 February 2016.

5.	The two applications were heard together.

6.	The Public Curator relies on Order 5 Rule 8(1)(b) of the National Court Rules.  That provision states:

“Where a person who is not a party—
(b)	is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.”

7.	The principles on joinder under this rule are well-established in this jurisdiction: PNG International Hotels Pty Ltd & Anor v The Registrar of Land Titles and Ors (2007) N2307; Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718; AGC (Pacific) Ltd v Sir Albert Kipalan & 4 Ors (2000) N1944; Kara v Public Curator of Papua New Guinea (2010) N4048; PNG Deep Sea Fishing Ltd v Critten (2010) SC1126; Eki Investments Limited v Era Dorina Limited; Era Dorina Limited v Eki Investments Limited (2006) N3176; Ken Norae Mondiai v Wawoi Guavi Timber Company Limited (2006) N3061.  They are:

(a)	whether the proposed party has sufficient interest in the proceedings,
(b) 	whether the proposed party’s joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

8. 	In considering whether a proposed party has satisfied the above principles, certain factors warrant consideration.  I adopt the factors summarised by Hartshorn J in IPA v Canopus No. 16 Ltd (2012) N5316 and these include whether:

(a)	any relief  is sought against the proposed party;
(b)	the plaintiff opposes the application for joinder;
(c)	the proposed party will be affected if the relief sought in the statement of claim is granted;
(d)	the joinder of the proposed party is necessary to satisfy any orders made in the proceeding.

9.	The court has a wide discretionary power in deciding whether to grant or refuse an application by a person who is not a party to be added as a party.

10.	The Public Curator submits that he has sufficient interest:

(a)	by virtue of Section 44 of the Wills, Probate and Administration Act (the WPAA); and
(b)	he has the necessary instructions from the widow of the deceased and the only biological son of the deceased, Meira Demas who are the principal beneficiaries to the intestate according to Section 84 of the WPAA to make this application and they object to letters of administration being granted to the plaintiff. 

11.	In addition, it was submitted that the joinder is necessary to ensure that all matters in dispute in the proceedings between the widow and Meira Demas and others represented by the plaintiff can be effectively and completely adjudicated upon. 
 
12.	The plaintiff submits that the present case needs to be considered on its own merits and is different from other cases where persons die intestate on the basis that:

(a)	the law firm, Norbert Kubak & Co. had express instructions to reduce the deceased’s wishes into a will, but the deceased was unable to execute the same before his passing;
(b)	the Office of the Public Curator has always known about the existence of these proceedings, but took no steps to be added as a party until the deceased’s biological son and mother registered a file with that office; 
(c)	More than a month has lapsed since the filing of the Public Curator’s application and the application has not been diligently prosecuted;
(d)	The Public Curator’s power under Section 44 of the WPAA is not absolute and is subject to other provisions of the WPAA.  

13. 	I have considered the submissions of the parties and the evidence before me.

14.	I will address the plaintiff’s application to dismiss the Public Curator’s application first.

15.	The Court has a wide discretionary power in deciding whether to strike out or dismiss a motion which is not prosecuted within one month after it is filed or if it is adjourned twice under Order 4 Rule 49(17) of the National Court Rules.  The evidence adduced by the Public Curator particularly that from Jason Rotep demonstrates that since filing his application, he has taken steps to prosecute the motion commencing on the first return date of the application on 20 August 2015 when Mr Rotep attended court, but the matter was not listed and no hearing was conducted due to the unavailability of a judge.  Details of other steps taken are set out in Mr Rotep’s affidavit.   I am satisfied that; the Public Curator’s delay in prosecuting his application is not intentional; a reasonable explanation has been provided for the delay; and the delay has not caused injustice or prejudice to the plaintiff.  There is nothing adverse in the conduct of the Public Curator or his lawyer since filing his application.  It is the duty of the Court to give paramount consideration to the dispensation of justice under Section 158(2) of the Constitution and I do so by dismissing the plaintiff’s motion. 

16.	I now return to deciding whether to grant or refuse the Public Curator’s application to be added as a party.

17.	In Papua New Guinea upon death, whether in testacy or intestacy, the whole of the estate of the deceased automatically vests in the Public Curator by virtue of Section 44 of the WPAA: Public Curator of PNG v Konze Kara (2014) SC1420.  That provision states:

“Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary.”

18.	Section 14 of the Public Curator Act permits the Public Curator or his agents to immediately and without any order of administration take possession of the property of a deceased person:  Julius Pololi v Bryan James Wyborn (2013) N5253.  

19.	The vesting of a deceased’s estate in the Public Curator is a temporary measure until such time as a formal grant of probate of the will or administration of the estate is made by the National Court or the Registrar under Sections 39 or 42 of the WPAA as the case may be:  Public Curator v Bank of South Pacific Limited (2006) SC832; Public Curator of PNG v Konze Kara; Ken Owa v Jacob Popuna (2015) N6111.  This does not preclude the Public Curator from applying for formal orders should he decide to do so: Public Curator of PNG v Konze Kara; Ken Owa v Jacob Popuna; Public Curator v Bank of South Pacific Limited.   Those provisions are set out below:

“39.	Grant on evidence or presumption of death.
(1)	Where the National Court is satisfied, whether by direct evidence or on presumption of death, that a person has died leaving property in the country, the Court has jurisdiction to grant probate of his will or administration of his estate as if he were a deceased person, notwithstanding that after the grant it may appear that he was living at the date of the grant.
(2)	Subject to this Act, where a grant is or has been made of probate of the will or administration of the estate of a person who the National Court is satisfied is dead, notwithstanding that it subsequently appears that the person was living at the date of the grant the person administering the estate by virtue of the grant has the same rights, powers, privileges, duties and liabilities as the personal representative of a deceased person, and in any Act the expression "personal representative" includes the person administering the estate for the time being by virtue of the grant.”

“42.	Grant by Registrar.
(1)	On application made to him supported by affidavits on which in his opinion the National Court would grant probate or administration, the Registrar may, subject to this section, make a grant of representation by signing his order for the grant and sealing it with the seal of the National Court.
(2)	The Registrar shall not grant representation without an order of the National Court—
(a)	where a caveat has been lodged, and has not expired or been withdrawn; or
(b)	where it appears to him to be doubtful whether the probate or administration ought to be granted.”

20.	There are three ways in which a deceased’s estate is passed on to the Public Curator.  These are set out in Ken Owa v Jacob Popuna.  There at paragraph 49, Her Honour, Nablu, AJ said:

“I am of the view, that there are three modes on how a deceased estate is passed on to the Public Curator. Pursuant to Sections 10 or 11 of the Public Curator Act where the Public Curator initiates the proceedings and obtains an order from the National Court Judge. The second avenue is pursuant to Section 44 of the Wills, Probate and Administration Act which states that prior to “… probate or administration is granted, the property of a deceased person vests in the Public Curator...” Finally, the Public Curator assumes jurisdiction when the letters of administration are granted to him.”

21.	Under Section 46 of the WPAA, the executor, administrator or trustee of an estate has statutory as well as common law duties and liabilities in respect to a deceased’s estate. It states:

“46.	Rights and duties of executor, etc.
Subject to this Act and any other Act, the personal representative of a deceased person has the same rights and is subject to the same duties with respect to the property of that person as executors and administrators had or were subject to with respect to personal estate before 1 January 1873.”

22.	The biological child of the deceased and his mother have given instructions to the Pubic Curator raising their objection to letters of administration being given to the plaintiff.  This is quite apart from the initial vesting of the estate in the Public Curator under Section 44 of the WPAA.    	

23.	For these reasons, I am satisfied that; the Public Curator has sufficient interest in the proceedings; and his joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon. The joinder of the Public Curator is necessary to satisfy any orders made in these proceedings.

24.  The orders of the Court are:

(a)	the application by the plaintiff moved pursuant to a notice of motion filed on 2 February 2016 to dismiss the Public Curator’s application for want of prosecution is dismissed. 
(b)	the application by the Public Curator moved pursuant to a notice of motion filed on 22 June 2015 to be joined as a party is granted.
b)	the parties shall bear their own costs. 

________________________________________________________________
Kubak & Kubak: Lawyers for the Plaintiff	
In-house Lawyers:  Lawyers for the Public Curator