Niugini Mining Limited v Joe Bumbandy for Himself and on Behalf of Customary Landowners of Mt Victor Gold Mine Area (2005) SC804

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Gavara–Nanu J, Lenalia J
• Judgment Date: 03 November 2005
• Court: Supreme Court
• Citation: (2005) SC804
• Docket Number: SCA No 64 of 2003
• Year: 2005
• Judgement Number: SC804

Full Title: SCA No 64 of 2003; Niugini Mining Limited v Joe Bumbandy for Himself and on Behalf of Customary Landowners of Mt Victor Gold Mine Area (2005) SC804

Supreme Court: Injia DCJ, Gavara–Nanu J, Lenalia J

Judgment Delivered: 3 November 2005

SC804

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 64 OF 2003

BETWEEN:

NIUGINI MINING LIMITED

-Appellant-

AND:

JOE BUMBANDY for himself and on behalf of CUSTOMARY LANDOWNERS OF MT VICTOR GOLD MINE AREA

- Respondent-

Waigani : Injia, DCJ; Gavara-Nanu & Lenalia JJ.

2004 : 26 July

2005 : 3 November

Civil – Practice and procedure – Writ of Summons - Service – Writ not served within two (2) years of filing – Whether National Court has power to extend time for service – If so, whether discretion exercised properly – Principles discussed – National Court Rules, O.1 r.7 and r.8; O.4 r.13.

PNG cases Cited:

Anthony Polling v MVIT [1986] PNGLR 228

Graham B Price and Sawanita Ltd v Pacific Legal Group Lawyers (2004) N2509;

Messie Noran v Nimrod Mark [1992] PNGLR 229

POSF v Silas Imanakuan (2000) SC 677

NBC v Jeff Tole, (2002) SC 694

Overseas cases cited:

Morres v Papuan Rubber and Trading Co. Ltd (1914) 14 SR (NSW) 141

Battersby and Others v Anglo-American Oil Co. Ltd and Others (1944) ALL ER 387;

Holman v George Elliot & Co. Ltd [1944] ALL ER 639.

Sheldon v Brown Bayle’s Steelworks, Ltd and Another (1959) ALL ER 468.

Harkness v Bell’s Asbetos and Engineering Ltd [1960] 3 ALL ER 843

Blight v Warman and McAllan [1964] SAR 164.

Heaven v Road and Rail Wagons Ltd (1965) ALL ER 409

Bernstein and Another v Jackson and Others [1982] 2 ALL ER 806.

Kleinworth Bensons Ltd v Barbrak Ltd, the Myrto (No. 3) [1987] 2 ALL ER 289.

Waddon v Whitcroft-Scovil Ltd [1988] 1 ALL ER 996;

I Shepherd for the Appellant

P Mawa for the Respondent

3 November 2005

BY THE COURT: This is an appeal from an interlocutory judgment of the National Court given on 16 May 2003, in which the Court granted leave to extend time for service of the Writ of Summons (“the Writ”) after the time for service prescribed by O.4 r.13 (2 years) had already expired. The Court’s decision was purportedly made under O.1 r.7 and r.8 of the National Court Rules (“NCR”) and s.155(4) of the Constitution. Leave to appeal was granted on 16th October, 2003.

There are four (4) grounds of appeal. The appellant says the Court erred in law because the Court has no jurisdiction to extend time for service of the Writ by virtue of NCR, O.4 r.13. The Appellant says the Court also erred in the exercise of his discretion in that it took into account irrelevant circumstances and failed to take into account relevant circumstances. The Appellant seeks an order setting aside the decision on the basis that the Writ is a nullity for having been not served within time.

The facts are that on 29th August 1997 the Respondent filed a Writ claiming compensatory damages from poisoning of the river system and the surrounding environment in the Mt Victor Gold Mine area of the Eastern Highlands Province where the appellant conducted gold mining activities. Under NCR, O.4 r.13(2), the Respondent was required to serve the Writ within two (2) years. This period would have expired on 29th August 1999.

On 1st September 1997, the Respondent mistakenly served the Writ on the Appellant at the offices of KKB Ltd at Kainantu which it understood to be the Appellant’s “registered office.”

After February 2000, the Respondent’s lawyer received new information from the Appellant’s lawyers, (Blake Dawson Waldron) that the Appellant’s correct registered office was their office. Various correspondences were exchanged between the Appellants’ lawyer and the Respondents’ lawyer regarding service of the Writ. On 29th July 2000, the Respondent filed a motion for default judgment. This motion was not prosecuted. On 8th December 2000, the Respondents’ lawyer forwarded a copy of the Writ to the Appellants’ lawyer. On 14th December 2000, the Respondents’ lawyer wrote a follow-up letter to the Appellants’ lawyer. In that letter, the Respondents’ lawyer sought advice if the Appellant’s lawyer accepted service of the Writ on behalf of their client. On 19th December 2000, the Appellant’s lawyer by letter, advised the Respondent’s lawyer that they were seeking instructions from their client whether to accept service of the Writ.

On 25th April 2003, the Respondent filed an Amended Motion seeking default judgment or alternatively, leave to serve the Writ “at the Defendant’s Lawyers address or its correct registered office and proper pleadings can henceforth commence”. By this time, more than 3 years had lapsed after the period for service expired. At the hearing of the Motion, the Appellant argued that the time for service of the Writ had expired and consequently, the Writ had become “stale” and the Court had no power to renew or extend time for service of the Writ. The Appellant relied on O.4 r.13. The Respondent argued that the Court should exercise its discretionary powers under O.1 r.7 & r.8 and s.155(4) of the Constitution. During submissions the following exchange occurred between the trial judge and Mr. Shepherd:

“Mr. Shepherd: Yes….the order is fairly specific: “The Court shall not extend the period”.

His Honour: That is order 4?

Mr. Shepherd: Order 4 rule 13(2)...

Mr. Shepherd: As I said, the matter was pointed out, the defect was pointed out three (3) years ago and the Writ could have been served.

His Honour: But, what would be the utility if we go by the rule that you rely on. Your friends they just take out a fresh summons, just copy whatever they got, except for a new printout, serve it on you.

Mr. Shephered: Exactly.

His Honour: So, it is just a technicality aspect that could be easily overcome.

Mr. Shepherd: Well there may be limitation problems, as well your Honour.

His Honour: Yes if there is a technicality problem, then it comes down to section 155.

Mr. Shepherd: To our Defence, yes..”

The Court dismissed the application for default judgment and granted leave to serve the Writ at the correct registered office. The Court gave the following reasons:

“I am more towards the merits of the case than the success on the rules. And I think the Supreme Court has taken that position in PNGBC and Jeff Tole. So rather than seeing the parties go back on the drawing board and incur another round of expenditure in filing and serving, I will order the Writ that has been filed to be served on the correct registered office now identified and settled or agreed between the parties. And the proceedings will proceed normally from that date.”

It is not clear from the above reasons for decision as to which of the three (3) provisions (NCR, O.1 r. 7and r.8 or s.155(4) of the Constitution) the Court assumed jurisdiction and exercised its discretion. Under r.7, the Court may dispense with the requirements for service of an originating process. Under r.8, the Court may on its initiative issue directions to rectify an irregularity in the proceedings by reason of failure to comply with the rules. Under r.9 the Court may make orders on application by a party, and set aside proceedings which are irregular by reason of failure to comply with the rules. Section 155(4) of the Constitution gives the Court additional powers. It is necessary to set out these provisions.

NRC, O.4 r.13 states:

“13. Validity for service. (7/7)

(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.”

NCR, O.1 r.7 and r.8 states:

“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 the requirements of any rule of practice for the time being in force, shall not render proceedings void, unless the Court 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”.

Constitution s.155(4) states:

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case”.

We have read the transcript of proceedings and note that there is no clear statement by the Court on its jurisdiction under s.155(4) of the Constitution. For this reason, we do not consider it necessary to deal with s.155(4) of the Constitution. We are satisfied that the case was determined under NCR, O.1 r.7 and r.8 and proceed to consider the arguments before us.

There are two main issues before us. The first is one of jurisdiction and the second is one of discretion. The first issue is whether the provisions of O.1 r.7 & r.8 apply to O.4 r.13. Mr. Shepherd for the Appellant submits they do not because this is not a case involving formal pleadings or interpretation of a rule which required the court’s exercise of discretion...