Graham B Price and Swanita Limited v David Lightfoot, Kelly Naru, John Beatie, Angelina Sariman and Ian Shepherd trading as partnership in the firm of Pacific Legal Group Lawyers incorporating Carter Newell Lawyers (2004) N2509

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 10 March 2004
• Court: National Court
• Citation: (2004) N2509
• Year: 2004
• Judgement Number: N2509

Full Title: Graham B Price and Swanita Limited v David Lightfoot, Kelly Naru, John Beatie, Angelina Sariman and Ian Shepherd trading as partnership in the firm of Pacific Legal Group Lawyers incorporating Carter Newell Lawyers (2004) N2509

National Court: Sawong J

Judgment Delivered: 10 March 2004

1 PRACTICE AND PROCEDURE—Effect of Non–Compliance with Rules—Power to dispense with strict compliance—when appropriate—Relevant consideration—Interest of Justice—Impact on rights of Parties—Notices of Intention to Defend and Defence filed in the name of a law firm—Notices of Intention to Defend and Defence not signed by a lawyer—National Court Rules O1 r7, r8 and r9

2 PRACTICE AND PROCEDURE—Notice of Intention to Defend and Defence not signed by a lawyer for the Defendant—Documents signed in the name of the law firm—National Court Rules—O2 r30.

3 Keimbun Keindip v The Independent State of Papua New Guinea [1993] PNGLR 28 and Anthony John Polling v MVIT [1986] PNGLR 228 referred to

___________________________

N2509

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

WS 708 of 2003

BETWEEN:

GRAHAM B. PRICE

(First Plaintiff)

AND

SWANITA LIMITED

(Second Plaintiff)

AND:

DAVID LIGHTFOOT,

KELLY NARU,

JOHN BEATIE,

ANGELINA SARIMAN

AND

IAN SHEPHERD

trading as partnership in the firm of

Pacific Legal Group Lawyers incorporating

Carter Newell Lawyers

(Defendants)

MADANG : SAWONG J.

2004 : 20TH FEBRUARY, 2004

10TH MARCH, 2004

PRACTISE & PROCEDURE – Effect of Non-Compliance with Rules – Power to dispense with strict compliance – when appropriate – Relevant consideration – Interest of Justice – Impact on rights of Parties – Notices of Intention to Defend and Defence filed in the name of a law firm - Notices of Intention to Defend and Defence not signed by a lawyer - National Court Rules O.1 rr 7, 8 & 9 -

Practise & Procedure - Notice of Intention to Defend & Defence not signed by a lawyer for the Defendant - Documents signed in the name of the law firm - National Court Rules - O.2 r 30.

CASES CITED

Kimbun Keindip v The State [1993] PNGLR 28

Anthony Polling v Motor Vehicles Insurance Trust Ltd & Ors [1986] PNGLR 228.

Y. WADAU, for the Plaintiffs

L. GARI, for the Defendants

10th March, 2004

SAWONG J: By a Notice of Motion dated 11th November, 2003 and filed on the same date, the plaintiff sought the following orders:

1. That the whole statement of defence dated 22nd July 2003 and filed outside the required time which is contrary to O.7 r 6 be set aside pursuant to O.1 r 8 of the National Court Rules.

2. In the alternative, that the statement of defence dated 22nd July 2003 at paragraph 3, 4, 6, 7, 8 and 11 are of general denial be struck off.

3. That the statement of defence dated 30th June 2003 and filed on the same date, at paragraphs 1, 2, 3 and 6 is of general denial be struck off.

4. That the notice of intention to defend dated 17th June 2003 filed by each of the Defendants signed by Pacific Legal Group and the statement of defence filed on 30th June signed by Pacific Legal Group is contrary to O. 2 r 30 be set aside pursuant to O.1 r 8 of National Court Rules.

5. The costs of this Application.

6. Any further Order the Honourable Court deems necessary.

In support of the Motion, Mr Wadau relied on the affidavit of Marere Ivaharia sworn and filed on 16th December 2003 and the affidavit of Mr Wadau filed on 11th November 2003.

Ms Gari opposed the application. At the beginning of the hearing, Mr Wadau withdrew the reliefs sought in paragraphs 2 and 3 of the Notice of Motion. Further in the course of her submission Ms Gari conceded to paragraph 1 of the Motion. The only contest between the parties was in relation to paragraph 4 of the Motion.

There is no dispute as to the facts on this issue. And the facts are that the Notices of Intentions to defend and the defences (the documents) filed on behalf of each of the defendants were signed “Pacific Legal Group”. These were not signed by a lawyer.

Mr Wadau’s submission is essentially that as those documents were not signed by a lawyer, this is in breach of O.2 r 30 of the National Court Rules and therefore ought to be set aside pursuant to O.1 r 8 of the said Rules. He submitted that what the defendants have filed are irregular and consequently the documents ought to be set aside.

He submitted that O.2 r 30 required that a document to be filed on behalf of a party must be signed by a solicitor and that such a document must not be signed by or in the name of a firm. He further submitted that non-compliance with the rules is fatal. He relied on the cases Kimbun Keindip v The State [1993] PNGLR 28, Anthony Polling v Motor Vehicles Insurance (PNG) Trust and others [1986] PNGLR.

He submitted that in the present case, as the said documents were not signed by a solicitor but by and in the name of the firm, those documents ought to be set aside as being irregular. He submitted that “Pacific Legal Group” is not a person nor is a “solicitor” within the meaning of that term as found in the Rules.

Ms Gari on the other hand submitted that the documents should not be set aside for a number of reasons.

First, she submitted that the combined effect of O.1 r 7, 8 and 9 is not to strike out the proceedings for any irregularity, but to allow the irregularity to be amended.

Next she submitted that almost a year has lapsed before the motion was filed. During that time the plaintiffs had not taken issue with those documents. She submitted that the application was not made within a reasonable time as required by O.1 r 9 of the Rules.

Thirdly, the plaintiff has not been misled as to who he was dealing with, for his lawyers had been dealing with the defendants all along and there was no misunderstanding of who the defendants were or are.

Fourthly the only objection by the plaintiff is that the documents were signed as “Pacific Legal Group” but that is not nor should it be treated as a serious breach. Those could still be amended by her signing on behalf of each defendant, filing and then serving them. That would require further time and such a course would unnecessarily delay the further conduct of the proceedings. She submitted that this would cause injustice to the parties.

The essence of her submission is that although the documents are irregular, nevertheless the Court has wide discretion to dispense with strict compliance of the Rules. She submitted that in the circumstances of this case, the Court should dispense with strict compliance and let the proceedings continue to the hearing of the substantive matter.

Because of the submission that has been made, it is necessary to consider in brief each of the relevant rules and the authorities relied on by counsels.

Order 1 rule 7, 8 and 9 of the Rules read:

7. Relief from Rules. (1/12)

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

8. Non-compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule 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.

9. Application to set aside for irregularity.

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity.

I do not propose to examine each of these rules in any great length. I deal with O.1 r 7 first. Under this rule the Court has discretion to “dispense with compliance with any of the requirements of the rules either before or after the occasion for compliance arises”.

The Court has discretion to dispense with any of the requirements of the rules. This is a general discretionary power given to the Court.

Order 1 rule 8 provides that non-compliance...