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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) 15 OF 2015
BETWEEN:
JOHN TITUS
Plaintiff
AND:
OWEN TAVARAI, DIMAS NOKI, ANTHONY KOREMA
& GABI KILISH
First Defendant
AND:
BRIGADIER GENERAL Gilbert TOROPO
Commander of PNG Defence Force
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Tamate, J
2018: 16th& 20th March
2018: 10thApril, 17th May
PRACTICE AND PROCEDURE – Substituted Service – Application by Plaintiff Pursuant to Order 06 Rule 12 (1) (3) and Order 06 Rule 13 of National Court Rules and Section 155(4) of the Constitution–First Defendants not served personally – Service effected on Legal Officer and Secretary for Department of Defence – Whether service sufficient? If substituted service ordered can Defendants pay for costs of publication?
PRACTICE AND PROCEDURE – Court’s power to exercise discretion to dispense with strict compliance with Rules– Order 01 Rules 7 and 8 National Court Rules– in the interest of justice in a particular case
Cases Cited:
Papua New Guinea Cases
Anthony John Polling v Motor Vehicle Insurance (PNG) Trust and Ors [1986] PNGLR 228
Kandaso v Akap [2000] PGNC 41, N1993
Kenuai v Puri [2010] PGNC 104, N3906
Niugini Mining Ltd v Joe Bumbandy (2005) SC 804.
POSF v Sials Imanakauan [2000] SC677
Pyali v Kabilo[2003] N2492
South Pacific Post Pty Ltd vs. Epharm Ikenna Maduabuchi Narokolo [1984] PNGLR 34
Tima v. Korohan [2006] PGNC21; N3045
Overseas Cases:
Morres v Papuan Rubber and Trading Co. Ltd [1914] NSWStRp 21; [1994] 14 SR (NSW) 141
Counsel:
L, Tangua, for Plaintiff
HK, Monei, for Second & Third Defendants
RULING ON NOTICE OF MOTION
17th May, 2018
1. TAMATE, J: This is an application by the Plaintiff/Applicant through a notice of motion seeking certain reliefs pursuant to Order 6 Rule 12 (1) & (3) and Order 6 Rule 13 of the National Court Rules (NCR) and Section 155 (4) of the Constitution. In brief the reliefs sought in the motion are in the following terms:-
(i) That service of the writ of summons on the Commander of the PNG Defence Force on 22July 2015 and on the Secretary for Department of Defence and Principal Legal Officer of PNG Defence Force on 14 November, 2016 respectively be accepted as sufficient service of the Writ of Summons on the First Defendant.
(ii) Alternatively, leave be granted to the Plaintiff to do substituted service on the 1st Defendant through publication in either the National or Post Courier within 28 days.
(iii) Defendants shall pay Plaintiff’s costs of and incidental to this application, including costs ofthe publication in the newspapers and such costs shall be taxed if not agreed.
2. The parties had made initial submissions on the 16th of March, 2018 and the matter was adjourned for ruling on 20th March. However, upon the matter returning for ruling on 20 March, 2018 the Court raised certain matters and requested parties to make further submissions on the issue namely:-
“If relief 01 was refused but leave for substituted service was granted then what would become of the service of the writ which had not been served within two (2) years as per Order 4 Rule 13 of the National Court Rules.”
3. After few adjournments the matter returns today for ruling on the motion by the Plaintiff.
Background of Case
4. The Plaintiff is the President of Nipa Basin Local Level Government council and is suing the Defendants for damages for certain breaches of his Constitutional rights caused by the First Defendants per his statement of claim. He claims he was badly assaulted and beaten up by first defendants who are soldiers and members of the PNG Defence Force on 24th August, 2014. He was travelling back from Mendi Town to Nipa after doing some official duties at the Provincial HQ when he and his passengers were stopped at a road block at Puril village, Nipa district. On the way he had bought some beer for his officers and few other men and when they were stopped Plaintiff was questioned about the beer and why he and his men were dinking. He told the first defendants he was not drinking as he was driving and also he was a notable leader in his Province. However, he was verbally and physically abused and assaulted. The defendants kicked, punched and hit him with the guns they had in their possession. Plaintiff sustained very serious injuries including bleeding and swelling of the face and pains on all parts of his body. As a result of this incident Plaintiff filed this Writ of Summons proceeding against all the Defendants.
Evidence in Support of Motion
5. In support of his notice of motion Plaintiff relies on his affidavit in support and the affidavit of service by himself and a Walter Evekone. He states that Writ of Summons was served on the 2nd and 3rd Defendants as per the affidavits of service filed. He further states that a copy of the Writ of Summons for the 1st Defendant was served on the Legal Officer and the Secretary for Department of Defence who accepted service on behalf of the First Defendant by signing proof of service form referred to in the affidavit of Walter Evekone.
Issues
6. The following issues are necessary for consideration in this application:
(1) Whether service of Writ of Summons effected on the Legal Officer for Papua New Guinea Defence Force and Secretary for Department of Defence on 14th November 2016 is sufficient service on the first Defendant.
(2) If leave is granted for substituted service, can the Court extend the time for service of Writ of Summons after expiry of time to serve pursuant to Order 4 Rule 13 of National Court Rules; and
(3) Who should pay for the cost of and incidental to this application and cost of the publication in any one of the daily newspapers?
Law on service
7. Order 6 Rule 2 of National Court Rules is clear on the requirements for service of originating process. Subject to any Act or to these rules it is mandatory that all or any defendant(s) in any court proceeding be served.
8. Order 6 Rule 3 – Personal Service: provides for the process on how to effect personal service. This process is important when it comes to application for default judgment in Writ of Summons proceedings. Where the Defendant upon been personally served but fails to file his Notice Of Intention to Defend (NOITD) or Defence within the required time according to Order 12 Division 3 National Court Rules then he may be in default and Default Judgment (DJ) may be ordered against him.
9. Order 6 Rule 12provides that substituted service can be effected when leave is granted by the Court upon an application by a party. Such service is effected mainly through publication in the daily newspapers.
10. Order 6 Rule 13 – Informal Service. The rule states:
“Where the service of any document on any person is required or permitted in any proceeding and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by these Rules, but steps for the purpose of bringing, or having a tendency to bring, the document to the notice of that person have been taken, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order”.
11. It is necessary in cases where Writ of Summons has been filed that, it must be served on the defendants personally, so that, in the event of any default in not filing notice of intention to defend (NOID) or a Defence the Plaintiff has the opportunity to apply for default judgment.
12. It is mandatory that the writ is served on each defendant. Kandaso v Akap [2000] PGNC 41, N1993 Jalina, J. In the case of Kenuai v Puri [2010] PGNC 104, N3906 David J held that“subject to the exceptions in Order 6 Rule 2(1) of the National Court Rules an originating process must be served personally on each defendant.
13. In the present case the Plaintiff had effected service on the 2nd and 3rd defendants and there is no issue with the service as a Notice of Intention to Defend was filed confirming that the service was accepted and acknowledged. The only issue is the personal service on the first Defendants.
14. Plaintiff has stated that he had attempted on several occasions to locate the first defendants individually to effect personal service on each of them. It had been costly for him to travel from Mendi to Port Moresby to pursue his case as well as to file and serve necessary court documents in court and on the Defendants.
15. Plaintiff in his affidavit in support as well as affidavits of service filed stated that the officers of the Defence Force Headquarters in Port Moresby had not assisted with information of the defendants’whereabouts nor their locations where they have been operating from. As a result of such difficulty he had served the first defendant copy of the writ on the Legal officer for the Defence Force and the Secretary of the Department of Defence believe that the Writ of Summons would be delivered to them.
16. The Plaintiff had identified the first defendant when they went to Nipa Police Station the next day after the incident and identified themselves as Papua New Guinea Defence Force soldiers from Taurama Barracks in Port Moresby. They apologized to Plaintiff for assaulting him and even offered to pay him some compensation. Plaintiff refused compensation and said he was going to take legal action for his injuries.
17. The Plaintiff has stated that he is a council member of Nipa Basin Local Level Government and does not have the money to pay for cost of publication in the Newspapers if substituted service was ordered. He comes from a remote district of Southern Highlands Province and has no money to pay for such publication costs.
Submissions
18. The Plaintiff submits that he has tried to serve on the first defendants but had difficulty locating each of them. The Papua New Guinea Defence Force management had not been helpful in providing information of their location of employment in the Papua New Guinea Defence Force.
19. He submits that the Court should exercise its discretion pursuant to Or 6 Rule 12 and Rule 13 of National Court Rules as well as its inherent powers under Section 155(4) of the Constitution and grant the orders sought in the notice of motion with respect to service.
20. On the issue regarding the expiry of the two year term for service of the Writ of Summons as per Order 4 Rule 13 Plaintiff submitted that the Court still has jurisdiction under Order 1 Rule 7 and 8 to extend time for service of the writ of summons: Niugini Mining Ltd v Joe Bumbandy (2005) SC 804.
21. The Defendants have not filed any affidavit in response to the affidavits filed by the Plaintiff. They have only made submissions opposing the grant of reliefs sought in the notice of motion. Defendants maintain that the rules make it mandatory that personal service is necessary for Writ of Summons to be served on the 1st Defendants. He also relied on the cases of Tima v. Korohan [2006] PGNC21; N3045 and Kandaso v Akap [2000] PGNC41; N1993.
22. Defendants submitted that the service effected on the Legal officer and the Secretary for the Department of Defence should not be ordered as sufficient service. Furthermore, that if substituted service was to be ordered cost of the publication in the newspapers should not be paid by the defendants.
Decision on the Notice of Motion
23. When considering the issues raised, ‘it is important to take into account the circumstances of this case. The Rules regarding service are clear and the courts have discussed their mandatory application in cases for purposes of commencing an originating process on a defendant.
24. For the present case the circumstances show that the applicant had struggled and had great difficulty in trying to effect personal service of the writ on the first defendants. The Court is mindful of the rules on service and it is important that rules are complied with for purposes of uniformity to all persons. That is except for certain exceptions it is good practice that personal service be effected when originating process is commenced by Writ of Summons.
25. The Plaintiff in his submissions has strongly urged the Court to exercise its powers under Section 155(4) of the Constitution to grant orders sought in the notice of motion with a view of doing justice in a particular case as the case now before it.
26. Court can also grant orders for substituted service under Order 6, Rule 12 and 13 of the National Court Rule. Rule 13 can be considered on its own distinct provision when exercising Court’s discretion. When considering this, one has
to look at the General Rules applying to the National Court Rules. Order 1, Rule 7 and 8 of the National Court Rule are intended to apply to all succeeding rules.
Rule 7: Relief from Rules:
“The Court may dispense with compliance with any of the requirements of these Rules either before or after the occasion for compliance arises”.
Rule 8: Non-compliance with the Rules not to render proceedings void:
“Non-compliance with any of these Rules, or with any rules of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with in such a manner, and on such terms as the Court thinks fit”.
27. Order 6 of the National Court Rules deals with various modes of service of documents which are necessary for parties to comply with for purposes of commencing or progressing an originating process from the beginning to the time of its completion. They are referred to in the rules as:-
“Personal service (Rule 3); Ordinary service (Rule 4); Service on Solicitor in Court (Rule 9); Service on Agent of Principal out of Papua New Guinea (Rule 10), Service under Contract (Rule 11), Substituted Service (Rule 12), Informal Service(Rule 13) Service by Filing (Rule 14) and Service by Post”.
28. Order 6 Rule 1: Mode of Service -
“Any document required or permitted to be served in any proceedings may be served personally, but need not be served personally unless personal service is required by these rules or by order of the Court.”
29. Order 6 Rule 2: Originating process
“(1) Subject to any Act, and to these Rules, originating process shall be served personally on each defendant.
(2) The copy of service shall be signed and sealed as specified by Order 4, Rule 12.
(3) Where a defendant to an originating process serves a notice of intention to defend under Order 7, the originating process shall be taken to have been served on him personally on the date on which the notice is filed or on such earlier date as may be proved”.
30. Order 6 Rule 3: Personal Service - How effected
“Personal service of a document may be effected by leaving a copy of the document with the person to be served or; if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.”
31. Order 6 Rule 2 states that subject to any Act, and these Rules, originating process shall be served personally on each defendant, while Rule 3(1) provides the process (mode) on how to effect personal service.
32. The Rules make it mandatory that the writ is served on each defendant Kandaso v Akap [2000] N1993, Jalina, J. Subject to exceptions mentioned in Order 6 and 2(1) of the National Court Rules, an originating process must be served personally on each defendant: Kenua Puri [2010] PGNC 104; N3906, David, J.
33. Davani, J held in the case of Pyali v Kabilo [2003] N2492, that once the defendant has served a notice of intention to defend, it cannot be argued that originating process was not served on the defendant because it is deemed to have been personally served on the date the notice of intention to defend was filed.
34. These cases affirm that it is a requirement that personal service is mandatory as required by Order 6 Rule 2(1) on all defendants.
35. The question arises as to what happens if defendants are not located for purposes of effecting personal service despite genuine attempts taken to serve documents on them or having the tendency to bring the documents to the notice of those persons have been taken? Is that the end of the Plaintiff’s journey to serve the originating process? I would answer that in the negative.
36. Order 6 Rules 12 and 13 are not subjected to Order 6, Rule 2. They complement each other because Order 1 Rule 7 and 8 National Court Rules allows for the Court to dispense with strict compliance with the Rules as per the decision in the case of [Morres v Papuan Rubber and Trading Co. Ltd [1914] NSWStRp 21; [1994] 14 SR (NSW) 141 at 143-144].
37. There is no provision in Order 1, Rule 7 and 8 which subjects the application of these rules to the express provisions of the rules in the National Court Rules: [Niugini Mining Ltd v Joe Rumbandy and Ors, [SCA 64 of 2003] (SC804)]. The Supreme Court was considering the issues about dispensation of the service requirements of the writ of summons under Order 4, Rule 13 of the National Court Rules.
38. The exercise of Court’s powers and discretion for purposes of dispensing with strict compliance of the rules must have regard to the interest of justice and the impact it will have on the parties.
39. The following principles in Antony Polling’s case were adopted by the Supreme Court in POSF v Silas Imanakuan [2000] SC677 where the Court said:
“It is now settled law that, the Rules of the Court are not an end in them but a means to an end in all matters going before the Courts. They are only a code of practice and there is no doubt where justice so requires, strict adherence to the rules can be dispensed within the circumstances of a particular case”.
“Anthony John Polling v Motor Vehicle Insurance (PNG) Trust and Ors [1986] PNGLR 228 at Page 230 and the South Pacific Post Pty Ltd v Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38 at Page 46 the Court also discusses the principle. It should be borne in mind that, the Rules are designed to guide and assist the Courts and the parties to reach a fair, orderly and expeditious resolution of matters before the Courts. Their application was thus intended to be flexible”.
40. These principles were adopted in the Niugini Mining Ltd case (supra) where the Court stated:
“We reiterate the principle that the interest of justice is paramount consideration in exercising the discretion given by Order 1, Rule 7 and 8. But the discretion must be exercised in favour of granting the relief with restraint, for to do otherwise could make a complete mockery of the rules and introduce double standards in dealing with compliance issues. The discretion under these rules must be exercised sparingly, in appropriate cases where it is shown by an applicant that there exists good reasons for failing to serve the writ within time, the application to dispense with or to extend time for service of the writ is made promptly and there is good reason to justify extending time for service of the writ”.
41. In the present case the Plaintiff has stated his reasons why he could not personally serve on the first defendant. He has deposed in his affidavit that the 1st defendant had identified themselves after the incident that they were members of the Papua New Guinea Defence Force who were in operations in the Highlands maintaining a road block on the highway. They even offered to pay compensation to him which he refused stating he would pursue the matter in Court.
42. Steps taken by Plaintiff since the incident:
43. Circumstances of this Case:
44. Can this Court exercise its discretion in favour of granting the reliefs sought by the Plaintiff? Before considering this question the Court needs to rule on a preliminary issue raised by the Defendants.
45. Defendants have raised through their counsel in their submission to dismiss the notice of motion which was filed a year ago. Can it be entertained or refused as a result of breach of the rules in Motions (Amendment) Rules 2005, requiring for a Notice of Motion to be heard in a month from date of filing; or after two adjournments only (refer to Submissions by Mr. Monei for Defendants).
46. This matter is yet to go into its substantive hearing pending service of the Writ of Summons on the 1st Defendant. In light of the discussions above regarding the powers of the Court to dispense with the strict compliance of the rules in the interest of justice, I would exercise my discretion under Order 1 Rule 7 and 8 of the National Court Rules in favour of allowing the notice of motion to be heard.
47. Can service on the Principal Legal Officer (advisor) Papua New Guinea Defence Force and the Secretary for Department of Defence be considered as sufficient service on the first defendants? Before considering this question, I would like to make the following observations:
48. The first defendant were members of the Papua New Guinea Defence Force. They were in uniforms and on operations at a road block on the highlands highway. They were identified at the Police Station where they admitted assaulting the Plaintiff and apologized and indicated to pay compensation. As a result of this meeting at the Police Station, the Plaintiff upon filing writ of summons tried to effect service at their last known address of employment and accommodation.
49. When all attempts to personally serve on the first Defendant (named individually) was unsuccessful and impracticable the writ of summons was served eventually on the Principal Legal Officer of Papua New Guinea Defence Force namely, Major Rodney Yahamani at the Papua New Guinea Defence Force Legal Services Office at Murray Barracks.
50. As per the discussions above, Order 6, rule 12 and rule 13 of National Court Rules are available to a party to apply for Courts discretion for substituted service or for informal service to be confirmed. Order 6, Rule 12(1) is available for substituted service which commonly is service by media publication (in Newspapers) if granted, but obviously comes with costs of publication.
51. Plaintiff says he does not have the means to pay for substituted service under Order 6, Rule 12 if granted as he is only an ordinary villager and does not have the money to pay for service through publication.
52. As referred to above in paragraph 10 of this ruling Order 6, Rule 13 provides an alternative to substituted service by its distinctive wording. This rule is not subjected to Order 6 Rule 2. In fact Order 6 Rule 2 is read “Subject to any Act, and to this rules, originating process shall be served personally on each defendant.” Technically speaking, Rule 13 is one of the rule in the National Court Rules and is not subjected to Order 6 Rule 2 which is concerned with personal service.
53. The wordings of Rule 13 are clear and gives the Court discretion to order or direct that such service was effected on that person. It can be directed as sufficient service considering the attempts taken to serve on 1st Defendant and the impracticability to serve for reasons that have been stated. Obviously, no member or staff of the same organization or Force would give away information easily regarding a colleague or employee involved in an incident. That was the situation faced by the Plaintiff in his efforts to serve on the 1st Defendant.
54. It is my view that where service has been made on a superior officer or commanders in a discipline force such service may be considered
sufficient. Obviously, through the channel of command any notice or information received is channeled down to the appropriate officer(s)
concerned. In this case an inference can be drawn that the Writ of Summons was brought to the attention of the first defendant through
this channel of communication. As such, it can be confirmed that personal service was effected on the 1st, 2nd and the 3rd defendants.
Expiry of time to serve Writ of Summons
55. If leave for substituted service was granted can the Court extend the time for service of the Writ of Summons in light of Order 4 Rule 13 of National Court Rules? The rule provides:-
“Rule 13. Validity for Service
(1) For the purpose of service an originating process shall be valid for two years from the date on which it is filed.
(2) The Court shall not extend the period of two years mentioned in sub rule (1).
(3) This Rule does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.”
56. Court has the power and discretion under Order 1 Rule 7 & 8 of National Court Rules to extend time for service of the originating process. This was decided in the case of Niugini Mining Ltd v Joe Bumbandy (2005) SC804 (DCJ Injia (as he then was),Gavara-Nanu&Lenalia, JJ.
Exercise of Discretion
57. Considering the circumstances of this case and taking into account the relevant Rules of the National Court Rules with the similar ruling made in the above case of Niugini Mining Ltd v Joe Bumbandy and case laws that have been discussed above I would exercise my discretion as follows in relation to the reliefs sought.
58. That in the interest of justice, although personal service was not effected on the 1st Defendant pursuant to Order 6 Rule 2, Court has discretion under Order 1 Rules 7 and 8 of National Court Rules to dispense with that requirement and order that the service effected on the Principal Legal officer and Secretary for Department of Defence is confirmed as sufficient service by virtue of Order 6 Rule 13 of the National Court Rules. The Court therefore makes the following orders:
(1) Pursuant to Order 6 Rule 13 of the National Court Rules, the service of the WS (HR) No. 15/2015 effected on the Principal Legal officer of PNG Defence Force one Major Rodney Yahamani and the Secretary for Department of Defence respectively on the 14th of November, 2016 is ordered to be sufficient service on the 1st defendants on that said date which is 14th November, 2016.
(2) In light of the above ruling in (1) no orders are made for reliefs (2) and (3)
(3) Parties to bear their own costs
59. ORDERS of the Court:
(1) Pursuant to Order 6 Rule 13 of the National Court Rules the service of the WS (HR) 15/2015 effected on the Principal Legal Officer of PNG Defence Force namely, Major Rodney Yahamani and the Secretary for Department of Defence respectively on the 14thof November, 2016 is sufficient service on the 1st Defendants on that said date.
(2) In light of order (1) the Court makes no orders for reliefs (2) and (3) sought in the Notice of Motion.
(3) Parties to bear own costs.
(4) The 1st Defendant may file their Notice of intention to defend or Defence according to the National Court Rules from the date of this order.
(5) The Principal Legal Officer of PNG Defence Force or the Secretary for the Department of Defence shall provide to this Court an affidavit by 04th of June 2018 providing details of whether the first defendant are still serving members of the PNG Defence Force, their current address of location or employment. If any of the named first defendants have left the Force, the details of their last known address.
(6) The time for entry of the orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.
Orders accordingly.
__________________________________________________________________
L.Tangua: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyer for the Defendants
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