United States of America v WR Carpenters (Properties) Ltd

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 29 June 1992
• Citation: [1992] PNGLR 185
• Court: National Court
• Year: 1992
• Judgement Number: N1088

National Court: Brown J

Judgment Delivered: 29 June 1992

N1088

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE UNITED STATES OF AMERICA, ON BEHALF OF THE EMBASSY OF THE UNITED STATES, PAPUA NEW GUINEA

V

WR CARPENTERS (PROPERTIES) LIMITED

Waigani

Brown J

29 June 1992

PRACTICE AND PROCEDURE — Parties — Proper plaintiff — "United States of America, on behalf of the Embassy of the United States, Papua New Guinea" — Action by defendant to strike name — Representative capacity does not affect procedural right or otherwise, in "the Embassy" to be named — Necessity to find capacity in "the Embassy" — National Court Rules O 5 r 9.

JUDGMENT AND ORDERS — Mode of proceeding — Originating summons — Declaratory orders — Choice of proceeding predicated by necessity or otherwise for pleadings — Principles — Wrong choice — Irregularity may be cured unless fundamental failure where declaratory judgment not possible on state of declaratory orders sought — Underlying power in the National Court to dismiss suit to do justice in the circumstances — Constitution s 155 (4).

CONSTITUTIONAL LAW — Application of s 155 (4) of the Constitution.

Facts

The United States of America sued on behalf of the Embassy of the USA seeking to enforce a lease agreement made by the latter and the defendants. The action claiming declaratory relief was by originating summons. The defendant moved to strike out the name of the plaintiff for misdescription.

Held

1. The capacity to sue is dependent on the procedural laws and the right of action on the substantive laws of Papua New Guinea.

2. The Embassy of the USA is not a legal person or "an entity" in law and, therefore, is not a proper party to an action.

3. Proceeding by way of originating summons is unsuitable where there are substantial disputes of facts to be determined and issues to be defined.

4. Where the justice of the case so requires (where prejudice to a party is shown) when the mode of instituting proceedings precludes the opportunity to identify the issues in dispute, the National Court may dismiss the suit: Constitution s 155 (4).

Cases Cited

Attorney-General v Pontypridd Waterworks Co [1908] 1 Ch 388.

Commissioner for Main Roads v Reed and Stuart Pty Ltd (1974) 131 CLR 378.

Dorney v Commissioner of Taxation [1980] 1 NSWLR 404.

USA v Wagner (1867) LR 2 Chancery Appeals Cases 582.

Counsel

H Lash, for the plaintiff.

P Steele, for the defendant.

29 June 1992

BROWN J: This is a motion by the defendant to strike out the name of the plaintiff on the originating summons and subsequent proceedings. It really should relate to "documents" for the originating summons is the principle cause on foot at the moment. The defendant also seeks such other order as the Court sees fit. I gave short oral reasons at the time of these orders. I now give my written reasons.

As appears from the entitled documents, the defendant now argues that the plaintiff is misdescribed [the USA as representative of the Embassy of the United State, Papua New Guinea], that the Embassy does not admit of representation, is a non entity, and should be struck out.

Mr Lash for the plaintiff says in answer that foreign powers can sue, and that this claim for relief relates to a lease of real estate from the named defendant. The Secretary of State of the United States of America (USA) could be a named plaintiff who can sue on behalf of officers (see USA v Wagner (1867) LR 2 Chancery Appeals Cases 582: "Public property is in the State, and it and no mere officer, is the proper party to sue").

Title ultimately rests in the USA. Mr Lash was not able to provide regulations which would guide him on naming a plaintiff and in the circumstances, an adjournment not having been allowed he could not rebut the argument of the defendant. He says he does not have instructions from his client.

But Mr Lash really needs to show cause why, in the face of National Court Rules O 5 r 13, the Embassy should be named. It does not go to instructions. Local lawyers are instructed presumably with knowledge of the forum in which proceedings are instituted, which necessitates choosing a plaintiff at law recognised and enabled to sue. Whether it be the United States of America or a named person is a decision for a client on advice and in consultation with its lawyers versed in the law of the forum.

Waiting on instructions from the USA cannot affect those principles. The National Court Rules are drafted for very good reason; there must be liability for judgment sheeted home to an individual corporation or entity recognised by law. I am given no basis for recognising "the Embassy" as such an entity. At the time of institution of the suit, this plaintiff put its mind to the question whether the defendant could be sued in its corporate name or title, but seems not to have considered the question with respect to "the Embassy"; at least Mr Lash cannot now say why "the Embassy" is a proper plaintiff. It may be an address or description of a body having legal standing. I am not told. It may appear to be inappropriate but that does not disqualify it per se, if it is a corporation, for instance, or that designation is specified in some executive act or legislation of which I could have been appraised.

Mr Lash referred me to the case of USA v Wagner as support for his proposition, but that decision surely is recognition only that the USA may be a party in the circumstances of that case, and is not support for a description of a party other than the USA.

I have not proceeded to a consideration of relevant...