United States of America v WR Carpenters (Properties) Ltd

• Jurisdiction: Papua New Guinea
• Citation: [1992] PNGLR 185
• Date: 29 June 1992
• Court: National Court
• Year: 1992

National Court: Brown J

Judgment Delivered: 29 June 1992

1 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 O5 r9

2 Practice and procedure—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 National Court to dismiss suit to do justice in the circumstances

3 Constitutional law—application of Constitution s155(4)—power of courts to make orders in the nature of prerogative writs

4 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 and USA v Wagner (1867) LR 2 Chancery Appeals Cases 582 referred to

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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 States, 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...