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
• Court: Supreme Court
• Date: 03 November 2005
• Citation: (2005) SC804
• Docket Number: SCA No 64 of 2003
• Year: 2005

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

1 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, O1 r7 and r8; O4 r13.

2 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) SC677, NBC v Jeff Tole, (2002) SC694, 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 referred to

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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 O4 r13 (2 years) had already expired. The Court's decision was purportedly made under O1 r7 and r8 of the National Court Rules ("NCR") and s155(4) of the Constitution. Leave to appeal was granted on 16 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 National Court Rules, O4 r13. 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 29 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 National Court Rules, O4 r13(2), the Respondent was required to serve the Writ within two (2) years. This period would have expired on 29 August 1999.

On 1 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 29 July 2000, the Respondent filed a motion for default judgment. This motion was not prosecuted. On 8 December 2000, the Respondents' lawyer forwarded a copy of the Writ to the Appellants' lawyer. On 14 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 19 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 25 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 O4 r13. The Respondent argued that the Court should exercise its discretionary powers under O1 r7 and r8 and s155(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 O4?

Mr Shepherd: O4 r13(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 Shepherd: 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 s155.

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 (National Court Rules, O1 r7 and r8 or s155(4) of the Constitution) the Court assumed jurisdiction and exercised its discretion. Under...