Duwa v Senge [1995] PGNC 110; [1995] PNGLR 140 (28 September 1995)

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PRACTICE AND PROCEDURE - Discovery - Notice for discovery - Notice to produce documents - Striking out in default of production - Notice for discovery served before close of pleadings - When action under the Rules amounts to abuse of process - Rules of the National Court - O 8 rr 51, 52 - O 9 rr 1, 2, 5, 6, 10, 14, 15.

The plaintiff served a notice to produce documents on the defendant in respect of documents listed in the defendant’s list of documents. The plaintiff had previously served a notice for discovery on the defendant before the close of pleadings contrary to O 9 r 1 of the Rules of the National Court. The plaintiff sought an order striking out the defence and the cross claim of the defendant, he having failed to provide the documents requested in the notice to produce because they were not in his possession.

The Court addressed the questions whether (1) the conduct of the plaintiff in seeking production of documents which he knew were not in the possession of the defendant amounted to an abuse of process; and (2) an order to strike out pleadings should be made in favour of a plaintiff who was himself in breach of the Rules of the National Court.

The plaintiff acted in breach of the Rules of the National Court in serving a notice for discovery before the close of pleadings. His lawyer’s action in seeking orders for th eproduction of documents which he knew were not in the possession of the defendant amounted to harassment and an abuse of process. The application to strike out should be dismissed.

SAKORA J: This is an application by the plaintiff pursuant to a notice of motion filed 1 May 1995 seeking orders under O 9, r 15 of the National Court Rules (NCRs) because of breach of rule 9 of the same Order. It is argued in this respect, therefore, that the default provisions available under the first-mentioned rule should be accorded the plaintiff and the defendant’s defence and counter-claim struck out and judgment entered in favour of the plaintiff (r 15(1)(b)).

The defendant is being sued upon an alleged oral agreement, for the purchase (by the defendant from the plaintiff) of a business known as Alice's Food Bar in the city of Lae.

It will assist later discussions in the determination of this application if a brief outline of the history of these proceedings is given in chronological order at this juncture. And I do so in the following manner:

N2>* The originating process, writ of summons 196 of 1994, was issued out the registry of the National Court of Justice on 11 April 1994.

N2>* The defendant duly filed his notice of intention to defend (dated 16 June 1994) on 20 June 1994.

N2>* On 18 July 1994 the defendant filed his request for further and better particulars.

N2>* The plaintiff’s lawyers filed a notice for discovery (dated 25 July 1994) on 29 July 1994. This date for filing is contrasted with the date of 3 August 1994 deposed to by Mr Ousi in his affidavit of 10 April 1995.

N2>* The notice for discovery elicited from the defendant a list of documents (dated 12 August 1994) which was filed on 16 August 1994.

N2>* On 18 August 1994 the plaintiff’s lawyers filed his answers to the request for further and better particulars. On this day also was filed his defence to the counter-claim.

N2>* Between August and November 1994 the plaintiff’s lawyers wrote to the defendant on three occasions requesting copies of documents on the defendant’s list of documents: 19 August, 26 September and 12 October. These correspondence are identified as Annexures ‘A’, ‘B’ and ‘C’ respectively to the 10 April 1995 affidavit of Mr Ousi.

N2>* Annexure ‘D’ to the abovementioned affidavit is the 21 October 1994 response of the defendant to those repeated requests for copies.

N2>* The plaintiff’s notice to produce documents was not filed till 28 October 1994 (over two weeks after the last of those repeated letters of request) and it was not served on the defendant till 15 November 1994.

N2>* The repeated requests of 1994 for copies renewed in two more letters to the defendant in 1995: of 6 January and 8 February (Annexures ‘E’ and ‘F’ to the abovementioned affidavit), the latter giving him 30 days to comply, otherwise application pursuant to O 9, r 15 NCRs (this application) would be made.

N2>* Annexure ‘G’ is the 31 January 1995 response of the defendant to those requests.

N2>* The plaintiff’s lawyers then filed a notice of motion on 1 May 1995 seeking those orders under O 9, r 15 NCRs.

N2>* The defendant filed his notice of intention to defend (to the notice of motion) on 10 May 1995.

N2>* On 22 May 1995 the defendant filed a notice of amendments to the list of documents.

The alleged default of the defendant relied upon here is non-compliance with the procedural requirements under O 9, r 9 NCRs. The rule reads as follows:

(1) Where a pleading or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him, require him to produce the document for inspection.

(3) Where a notice to produce a document is served on a party under sub-rule (1) of this Rule, he shall, within four days after the service, serve on the party requiring production a notice:

(a) appointing a time within seven days after service of the notice under this sub-rule when, and a place where, the document may be inspected ...;

(b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege, or

(c) stating that the document is not in his possession, custody or power and stating to the best of his knowledge, information and belief where the document is and in whose possession, custody and power it is.” (underlining mine)

Now, the due compliance with the requirements of sub-r (3) of r 9 is dependent upon, or pre-supposes, the occurrence of due notice under sub-r (1). Thus, if there is no notice to produce, in accordance with Form 32 NCRs, a party is not legally and procedurally obliged to do anything at that stage. Furthermore, a party can only produce a document that is in one’s possession, custody or power. That is when it can properly be said to be discoverable: accessible (physically) to the requesting party and relevant to the issues thrown up by the claim, counter-claim or defence. Otherwise, the situations envisaged under sub-rule(3)(b) and © of the Rule exist. Production of documents under r 9 is for the purpose of enabling the requesting party to inspect those documents and, if necessary, make copies of them. So it is envisaged that the discoverable documents will be both original and readily accessible. Lost documents cannot be discovered through inspection., nor can privileged documents.

What documents have the plaintiff’s lawyers been requesting repeatedly and persistently here ? The documents are purportedly from the list furnished by the defendant (dated 12 and filed 16 August 1994, referred to above). And this list was compiled as a direct consequence of his being served with a notice for discovery. I must note here that it was at this juncture of the pleadings that in my opinion, the plaintiff’s lawyers began misconceiving certain procedural requirements and defaulting in some under the NCRs themselves. As a start they misconceived what Woods J. referred to as automatic discovery in his decision in Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11. They served on the defendant a Notice for Discovery (filed 29 July 1994) before they filed the plaintiff’s Answers to the defendant’s request for further and better particulars, and before they served notice to produce cocuments (filed 28 October 1994).

The point being made here is that the plaintiff’ lawyers proceeded to automatic discovery long before pleadings had closed. Order 9, rule 1 NCRs is in the following terms:

(1) Subject to this Rule where the pleadings between any parties are closed, any of those parties may, by notice for discovery in Form 30 filed and served on any other of those parties, require the party served to give discovery of documents, with or without verification.” (underlining mine)

Sub-rule (3) provides that automatic discovery under this Rule does not apply to proceedings dealing with claims arising out of death of, or bodily injury to, any person for contribution in respect of damages so arising. This premature and misconceived notice for discovery elicited from the defendant the list of documents. Under the NCRs, as well as automatic discovery (under Order 9, rule 1), there is procedure for general discovery pursuant to an order of the Court. Order 9, r 5 reads as follows:

The Court may, at any stage of any proceedings, order any party to file and serve on any other party:

(a) a list in accordance with r 6 of this Order of documents relating to any matter in question in the proceedings., or

There has been no Court order in this proceedings requiring the defendant to compile, file and serve any list of documents on the plaintiff. And, as there is no Court order as envisaged under r 5, and, as automatic discovery under r 1 was misconceived and, in any case, premature, the defendant was never legally and procedurally obliged to produce a list of documents, to give discovery under r 2. Moreover, as he was, and still is, not legally obliged in this respect, he was and still is not legally obliged to comply with the notice to produce filed by the plaintiff. Because the list that the plaintiff relies upon here was the product of a misconceived pleadings (without the due authority of a Court order). But, even if the list were procedurally and legally part of the pleadings in this case (which it is not), what is the actual status and significance, if any, of its contents? It is necessary to reproduce the list in full here:

“Pursuant to notice filed on 29 July, 1994, the defendant/cross claimant says:

1. The plaintiff/cross-defendant have (sic) in his possession, custody or power, the documents enumerated in Part 1 of Schedule 1 supplied to him for payment by the defendant/cross-claimant.

2. The documents enumerated in Part 2 of Schedule 1 are privileged from production on the ground.

(a) The said documents comprise documents coming into existence in pursuance of this action and comprise letters, advice communications between Solicitors and Client.

3. The defendant/cross-claimant have had (sic), but does not now have, in his possession, custody or power, the documents enumerated in Schedule 2.

4. The documents referred to in paragraph 3 were last in the defendant’s/cross-claimant’s custody on the dates appearing on each of those documents entry which the defendant/cross-claimant now do not have (sic) access to.

5. To the best of the plaintiff (sic) / cross-claimant knowledge, information and belief neither the defendant/cross-claimant nor his Solicitor nor any other person on his behalf have now, or ever had, in their possession, custody or power, any document relating to any matter in question between the plaintiff/cross-defendant and the defendant/cross-claimant other than the documents enumerated in the said Schedules 1 and 2.

N2>1. Copy of the invoice from Prima Small Goods to the plaintiff/cross-defendant dated the month April, 1991.

N2>2. Copy of the invoice from Burns Philp Freezer to the plaintiff/cross-defendant dated the month of April, 1991.

N2>3. Copy of the invoice from Coco-Cola Bottlers to the plaintiff/cross-defendant dated the month of April, 1991.

N2>4. Copy of the invoice from Boral Gas to the plaintiff/cross-defendant dated the month of April, 1991.

N2>5. Copy of the invoice from Sullivances (sic) Wholesale Store to the plaintiff/cross-defendant dated the month of April, 1991.

N2>6. Copy of the electricity bill from Papua New Guinea Electricity Commission to the plaintiff/cross-defendant dated the month of June, 1991.

N2>7. Copies of the rental invoices from Tevon Real Estate to the plaintiff/cross-defendant dated the months of June and July of 1991.

N2>8. The business daily cash record book operated and kept by the plaintiff/cross-defendant for the period 3^rd April 1991 to 31^st July, 1991.

N2>9. The Westpac Bank Cheque Account Deposit Book for the Account Number 0270018916/601 under the name of Aisip Lenge Duwa family account for the period 3^rd April 1991 to 31^st July, 1991.

Notes, briefs, advices, witness Statements, Correspondence passing between the defendant/cross-claimant and the defendant’s/cross-claimants (sic) solicitors and legal advisers and coming into existence as a result of or in contemplation of those proceedings.

N2>1. Copy of the lease agreement between the landlord Paul Biro and the defendant’s/cross-claimant’s wife late Alice Senge indicating the monthly rental rated and the amount of bond fee payable by the lessee.

N2>2. Copies of the original documents referred to above which bear the date on the face thereof and the original of which are believed to be in the possession of the persons to whom they were addressed to.

What becomes immediately obvious from a perusal of the list (the explanatory paragraphs 1-5 and the contents of the two schedules) is that the original documents that are or may be relevant to the determination of this case are not, or never have been, or no longer, in the possession, custody or power of the defendant. It is asserted by the defendant that these are in the possession, custody or power of the plaintiff. And the other documents comprised in Part 2 of the first schedule are claimed to be privileged documents. The defendant goes on and states the grounds of his claim to privilege. He repeats these claims and assertions in his later correspondence with the plaintiff’s lawyers in direct response to their repeated requests for production of copies (without having, in the first instance, served him a notice to produce as required). He further repeatedly explains that any copies of those documents that were, or may have been, in his possession, custody and power previously are no longer accessible to him now (he gives reasons). There is no claim by the defendant in his list of documents (as asserted by the plaintiff’s lawyers) that he had in his present possession, custody and power any original documents touching upon this matter. Rather, he claims and asserts those are in the possession, custody and power of the plaintiff.

Thus, the repeated requests through correspondence between August and November 1994, renewed in January and December 1995, were without legal justification. The proper procedure under O 9, r 9 (1) had not been resorted to. And, it would seem in the continued spirit of misconceived procedures under the NCRs, not to mention the non-compliance with certain aspects of those Rules, the plaintiff’s lawyers avoided r 10 and went direct to r 15. Rule 10 makes provision for production to be ordered by the Court, so long as the document is in the possession, custody or power of the party being ordered, and, further, that the document is not privileged from production.

Perhaps if the plaintiff’s lawyers had had resort to the r 10 procedure, the Court would then have unearthed the actual situation regarding the contents of the list, and would have found it unnecessary to make an order for production by virtue of Rule 14, which reads:

The Court shall not make an order under this Division for the filing or service of any list of documents or affidavits or other documents, or for the production of any document unless satisfied that the order is necessary at the time when the order is made.”

Knowing full well the list did not contain any relevant documents in the then possession, custody and power of the defendant, and that any copies that he may have had of them previously were no longer available or accessible, the plaintiff’s lawyers manipulated the procedures under the NCRs and bombarded him with unjustified and unmeritorious requests (and threats to use the default procedures). If this did not, and does not, under the circumstances, constitute blatant abuse of the procedures and processes, then I do not know what else it could have been.

And, after all these, Mr Ousi is prepared to submit that the defendant’s amended list of documents (filed 22 May 1995) does not comply with the NCRs because he says no application had been made to the Court for grant of leave to amend. If the list filed on 16 August 1994 had been by order of the Court envisaged by r 5 (which it was not), the list as filed did comply with the requirements of r 6 (contents of list). Even if it did not comply (particularly in relation to the order of its contents, as suggested by Mr Ousi), the amended list would have rectified the deficiency.

The amendment merely restates the claims and explanations in the original list and in the correspondence. Division 4 of Order 8 NCRs deals with amendments to pleadings. Order 8, r 51 reads as follows:

(1) A party may, without leave, amend any pleading of his once at any time before the pleadings are closed.” (underlining mine)

The pleadings had not closed in these proceedings. So the defendant had no need to apply for leave. Mr Ousi’s submissions in this respect are without merit. Even if leave were necessary, the plaintiff’s lawyers had not taken any action, any steps, on their own part, to have the Court disallow the purported amendment as envisaged by the very next provision, r 52.

Master Jacob makes the point that it is the function of pleadings to inform the court of the matters in dispute between the parties and to define the issues between them. He goes further and emphasises:

“Without pleadings, the court is left to grope for the questions in between the parties, and must somehow require the parties to frame the questions for decision. In this sense, there is in civil litigation an overriding need for pleadings whereby the issues between the parties, upon which alone the court can adjudicate, can be raised speedily, clearly and precisely. ”: Sir Jack I H Jacob, The Reform of Civil Procedural Law, Sweet & Maxwell, London (1982), p. 245. (underlining mine)

The learned author and distinguished practitioner states the following as the guiding principles for rules of procedure which he says, and I respectfully adopt, would best serve the needs of society: that they should be designed to achieve (i) the minimising of delay; (ii) the minimising of expense, and (iii) the maximising of effectiveness. To this end, therefore, pleadings must result in the clear definition of issues in the case, and the elimination, where possible, of any element of surprise at the trial, so that each party is then aware of the case he has to meet.

And one of the most important processes of the pre-trial procedure employed in an endeavour to achieve those aims is that of discovery. In ordinary parlance discovery is the ascertainment of that which was previously unknown. In procedural law, it is one of those pre-trial “devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial. See: Black’s Law Dictionary. In actions begun by writs, lists of documents must be served by each party after close of pleadings, and any party entitled to have discovery may serve a notice requiring an affidavit verifying the list of documents. See: Osborn’s Concise Law Dictionary. This is of course reflected in our NCRs., and O 9, rr 6 (contents of list) and 9(3) b) further reflect an accommodation between full and open discovery, and safeguard against unwarranted intrusions into the opponent’s files.

In the South Australia case of Donaldson v Harris and Hamood (1973) 45 SASR 299, Wells J. took the opportunity to trace briefly the origins of the development of procedural rules on discovery from the old common law emphasis on “the system of litigation by antagonists” Thus, one of the essential features of discovery, deriving as it does from the equitable rules of the former Court of Chancery, is fairness. Its function is to ensure, not only that so far as possible there should be no surprises at the trial, but also that, before the trial, each party should be informed or be capable of becoming informed of all the relevant material evidence, whether in the possession of the opposite party or not, so that he can make an intelligent appraisal of the strength or weakness of the respective cases of the parties either for the purpose of the trial or for the purpose of arriving at a fair or favourable settlement or compromise. See: Aronson Reaburn Weinberg, Litigation: Evidence Procedure (2^nd ed), Ch.8. The learned authors add that the process of discovery also has the effect of producing procedural equality between the parties, which may perhaps be, as they say, another aspect of fairness. I respectfully adopt these principles.

They go on to say that since, perhaps naturally, neither party would willingly or voluntarily make such disclosure to his opponent, the obligation to do so must be imposed upon him either by the rules or by orders of the Court. As discussed earlier this is very much reflected in our NCRs: automatic discovery (O 9, r 1) and Order for general discovery (O 9, r 5). Thus, the procedural requirements in this respect should make it difficult for parties to withhold relevant information from each other until the trial. This system of pre-trial procedure is intended to prevent a trial being or continuing to be somewhat of a chance or a game because the parties are left in ignorance of each other. See: Sir Jacob (supra, 37).

The case of Credit Corporation (PNG) Ltd v Gerald Jee (supra) was relied upon by Mr Ousi for the plaintiff’s case here. That case involved a default by the defendant in not responding to a notice for discovery pursuant to r 1 - automatic discovery after close of pleadings, without a Court order as envisaged by r 5. The process was properly availed of there by the plaintiff and, therefore, there was a clear non-compliance with the NCRs justifying the striking out of the defence and the entering of judgment for the plaintiff. The situation is not the same in this case. That case, however, is relevant and pertinent here only for the brief but useful exposition of the principles and purpose of discovery. I respectfully adopt Woods J’s discussions there, as I do also the cases he refers to (pp.12-13) as supporting my own discussions here and the conclusion I reach.

Mr Ousi, in his submissions, referred me also to the case of Wenam Elkum v PNG [1988-89] PNGLR 662. In that case His Honour Acting Justice Brunton (as he then was) was dealing with a general defence that had been filed merely to comply with the time limitation periods and which was specifically prohibited by O 8, r 28 NCRs. The comments His Honour made there when striking out the purported defence, were suggested as being applicable to the alleged default by the defendant here. For instance, His Honour said this on page 665 of his judgment:

“Pleadings are not devices which those with long pockets can manipulate and gain unfair advantages over their adversaries. To do so is to abuse the process of the Court and to run the risk of having the offending pleading struck out. ”

His Honour also described the tactics employed by the lawyers for the State in that case as being (p.665):

“A tactic of litigation by attrition: a corporate defendant such as the State with its lawyers on fixed salaries digs in its toes and forces the plaintiffs to prove their case. The plaintiffs, who have to pay private lawyers their solicitor - client costs, are thus pressured to discontinue or curtail their action or make concessions on purely economic grounds, irrespective of the legal merits of their cases.”

I am in complete agreement with His Honour’s comments, just as I am with the words of the learned Deputy Chief Justice in Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 that he refers to (at p 302): “The purpose of pleading is to set out clearly the issues; not only to inform the other party but the Court as well.”

But I do fail to see how these comments, expressing well-established principles, could be said to apply to the defendant’s situation here. If anything, they are more relevant and applicable to the course of action embarked upon by the plaintiff’s lawyers here with the resulting procrastination of the case. It is my opinion that the plaintiff’s lawyers used the procedures under O 9, r 9 as a tool of harassment against the defendant, knowing full well he was not in the physical possession, custody or power of those documents. This is on top of their breach of other rules under O 9, discussed earlier.

There has, therefore, in my opinion, been an abuse of the processes of the Court here by the legal representatives of the plaintiff. They are not, therefore, coming to this Court on behalf of the plaintiff with clean hands in the terminology of equity.

The powers vested in the Court by O 9, r 15 are discretionary. And before I can exercise that discretion in favour of the plaintiff as sought here, I must be satisfied that the defendant committed breach of O 9, r 9. In the light of the foregoing discussions and the principles relied upon here, I find no breach of the NCRs by the defendant as Mr Ousi contends. By filing and serving a Notice for Discovery in breach of Or 9, r 1 NCRs, the plaintiff’s lawyers harassed the defendant with persistent requests for the so-called copies, and proceeded to issue Notice to Produce after by-passing r 5, and, after ignoring rr 10 and 14 NCRs., they come to Court seeking relief under r 15. Who is in breach of the NCRs here? Who has caused the delays here? These cannot be attributed to the defendant. I, therefore, dismiss the plaintiff’s application with costs.

And as these proceedings have, in my opinion, demonstrated the existence of contestable issues for proper determination by the Court, I make the following orders:

N2>3. The plaintiff file and serve on the defendant a list of documents relating to the matters raised in this proceedings, pursuant to O 9, r 9, NCRs.

N2>4. Parties proceed from the last-mentioned Order towards final determination of the case in accordance with the NCRs.

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National Court of Papua New Guinea

Duwa v Senge [1995] PGNC 110; [1995] PNGLR 140 (28 September 1995)

PNG Law Reports 1995