H & R Transporters Pty Ltd v Govo; H & R Transporters Pty Ltd v Banz Motors [1978] PGNC 1; N126 (21 March 1978)

Unreported National Court Decisions

N126

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. 50 OF 1977

W.S. 540 OF 1977
H. & R. TRANSPORTERS PTY. LTD.
V
B. GOVO AND F.R. THIELE
H. & R. TRANSPORTERS PTY. LTD.
V
BANZ MOTOR INDUSTRIES LIMITED

Waigani

Raine DCJ
21 February 1978
21 March 1978

UNCERTAINTY AS TO WHICH PARTY SHOULD BE JOINED AS DEFENDANT IN VEHICLE ACCIDENT CASE - application to consolidate actions - Order LXI Rule 5 Supreme Court Rules - whether consolidation appropriate - Order XLI Rule 3 - deponents stating knowledge of facts only gained from information and belief - whether admissible in truly interlocutory proceedings.

RAINE DCJ: This is anication to consoconsolidate the above actions under Order LXI Rule 5 of the Supreme Court Rules. The two actions arise out of a motor vehicle accident on 8th Ma1975. The plaintiff claims it suffered property damage.

.

The facts are fully set out in Mr. Cartledge’s affidavits of 21st and 24th January 1978. A number of the paragraphs therein have been objected to by Mr. Evans of Counsel for the respondent defendants. He complains that these paragraphs are hearsay, and are not within the knowledge of Mr. Cartledge and that the sources of Mr. Cartledge’s knowledge should be put on affidavits, namely police, search clerks, the insurance adjuster and so on.

But this is a truly interlocutory application, the sources of the information and the nature of that information are now adequately set out in the second of Mr. Cartledge’s affidavits and between the first and the second affidavits the respondents are put fully in the picture.

These affidavits are covered by Order XLI Rule 3. It reads:

“Affidavits shall be confined to facts to which the deponent is able to depose of his own knowledge, except in the cases specially provided for by these Rules, and except in the cases of affidavits used on interlocutory motions or applications, in which statements as to the belief of the deponent, giving the sources of his information and the grounds of his belief, may be admitted. The costs of any affidavit which unnecessarily sets forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, may be disallowed on taxation.”

I admit the paragraphs objected to.

Mr. Evans opposes the order sought for consolidation of the actions. Consolidation is sought because, through no fault of the plaintiff or its solicitors, it is most doubtful who should be sued. There is no problem about the driver Govo, but presumably he has no money, and if, as might be the case, the vehicle he drove is not comprehensively insured, he will be unable to pay the verdict, if one is recovered. No doubt he is joined simply to get in his admissions as a party. Were he not a party his admissions would not be admitted as agent of his principal.

At one stage Mr. Cartledge tried to add Banz Motor Industries Limited as a defendant in the earlier action. However, he was frustrated by various problems and abandoned the attempt.

At first blush I found this an unusual sort of application for consolidation. The more usual case one sees is exemplified, as Mr. Evans reminded me, by a series of actions brought by him in respect of allegedly pirated cassette tapes being sold all over this country. Being pirated the overhead is negligible and the retail cost low. Mr. Evans acts for the plaintiff, a major cassette producer and distributor. That might well be a case for consolidation, at least, so far as liability is concerned. Or possibly all but one of the actions might be stayed, that one case being the test case.

As I said, at first I was troubled about this application. However, on reflection, I see no good reason to deny the application. The causes of action are the same. The causes of action arise out of one road accident. Whoever is the defendant the damages are the same. The trial judge will be able to deal with the question of costs. I note, however, that Mr. Evans appears for all the defendants. The balance of convenience is all Mr. Cartledge’s way. I see no embarrassment in the conduct of the case. In my home State of New South Wales I often appeared in cases where a number of defendants were joined by the plaintiff in road accident claims for damages where the plaintiff was in doubt against whom he might succeed within the meaning of sec.2(1) (c) of the Law Reform (Miscellaneous Provisions) Act of 1946 (N.S.W.). Whilst this used to lead to a certain amount of “cut throat” amongst the defendants, or to unholy alliances between one of the defendants and the plaintiff, they were perfectly easy cases for a judge and counsel to run. Lastly, I see no difficult questions of law raised by consolidation.

Thus I make the order for consolidation as asked for in the Notice of Motion dated 24th January, 1978. The applicant plaintiff has succeeded, but I apprehend, if there is separate representation at the trial, that there could be some discussion as to costs. I therefore order, as suggested in the Notice of Motion, that costs be costs in the cause.

In conclusion, I thank whichever of the two counsel it was, I think Mr. Evans, for the reference to Professor Williams’ Practice of the Supreme Court of Victoria in its Civil Jurisdiction, 2nd Edn. pp.2175 to 2179, where consolidation is discussed, if I might say so, much better, and much more authoritatively, than elsewhere.

Solicitor for the applicant plaintiff: McCubbery Train Love & Thomas

Counsel: G.J. Cartledge

Solicitor for the respondent defendant: Gadens

Counsel: G.B. Evans