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Koral v Kavie [1999] PGNC 168; WS 0286 of 1998 (11 June 1999)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO.286 OF 1998

BETWEEN:

THOMAS KORAL
Plaintiff

AND:

ALEX KAVIE
First Defendant

AND:

PETRUS ALEX
Second Defendant

Goroka: Kirriwom J
1999: 4 & 11 June

PRACTICE AND PROCEDURE – Notice of Intention to Defend – Given Out of Prescribed Time stipulated in the Writ – Leave of Court is Mandatory requirement before defence filed or anything else done – Order 7 Rule 6(2) National Court Rules.

Facts.

In an action commenced by Writ of Summons the Defendants gave notice of intention to defend eleven days out of time. Acting on clients instructions their lawyer proceeded to file their defence erroneously taking for granted that he was within time without obtaining leave of the Court as required by the Rules (O.7 r.6(2)

Held.

(1) Requirement under O.7 r.6(2) of National Court Rules was mandatory.

(2) The defence filed in contravention of O.7 r.6(2) was bad and was ordered removed from the records

Counsel
Mr. Kot, for the Plaintiff
Mr. Tabai, for the Defendants

RULING

11 June 1999

1. KIRRIWOM J: The Plaintiff/Applicant applies to the Court for the Defendants’ Defence filed on the 14th of January 1999 to be struck out pursuant to O.7 r.6 and O.8 r.27, r.28 and r.29 of the National Court Rules and that judgment be entered for the Plaintiff.

2. Applicant contends that the Defendants’ notice of intention to defend was filed 11 days out of time on the 11th December 1998 when the service of the writ was effected on 28th October 1998. Under the rules they were required to file their defence by 28th November 1998. However because they were late in giving Notice of Intention to Defend, under O.7 r.6 of the Rules they must seek leave of the Court before proceeding to filing their defence.

3. But they obtained no such leave and proceeded nevertheless to file their defence on 14 January 1999.

4. Secondly, the applicant contends that the defence as filed pleads the general issue which is prohibited by O.8 r.28 apart from offending r.27 and r.29. The defence must therefore be struck out.

5. The Defendant/Respondent says that the Notice of Intention to Defend was given on time. According to the Affidavit of Bilding Tabai, he was instructed on 10 December 1998 to act for the Defendants and the very next day he gave notice of intention to defend. According to his instructions, the defendants were served with the writ on 11 November 1998. He quickly did some mental calculation and worked out the last day to be 11 December 1998 to give notice of Intention to defend which he did.

6. Unfortunately I cannot accept Mr. Tabai’s explanation because what his clients told him is one thing but what is filed in Court is another. What has become contentious now is that the Plaintiffs date of service of the Writ is 28 October 1998 as supported by an Affidavit of Service while the defendants claim as per instruction to counsel that service was effected on 11 November 1998. This Court will only go by what is properly before it in evidence. I am satisfied on the Affidavit of Service sworn on 17 December 1998 that the service of the Writ on the First Defendant was effected on 28 October 1998. This means that whilst the Defendants were at liberty to give notice of intention to defend at any time out of the prescribed time, that notice was conditional on the Defendant obtaining leave from the Court to file their defences. The Defendants had not obtained such leave before proceeding to file their defences, as such the defence filed is unacceptable and is ordered to be removed from the filed as being ultra vires O.7 r.6(2) of the National Court Rules. This rule is expressed in mandatory terms.

7. Order 7 Rule 6 of the National Court Rules reads as follows:

(1) A defendant may give notice of intention to defend at any time without leave

(2) Where a defendant gives notice after the time limited for doing so, he shall not, unless the Court otherwise orders be entitled to file a defence or do any other thing later than if he had given notice of intention to defend within that time. (underlining is mine)

8. In essence, therefore the defendants have no defence and judgement is entered for the Plaintiff for damages to be assessed. In view of my ruling on the first leg of the Plaintiff’s submission, it is not necessary to address the second argument raised pursuant to O.8 r.27, r.28 and r.29. That is pleading the general issue.

9. Costs in favour of the Plaintiff/Applicant.
____________________________________________________________________
Kot & Co: Lawyer for the Plaintiff
Pryke & Co: Lawyer for the Defendants