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O.M. Holdings Ltd v Minimbi [2013] PGNC 363; N6783 (19 September 2013)

N6783

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 747 of 2013

BETWEEN:
O.M. HOLDINGS LIMITED trading
as CENTRAL AVIATION
Plaintiff

AND:
SENIOR CONSTABLE
NOKI MINIMBI
First Defendant

AND:
TEDDY TEI, Assistant
Commissioner of Police-Highlands Region
Second Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant

AND:
VERTOL SYSTEMS COMPANY INC.
Fourth Defendant

Waigani: Hartshorn J
2013: 17^th, 19^th September

Application to dismiss proceeding – whether there has been a voluntary submission to the jurisdiction of the court

Cases Cited:

Papua New Guinea Cases

Nil

Overseas Cases

Rubin & Anor v. Eurofrance SA & Ors [2012] UKSC 46

Counsel:

Mr. W Frizzell, for the Plaintiff

Mr. K. Pato, for the Fourth Defendant

19^th September, 2013

1. HARTSHORN J: The fourth defendant, Vertol Systems Company Inc. (Vertol Systems) applies for amongst others, this claim or proceeding against it to be dismissed and that its aircraft registration P2-OMA (aircraft) be released into its custody. The plaintiff, O.M. Holdings Limited trading as Central Aviation (Central Aviation) opposes the application.

Background

2. Central Aviation commenced this proceeding against the State and members of the Police, in regard to the seizure of the aircraft. Vertol Systems successfully applied to be joined as the fourth defendant to the proceeding.

3. Central Aviation leases the aircraft from Vertol Systems pursuant to a lease agreement dated 20^th November 2011 (Lease).

This application

4. Vertol Systems contends that clause 50 of the Lease provides amongst others, that it be construed in accordance with the laws of New Zealand and that the Courts of New Zealand shall have jurisdiction over all disputes which may arise under the Lease. Further, under clause 50, only Vertol Systems has an election to proceed against Central Aviation in the courts of any country and Vertol Systems has made an election to proceed against Central Aviation in New Zealand and not in Papua New Guinea.

5. Vertol Systems contends that it terminated the lease on 1^st July 2013. Pursuant to clause 33 of the Lease, upon termination of the Lease, Central Aviation should deliver the aircraft to Vertol Systems in Hamilton, New Zealand, but it has not.

6. Vertol Systems submits that the proceeding should not have been commenced in Papua New Guinea as Central Aviation had agreed pursuant to clause 50 of the Lease that all disputes which may arise under the Lease, should be commenced in New Zealand.

7. Vertol Systems makes application pursuant to Order 7 Rule 7 (2)(a) and Order 12 Rule 1 National Court Rules. Order 7 Rule 7 (2)(a) provides amongst others, for a defendant to serve a notice of motion to set aside service or to discharge an order authorizing service. That is not what Vertol Systems is applying for here and so this Rule is unable to be relied upon for the relief that Vertol System seeks.

8. Order 12 Rule 1 National Court Rules, in essence allows this court at any stage of the proceedings on the application of any party to make such orders as the nature of the case requires notwithstanding that the applicant does not make a claim for those orders in the originating process. Counsel for Central Aviation did not oppose the reliance by Vertol Systems on this provision and I am satisfied that it is able to be relied upon for the relief that Vertol Systems seeks.

9. Central Aviation submits that Vertoll Systems is estopped from asserting that this court does not have jurisdiction because of clause 50 of the Lease, as Vertol Systems has voluntarily submitted to the jurisdiction of this court by filing a notice of motion and then an amended notice of motion seeking amongst others, to be joined as a party to the proceeding. That application was successful and Vertol Systems is the fourth defendant to this proceeding. Further, when making the application for joinder, Vertol Systems did not protest the jurisdiction of this court.

10. The general rule on whether there has been a waiver of the right to object to the jurisdiction of a court, or put another way, when there has been a voluntary submission to the jurisdiction of a court, was recently referred to in the United Kingdom Supreme Court decision in Rubin & Anor v. Eurofrance SA & Ors [2012] UKSC 46. Lord Collins said at paragraph 159.

“159. The general rule in the ordinary case in England is that the party alleged to have submitted to the jurisdiction of the English court must have “taken some step which is only necessary or only useful if” an objection to jurisdiction “has been actually waived, or if the objection has never been entertained at all”: Williams & Glyn’s Bank plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438, 444 (HL) approving Rein v. Stein (1892) 66 LT 469, 471 (Cave J).”

11. A decision of the United Kingdom Supreme Court, the former House of Lords, is persuasive in this jurisdiction. Vertol Systems submits that it only applied to become a party to this proceeding as if was concerned to protect its asset, the aircraft. It had no intention of submitting to the jurisdiction of this court by making the application.

12. I note however that the successful application for joinder is not the only step that Vertol Systems has taken in this proceeding. Vertol Systems also filed a notice of intention to defend on 5^th August 2013 and a, “Conditional Defence to the Amended Statement of Claim and its Cross Claim against the plaintiff” on 23^rd August 2013. It also filed the amended notice of motion presently under consideration and a notice of motion on 21^st August 2013 seeking similar relief to that now being sought.

13. To my mind, the filing of a defence, conditional or otherwise, (I mention that I am not aware of a Rule that provides for the filing of a conditional defence), and in particular, the filing of a cross claim, constitutes the taking of a step which is only necessary or only useful if an objection to jurisdiction has been waived, or if the objection has never been entertained at all.

14. In my view, it was not necessary for Vertol Systems to file a cross claim in this proceeding if it were to object to the jurisdiction of this court. By filing a cross-claim, I am satisfied that Vertol Systems has voluntarily submitted to the jurisdiction of this court.

15. I also refer again to Order 7 National Court Rules. Order 7 (1) provides that:

“The giving of a notice of intention to defend does not constitute a submission to the jurisdiction of the Court.”

16. Order 7 Rule (2) provides that a defendant is entitled, either before giving a notice of intention to defend or within fourteen days after giving that notice, to serve a notice of motion to set aside the service on him of the writ or of notice of the writ or to discharge the order authorizing the service, on certain specified grounds, one of which is (a), that this court has no jurisdiction to determine all or part of the plaintiff’s claim.

17. Here, Vertol Systems has not filed or served such a motion, whether within fourteen days of giving a notice of intention to defend or to date. Consequently, pursuant to Order 7 Rule 7 (2) it is unable to rely on the ground that the court has no jurisdiction to determine all or part of the plaintiff’s claim.

18. Given the above, it is not necessary for me to decide whether Vertol Systems voluntarily submitted to the jurisdiction of this court by successfully applying to be joined as a party.

19. Consequently, as I have found that Vertol Systems has voluntarily submitted to the jurisdiction of this Court in this proceeding, it is not entitled to the relief it seeks in paragraph 1 of its amended notice of motion.

20. As to the alternative relief sought in paragraph 1A of the amended notice of motion, that the claim against Vertol Systems be dismissed for disclosing no cause of action pursuant to Order 12 Rule 40 and Order 8 Rule 27 National Court Rules, I think it unusual for a party that has successfully sought to be joined, to then seek to have the claim against it only, to be dismissed.

21. In any event, from a perusal of the amended statement of claim, it is amended in paragraphs 10 and 11 that there are breaches of the Civil Aviation Rules and Civil Aviation Act 2000 by Vertol Systems and damages are sought against it. I am satisfied that a reasonable cause of action is disclosed.

22. As to the relief sought in paragraph 2 of the amended notice of motion, Vertol Systems seeks dispensation from the requirements of Order 6 Rules 33 and 34 National Court Rules, “and others” on the service of legal proceedings in Papua New Guinea of foreign proceedings, in respect of certain New Zealand Court proceedings.

23. Order 6 Rules 33 and 34 are in Division 4 of Order 6 National Court Rules. Order 6 Rule 32 provides that Division 4 applies, where a letter of request from the court or tribunal is received by the Registrar whether pursuant to a convention which has been extended to Papua New Guinea or otherwise from a proper authority.

24. There is no letter of request from a New Zealand Court said to have been received by our Registrar in evidence, and counsel for Vertol Systems did not refer to such a letter. Consequently, the relief sought in paragraph 2 of the amended notice of motion is refused. The application for this relief in my view, with respect, was misconceived.

25. As to the relief sought in paragraph 3 of the amended notice of motion, this relates to the service of New Zealand Court originating process in Papua New Guinea. In the absence of a request from a New Zealand Court or tribunal to our Registrar concerning service of New Zealand Court proceedings, one would have thought that Vertol Systems has to serve New Zealand proceedings outside of New Zealand in a similar manner to that provided for Papua New Guinea court proceedings being served overseas, as provided for in Order 6 Rules 19 and 20 National Court Rules. This relief should be refused.

Orders

26. The Orders of the Court are:

a) All of the relief sought by the fourth defendant in its amended notice of motion filed 29^th August 2013 is refused;

b) The costs of and incidental to the amended notice of motion of the plaintiff are to be paid by the fourth defendant;

c) Time is abridged.
________________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Posman Kua Aisi Lawyers: Lawyers for the Fourth Defendant