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Cardno (PNG) Ltd v National Capital District Commission [2019] PGNC 123; N7858 (9 May 2019)

N7858

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 971 OF 2018 (CC1)

BETWEEN
CARDNO (PNG) LIMITED
Plaintiff

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Defendant

Waigani: Dingake J
2019: 8 March

PRACTICE AND PROCEDURE – application for joinder – principles of joinder discussed – whether applicant has sufficient interest in the matter – whether the applicant’s joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon – applicants joinder is necessary to ensure all issues herein are effectively and completely adjudicated upon – application of joinder granted

Cases Cited

Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718

AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944

Counsel

Mr. Tyson Yapao, for the Plaintiff
Mr. Mokawau Mukwesipu, for the Defendant

9^th May, 2019

1. DINGAKE J: This is application for joinder. The applicant seeks to join the independent State of Papua New Guinea (the State) as the second defendant in this proceeding.
2. The plaintiff and defendant have entered into various contracts in terms whereof the plaintiff provided services to the defendant. Notwithstanding demand the defendant has refused or neglected to effect payment as required.
3. In order to enforce the contract and secure payment the plaintiff has issued various notices to the defendant of its intention to make a claim against the State in relation to unpaid invoices.
4. The applicant avers that it has not issued the Section 5 of the Claims By and Against the State Act 1996 with respect to the invoices mentioned in paragraph 11 of the affidavit of Johann Monton, (pages 20 and 21 thereof). These claims dating from November, 2015 to March, 2018, are substantial, considered singularly or cumulatively.
5. The applicant avers that the defendant owes it an amount of K6,869,802.18.
6. The reasons for not issuing the requisite notices much earlier are that the plaintiff was at all material times assured by the defendant that it would be paid and the plaintiff was also careful not to inflame the relationship by being too quick to litigate.
7. The applicable principles for joinder are:
   1. Whether the applicant has sufficient interest in the proceedings,
   2. Whether the applicant’s joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon (Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718).
8. It is common cause that the defendant is a State entity and the Independent State of Papua New Guinea would have an interest in this matter.
9. It is my considered opinion that the State’s joinder would be necessary to ensure that all issues herein are effectively and completely adjudicated upon.
10. In the result the Court makes the following Orders:
    1. Pursuant to Order 5 Rule 8(1) of the National Court Rules, leave be granted for the Independent State of Papua New Guinea to be added as the Second Defendant to the proceedings.
    2. Costs be in the cause.
    3. Time as to entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

___________________________________________________________
Allens Lawyers: Lawyers for the Plaintiff
Mukwesipu Lawyers: Lawyers for the Defendant