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Modilon General Hospital v Liriope [2012] PGNC 104; N4772 (27 July 2012)

N4772

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 896 OF 2011

BETWEEN

MODILON GENERAL HOSPITAL
BOARD OF MANAGEMENT
Plaintiff/Applicant

AND

DIANNE LIRIOPE
MARY KELIONO
STEVEN DEMOK
MARTINA TULANE
&
37 ORS STRIKING MODILON
GENERAL HOSPITAL
STAFF MEMBERS whose names
Listed in the scheduled attached)
Defendants/Respondents
Madang: Davani J
2012: 18th, 27th July

PRACTICE AND PROCEDURE – Originating Summons filed – Summons not in the form prescribed by O. 4 R. 25 and/or O. 4 R. 26 of the National Court Rules (NCR) –Summons stating appointment for hearing – Summons for hearing to be appointed - Form 6 and Form 7 of NCR – Orders taken out on defective Originating Summons.

PRACTICE AND PROCEDURE – Defendant did not file Notice of Intention to Defend – Orders taken out by Defendant without first filing Notice of Intention to Defend – Orders taken out on defective proceedings – Defendant not properly before the Court .

PRACTISE AND PROCEDURE – Application to set aside orders for lack of Notice of Intention to Defend – Non compliance with rules does not render proceedings void – Summons filed by Plaintiff a nullity – Proceedings ought to be dismissed – O. 1 R. 8; O. 12 R. 8.( 4) of NCR.

MEDIATION – Serious issues raised by parties – litigation has not achieved desired results – mediation appropriate – Court exercises powers to refer to mediation – rules 5(2) (3) (a) to (i) of Mediation Rules; S. 7B (1) to (6) of National Court Act.

Facts

The Plaintiff filed Originating Summons ('OS') seeking several reliefs. However, the OS was not in the form prescribed by either Order 4 Rule 25 or Order 4 R 26 of the National Court Rules. Also, the OS did not ask or warn the Defendant to file Notice of Intention to Defend. On this defective summons, the Plaintiff obtained orders.

The Defendant also did not file and serve Notice of Intention to Defend. However, it applied ex parte and obtained orders on 19th December, 2011, which the Plaintiff applied to set aside, which application was based, amongst others, on the fact that because the Defendants had not filed and served Notice of Intention to Defend, that they were not properly before the Court and as such, the ex parte orders must be set aside.

Issue

Should the orders of 19th December, 2011 be set aside?

Held:

1. The Originating Summons filed by the Plaintiff is not in the form prescribed by O. 4 R. 25 and 26 of the NCR.
2. Without first filing a Notice of Intention to Defend, the Defendant's lawyers proceeded to apply for and obtain interim injunctive orders, and take other steps in the proceedings.
   
3. Because the OS is not in the correct form, the proceedings are a nullity. No amount of amendment can cure the fact that orders were taken out on defective proceedings.
   
4. The parties have serious grievances which must be addressed. The Court can exercise its powers under Rule 5(2) of the Mediation Rules to refer the matter to mediation and must, before doing so, consider the requirements under Rule 5(3) of the Mediation Rules, which requirements were duly considered.
   

Orders

The Court orders that:

1. Pursuant to Rule 5 (2) and (3) of the ADR Rules, the proceedings are referred to Mediation by Brydget Barker-Hudson;
   
2. The Parties shall attend mediation for the purpose of making genuine and good faith attempts to:
   
   • (a) Resolve all or any part of the proceeding; or
   • (b) Failing settlement, identify and limit the real and meritorious issues in the proceeding that warrant judicial consideration and determination; and/or
   • (c) Enable the parties to reach consensus on the conduct of litigation.
     
3. As provided by Rule 5 (5) of the ADR Rules, this order for mediation shall not operate as a stay of the proceeding;
   
4. The Court orders that the mediation shall be conducted by Brydget Barker-Hudson who is an accredited mediator and who shall conduct the mediation in co-mediation with Kari Rea who is a provisionally accredited mediator.
   
5. In accordance with Rule 9 (2) of the ADR Rules, the mediators shall inform the Court within seven (7) days from the date of this order, if they accept or decline the appointment. If a mediator declines the appointment, the ADR Registrar shall seek a substitute mediator to be appointed from the list of accredited mediators;
   
6. The parties shall pay the Court mediation fees on or before the intake conference;
   
7. On or before the date of the intake conference, the parties shall deliver or fax a copy of the receipt to the ADR Registrar and which original of the receipt shall be given to the mediator at the intake conference for inclusion in the ADR file;
   
8. The mediation conference shall be held at Madang on 21st September, 2012 or at a date agreed to by the mediator and the parties;
   
9. The mediation conference shall be held at a place also to be agreed to by the mediator and the parties;
   
10. In the event the parties secure the services of an external mediator, he is entitled to charge a fee for his services at such rate and proportion as the parties and the mediator may agree to;
    
11. The mediation will commence with an intake on 28th July, 2012 at 9.00 a.m. in Madang followed by a mediation conference no later than 21st September, 2012 or at a date agreed to by the mediator and the parties;
    
12. In accordance with Rule 9(3) of the ADR Rules, the mediation process shall be completed within 2 months from today and the process shall conclude on or before 30th September, 2012 with a mediator's certificate in Form 1 or Form 2 of the ADR Rules;
    
13. If the mediation does not commence or conclude in accordance with these orders, the mediator shall inform the Assistant Registrar ADR of that fact to occur two days before 30th September, 2012;
    
14. On receiving notification under Clause 13 of these orders, the Assistant Registrar ADR shall refer the matter to the Court for further directions or orders for the future conduct of the proceedings and that this shall be done on or before 30th September, 2012;
    
15. A failure to comply with all or any of these orders may be taken to mean lack of 'good faith' against the defaulting party and may result in such orders and judgments as the Court considers appropriate which may include an order for costs inclusive of the mediation costs on an indemnity basis, in favour of the other party;
    
16. During the mediation process, the parties must be represented by a person with full capacity and authority to settle the proceeding and they must negotiate in 'good faith'. Failing to have such a person present shall constitute 'bad faith' for the purposes of a Form 1 being submitted to the court by the accredited mediator;
    
17. For the purpose of the mediation, the parties shall settle upon a succinct statement (the Statement), of the relevant facts clearly identifying which of the facts are in dispute and why, with a clear statement of issues presented in the proceeding. The:
    
    • (a) Plaintiff shall draft and forward to the Defendant a draft of the Statement to be agreed to by the parties;
      
    • (b) Defendant to respond at a date to be agreed to by the parties;
      
    • (c) Parties shall meet in conference at a date to be agreed to by the parties, settle the Statement and have it immediately filed the next day.
      
18. In order that the mediation is conducted efficiently and effectively the mediator may:
    
    • (a) if necessary, allow with the agreement of all of the parties, one of the parties or another person to attend the mediation by telephone or other means such as teleconference; or
      
    • (b) report to the Court any failure to comply with any or all of these orders for mediation or any conduct that is detrimental to a proper conduct and conclusion of the mediation and seek such orders and directions as considered appropriate; or
      
    • (c) terminate the mediation under Rule 58 of the ADR Rules.
      
19. Where all or some of the issues in the proceeding are resolved, the parties shall:
    
    • (a) sign an agreement and/or;
    • (b) sign a Deed of Settlement and or;
    • (c) settle upon a draft Consent Order reflecting their agreement for the Court's consideration and endorsement.
      
20. Where clause 19 of these orders applies, the parties shall within 7 days of the completion of the Mediation return to the Court and submit:
    
    • (a) The mediators certificate in Form 2; and
      
    • (b) a notice of Discontinuance; or
      
    • (c) Draft consent order.
      
    • (d) The proceeding shall return to the Court on a date to be agreed to by the parties whereupon the Court may endorse any agreement of the parties either with or without any modifications as to the finalization of the proceeding or make such orders and issue such directions as are necessary to expedite the matter to trial if not fully resolved by mediation;
      
    • (e) Where some or all of the issues in the proceeding do not settle, the mediator shall submit Form 1 or 2 to the court within 3 days of the conclusion of the mediation process;
      
    • (f) Subject to the outcome of the mediation, the costs of today shall be costs in the cause;
      
    • (g) The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
      

Cases cited

Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085

Paul and Mary Bal v. Kenny Taiya and Others (2003) N2481

Counsel

W. Mapiso, for the Plaintiff/Applicant

Y. Wadau, for the Defendants/Respondents

DECISION

27th July, 2012

1. DAVANI.J : The plaintiff/applicant ('applicant') moves a motion filed on 3rd July, 2012, by the Office of the Solicitor-General seeking orders in these terms;
   

"1. Pursuant to Section 155(4) of the Constitution, leave be granted to the Plaintiff to withdraw its Notice of Motion and Notice of Discontinuance filed on 03 February, 2012.

2. Pursuant to Order 1 Rule 7 of the National Court Rules, leave be granted to dispense with the Rules relating to (3) clear days requirement for service of this application on the Defendants.

3. Pursuant to Order 12 Rule 8(4) of the National Court Rules and Section 155(4) of the Constitution term (2) of the interim restraining order against the Plaintiff granted by this Court on 19 December 2011 be set aside or be varied.

4. The substantive proceedings be adjourned to the 20th July 2012 at 9:00 am for mention.

5. Any further orders the Court sees fit.

6. Time for entry of these orders be abridged."

2. Before applicants counsel moved the motion, he informed the Court that it would not be necessary to move Paragraph 3 of the motion because service was effected within the required 3 days and both parties are now before me represented by their lawyers.
   
3. In relation to the orders sought in Paragraph 1 of the Notice of Motion, Mr Mapiso for the applicant submitted that although the applicant's former lawyer filed a motion seeking to discontinue the proceedings and also filed a Notice of Discontinuance, that he did not move the application. That was the reason why he was seeking leave to withdraw the motion and the Notice.
   
4. This was confirmed by Mr Wadau for the defendants/respondents ('respondents').
   
5. Upon my perusal of the court file, I noted that to be the case, that Thomas Ilaisa Lawyers had filed a Notice of Discontinuance on 3rd February, 2012. He filed a Notice of Motion seeking leave to discontinue the proceedings on 4th April, 2012. It appears Mr Ilaisa filed the Notice of Discontinuance before filing the motion because he was required to firstly move on the motion seeking leave from the Court to discontinue the proceedings and if granted, to then file the Notice of Discontinuance.
   
6. Because the motion was not moved and order giving leave to discontinue was not made, I gave leave to the applicant to withdraw the Motion and Notice of Discontinuance.
   
7. I also note that the Solicitor-General filed Notice of Change of lawyers on 3rd July, 2012. He is now the applicant's lawyer.
   
8. Mr Mapiso also informed the Court that it was not necessary to move Paragraph 4 of his motion. That was abandoned.
   

The application

9. Both counsel relied on affidavits which I will refer to. They also filed written submissions.
   
10. The order sought to be set aside by the applicant is that made by this Court on 19th December, 2011. It reads:
    

"The Court orders that, until further order –

1. The defendants and other staff of Modilon General Hospital shall not engage

in any strike action without the leave of the National Court.

2. All disciplinary proceedings against any of the defendants are stayed and

shall not be further pursued without the leave of the National Court.

3. Meetings of the defendants or other staff of the Hospital shall not interfere with normal operations of the Hospital and no such meeting shall extend for more than 30 minutes at any one time.
   
4. For the avoidance of doubt the Chief Executive Officer of the Hospital, Christine Gawi, shall at all times be permitted to perform her powers, functions, duties and responsibilities under the Public Hospitals Act free of harassment or intimidation by the defendants or any other persons.
   
5. These proceedings shall return for further deliberation on 31 January 2012 at 9.00 am."
   
11. The applicant moves this application relying on Order 12 Rule 8(4) of the National Court Rules ('NCR') and Section 155(4) of the Constitution.

Order 12 Rule 8(4) of the NCR reads:

"(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief."

12. Section 155(4) of the Constitution gives the National Court inherent powers to make orders it sees fit and to do justice in the particular circumstances of a case.
    
    • (i) Ground/basis of application to set aside.

There are several grounds on which the applicant seeks to set aside these orders. I will deal firstly with the most preliminary objections. I discuss these below.

1. Notices of Intention to Defend

Mr Mapiso submits that because the defendants have not filed Notice of Intention to Defend, that they do not have a right of appearance. He submits that they are not properly before the Court and so should not be allowed to appear.

13. Order 7 Rule 1 of the NCR reads:
    

"1. Notice of Intention to Defend by Solicitor or in person (11/1)

(1) A defendant may give a Notice of Intention to Defend and may defend proceedings by a Solicitor or in person".

14. Order 7 Rule 2 of the NCR provides:
    

"2. No step without Notice of Intention to Defend (11/2)

Subject the these Rules, a person shall not, except by leave of the Court, take any steps in any proceedings unless, before taking the step, he has filed originating process in the proceedings or has given a notice of intention to defend in the proceedings."

(my emphasis)

15. The Originating Summons was filed on 24th November, 2011. The defendants have appeared several times before a Judge since then, and have obtained orders, including the order the subject of this setting aside application. They have done so without placing on record, their Notice of Intention to Defend.
    
16. Mr Wadau for the defendants submit that because they have appeared several times in Court without that requirement having been met, that the Court should dispense with that requirement. Can I do that?
    
17. Mr Wadau did not put before me any authorities, either from this jurisdiction or overseas to assist me in making a decision. My own limited research has revealed this.
    
18. Order 7 Rule 6 of the NCR provides for the late filing of a Notice of Intention to Defend. It reads;
    

"6. Late Notice (11/6)

(1) A defendant may give a Notice of Intention to Defend at anytime without leave.
(2) Where a defendant gives a 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 a notice of intention to defend within that time."

(my emphasis)

19. Order 4 Rule 9 of the NCR provides for the form an originating process takes, particularly where there is a defendant and the standard warning note in the originating process to all defendants, in relation to the filing of a Notice of Intention to Defend.
    
20. Order 4 Rule 9 reads:
    

"9. Notice of intention to defend. (7/3)

(1) Where there is a defendant, an originating process (other than an originating summons under Rule 26) shall bear a note that the defendant is liable to suffer judgment or an order against him unless the prescribed form of notice of his intention to defend is received in the Registry.

(2) The note under Sub-rule (1) shall specify the time limited for the giving of the notice.

(3) Where there is a defendant an originating summons under Rule 26 shall bear a note that –

(a) if there is no attendance before the Court by the defendant or his counsel or solicitor at the time and place stated in the summons, the proceedings may be heard and the defendant will be liable to suffer judgment or an order against him; and

(b) before any attendance at that time the defendant must file in the Registry a notice of his intention to defend the claim."

21. That rule should be read together with Order 4 Rule 25 of the NCR which provides for the form of the summons a plaintiff can use, either a summons stating an appointment for hearing in accordance with rule 26 or a summons for hearing to be appointed in accordance with Rule 27 of Order 4.
    
22. Order 4 Rules 25, 26 and 27 of the NCR read:
    

"R25. Choice of summons. (5/4)

A plaintiff commencing proceedings by originating summons may use either a summons stating an appointment for hearing in accordance with Rule 26 or a summons for a hearing to be appointed in accordance with Rule 27." (my emphasis)

"R26. Summons stating appointment for hearing. (5/4A)

(1) This Rule applies to proceedings commenced by originating summons in Form 6 stating an appointment for hearing.

(2) The appointment for hearing to be stated in a summons under this Rule may be fixed by the Court, or, if not fixed by the Court, shall be obtained form the Registry.

(3) Where there is a defendant, the summons shall, unless the Court otherwise orders, be served not less than five days before the date of the appointment for hearing.

(4) Where the appointment for hearing is obtained from the Registry and the summons is to be served outside Papua New Guinea, the date of the appointment shall be not less than one month after the date of filing of the summons.

(5) Where the Court makes an order under Sub-rule (3), the summons shall bear a note of the order made."

"27. Summons for hearing to be appointed. (5/4B)

(1) This Rule applies to proceedings commenced by originating summons in Form 7, for a hearing to be appointed.

(2) Where there is no defendant, the plaintiff may at any time obtain from the Registry an appointment for hearing.

(3) Where any defendant has given notice of intention to defend or has made default in giving that notice, the plaintiff may obtain from the Registry an appointment for hearing.

(4) Where a plaintiff does not obtain an appointment under Sub-rule (3) within seven days after becoming entitled to do so, a defendant may obtain from the Registry an appointment for hearing.

(5) The Court may, on application by a party, make an appointment for hearing at any time, whether or not an occasion has arisen for obtaining an appointment under Sub-rule (2) or (3)."

23. In this case, what form does the originating summons filed by Thomas More Ilaisa Lawyers, take?
    
24. On a perusal of the Originating Summons filed by Thomas Ilaisa Lawyers on 24th November, 2011, I note that it is not in the format regulated and prescribed under O.4 R.26 which is Form 6 and nor is it in the format regulated and prescribed by O.4 R. 27 which is Form 7.
    
25. Order 1 Rules 8 and 9 provide for what occurs when a party does not comply with the provisions of these rules. It reads;
    

"O.1 R.8 Non- compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit."

"O. 1 R.9 Application to set aside for irregularity.

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity."

26. The National Court can exercise its discretion to rectify these anomalies. Which means the plaintiff cannot ask for orders on an originating summons which is clearly defective and irregular. The Originating Summons must be corrected by an amendment or it can be dismissed. I discuss this further below.
    
27. This then takes me to Mr Mapiso's submissions that the defendants cannot take any steps in the proceedings because they have not filed Notice of Intention to Defend.
    
28. It is indeed a real concern that the plaintiffs have not taken any steps since the proceedings were filed in November 2011, to raise this irregularity in the proceedings. The defendants have also not questioned the regularity or not of the Originating Summons. The both parties have filed applications and taken out orders on what is clearly an irregular proceeding.
    
29. The next question I should ask is whether the proceedings are a nullity because the Originating Summons is not in the proper form. Firstly there is no application before me to set aside proceedings either for irregularity or for it being a nullity. Even then, can I still exercise my discretion to set aside?
    
30. The law is that the Court must control the proceedings before it. It must do so because it has wide powers to control the conduct of proceedings before it.
    
31. The national Court has a wide discretion to screen and weed out claims and that the Court can exercise that discretion on its own initiative with or without application by an interested party (see Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085; Paul and Mary Bal v Kenny Taiya and Others (2003) N2481).
    
32. Technically because the summons has not requested the filing of a Notice of Intention to Defend, it is defective. One can argue that this being the case, the defendants need not file a Notice of Intention to Defend. However, as is standard practice, the defendants are required to file and serve a Notice of Intention to Defend done in compliance with Order 4 Rule 27.
    
33. Clearly the proceedings are a nullity and must be set aside. Orders have been take out on defective proceedings, so they also must be set aside.
    
34. Should I even address the orders the subject of this application? I need not because apart from the fact that the defendants are not properly before the Court by the filing of a Notice of Intention to Defend, the orders were taken out on defective proceedings.
    
35. No amount of amendment, in my view, will cure the fact that several orders have been taken out on these defective proceedings.
    
36. Another procedural aspect of these proceedings that I find to be most intriguing is why the plaintiffs' lawyer is challenging the manner in which the defendants are named when it is the plaintiffs former lawyer who has described them as such. Mr Mapiso should now be more focused on correcting the originating process rather than challenging the later orders.
    
37. What will happen to both the plaintiff and the defendants' grievances, more particularly the defendants'? The major concern is that the day to day running of the hospital is severely hampered by decisions made by the administrators of the plaintiff hospital. How can this dispute be resolved? In my view, and as I pointed out to counsel, mediation may resolve the dispute, although not a guarantee.
    

Mediation

38. This case has a long history which is deposed to in the several affidavits before the Court. I take particular note of the affidavit of Dianne Liriope, defendant, sworn and filed on 16th July, 2012.
    

36. The administrative dispute started in November, 2006 and which is still ongoing. The several Court proceedings that were filed were;

- OS 836 of 2006,

- OS 516 of 2010

- and present proceedings, OS 896 of 2011.

37. The two parties have not resolved the administrative issues that first arose in 2006 and that continues to plague the hospital and its workers.

38. From my quick perusal of the material, it appears the staff and management of the hospital are unable to reach agreement on matters involving the disciplining of staff; appointment of administrators and appointment of staff to positions within the hospital. Both parties continuously resort to the obtaining of Court orders to "maintain the status quo", a status quo which satisfies their purposes, rightly or wrongly and, if I may say, the existing, underlying issues and disputes fuelled by both parties, are never resolved.

39. Therefore, in view of the existing procedural anomalies, I will exercise my powers under Part II of the Rules Relating to the Accreditation, Regulation and Conduct of Mediators ('Mediation Rules').

39. Rule 5(2) of the Mediation Rules provides that a Court can, on its own motion, order mediation for:
    

"(a) a resolution of all or any parts of the proceedings; or

(b) failing settlement, identify and limit the real and meritorious issues in the proceedings that warrant judicial consideration and determination; and or

(c) enable the parties to reach consensus on the conduct of litigation."

41. Rule 5(3) of the Mediation Rules states that the Court must have regard to these factors when considering whether or not to order mediation. It reads:

"(3) At the time of considering whether or not to order mediation, the Court shall have regard to the following factors:

(a) Whether the mediation will result in prejudice to the rights of any of the parties;

(b) Whether it is reasonably within the ability and the power of a party to comply with an order for mediation having regard to matters such as any urgency in the proceedings, costs, multiplicity of parties or lack of resources;

(c) Whether the mediation will require substantial work which could be better directed to preparation for trial;

(d) The nature of the relief sought and the suitability of a mediation result;

(e) The timing of the mediation including by reference to the status of the pleadings, discovery and the alternatives of when trial is likely and the length and costs of trial;

(f) The attitude of the parties to mediation though not significant;

(g) Whether mediation was earlier attempted and whether any good purpose will be served by an order for further mediation;

(h) The appropriateness of deferring any final decision on a application for orders for mediation; and

(i) What the interest of justice in the particular circumstances of the case require."

42. I address and apply the facts of this case to the above factors and discuss these below:

(a) Rule 5(3)(a) - Whether the mediation will result in prejudice to the rights of any of the parties.

In my view, it is in the interest of all parties that the matter is referred to mediation. Both parties are not properly before the Court which means the orders taken out by the defendants, the subject of the setting aside, will definitely be dissolved, unless of course parties reach some consensus within a time frame.

(b) Rule 5(3)(b) - Whether it is reasonably within the ability and the power of a party to comply with an order for mediation having regard to matters such as any urgency in the proceedings, costs, multiplicity of parties or lack of resources.

As to urgency, in my view, it is important that this matter is taken to mediation and as the saying goes, "the bull is taken by the horn" and parties guided to a settlement.

As to costs, parties have wasted a lot of time and money on litigation which has not seen the real issues resolved. What is required is for those real issues to be placed in a mediation and thrashed out. Litigation has not been able to achieve the results desired by both the plaintiff and the defendant.

As to whether trial is a better option than mediation, I find that the defendants concerns in relation to their positions and salaries must be addressed by a neutral body in this case, a mediator. Trial will not achieve a consensus desired by all parties.

(c) Rule 5(3)(c) - Whether the mediation will require substantial work which could be better directed to preparation for trial.

I have found that the proceedings are not properly before the Court. There will not be any trial if I exercise my powers to dismiss the proceedings as a nullity. It must be mediated for a just result to be achieved.

(d) Rule 5(3)(d) - The nature of the relief sought and the suitability of a mediation result.

Mediation is suitable because the Originating Summons in my view is very badly pleaded. These are proceedings that are properly commenced by Writ of Summons and Statement of Claim, not an Originating Summons, because there are many disputed issues.

Considering the very litigious history of this matter, it appears the Originating Summons was filed just to obtain urgent injunctive orders, which are clearly an abuse of the Court process.

Again, mediation is more suitable than litigation.

(e) Rule 5(3)(e) - The timing of the mediation including by reference to the status of the pleadings, discovery and the alternatives of when trial is likely and the length and costs of trial.

These proceedings were commenced by Originating Summons. There are no pleadings. Parties have not entered into interlocutories. But because of the deficiencies in the OS and the fact that the defendants are not properly before the Court, the more suitable alternative is to mediate rather than exercising the summary powers of dismissal available to me.

(f) Rule 5(3)(f) - The attitude of the parties to mediation, though not significant.

I have heard briefly from the both lawyers that mediation is a good and feasible option.

(g) Rule 5(3)(g) - Whether mediation was earlier attempted and whether any good purpose will be served by an order for further mediation.

Not applicable because I am not aware that mediation has ever been conducted.

(h) Rule 5(3)(h) - The appropriateness of deferring any final decision on a application for orders for mediation.

This is not appropriate. I am referring this matter to mediation as that is the correct and proper thing to do under the circumstances.

(i) Rule 5(3)(i) - What the interest of justice in the particular circumstances of the case require.

In my view, for the matter to be mediated.

43. The Courts power to order mediation is referred to and governed by s.166 of the Constitution and s.7B of the National Court Act Chapter No 38 ("NCA').

44. Section 7B(1) to (6) of the NCA reads:

"7B Power to order mediation, etc., (5)

(1) In addition to the jurisdiction vested in the Court by Section 166 of

the Constitution, and any other law, the Court-

(a) May order a resolution of a dispute or a matter before it by mediation for an amicable resolution of the dispute; or
(b) May order or direct a proceeding or any part of the proceeding to be inquired into and resolved by an appropriately qualified and experienced per son or an expert in the issue.

(2) At any stage of a proceeding, the Court may, whether with or without the consent of the parties, order that the proceeding or a part of the proceeding before it be referred to mediation.

(3) Where the Court decides to refer a matter to mediation the presiding judge-

• (a) May, with the consent of the parties, conduct the mediation; or
• (b) May with the parties' consent appoint a mediator of their choice to conduct the mediation; or
• (c) May failing the consent of the parties appoint a mediator from the Court's list of approved mediators.
  

(4) At the time of ordering mediation, the Court shall stipulate the time frame within which the mediation should be progressed and be finalized and issue such directions or orders as it considers necessary for the purpose of the ordered mediation, including appropriate orders as to the cost of the mediation.

(5) Unless the Court otherwise orders, an order for mediation shall not operate as a stay of the proceedings nor shall it be a cause for delaying in getting the case ready for trial.

(6) For the purposes of Subsection (3)(c) herein, Court shall develop and maintain a list of appropriately qualified and experienced mediators."

45. Therefore, effectively, pursuant to S.7B(2) of the NCA, this Court orders that the whole of the proceedings be referred to mediation and is doing so, without having to obtain the parties consent.

46. In accordance with s.7B(3) of the NCA, the parties have not consented to the appointment of a mediator because that opportunity was not given to them. Therefore, exercising powers available to me under Rule 6(1) of the Mediation Rules, this Court will appoint a mediator from its list of approved mediators.

47. The formal mediation orders are attached, and in which there is reference to an approved mediator.

48. Parties will also meet with the Assistant Registrar Mediation at 9.00 a.m. at the District Court Madang on 28th August, 2012, where she will speak with parties on the process.

49. These proceedings are adjourned generally and are returnable on the dates stated in the mediation order.

Formal Orders

50. These are the Court's formal orders:

1. Pursuant to Rule 5(2) and (3) of the ADR Rules, the proceedings are referred to Mediation by Brydget Barker-Hudson;

2. The Parties shall attend mediations for the purpose of making genuine and good faith attempts to:

(a) Resolve all or any part of the proceeding; or

(b) Failing settlement, identify and limit the real and meritorious issues in the proceeding that warrant judicial consideration and determination; and/or

(c) Enable the parties to reach consensus on the conduct of litigation.

3. As provided by Rule 5 (5) of the ADR Rules, this order for mediation shall not operate as a stay of the proceeding.

5. The Court orders that the mediation shall be conducted by Brydget Barker- Hudson who is an accredited mediator and who shall conduct the mediation inco- mediation with Kari Rea who is a provisionally accredited mediator.
   
6. In accordance with Rule 9 (2) of the ADR Rules, the mediators shall inform the Court within seven (7) days from the date of this order, if they accepted or decline the appointment. If a mediator declines the appointment, the ADR Registrar shall seek a substitute mediator to be appointed from the list of accredited mediators.
   
7. The parties shall pay the Court mediation fees on or before the intake conference.
   
8. On or before the date of the intake conference, the parties shall deliver or fax a copy of the receipt to the ADR Registrar and which original of the receipt shall be given to the mediator at the intake conference for inclusion in the ADR file.
   
9. The mediation conference shall be held at Madang on 21st September, 2012 or at a date agreed to by the mediator and the parties.
   
10. The mediation conference shall be held at a place also to be agreed to by the mediator and the parties.
    
11. In the event the parties secure the services of an external mediator, he is entitled to charge a fee for his services at such rate and proportion as the parties and the mediator may agreed to.
    
12. The mediation will commence with an intake on 28th July, 2012 at 9.00 a.m. in Madang followed by a mediation conference no later than 21st September, 2012 or at a date agreed to by the mediator and the parties.
    
13. In accordance with Rule 9(3) of the ADR Rules, the mediation process shall be completed within 2 months from today and the process shall conclude on or before 30th September, 2012 with a mediator's certificate in Form 1 or Form 2 of the ADR Rules.
    
14. If the mediation does not commence or conclude in accordance with these orders, the mediator shall inform the Assistant Registrar ADR of that fact to occur two days before 30th September, 2012.
    
15. On receiving notification under Clause 13 of these orders, the Assistant Registrar ADR shall refer the matter to the Court for further directions or orders for the future conduct of the proceedings and that this shall be done on or before 30th September, 2012.
    
16. A failure to comply with all or any of these orders may be taken to mean lack of 'good faith' against the defaulting party and may result in such orders and judgments as the Court considers appropriate which may include an order for costs . inclusive of the mediation costs on an indemnity basis, in favour of the other party.
    
17. During the mediation process, the parties must be represented by a person with full capacity and authority to settle the proceeding and they must negotiate in 'good faith'. Failing to have such a person present shall constitute 'bad faith' for the purposes of a Form 1 being submitted to the court by the accredited mediator.
    
18. For the purpose of the mediation, the parties shall settle upon a succinct statement (the Statement), of the relevant facts clearly identifying which of the facts are in dispute and why, with a clear statement of issues presented in the proceeding. The:
    

(a) Plaintiff shall draft and forward to the Defendant a draft of the Statement to be agreed to by the parties;

(b) Defendant to respond at a date to be agreed to by the parties;

(c) Parties shall meet in conference at a date to be agreed to by the parties, settle the Statement and have it immediately filed the next day.

19. In order that the mediation is conducted efficiently and effectively the mediator may:

(a) if necessary, allow with the agreement of all of the parties, one of the parties or another person to attend the mediation by telephone or other means such as teleconference; or

(b) report to the Court any failure to comply with any or all of these orders for mediation or any conduct that is detrimental to a proper conduct and conclusion of the mediation and seek such orders and directions as considered appropriate; or

(c) terminate the mediation under Rule 58 of the ADR Rules.

20. Where all or some of the issues in the proceeding are resolved, the parties shall:

(a) sign an agreement and/or;

(b) sign a Deed of Settlement and or;

(c) settle upon a draft Consent Order reflecting their agreement for the Court's consideration and endorsement.

21. Where clause 19' of these orders applies, the parties shall within 7 days of the completion of the Mediation return to the Court and submit:

(a) The mediators certificate in Form 2; and

(b) a notice of Discontinuance; or

(c) Draft consent order.

22. The proceeding shall return to the Court on a date to be agreed to by the parties whereupon the Court may endorse any agreement of the parties either with or without any modifications as to the finalization of the proceeding or make such orders and issue such directions as are necessary to expedite the matter to trial if not fully resolved by mediation.

23. Where some or all of the issues in the proceeding do not settle, the mediator shall submit Form 1 or 2 to the court within 3 days of the conclusion of the mediation process.

24. Subject to the outcome of the mediation, the costs of today shall be costs in the cause.

25. The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

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Solicitor General: Lawyer for the Plaintiff/Applicant
Young Wadau Lawyers: Lawyer for the Defendant/Respondent: