Malori v Investment Corporation of Papua New Guinea [1996] PGNC 15; N1466 (12 July 1996)

Unreported National Court Decisions

N1466

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 888 OF 1995
ALOIS MALORI - PLAINTIFF
V
INVESTMENT CORPORATION OF PAPUA NEW GUINEA - FIRST DEFENDANT
AND
VAI REVA - SECOND DEFENDANT

Waigani

Sevua J
10 May 1996
12 July 1996

Counsel

Mr L Titimur for Plaintiff

Mr S Jubi for Defendants

12 July 1996

SEVUA J: Taintiff, by way of noticeotice of motion, seeks the following orders:

1. ټ&#D60; ltfault judgmjudgment against the defendants;

2. &##160;; T60; The sece second defendant&#8217tice tenti defend and defence be struck out; and

3. &#160  matter be dlaced in the nexe next over for aing datg date fore for damages to be assessed and other ordr orders.

To assist in the determination of this application, it isssaryutlinrief history of these hese proceproceedingedings in chronological order:

· ;ɘʔ Writ of SummoSummons issued out of the registry of the National Court, Waigani, 29 September, 1995.

· &##1160;& Servf the effeon feon both defendants ants throuthrough thgh their leir lawyerawyer same day (29 Septe 1995).<95).

· ـ;ټ&##160;ce ofce of Intention to defend by d by both both defendefendantsdants filed 27 October, 1995.

· ҈ &ـ1600; Defence for boor both defendants filed 10 November, 1995 1995.

· Replyhe plff oi4 Neremb995 1995.

· <҈ A6ended reply filed by play plaintiff 27 Nor, 19p>

· ټ&##160;;&160; 160; Notice for discoveredfiled by d by defendants 31 January, 1996 and served on plaintiff same day.

&ـ &##160; P60; Plaintif1Rli;s of t of documents filed iled 19 Ma19 March, 1996 and served on the defendants sam.

· Notice of chafge oyelawyerswyers filed by plaintiff 12 April, 1996 and served on the defendants same day. Eremas Andreevious lawyer wyer for plaintiff ceased to act for plaintiff and Kevin Latu Lawyers assumed carriage of this matter on behalf ofntiff. Counsel having carriage is this matter on record is Lawrence Titimur.

&

· Defendantsl17; ofst cumdocuments filed 12 April, 1996, but the plaintiff disputes this.

· ;ټ0;; Notn Motnd afit afit ofence Titimur filed byed by plai plaintiffntiff 18 A 18 April,pril, 1996 1996 and and serveserved on defendants same day. This e of n is resent appl application before me.

Th

The plae plaintiff claims that the defendants have defaulted in the filing of thest of documents pursuant to it’s notice for discovery filed and served on 29 Novemberember, 1995; therefore, in pursuance of Order 9, Rule 15 (1) (b), the defendants’ defence should be struck out and judgment in default entered in favour of the plaintiff.

Much of counsels’ arguments revolved on whether the defendants’ list of documents was filed on 12 April, 1996, as insisted by the defendants. As I said earlier,plaintifintiff disputes this fact and I will refer to the relevant affidavits on this issue a little later, but at this juncture, let me reiterate that the plaintiff’s notice for discoves filed and served on 29 No29 November, 1995, a little over 4 months before 12 April, 1996. Thaice for discovery requirequired both defendants to file their list of documents within 15 days of service. In this case, 15 daym 29 N 29 November, 1995 ex on 14 December, 1995. The defendant not comply mply mply with this. Why didn’t the plaintiff proceed diligently inying for default judgment? Instead, the piff conf conf consented to an extension of time for the defendants’ list of documentse filed on 4 April, 1996. This Courtes that this this this consent was given on 2 April, 1996 after the plaintiff was advised by facsimile that Mr Koiri, whom I assume, was acting for the defendants, was out of Port Moresby. Thendants were warned on 2 on 2 April, 1996 that if their list of documents were not filed and served by 4 pm on 4 April, 1996; the plaintiff would move for defaudgment.

On 10 April, 1996, Kevin Latu Lawyers took oook over carriage of this matter on behalf of the plaintiff from Mr Eremas Andrew and Mr Titimur advised the defendants accordingly in writing that day. He further ed them that that the plaintiff had consented to their request for a further extension of time to 12 April, 1996, for them to file and serve their list of docum It will be noted at this juncture that, the delays aays and requests for extension were being caused and made by the defendants, and the plaintiff was also readily consenting to these requests, but in my view, his former lawyer, Mr Eremas Andrew was, to a certain extent, responsible for this state of affairs.

Two days short of six months, from the day the plaintiff filed and served his notice for discovery, lawyers are still arguing about whether or not the defendants had filed their list of documents on 12 April, 1996. This is not good enough.&#gh. Whilst thintiff may have cave consented to these extensions thereby becoming a party to these procrastinations and prolonged delays, what sort of legal advice was he getting?

In my view, this stf affairs is just unsatisfatisfactory. It is the type of situathan that my learned brother Sakora J described in Riri & Riri v Nusai & ors, unreported, N1375, 9 October, 1995 as:

“too much lawyering and too much litigation.”

awyers must realise and appd appreciate that running back and forth with motions and applications does not assist their clients dispose of their cases diligently and at costs they can afford.

Sometimes, it is the lawyers who give bad and wrong advises to their clients so that there are inordinate delays, procrastinations, unnecessary prolonging of cases and at the end of the day, the clients are made to pay hefty bills. “Too much ring and tand too much litigation” does not assist their clients much in achieving their desired intentions.

The first defendant is a corporate defendant whilst the second defenda its Managing Director.&#16. Iniew, the conduct and attd attitude of the defendants were the cause of all these unnecessary delays. The first defendant with its vast financial resources digs its toes and forces the plaintiff to consent to these delays. rn, the plaintiff consentssents to this conduct and curtails his action. The fact that the defes ints insist that their li documents were filed on 12 April, 1996, the eleventh hour, clearly demonstrates their atti attitude to and their conduct of the wholceedings. There is no excuse, iview,view, for a corpocorporate defendant like the first defendant in this case, to continue to procrastinate and prolong this matter unnecessarily. If it is ne defendants whos who were responsible for all these delays, it must be their legal advisers.

In so far as the date of filing of the defendants’ list of documents is concerned, itifficult, without cross-exas-examination, to correctly ascertain the truth of evidence relating to the filing of this list. On ne hand, the plaintiff tiff had deposed to his searching of the Court file at the registry at 9.30 am on Monday, 15 April, 1996 gain at 1.30 pm on Tuesday, 16 April, 1996. He did not sight a d copy copy of the defe defendants’ list of documents in the Court file. On the contrary,defendantsdants say, they did file their list of documents on 12 April, 1996, and they relyhe affidavit of Lucas NilkaNilkare. e here that the original lnal list of documents bears the filing date as 12/4/96. If I were to t this, why dwhy didn’t the plaintiff locate this at the time he conducted the two searches? It is quite strange, iniew.

I can only guess that the list of documents was misplaced by the registry staffstaff and this is not unusual. Therear toh of this negligegligence going on in the registry and the Registrar must do somethingthing about this apparent negligence.&#160an only assume that the document was misplaced therefore the plaintiff could not locate thee the document in the file on the 15 & 16 April, 1996.

Despite having said that, I consider that the seemingly inordinate delays caused by the defendants and their lawyers cannot be excused or condoned. It is my view the plaintifintiff was forced into making this application because of the attitude of the defendants. Both defendants are locat d in Port Moresby. Their legalsers are also llso locin Port Moresby. Ther There could be no r fson for the delays on the part of both the defendants and their lawyers, either in g instons, or legal advl advice. I considet the defendefendefendants must shoulder most of the blame for all the delays caused in this action.

The defendants sought to rely on the case of Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11, a case that involved a default by the defendant in not responding to a notice for discovery pursuant to Order 9, Rule 1, automatic discovery, after close of pleadings without a Court order as envisaged by Rule 5. The plaintiff in thse had had availed himself of the process however, the defendant did not comply with the rules and therefore the striking out of the defence and the entry of jnt for the plaintiff was justified. That situation ison is not exactly the same in this case, however, it is relevant only, in so far as the principles enunciated therein, applies to the purpose of discovery. That case cledemonstrates ates the princthat, if, a defendant defaudefaults in complying with the rules relating to discovery, his defence can be struck out and judgment entagainst him. In my view, that it shouldhould happen ipen in the present case, except that, I have before me, the Court file, which contains the defendants’ list of documents clearly marked, “No 18, National Court, Filed 12/4/96”.

Whilst I would like to say that the plaintiff’s evidence as to the searches he carried out were not lies, it is quite difficult for me to reconcile it with the fact that the document, giving rise to this application, is physically in existence in the Court file and is visibly marked, “Filed 12/4/96”. I do not think the plaintiff was lying in his affidavit and I would reject any insinuation that he did.

In my view, either the document was misplaced on the dates the plaintiff carriedhis searches or, someone in the registry had intentionally ally and dishonestly stamped the document with the date of filing as 12/4/96 when it could have been filed sometime after 12/4/96. Ily cannot tell either wayr way, as there is no evidence of either of these matters before me.

Earlier on I adverted to some remarks I cited from the decision of my learned brother Sakorin relation to the attitudeitude of the defendants’ lawyers. I wish to reiterate that here. It is my view that, this application would not have been prompted had the defendants’ lawyers not procrastinated, delayed and given all kinds of es foir inability to comply with the requirement for dfor discovery pursuant to the plaintiffff’s notice for discovery and the National Court Rules. My broSakora J was in fact fact quoting Brunton AJ in Wenam Elkum v PNG [1988-89] PNGLR 662, which I wish to refer to as well, because I consider that the statement reflects the situation in the present case too. At p. 665, Brunt said:

:

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

His Honour also described the tactics employed by the lawyers for the State in that case as follows, at p. 665:

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

I

I agree with His Honour’s comments and, I find in the present case that the defendants’ lawyers’ attitude is somewhat similar to what these comments reflect.

In my opinion, the defendant’s filing of list of documents on the eleventh hour is totally unacceptable and their lawyers’ conduct inexcusable. It is my judgthat the regi registry was at fault and that is the only reason I would reluctantly refuse the plaintiff’s application. Bt as it may, I reiterate rate that in this case, there has been “too much lawyering” by the defendant’s lawyers with the resulting effect of procrastinations and protracted delays largely caused by the defendants and their lawyers. They bear the costs of thef these delays.

In the final analysis, the plaintiff’s application is reluctantly refused, however I order that the defendants pay the costs of today’s proceedings and costs of proceedings on 10 May. I further order these cost costs be paid within seven days.

Lawyer for Plaintiff: Kevin Latu Lawyers

Lawyer for Defendants: Thirwlwall Aisi & Koiri