Joe Tipaiza and James Hela Pora for themselves and on behalf of 220 Others of the Finch/Humade Road Settlement (Madang) v James Yali—Governor of Madang Province and Bunag Kiup—Chairman—Madang Provincial Government Law & Order Committee and Anthony Wagambie—The Commander— Task Force Members of Goroka Police and Sam Inguba—Commissioner of Police and The Independent State of Papua New Guinea 2006 N3178

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Davani J
• Judgment Date: 15 August 2006
• Citation: (2006) N3178
• Judgment Number: N3178
• Year: 2006
• Docket Number: WS 1555 OF 2004

Full Title: WS 1555 OF 2004; Joe Tipaiza and James Hela Pora for themselves and on behalf of 220 Others of the Finch/Humade Road Settlement (Madang) v James Yali—Governor of Madang Province and Bunag Kiup—Chairman—Madang Provincial Government Law & Order Committee and Anthony Wagambie—The Commander— Task Force Members of Goroka Police and Sam Inguba—Commissioner of Police and The Independent State of Papua New Guinea 2006 N3178

National Court: Davani, J

Judgment Delivered: 15 August 2006

N3178

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1555 OF 2004

BETWEEN:

JOE TIPAIZA and JAMES HELA PORA

for themselves and on behalf of

220 OTHERS of the FINCH/HUMADE ROAD

SETTLEMENT (MADANG)

Plaintiff

AND:

JAMES YALI – GOVERNOR OF MADANG PROVINCE

First Defendant

AND:

BUNAG KIUP – Chairman – Madang Provincial Government

Law & Order Committee

Second Defendant

AND:

ANTHONY WAGAMBIE – The Commander –

Task Force Members of Goroka Police

Third Defendant

AND:

SAM INGUBA – Commissioner of Police

Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Davani, J

2006: 11, 15 August

PRACTICE AND PROCEDURE - application seeking leave to amend statement of claim – application to be made at any stage of proceedings – O.8 r.50(1) of National Court Rules.

PRACTICE AND PROCEDURE - proposed amendments raise new cause of action – action statute barred – leave to amend granted, as long as proposed amendment is based on same facts as originally pleaded.

PRACTICE AND PROCEDURE- leave to amend statement of claim – defendant to be awarded costs of amendment – likely prejudice in costs – defendants must prove the prejudice.-

Cases Cited:

Papua New Guinea Cases:

New Guinea Company Ltd v Thomason [1975] PNGLR 454

The PapuaClub Inc. v Nusaum Holdings Ltd. (No. 1) (2002) N2273

Overseas Cases:

Green v Rozen [1955] 2 All ER 797

Cropper v Smith (1883) 26 Ch. D 700

Tildesey v Harper (1876) 10 Ch. D 393

Halsbury’s 4th Ed. Vol. 36

Text:

The Supreme Court Practice 1991’ Vol. 1

Counsel:

B. Waipek, for the Plaintiff/Applicant

C. Makail, for First & Second Defendants/Respondents

F. Cherake, for Third, Fourth & Fifth Defendants/Respondents

15 August, 2006

R U L I N G

1. DAVANI .J: By notice of Motion filed on 12 May, 2006 by Kunai & Co Lawyers, for and on behalf of the plaintiffs/applicants (‘applicants’), the applicants sought leave to amend statement of claim pursuant to O.8 R.50(1) of the National Court Rules (‘NCR’). O.8 R.50 (1) reads;

“50. General (20/1)

(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.”

2. The application is opposed by all defendants.

Background

3. The original Writ of Summons and statement of claim was filed on 17 November, 2004. (‘WSSC’). Therein, the applicants, who squat in settlements in and around Madang town, sued the defendants, more particularly that policemen allegedly under the third defendant’s command, for ‘trespassing’ upon various portions of land in and around Madang Town, and destroyed homes and properties to the alleged value of K3,998,946.67.

Applications for leave to amend

4. The application is supported by the affidavit of Joe Tipaiza one of the named plaintiffs, affidavit sworn on 10 May, 2006 and filed on 12 May, 2006. Mr Tipaiza deposed to and attached consent National Court orders dated 28 July, 2000, taken out in proceedings OS 10 of 1998 instituted in the National Court Waigani. These proceedings involved the settlers, as plaintiffs and the State, Secretary for Lands and the Department of Madang, as defendants. He also deposed to and attached to that affidavit a document titled “Memorandum of Agreement on the eviction of illegal settlers from Madang Town”, executed on 19 May, 2000. (‘Memorandum’). The parties to the Memorandum were the Madang Provincial Government and the Madang Settlement Committee. Various Representatives of these bodies executed the Memorandum for and on behalf of the Provincial Government and the Settlement Committee.

5. To that affidavit is attached the form of the amended statement of claim which pleads the consent order of 28 July, 2000 and the Memorandum. I discuss in greater detail below, the consent orders and the Memorandum.

6. Also attached to that affidavit is another court order taken out in proceedings O.S 708 of 2002 in the National Court Waigani, between this same plaintiff and others for and on behalf of the Tari Community against the Governor of the Madang province, the Madang Provincial Government and the Chairman of the Madang Provincial Governments law and Order Committee. This was a conditional stay order.

7. The principles on the grant of leave to amend statement of claim has been discussed in many cases, the earliest reported case in this jurisdiction being New Guinea Company Ltd v Thomason [1975] PNGLR 454, judgment delivered by Saldanha .J on 23 December, 1975. This was an application for leave to amend under O.11 r.2 of the old Supreme Court Rules which provided that “the court or a Judge may, in any course or matter, at any stage of the proceedings, allow or direct either party to alter or amend the Writ of Summons, or any endorsement thereon, or any pleadings or other proceedings in such manner and on such terms as may be just.”

8. His Honour held the following principles in relation to applications seeking leave to amend. He said;

1. That the grant of leave to amend or not, is a matter of discretion for the court.

2. That the relevant matters for consideration in the exercise of this judicial discretion include;

(i) whether the amendment ought to be made for the purpose of determining the real question in controversy between the parties…or of correcting any defect of error.

(ii) Whether the amendment can be made without injustice to the other party.

(iii) The conduct of the parties.

9. Recently, his Honour Gavara-Nanu .J outlined in The Papua club Inc. v Nusaum Holdings Ltd. (No. 1) (2002) N2273, the general principles applied by courts when considering whether to grant leave to amend statement of claim or not. These are;

(i) where the amendment is to enable the court to determine the real question in controversy between the parties; or

(ii) where the amendment is to correct any defect or error in the proceedings; and

(iii) that such amendment will not cause real prejudice or injustice to the other party; and

(iv) that the application for such amendment is not made mala fide; and

(v) that the other party can be fairly compensated with costs for such amendment.

Analysis of evidence and the law

10. Both Messrs Makail and Cherake for the defendants submit that the amendments proposed by the plaintiffs effectively means that the plaintiff is bringing in a new cause of action (on breach of contract) which will prejudice the defendants in that they will incur a lot more in costs which the plaintiffs are unable to provide.

11. Mr Waipek for the applicants did not make submission on the law, although asked by the court. He only submitted that all the issues must be put before the court before the matter goes to trial. He submitted further that the court orders and Memorandum are what all parties entered into and obtained since the commencement of the evictions in 2000, and that it is only appropriate that these events and orders be pleaded in the statement of claim because they all relate to the eviction, which is pleaded in the original action.

12. I note that the OS proceedings that the plaintiffs took out earlier referred to the Madang Provincial Government’s alleged illegal evictions. It was under OS 10 of 1998, that the former Chief Justice sanctioned the court orders of 28 July, 2000, which briefly, stated that the Memorandum “, …is hereby sanctioned as an order of this court to govern the eviction of illegal squatters from the town of Madang.

2. The eviction exercise shall be undertaken and effected in accordance with the Memorandum of Agreement. …”.

13. And on reaching this agreement, it then gave rise to a new agreement and constitutes a fresh cause of action. That means parties could not proceed on the original action. (See Green v Rozen [1955] 2 All ER 797).

14. By the applicants reliance on the Memorandum (and orders), they are seeking to enforce the Memorandum and orders. And they say that because the Memorandum was not complied or was breached, that they have suffered damages. But the Memorandum states that the lands on which the settlers dwell or reside is State land. And the original action is one of trespass and destruction of property. Whereas the amendments sought is for damages arising from breach of agreement and orders, two entirely different actions. And what does the law say about such a situation?

15. There is extensive discussion under the rule on Amendments (O.20 rr.5-8) in ‘The Supreme Court Practice 1991’ Vol. 1, under the part on ‘amendments of writ of pleading with leave’ and ‘amendment of certain other documents’. As to the general principles for grant of leave to amend, it states at pg. 365 (20/5 – 8/6) that;

“it is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any...