Lepanding Singut v Kelly Kinamun, Albo Enterprises Pty Ltd, Fedelis Agin, Papua New Guinea Banking Corporation, Paul Piru and John Kil (2003) N2499

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 17 December 2003
• Court: National Court
• Citation: (2003) N2499
• Year: 2003
• Judgement Number: N2499

Full Title: Lepanding Singut v Kelly Kinamun, Albo Enterprises Pty Ltd, Fedelis Agin, Papua New Guinea Banking Corporation, Paul Piru and John Kil (2003) N2499

National Court: Kandakasi J

Judgment Delivered: 17 December 2003

1 PRACTICE AND PROCEDURE—Death of an intestate party intestate—Application for substitution of—Time limit for making such an application—Application must be made within time limits or within such time as the Court considers appropriate—Non compliance with time limit not critical—Court has power to waive strict compliance to do substantive justice—Factors to consider before exercise of discretion include the mechanics of establishing the claim or the defence as the case might be, availability of witnesses and evidence and prejudice to the other parties—O4 r10 and r11 National Court Rules.

2 PRACTICE AND PROCEDURE—Application to dismiss for want of prosecution—Principles governing—Once applicant makes out a prima facie case respondent obliged to rebut it with satisfactory explanation and demonstrate preparedness to take the next step—No explanation for failure to prosecute prior to plaintiff's death—Application for dismissal granted—O4 r10 and r11of the National Court Rules.

3 PARTIES AND CAUSES OF ACTION—Death of an intestate party—Survival of causes of action—Claim based on fraud survives death of a party—Capacity of Public Curator to apply for substitution of deceased party—Public Curator does have the statutory right and power to substitute the intestate deceased party if the cause of action survives—s34 of Wrong (Miscellaneous Provisions) Act—s10 Public Curator Act (Ch81)—O4 r10, r11 and r12.

4 Application by John Mua Nilkare [1998] PNGLR 472, Rabaul Shipping Ltd v Ruru (2000) N2022, Thomas Kaidiman v PNG Electricity Commission (2002) N2343, Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677, Donigi v PNGBC (2002) SC691, Viviso Seravo v Jack Bahafo (2001) N2078 referred to

___________________________

N2499

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 309 OF 1994

LEPANDING SINGUT

Plaintiff

AND:

KELLY KINAMUN

First Defendant

AND:

ALBO ENTERPRISES PTY LTD

Second Defendant

AND:

FEDELIS AGIN

Third Defendant

AND:

PAPUA NEW GUINEA BANKING CORPORATION

Fourth Defendant

AND:

PAUL PIRU

Fifth Defendant

AND:

JOHN KIL

Sixth Defendant

WAIGANI: KANDAKASI, J.

2003: 26th August & 17th December

PRACTICE & PROCEDURE – Death of an intestate party intestate – Application for substitution of – Time limit for making such an application – Application must be made within time limits or within such time as the Court considers appropriate - Non compliance of time limit not critical – Court has power to waive strict compliance to do substantive justice – Factors to consider before exercise of discretion include the mechanics of establishing the claim or the defence as the case might be, availability of witnesses and evidence and prejudice to the other parties - O. 4 rr. 10 & 11 National Court Rules.

PRACTICE & PROCEDURE - Application to dismiss for want of prosecution – Principles governing – Once applicant makes out a prima facie case respondent obliged to rebut it with satisfactory explanation and demonstrate preparedness to take the next step – No explanation for failure to prosecute prior to plaintiff’s death – Application for dismissal granted – O. ,r. of the National Court Rules.

PARTIES & CAUSES OF ACTION - Death of an intestate party – Survival of causes of action – Claim based on fraud survives death of a party - Capacity of Public Curator to apply for substitution of deceased party – Public Curator does have the statutory right and power to substitute the intestate deceased party if the cause of action survives – s. 34 of Wrong (Miscellaneous Provisions) Act - s. 10 Public Curators Act – O.4 rr.10, 11 & 12.

Papua New Guinean Cases Cited:

Application Pursuant to s155(4) by John Mua Nilkare (Unreported judgment delivered 5/04/97)SC 536.

Rabaul Shipping Limited v. Rita Ruru (Unreported judgment delivered 08/12/00) N2022.

Thomas Kaidiman v. Papua New Guinea Electricity Commission (Unreported judgement delivered 20/05/02) N2343.

Public Officers Superannuation Fund Board v Sailas Imanakuan (Unreported judgement delivered on 09/11/01) SC677.

The Donigis v. PNGBC (Unreported judgement delivered on 02/11/01) SC691.

Vivisio Seravo v. Jack Bahafo (Unreported judgement delivered on 21/03/01) N2078.

Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (Unreported judgement delivered on 27/09/02) SC694.

Counsel:

Mr. T. Dawidi for the Applicant

Mr. P. Parkop for the First Defendant/Respondent.

17th December 2003

KANDAKASI, J: Before the Court are two notices of motion. One of them is by the Public Curator seeking to substitute the plaintiff who is now deceased. The other is by the first defendant seeking a dismissal of the proceedings for want of prosecution. The motion to dismiss for want of prosecution was filed ahead of the application for substitution. Indeed, the later one triggered the former application. Both motions initially came before me for hearing on 26th August 2003. But I directed the parties to file written submissions for my consideration and a decision when I am in a position to deliver it. The parties have filed their respective submissions and this is the Court’s decision.

Based on the preliminary representations of the parties, I noted that the issues before the Court were these:

1. Whether the Plaintiff’s cause of action has survived his death?

2. If the cause of action survived then, is the Public Curator entitled to substitute the now deceased plaintiff? and

3. Whether, there has been undue delay in the prosecution of the Plaintiff’s claim so as to warrant dismissal of the proceeding for want of prosecution rather than a substitution.

If the Court finds that the cause of action did not survive the deceased, then it would not be possible for the Public Curator to substitute the deceased. That could end the case there. Hence, it would render unnecessary any consideration of the remaining issues. I will therefore consider each of these issues in the order in which they appear.

The Facts

The factual background from which these issues arise are simple and straight forward. In 1994, these proceedings were commenced. They concerned a property located at Section 268 Allotment 43, Hohola, NCD., which was the subject of a sale and or rental purchase. In the statement of claim, the deceased claimed the second and third defendants breached a fiduciary duty owed to him by them and that was by a conspiracy to defraud him by the first Defendant. He therefore sought various orders including an account for profit allegedly made by the first, second and third defendants from the sale and or purchase of the said property. He also sought a declaration that the first defendant is a constructive trustee, an order setting aside the relevant contract of sale and an order for damages.

Almost 7 years later, the deceased passed away in the year 2001. Neither the Court, nor the defendants were informed of the death of the deceased. But it was raised in response to the application seeking to dismiss the proceedings for want of prosecution. Not only that, the applicant did not make his application for substitution of the plaintiff now deceased within the 3 months as required by O. 5, r. 10 of the National Court Rules. Also the Public Curator did not have any idea about the death of the plaintiff until the relatives of the deceased requested him on 30th July 2003 to apply to substitute the deceased.

Other than the death of the deceased in 2001, there is no explanation for the delay of over 6 years following the issue of proceedings. Also there is no evidence of the steps, if any; the decease took to put his claim to trial prior to his death. Further, there is no indication as to the state of readiness now to put the matter to trial. Further still, there is no indication as to how the evidence for the plaintiff will be led...