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Ketan v Gilichibi [2021] PGNC 609; N9536 (29 September 2021)

N9536

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 43 OF 2020

BETWEEN
ROGER KETAN
Plaintiff

AND
CHARLIE GILICHIBI in his capacity as the CHIEF EXECUTIVE OFFICER OF THE COMRADE TRUSTEE SERVICES LTD
First Defendant

AND
DARUSILLA MUSI in her capacity as the HUMAN RESOURCE MANAGER OF COMRADE TRUSTEE SERVICES LTD
Second Defendant

AND
COMRADE TRUSTEE SERVICES LTD
Third Defendant

AND
TOEA HOMES LTD
Fourth Defendant

Waigani: Tamade AJ
2021: 22^nd September

PRACTICE AND PROCEDURE – application to strike out defence for non-compliance of court rules – defence signed by lawfirm instead of lawyer - Plaintiff’s are neither worse off nor are they better off given this strict adherence of the signing of the Defence by the Law firm representing the Defendants - Plaintiff has not shown any reason where they are prejudiced by this irregularity - Plaintiff in reality is in as good a position as if the rules had been complied with, and also that the Plaintiff is not disadvantaged in regard to its rights in the matter –

PRACTICE AND PROCEDURE - Defendants should not be denied an opportunity to defend the matter and therefore in the interest of justice – Plaintiffs application is refused – costs in favour of defendants

PRACTICE AND PROCEDURE - counter application by Defendants seeking orders to remove First, Second and Fourth Defendants as parties to these proceedings - The contract of employment that the Plaintiff alleges he was employed by was with the Third Defendant and that the other Defendants have been unnecessarily dragged into these proceedings – first, second and fourth defendants removed as parties to proceedings – defendants application granted – costs in favour of defendants

Cases Cited:

Price v Lightfoot [2004] PGNC 260; N2509
Anthony Polling v Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 228
Keindip v Independent State of Papua New Guinea [1993] PNGLR 28

Counsel

Mr. J Siki, for the Plaintiff
Mr. B Geita, for the Defendants

29^th September, 2021

1. TAMADE AJ: This is an application by the Plaintiff by way of a Notice of Motion filed on 9^th April 2021 seeking amongst other orders that the Defence filed by the Defendants be struck out for non-compliance of the rules as the Defence was signed by the law firm and not by the lawyer in carriage of the matter. The Plaintiff therefore seeks to struck out of the matter and that default judgment be entered for the Plaintiff as there is no defence filed as submitted.

2. The Plaintiff does not rely on any case law apart from relying on Order 12 Rules 1, Order 2 Rule 30 and Order 12 Rule 28 of the National Court Rules.

3. The Defendants however oppose the Plaintiff’s application and submitted that the Plaintiff has not made out a case for default judgment and or summary judgment by satisfying the requirements for the grant of either a default judgment or a summary judgment.

4. The Plaintiff submits that the Notice of Motion by the Defendants filed on 15^th September 2021 should not be filed as the Defendants do not have a proper defence filed in this matter.

Can a Defence which is signed off by a law firm be irregular in form?

5. This seems to be the Plaintiff’s complaint that the Defence by the Defendants filed 5^th February 2021 is defective as it was signed by Resolution Legal as Lawyers for the Defendants however it was not signed by the lawyer having carriage of the matter.

The law

6. The Plaintiff relies on Order 2 Rule 30 of the National Court Rules which states that:

Signing of documents

A copy of pleading, summons, notice of intention to defend, notice of motion, notice of appeal, statement, request, requisition, undertaking, list, account, note or other notice to be filed or served by a party or other person in any proceedings shall be signed by his solicitor or by him, if he has no solicitor.

7. The Plaintiff submits that Order 2 Rule 30 is in mandatory terms because of the word “shall” and therefore the Defendants have failed to meet this requirement.

8. The Defendant’s Defence has a signature on top of the words “Resolution Legal”, “Lawyer for the Defendants”. Perhaps what the Plaintiff is complaining about is that the name of the lawyer in carriage of the matter should be specifically stated, for example, Joe Blo of XYZ Lawyers, Lawyers for the Defendants.

9. There is no point raised by the Plaintiff’s whether the signing of the Defence is prejudicial to the Plaintiff in prosecuting his claim, he simply asserts an objection merely on the form of the document which is the Defence and makes no reason on how he is prejudiced.

10. The Plaintiff relies on Order 12 Rule 1 of the National Court Rules which is in the following terms:

The Court may at any stage of the proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating proceeding.

11. The Defendants drew the Court’s attention to the combined effect of Order 1 Rules 7,8 and 9 of the National Court Rules which are in the following terms:

7.Relief from Rules

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

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 proceeding void, unless the Court so directs, but the proceeding 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.

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 reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity.

12. The case of Price v Lightfoot [2004] PGNC 260; N2509 (10 March 2004) is identical to this case in terms of the application by the Plaintiff and his complaints. Justice Sawong (as he then was) considered this very issue and the points of law that the Court has a wide discretion of powers considering Order 1 Rules 7,8 and 9 of the Rules. In those proceedings, the same complaint was raised in that the documents were signed by the name of the firm. The Court refused the application on the basis that the Court has the inherent power to dispense with the strict requirement of the rules.

13. In the case of Anthony Polling v Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 228, the Court held that “on an application to dispense with strict compliance with the Rules regard should be had, inter alia, to the interests of justice and the impact of the non-compliance on the parties with relevance to whether in reality the other party is in as good a position as if the rules had been complied with, or whether the party has been disadvantaged in regard to its rights in the matter.”

14. I am of the view that the Plaintiff’s are neither worse off nor are they better off given this strict adherence of the signing of the Defence by the Law firm representing the Defendants. The Plaintiff has not shown any reason where they are prejudiced by this irregularity. I am satisfied that the Plaintiff in reality is in as good a position as if the rules had been complied with, and also that the Plaintiff is not disadvantaged in regard to its rights in the matter.

15. Weighing out the interest of justice in this matter, a Defence has been raised, signed, and filed by the law firm representing the Defendants albeit short of the complete form however it is my view that, the Defendants should not be denied an opportunity to defend the matter and therefore in the interest of justice, I will refuse the application by the Plaintiff in this regard.

16. I have also considered the counter application by the Defendants that the First, Second and Fourth Defendants should be removed as parties to these proceedings. The contract of employment that the Plaintiff alleges he was employed by was with the Third Defendant and that the other Defendants have been unnecessarily dragged into these proceedings.

17. I therefore make these following orders:

(1) The Notice of Motion filed by the Plaintiff on 9^th April 2021 is refused.
(2) The First, Second and Fourth Defendants are removed as parties to these proceedings.
(3) The Plaintiff shall meet the Defendants costs of both applications heard.
(4) Time is abridged to the date of these orders to take effect forthwith.

Orders accordingly.
________________________________________________________________
Jerry Siki Lawyers: Lawyer for the Plaintiff
Resolution Legal Lawyers: Lawyer for the Defendants