Bill Misivet Vevo v the Independant State of Papua New Guinea (2011) N4348

• Jurisdiction: Papua New Guinea
• Judge: Maliku, AJ.
• Judgment Date: 21 June 2011
• Court: National Court
• Docket Number: WS NO.746 OF 2008
• Citation: (2011) N4348
• Year: 2011
• Judgement Number: N4348

Full Title: WS NO.746 OF 2008; Bill Misivet Vevo v the Independant State of Papua New Guinea (2011) N4348

National Court: Maliku, AJ.

Judgment Delivered: 21 June 2011

N4348

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUTICE]

WS NO.746 OF 2008

BETWEEN

BILL MISIVET VEVO

Plaintiff

AND

THE INDEPENDANT STATE OF PAPUA NEW GUINEA

Respondent

Kokopo: Maliku AJ

2011: 17th & 21st June

PRACTICE AND PROCEDURE: Death of original party – Application for substitution of deceased – Order 5, Rule 10, Sub Rules (1),(2),(3) - Application to be made within three month after death, or within such time as the Courts consider appropriate - Court has discretionary power- Order 5, Rule 12, Sub Rule (1), (a), (b) – Failure by opposing party to apply for dismissal of matter after death of original party is bad for the party.

Cases cited:

Lapanding Singut-v-Kelly Kinamun & 5ors (2003) N2499

Thomas Kaidiman-v-PNG Electricity Commission (2002) N2243

Michael Tipar-v- Brigadier General, Carl Marlpo & The State (2007) N3141

Counsels:

Mr. N. Kubak, for the Plaintiff/Applicant

Mr. S. Koim, for the State

21 June, 2011

1. MALIKU, AJ: On the face of the file before me this proceeding was

commenced by a Writ of Summons and Statement of Claim by the late Bill Misivet Vevo on the 01st July 2008. The cause of action is one of breaches of Constitutional rights by the State through its employees.

2. I am unable to locate on the file a Proof of Service of the Writ of

Summons served on the defendant. There is however in the file a Notice of Intention to defend by the State filed on the 19th August 2008. A proof of service by one Joe Koilamas dated 24th November 2008 and Annexure “A” is also in the file. The State filed its defence on the 03rd October 2008. This confirms that the State was served the Writ of Summons.

3. While the matter was pending Mr Kubak of Kubak Lawyers filed a

Motion dated the 17th June 2011. This Motion is made pursuant to Order 5Rule 10 (2) (3) of the National Court Rules. This Motion names one Hazel Schulz Eremas as the Applicant who seeks an order to be added as a party to these proceedings amongst other orders sought in the Motion. There is a proof of service of the Motion served to the defendant on the file by one David Tamtu sworn on 16th June 2011.

4. There is an Affidavit in support of the Motion by one Hazel Schulz

Eremas dated 27th May 2011 and filed on the 06th June 2011. There is also in the file in support of the Motion an annexure “A”- Power of Attorney dated 07th June 2010 by the late Bill Misivet Vevo which contains the appointment of Mrs Hazel Schulz as legal representative of the late Bill Misivet Vevo during the negotiation with the State Solicitor, regarding the Claim under Section 5, against the State (WS 746 of 2008) Bill Misivet Vevo – v – The Independent State of Papua New Guinea, and annexure “B” dated 26th July 2010, a letter to the Public Solicitor, titled “Withdrawal of File of WS 746/ of 2008 from your office, Bill M.Vevo-v- Independent State Papua New Guinea”

There is also in the file a Medical Certificate of Death of the late Bill Misivet Vevo by Medical Officer, Tekie Purewa of Saint Mary’ Hospital,Vunapope dated 01st September 2010.

5. The matter came before me today, Mr Kubak then formally addressed the

Court on the Motion which I have alluded to above. The Motion seeks the followings Orders:

1. That pursuant to Order 5 Rule 10 (2) and (3) of the National Court Rules, the Applicant Hazel Schulz Eremas, the duly appointed customary representative of the estate of the late Bill Misivet Vevo be admitted as a party to these proceedings.

2. That pursuant to Order 5 Rule 10 (2) the parties to this proceeding rearranged to show the Applicant as the Plaintiff to pursue the substantive claim on behalf of the estate of the deceased.

3. Costs to be in the cause

4. Time for the entry of these Orders is abridged to the date of the settlement by the Registrar of which shall take place forthwith.

5. The State through Mr Koim objected to the Motion being entertained

and instead submitted the Motion should be dismissed. Mr Koim’s objection was of the following:

(i) There is no cause of action before this Court which would enable the applicant as representative of the late Bill Misivet Vevo’s estate. Mr Koim argued that the Writ of Summons and the Statement of Claim pending before this Court is for breaches of Constitutional rights by the State through its employees and not for the properties or estates of the late Bill Misivet Vevo.

6. In response to this argument, Mr Kubak for the applicant submitted that

the State should have sought leave from this Court for an application to dismiss the Motion. In the absent of such, their argument should not hold. Mr Kubak argued that the Claim is simply to compensate the late Bill Misivet Vevo of what he claims to have been done which amounted to breaches of his Constitutional rights by the State through its agents named in the Writ of Summons.

7. With respect to the Counsel representing the State, I say he had

misconstrued the words “estates” as used in the Motion to be that it refers to all estates of the late Bill Misivet Vevo ((if indeed the deceased had estates) . The word “estate” appears in Order 1 and 2 sought in the Motion. In Order One sought in the Motion the word estate is used in the following: “...... customary representative of the estate of the late Bill Misivet Vevo be added as a party to these proceedings. (Underlined is mine). The catch words are: “to these proceeding”.

8. The proceedings referred to in the Motion in my view is that which was

commenced by a Writ of Summons and a Statement of Claim and pending before this Court for alleged breaches of Constitutional rights by the State through its employees, which the Motion is seeking to have the applicant to be added in order to pursue the matter. There is no other proceeding beside that which was commenced by the Writ of Summons number 746 of 2008. This Motion is an application within the substantive claim of WS 746/2008.

9. In the Order 2 sought in the Motion the word estate is used as follows;

“to show the applicant as the Plaintiff to pursue the substantive claim on behalf of the estate of the deceased”. The catch words here is; substantive claim (Underline is mine). The substantive claim referred to in the Motion is also that which alleged in the Writ of Summons No. 746 of 2008 against the State. There is no other substantive claim or claims besides this claim.

10. Having said this, the objection by counsel representing the State on this

issue does not hold and is rejected by me.

11. The other objection Mr Koim raised is failure by the applicant to file his

Motion on time pursuant to Order 5 Rule 12, Sub rule (1). He argued that the deceased died on the 30th August 2010 while the Motion was filed on the 06th June 2011 some six months after which is outside the time limit of three months, Order 5 Rule 12 - Failure to proceed after death of party.

“(1) Sub rule (1) (a) reads:

(a) Where a party dies but a cause of action in the proceeding survives his death; and

(b) an order under Rule 10 for addition of a party in substitution for the deceased party is not made within three months after the death, the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless , within a specified time after service of the order in accordance with sub rule (2), a party is added in substitution for the deceased party, the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability therein , as the case may, survives on the death.

(2) Sub rule (2) says on making an order under sub rule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceedings.”

12. Mr Koim referred me to the cases of Lepanding Singut-v-Kelly

Kinamun & 5Ors (2003) N2499 ; Thomas Kaidiman-v-PNG Electricity Commission (2002) N2343; and Michael Tipar-v- Brigadier General Carl Malpo & The Independent State of PNG (2007) N 3141 which I have read very closely. These cases are relevant in regard to the time limitation in filing an application pursuant to Order 5, Rule 12, Sub rule (1),(a),(b) of the National Court Rules even though the cause of actions may be different.

13. In the case of Lapading Singut-v- Kelly Kinamun the cause of action

was one based on breach of fiduciary duty as well as a claim based on conspiracy to defraud the plaintiff who was then a deceased person? This is not a case in the matter before me. However his honour Kandakasi J dealt with the issue of time limitation in which an application is to be made to the Court pursuant to Order 5 Rule12, Sub rule (1) (a), (b) of the National Court Rules. His Honour says:

“(1) At a closer examination of the provisions of Rule 12 makes it clear that the time limit of three months need not be observed strictly. There is discretion in the Court to either dismiss or to order that steps...