ETS Nominees (PNG) Pty Ltd v Catholic Archdiocese of Port Moresby Board of Trustees [1997] PGNC 36; N1542 (8 April 1997)

Unreported National Court Decisions

N1542

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 106 OF 1995
BETWEEN
ETS NOMINEES (PNG) PTY LTD - FIRST PLAINTIFF
AND
CRAIGIE KINGSTON & PARTNERS PTY LTD - SECOND PLAINTIFF
AND
M & E PARTNERSHIP (PNG) PTY LTD - THIRD PLAINTIFF
AND
THE CATHOLIC ARCHDIOCESE OF PORT MORESBY BOARD OF TRUSTEES - DEFENDANT

Waigani

Sevua J
24 April 1996
8 April 1997

PRACTICE & PROCEDURE - Summons for Production - Application to set aside - Failure by party to discover documents through normal discovery process - Documents required for production irrelevant to issues in trial.

PRACTICE & PROCEDURE - Summons for Production - Application to set aside - Grounds for - Abuse of process - Summons should be set aside.

Held

1. &ـ I60; It is n is not legitimate to use a summons for production as a substitute for an application for discovery of documents or as an alternative to an ap plication for further atter very.

2.&#>2. &160; ټ aere a re a party causes uses a summons for production to be issued calling upon another party to produce documents as a means of obtaining further and better discovery, following the former’s failure to obtain such documents at the usual time through discovery process, the Court may set aside the summons as an abuse of process.

3. ҈& T60; The sume summons for production caused to be issued by the defendant is an abuse of the process of the Court anuld b aside.

Cases Cited

The Commissioner for Railways v SmallSmall (193 [1938] NSWStRp 29; (1938) 38 SR (NSW) 564

Botany Bay Instrumentation & Control Pty Ltd & Anor v Stewart & Anor [1984] 3 NSWLR 98

Finnie v Dalglish [1982] 1 NSWLR 400

Counsel

J Bray for First Plaintiff/Applicant

P Payne for Defendant/Respondent

8 April 1997

SEVUA J: This is an application by the first plaintiff seeking an order that the Summons for Production And To Give Evidence filed on 21st May, 1996 by the respondent and addressed to the first plaintiff, be set aside on the grounds that it is an abuse of process.

At this juncture, let me briefly refer to the chronological order of events which transpired in this suit:

· &ـ < < Writ of Sumfile 27th Febr February, 1995.

· ـʔ Service on defendant 8th M8th March, 1995.

·;ټ&##160; Notice of intention to deto defend fend filedfiled 9th March, 1995.

· &##160;; < < Defendant&#8es qurtnd bett better particulars of statement of claim filed 17th March, 1995.

.

&

·#183; ;&&6060in1ifswers to defendefendants requests for further and bett better paer particurticulars of statement of claim filed 13th April, 1995.

·ـ҈&ـ
efendant’s de;s defencefence file filed on d on 19th 19th April, 1995.

· ـ < Plaintiff&#821otice for dior discovery filed 5th July, 1995.

· &##160;; < < ndant7;s lf dletfiul95.

.

· &##160; &#160  d< 160; Defe Defendant’s notice for discovered 21ly, 1/p>

·&##160;  &&#160 Firs First plaintiff̵i;s list of doof documents, second plaintiff’s list of documents hird tiff&;s list ofments filed 28th August, 1995.

· &#160 &##10; &<&#160 Consent e to set down for for trial filed 20th November, 1995.

· ټ < Summons ror ption and ve e ve eve fil defendant, 21st May, 1996.

I have not referrederred to t to the sehe several interlocutory applications filed previously as I do not consider thievant0; Thmary objective ofve of sett setting oing out the major events in chronological order above, is to focus attention at the duration of pleadings, ie, when pleadings commenced, and closed and also to show that pleadings had in fact, closed then, the defendant filed the summons, the subject of this application.

Counsel for the applicant has raised two objections, the first of which can be disposed of without much consideration. The first objection is thet the summons for production and to give evidence was not served on the office of the company personally. If I were to uphois objectbjection, it would mean, this notice of motion wouve to be deferred and I conI consider that further delay by adjournment is not in the best interest of both parties. The first tiff presented bted by coun counsel who is now aware of the summons for production. To adjourn this r because ause there is no avit of service would only compound the problem of delay. This objecis thereforeeforeefore overruled.

The second objecti substantive and it is based on the notice of motion itselftself. Thst plaintiff objects to s to the summons for production andive evidence because it sayt says, this is an abuse of the process. understood, Mr Bray’8217;s argument is that the Natioourt Rules provide for the the process of discovery, which I agree. He says that discovery has long been had pursuant to Orderd if the defendant was not not satisfied, it could have sought an order pursuant to Order 9 Rule 7.

I follow Mr Bray’s ssion, but the course taken by the defendant is also providrovided for under the Rules. Neverth, in my view, the dthe defendant had recourse under Order 9 Rule 7 to invoke the Courts discretionary power therein. It failed ail itself of thof that proe prior to the close of pleadings and tried to seek discovescovery by summons for production. The Nal Court Rules regulaegulateprocess of pleadings which parties to a litigation should auld adhere to. In my view, if the defendant had considered it benefito its interest to seek discovery of the documents it now snow seeks by way of summons for production, it should have proceeded by wadiscovery. In any event, the dots thes the subject ofct of the summons, relate to the engagement of the first plaintiff in projects other than the St. Joseph International Primary School project, the subject of this suit, so where is the relevance?

I agree with Mr Payne that the Rules specifically provide for summons for production. That is isputed. Ord0;Order 11, Divisiof thef the Rules deals with summons to give evidence. In fact, 11 Rule (2) give gives the Court a discretionary poweissuemmons to give evidence or a summons for productiouction. Order 11, R also gives ives ives the Court a discretionary power to sede the summons.

If I>If I understood Mr Payne correctly, the defendant is entitled to cross examine witnesses at large and thendant is entitled to cross ross examine witnesses on these documents, “although they are not matters in question in these proceedings”. If it is co that the documdocuments being summoned are not relevant or material to the issues in the proceedings, it is clearly an abuse of process and, perhaps oppressive, for the defendant to have a summons for production issued in relation to those documents.

In my view, it is undesirable and improper to allow such procedure as it will be tantamount to sanctioning abuse of process. I cannot over emphasise the undesirability of discountenance fishing expeditions by parties and their lawyers. The documents bsummoned reed relate to properties described as Whittaker Court, Port Moresby, ADF House, Mve St., Port Moresby, ArchbArchbishop’s House, Whittaker St., Port Moresby and Basilisk Apartments, Olmsted St., Port Moresby. None of these are physically within the St. Joseph International Primary School locality and none relate to that school.

The defendant had the opportunity and the time to obtain discovery in the usual way and at the usual time if it had considered these documents material to its case. It did not, and it proceeoed to find a substitute or an alternative recourse to obtain further and better discovery, which I consider inappropriate.

I would adopt the dictum of Chief Justice Jordan in The Commier for Railways v Small (19l [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 574:

“It is true that a party unlike a stranger, can be required to give discovery, but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. very applications should buld be made at the proper time and place.”

I have been unable to find any authority on this issue in our jurisdiction andsels have not cited any, however, there are English and Ausd Australian cases which have considered similar applications and set aside subpoenas. Powell, J sitin the Equityquity Division of the New South Wales Supreme Court in Botany Bay Instrumentation & Control Pty Ltd & Anor v Stewart & Anor [1984] 3 NSWLR 98 held inter alia:

“The Courts jurisdiction to set aside subpoenas, is but one aspect of its jurisdiction to act to prevent an abuse of process.”

That case cites a number of English and Australian cases as examples of a variety of situations where Courts in the past, have exercised their undoubted jurisdiction to set aside subpoenas. Rath, J also of quity Divi Division of the New South Wales Supreme Court held in Finnie v Dalglish [1982] 1 NSWLR 400:

“A subpoena to produce documents used for the purpose of discovery may be sede whether it is addressed ssed to a party or stranger.”

In the present case, whilst the National Court Rules provide for procedures under Order 11, it is my view that, as the defendant had failed to obtain these documents in the usual discovery process, it cannot traverse its failure by having a summons for production issued by the Court to remedy that failure, because I consider that as a substitute or alternative for further and better discovery which I further consider an abuse of the process. In any case, the materials required for production are immaterial to the proceedings.

Accordingly, I hold that it is not legitimate to use a summons for production as a substitute for an application for discovery of documents or as an alternative to an application for further and better discovery. I reiterhat pleadings have have closed and the defendant had the opportunity and time to discover their documents through the normal procedure prior to the closure of pleadings. It did not, for ns un to t to this Court anrt and the first plaintiff. Therefore, I er hold that that in circumstances where a party causes a ss for production to be issued by the Court calling upon another party to the proceedings, tgs, to produce documents as a means of obtg further and better discoviscovery following its (the former’s) failure to obtain such documents at the usual time through normal discovery process, the Court has a discretion to set aside the summons as an abuse of process.

As adverted to, these documents are not relevant to the issues in the trial. Thenot relate in anyway toay to the project which is the subject of dispute and this suit. Yet, thendant sought discodiscovery, not in the usual discovery process, but through what I have cded as a substitute or alte alternative application for further and better discovery. This, I find, ts to an abun abuse of process.

In the final analysis, I find that the summons for production issued by the Court at the instance of the defendant is an of process of the Court and the summons should be set asid aside.

I therefore order that the defendant’s summons for production and to give evidence issued on 21st May, 1996, be set aside. The first plaintiff have have its costs of this application.

Lawyer for 1st Plaintiff: Pato Lawyers

Lawyer for Defendant: Blake Dawson Waldron