N2459

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1358 of 1999 AND WS NO. 1359 OF 1999

BETWEEN:

ACE GUARD DOG SECURITY SERVICES LIMITED
Plaintiff

AND:

YAMA SECURITY SERVICES LIMITED
Plaintiff

AND:

LINDSAY LAILAI
ACTING MANAGING DIRECTOR
First Defendant

AND:

TELIKOM (PNG) LIMITED
Second Defendant

Waigani	:	Sakora, J
2003		:	7 August, 5 September

Practice and Procedure – Notice of Discovery – Default – Extensions of time – List of documents filed out of time – Inadequacy of Discovery – Criterion for discoverability – Restrictions on discoverability - National Court Rules, O. 9, rr. 1, 2, 5, 6, 9 and 15 (1).

Practice and Procedure – Pleadings – Principles and Purposes of – Discovery – Notice of – Powers upon Default – Discretionary – National Court Rules, O. 9, r. 15 (1).

Cases Cited:
The following cases are cited in the judgment:
Hornibrook Constructions Pty Ltd v. Kawas Corporation Pty Ltd [1986] PNGLR 301.
Credit Corporation (PNG) Ltd v. Gerald Jee [1988-89] PNGLR 11.
Wenan Elkum v. PNG [1988-89] PNGLR 662.
Aisip Duwa v. Ronald Moyo Senge [1995] PNGLR 140.
Public Officers Superannuation Fund Board v. Silas Imanakuan Unreported SC 677 of 2001.
Flight v Robinson(1844) 8 B 22
Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co (1882) 11 QBD 55 (CA)
Mulley v. Manifold (1959) 103 CLR 341
Donaldson v. Harris and Hamood (1973) 4 SASR 299
Commonwealth v. Northern Territory Land Council (1991) 176 CLR 604 (HC).

Counsel:
E. Anderson for the Applicant/Defendant.
J. Poro for the Plaintiffs.

5th September, 2003

SAKORA, J:	On 20 May 1999 Yama Security Services Limited (YSS) and Ace Guard Dog Security Services Limited (Ace) entered into contracts to provide security services to Telikom (PNG) Limited (Telikom). On 31 August 1999 Telikom terminated the contracts alleging they were fraudulently and illegally obtained.

YSS and Ace sued Telikom claiming damages for breach of contract, particularly for services rendered and for payment for the 33 months remaining on the two contracts. YSS and Ace claimed K6,114,598.62 and K4,526,280.00 respectively. On 5 December 2000 they each obtained default judgment on liability, with quantum to be assessed.

Telikom appealed to the Supreme Court and the appeal was allowed in respect of the two judgments on 6 May 2003, with the matters remitted to the National Court for substantive hearing on both liability and quantum.

The defendant company has two applications before me pursuant to the two Notices of Motion both filed 2 July 2003 in respect of the two plaintiffs (YSS and Ace). Both applications are said to be made pursuant to O. 9, r. 15 of the National Court Rules (the Rules) which makes provisions for Default in respect of the rules for Discovery and Inspection of Documents. The rule is in the following terms:

15.	Default

(1)	Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit, including –

(a)	if the party in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings; or

(b)	if the proceedings were commenced by writ of summons and the party in default is a defendant, an order that his defence be struck out and that judgment be entered accordingly.

(2)	. . .

(3)	. . .

Factual Background

It is the applicant/defendant’s case that there has been default on the part of the two plaintiff companies in compliance with the procedural rules under the NCR in relation to discovery of documents. And the failure or default is said to be on both substance and form. For this contention Mr Anderson of counsel for the applicant refers the Court to and relies upon the following affidavits:

•	sworn by Tiffany Gaye Nonggorr on 2 July 2003 and filed of even date.
•	sworn by Tiffany Gaye Nonggorr on 17 July 2003 and filed of even date.

The first affidavit deposes to the circumstances relied on to assert that the plaintiffs had not complied with the defendant’s Notice of Discovery. The second affidavit deposes to further circumstances relied on in support of the defendant’s assertion and Notice of Motion. The pertinent documents in support have been duly annexed to the affidavits.

It would appear from the two affidavits filed on behalf of the defendant (supra) that the defendant had filed on its behalf in the National Court a Notice of Discovery on 10 November 2000 in respect of the two proceedings (about a month before the plaintiffs obtained default judgment on liability on their respective claims on 5 December 2000). This notice was filed by Tamutai Lawyers who acted for the defendant until change of lawyers (pursuant to a Notice of Change of Lawyers filed 16 May 2003 by Gadens Lawyers). It would appear also that three sets of Notices of Intention to Defend had been filed by the three lawyers for the defendant who seemed to have been acting simultaneously (on 9, 10 and 15 December 1999 respectively) until Tamutai Lawyers were accorded exclusive instructions by 13 January 2000. It would further appear that Request for Further and Better Particulars (dated 14 December) were filed 15 December 1999.

The defendant’s Defence in one and Defence and Counter-Claim in the other claim were filed on 16 March 2000. The plaintiffs’ Answers to Request for Further and Better Particulars were filed on 2 March 2000. Four months later (12 July 2000) they had filed their Notice to Produce Further and Better Particulars in relation to the allegations made in the defendant’s Defence.

On 23 August 2000 the plaintiffs filed applications to have default judgments entered against the defendant (alternatively summary judgment) contending the following:

•	The defendant had failed to verify its Defence;
•	No defence had been disclosed; or 
•	The defendant be ordered to furnish its Further and Better Particulars.

The two applications were heard and refused on 21 September 2000. And as noted already, without complying with the Notice of Discovery that had been served in November 2000, the plaintiffs proceeded to apply for and obtain judgment on liability on 5 December 2000, with quantum to be assessed.

After the successful appeal (supra), and in the light of the continuing non-compliance with the Notice of Discovery since November 2000, the defendant through its new lawyers (Gadens) filed fresh Notices of Discovery in respect of the two actions on 16 and 19 May 2003 respectively. The notices required Discovery with verification within 15 days of service, and thus the time limited for the plaintiffs to furnish Lists of Documents expired Monday 2 June 2003 (31 May falling on a week-end).

It appears further from the affidavit of Tiffany Gaye Nonggorr (the one sworn 2 July 2003) that on 28 May 2003 the lawyers for the plaintiffs wrote to the defendant’s lawyers seeking extension of time for a further 14 days within which to respond to the Notices of Discovery. The defendant’s lawyers acceded to the request for extension of time, which extension lapsed at close of business Monday 16 June 2003 without the plaintiffs availing of the extended opportunity as indicated in their request.

On 20 June 2003 the defendant’s lawyers caused a letter to be delivered to the plaintiffs’ lawyers advising of the expiry of the extended time and giving notice that if there was further failure to provide Discovery within 7 days (of the letter) the defendant would be making an application to the Court to order the entry of judgment against the plaintiffs. This further extension of time came and went on 27 June 2003, without the plaintiffs complying with the Notices of Discovery, the defendant contends.

In her 17 July 2003 affidavit Mrs Nonggorr deposes that on 2 July 2003 the defendant’s lawyers were served with a List of Documents and an Amended List of Documents which did not show the filing date on the face of those documents. Subsequently attending at the National Court Registry on 14 July 2003 Mrs Nonggorr conducted a search of the file which indicated that no List of Documents had ever been filed, though the Amended List of Documents was shown (on the file index) to have been filed on 2 July 2003.

The plaintiffs oppose the defendant’s application (Notice of Motion filed and served on 2 July 2003). In support of their opposition they have had sworn and filed on their behalf one affidavit, sworn and filed 4 August 2003 by John Poro. Learned counsel for the plaintiffs referred to and relied on his own affidavit in his submissions. No issue is taken with the defendant’s evidence or version of the circumstances leading up to the service of the defendant’s fresh Notices of Discovery (16 and 19 May 2003, supra). Neither is issue taken with the two extensions of time accorded by the defendant to provide Discovery.

The only conflict with the defendant’s version is as regards the dates of filing of the List of Documents and the Amended List of Documents. The plaintiffs assert the dates of 24 June and 2 July respectively though the Court records demonstrate the dates of 25 June and 2 July.

Learned counsel for the plaintiffs refers the Court to and relies on the affidavit of John Siwi sworn 2 July and filed 4 August 2003. In that affidavit the deponent swears to serving the two sets of plaintiffs’ Lists of Documents and Amended Lists of Documents "on 2 July 2003 at about 3.30 pm . . ." And it is a matter of record that the defendant’s Notices of Motion for this application were filed on 2 July 2003.

It is the contention of the plaintiffs, therefore, that the List of Documents were filed within the time extended by the defendant’s lawyers, and that, therefore, the application is "frivolous and vexatious and must be dismissed and the substantive proceedings be allowed to go to trial".

The defendant’s case is that the List of Documents were not filed and served within the further extended period. Rather these were served on 2 Jul 2003, the same day that the defendant had its Notice of Motion for this application filed and served.

The defendant relies on this default to invoke the default provisions of the NCR. It is the further contention of the defendant that, in any case, the Amended List of Documents is deficient and inadequate in that it fails to comply with the NCR on both substance and form.

The Law

Discovery is defined as disclosure by a party to civil litigation of the documents in his possession, custody or power relating to matters in question in the action (discovery) and their subsequent inspection by the opposing party: Oxford Dictionary of Law (4th ed.).

In the National Court case of Aisip Duwa v. Ronald Moyo Senge [1995] PNGLR 140, I took the occasion and opportunity to canvass the law on the purposes of and principles governing the rules on pleadings and discovery. I did that by discussing the pertinent case law and texts on the two subjects, which, I hasten to add, serve the same purpose(s) and are, therefore, complementary of each other. It has to be noted that these discussions were by no means exhaustive The Aisip Duwa case was cited with approval by the Supreme Court in its recent decision in Public Officers Superannuation Fund Board v. Sailas Imanakuan (Unreported SC677 of 2001) that Mr Anderson referred me to and relied on. The Supreme Court quoted from my judgment in the Aisip Duwa case (supra, 149 – 150) and I reproduce it hereunder:

And one of the most important processes of the pre-trial procedure employed in an endeavour to achieve those aims (the guiding principles for rules of procedure which would best serve the needs of society) 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’: Black’s Law Dictionary. In actions begun by writs, lists of documents must be served by each party after the close of pleadings, and any party entitled to have discovery may serve a notice requiring an affidavit verifying the list of documents: Osborn’s Concise Law Dictionary. This is of course reflected in our NCR’s; and O. 9, 4, r. 6 (contents of list) and 9 (3) (b) further reflect an accommodation between full and open discovery, and safeguard against unwarranted intrusions into the opponents’ files.

In the South Australian case of Donaldson v. Harris and Hamood (1973) 45 SASR, 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 arriving at a fair or favourable settlement or compromise: Litigation Evidence Procedure, by Arouson, Reaburn Weinberg, 2nd 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.

The learned authors further state, as I had duly noted in my cited judgment (supra) that "since, perhaps naturally, neither party would willingly and voluntarily make such disclosure to his opponent, the obligation to do so must be imposed upon him either by the rules or orders of the Court" (ibid). This is very much reflected in our NCR: automatic discovery (O. 9, r. 1) and orders for 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 game because the parties are left in ignorance of each other: Aisip L Duwa (supra, 150). I note that I discussed in that judgment the cases of Credit Corporation (PNG) Ltd v. Gerald Jee [1988-89] PNGLR 11 and Wenam Elkum v. PNG [1988-89] PNGLR 662, where, after distinguishing them on the facts from the case before me, nevertheless respectfully adopted the useful exposition on the principles and purposes of pleadings and discovery, as indeed I did with the comments of Kapi DCJ (as he then was in the case of Hornibrook Constructions Pty Ltd v. Kawas Express Corporation Pty Ltd [1986] PNGLR 301 (supra, 150 – 151).

Discovery is process of obtaining documents and admissions from answers to interrogatories from other parties to the litigation and from non-parties. In many cases, discovery will be essential to obtaining the evidence to prove one’s case. On the simplest level, it may be that the original contract is held by the defendant: discovery and production of the contract will be necessary for the plaintiff to prove his case. On a more complex level, discovery will yield important diary notes, books and records, (See, Grant Riethmuller: Civil Procedure, LBC Nutshell, 1st ed; 1999 (page 103)). The learned author refers to the old English case of Flight v. Robinson (1844) 8 B 22, and cites an extract from the judgment of Lord Langdale MR (ibid) which I reproduce hereunder and respectfully adopt as pertinent to the discussion of the law here:

"According to the general rule which has always prevailed in this Court, every defendant is bound to discover all of the facts within his knowledge, and to produce all documents in his possession which are material to the case of the Plaintiff. However disagreeable it may be to make the disclosure, however contrary to his personal interests, however fatal to the claim upon which he may have insisted, he is required and compelled, under the most solemn sanction, to set forth all he knows, believes, or thinks in relation to the matters in question. The Plaintiff being subject to the like obligation, on requisition of the Defendant in a cross bill, the greatest security which the nature of the case is supposed to admit of is afforded, for the discovery of all relevant truth, and by means of such discovery, this Court, notwithstanding its imperfect mode of examining witnesses, has at all times, proved to be a transcendent utility in the administration of justice."

Discovery must be given even if it discloses material contrary to the party’s case. There are however limited situations where a party may claim privilege from making discovery: See, Grant Riethmuller (supra, page 105). The learned author once again quotes from the judgment of the learned Master of the Rolls in Flight v. Robinson (supra), which I reproduce hereunder and respectfully adopt for this case (ibid):

"It need not be observed what risks attend all attempts to administer justice, in cases where relevant truth is concealed, and how important it must be to diminish those risks, and that if there be any cases, in which for predominant reasons, parties ought to be permitted or to be held privileged to conceal relevant truth, those cases ought to be strictly defined, and strictly limited by authority."

It is instructive and pertinent that I continue my respectful indebtedness to the learned author and recite hereunder the three general restrictions that the general purposes of discovery are subject to that he summaries (supra, page 105):

1.	The scope of discovery is limited by the facts on which the parties have joined issue in the pleadings;
2.	The use of discovered information is strictly for the purpose of the conduct of the cause or matter in which discovery was given; and
3.	Discovery is subject to limited rights to claim privilege.

An elaboration on the first restriction is the acceptance that discovery is limited to documents which are relevant to a fact in issue in the proceedings as disclosed by the pleadings (See, S Colbran G Reinhardt P Spender S Jackson R Douglas: Civil Procedure, 2nd ed; Butterworths, 2003 (page 539)). The learned authors refer to and rely on (as indeed I respectfully do now) the judgment of Brett LJ in another old English case of Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co (1882) 11 QBD 55 (CA) as providing the classic test of relevance. The pertinent part of the judgment is extracted hereunder (pages 62 – 63):

The party swearing the affidavit is bound to set out all the documents in his possession or under his control relating to any matters in question in the action. Then comes this difficulty: What is the meaning of that definition? What are the documents which are documents relating to any matter in question in the action? In Jones v. Monte Video Gas Co. 5 QBD 556, the Court stated its desire to make the rule as to the affidavit of documents as elastic as possible. And I think that this is the view of the Court both as to the sources from which the information can be derived, and as to the nature of the documents. We desire to make the rule as large as we can with due regard to propriety; and therefore I desire to give as large an interpretation as I can to the words of the rule, "a document relating to any matter in question in the action". I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.

The doctrine seems to me to go farther than that and to go as far as the principle I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly", because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, from one of the sources mentioned in Jones v. Monte Video Gas Co., that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession and control. I agree that the party issuing the summons for a further affidavit is bound by the description given in the sources of information mentioned in Jones v. Monte Video Gas Co.: that is to say, he is bound to a certain extent: I do not think that he would be bound absolutely by every description of their contents if the Court can see, from the nature of them, that the description of them is not or may not reasonably be correct. I do not think that the Court is bound any more on the second summons than on the first to accept absolutely everything which the party swearing the affidavit says about the documents, but the Court is bound to take his description of their nature. The question must be, whether from the description either in the first affidavit itself or in the list of documents referred to in the first affidavit or in the pleadings of the action, there are still documents in the possession of the party making the first affidavit which, it is not unreasonable to suppose, do contain information which may, either directly or indirectly, enable the party requiring the further affidavit either to advance his own case or to damage the case of his adversary. In order to determine whether certain documents are within that description, it is necessary to consider what are the questions in the action: the Court must look, not only at the statement of claim and the plaintiffs’ case, but also at the statement of defence and the defendants’ case. In the present action it is true to say that the contention of the plaintiffs is that there was a concluded agreement, and that there was a breach of that agreement on a particular day. I quite agree that these documents, which are referred to in the minutes to which our attention has been drawn, cannot affect the plaintiffs’ case if it be true; for the documents, of which production is now sought, came into existence after the alleged breach. But the defendants’ case is that there never was a concluded agreement, and of course there never was or could be a breach of an agreement which never existed. The defendants’ case is that, from the beginning to the end of the whole transaction, even up to the time of bringing the action, the whole matter was in negotiation – there was one unbroken series of negotiations. Therefore, if the defendants can shew that there are documents in the possession of the plaint8ffs which, it is not unreasonable to suppose, do contain information which may support the defendants’ case, those document, as it seems to me ought to have been set out by the plaintiffs in the original affidavit, and must be set out by them in a further affidavit. (underlining mine).

The Peruvian Guano case involved the plaintiffs bringing proceedings against the defendants for breach of contract. The defence included a denial that a contract had been concluded, and alleged that the parties had not proceeded beyond negotiation. The plaintiff’s affidavit of documents included in the minute book of proceedings of the plaintiff company. This referred to several documents and letters which were not included in the plaintiffs’ affidavit of documents, most of which were dated subsequent to the date of the alleged breach of contract. The defendants brought an application for a further and better affidavit of documents. In respect of all documents dated subsequent to the alleged agreement the defendants were unsuccessful before the master, the judge in Chambers, and the Queens Bench Division. They appealed to the Court of Appeal. The defendants claimed that these documents might show that subsequent to the alleged breach the parties were still negotiating and might tend to disprove the plaintiffs’ allegation that a contract had been concluded.

The Peruviano Guano test has long been adopted in Australia: Mulley v Manifold (1959) 103 CLR @ 345 per Menzies J; and Commonwealth v Northern Land Council and Anor . (1992 – 1993) 176 CLR 604. I respectfully cite from the judgment of Menzies J in the first case and adopt his Honour’s comments on relevancy of a document as being pertinent to the case before me now (at 345):

I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues – not towards assisting a party upon a fishing expedition. Only a document which would, either advance a party’s own case or damage that of his adversary. (underlining mine).

Whilst the second case concerned the inspection of notebooks that the Commonwealth had made discovery of which contained notes made by cabinet officers of the deliberations of cabinet and of notes made by departmental officers of the deliberations of cabinet or committees of cabinet, the authority of the Peruvian Guano Co test was acknowledged (per Toohey J; page 632).

Conclusion

There are three issues for determination: (1) whether or not there was default on the part of the plaintiffs in complying with the defendant’s Notices of Discovery according to the rules; and, (2) if so, whether or not the default provisions of the rules ought to be enforced against the plaintiffs; and, (3) in the alternative, whether or not, if discovery is found to have been made in accordance with the rules, such discovery was sufficient and adequate.

The factual background to the defendant’s applications amply demonstrate to my satisfaction that the plaintiffs defaulted not once but thrice, the latter two instances followed specific requests for extended time to comply. One cannot help but ask here as to the real purpose of the request for more time to do what is required by law to be done when in the end it is not done. I accept the defendant’s evidence as to the filing and service of the List of Documents and Amended List of Documents (as deposed to in the affidavits of Tiffany Gaye Nonggorr, supra). This evidence is supported by the evidence of John Siwi, whose affidavit Mr Poro referred the Court to and relied on.

I formally find, therefore, that default as envisaged by O. 9, r. 15 (1) NCR was made by the two plaintiffs in respect, firstly, of the defendant’s Notices of Discovery filed and served 10 November 2000, and, secondly, of the fresh Notices of Discovery filed and served 16 and 19 May 2003 respectively and further extended to 27 June 2003. And this default directly attracts the operation of the default provision under O. 9, r. 15(1)(a) NCR (supra). The provision vests discretion in the Court as to an appropriate order to be made (see: Aisip Duwa v. Ronald Senge, supra page 152). It is my respectful opinion that this discretion ought to be exercised against the defaulting party after a full and careful appreciation of the entire circumstances of the case. In this respect I would suggest that mere default by a matter of days would not provide sufficient basis for dismissing "as to the whole or any part of the relief claimed . . .", if the default was by a plaintiff (O. 9, r. 15 (1) (a)).

I would further suggest that proceedings should be dismissed under the rule if failure or default in complying were, such as I find in this case, repeated, verging on what could properly be described here as chronic. Another ground for the exercise of discretion against the defaulting party would, I suggest, be where discovery was insufficient or deficient rendering a fair and expeditious trial nigh on impossible, and thereby causing prejudice and disadvantage to the opposing party.

This brings me to my second finding that circumstances (as outlined here) do exist for the Court to properly exercise its discretion against the defaulting plaintiffs. Even if I had been persuaded to find that discovery had in fact been made (within the given and extended periods and in accordance with the rules), which I have not been, I, nevertheless would have come to the conclusion, as I do now, that there was insufficient or deficient discovery.

To reach this conclusion I have had to, respectfully, ask the same question that Menzies J asked in Mulley v. Manifold (supra, page 345). The issues in the substantive proceedings are:

•	Whether the contract was obtained by fraud or is illegal?
•	Whether the services were actually performed by YSS and Ace?
•	Whether, if the contract is valid, there was a breach of the contract?
•	Whether the contract contains penalty clauses and if liability is established what would be a proper assessment of loss?
•	Whether the mobilisation payment was legal?

In order to succeed in satisfying or persuading the Court that the default provisions of the rules of court ought to be resorted to, the party seeking discovery must satisfy the criterion for discoverability laid down in the Peruvian Guano case and adopted in the case of Mulley v. Manifold (supra). It is the judgment of this Court that the defendant has amply demonstrated to my satisfaction, as I have found already, default on the part of the plaintiffs as well as the criterion for discoverability.

The defendant’s case in relation to the third issue for this Court’s determination is that the Amended List of Documents, as noted already, is deficient and inadequate. It fails to comply with the rules on both substance and form. Learned counsel for the defendant submits that there are absolutely no financial records listed, and that there is no enumeration of documents. In this respect it is further submitted that there are clearly documents not listed that are relevant to the issues in the proceedings, including court documents and correspondence between the parties. Finally, the defendant asserts that there is no date specified for examination (or inspection).

Learned counsel for the plaintiffs responded on this issue by referring the Court to and relying on his own deposition in the affidavit he swore on 4 August 2003 and filed of even date. With respect, I can do no better than quote verbatim from the two paragraphs of that affidavit as attempts at explaining the allegations of default and deficiency or inadequacy of discovery in both substance and form:

(3)	Due to our client’s head office being situated in Madang, we had difficulty in having the List of Documents prepared and filed within 15 days required (by 31 May 2003), and which day fell on a Saturday and the next possible date was the Monday, 2nd July (sic) 2003.

(8)	At this instance I did advised (sic) Mr Raka of our difficulty in finalising our client’s List of Documents and also gave Mr Raka my assurance that I will try my best to have the List completed and filed by 23rd or 24th June 2003.

Another explanation for the delay in responding to the Notices of Discovery is offered through Annexure "A" to Mr Poro’s affidavit: his 28 May 2003 letter to the defendant’s lawyers, where he states:

We are unable to provide a List of Documents as we have been moving our office from Gordons to Burns House at Port Moresby. In the meantime we are sorting out our files.

It cannot escape noticing from these that the affidavit sworn some 68 days (approximately 2 ½ months) after the letter (Annexure "A", supra), makes no mention of any difficulties associated with re-locating practice; nor does the letter itself make mention of any problems associated with the head office of the plaintiff companies being situated in Madang.

I accept the defendant’s argument that the Amended List of Documents is deficient. If the Court were to hold that there was no default and that the Amended List of Documents was sufficient and, thus, the matter were to go to trial, the second and third issues of substance in the proceedings (supra) would not be capable of determination and resolution. That is to say, the plaintiffs would not have been able to prove by credible and admissible evidence actual performance of their contractual services. By the same token, the defendant would be greatly disadvantaged and handicapped in demonstrating to the Court’s satisfaction that the plaintiffs had not performed any contractual services that they claimed that would be capable of payment.

Documents relating to the provision of the security services under the alleged contracts would have to be relevant and discoverable. Order 9, rule 2 (1) NCR makes provision relating to time requirements for discovery to be made. Order 9, rule 2 (2) sets out the requirements of the particular documents that must be disclosed on the List of Documents. It reads as follows:

(2)	A party required under Rule 1 to give discovery without verification shall, subject to Rule 3, give discovery by filing and serving on the party giving the notice for discovery a list in accordance with Rule 6 of documents relating to any matter in question between him and the party giving the notice of discovery. (underlining mine).

The form of the List of Documents for discovery is provided for under Rule 6, and it is instructive and convenient that the entire rule be reproduced hereunder:

6.	Contents of List.

(1)	A list of documents required by or under this Division shall, unless the Court otherwise orders, conform to the requirements of this Rule, and be in Form 31.

(2)	A list of documents shall enumerate the documents which are or have been in the possession, custody or power of the party making the list.

(3)	A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified.

(4)	Where a party making a list of documents claims that any document in his possession, custody or power is privileged from production, he shall, in the list, sufficiently state the grounds of the privilege.

(5)	A list of documents shall distinguish those documents which are in the possession, custody or power of the party making the list from those that have but are not in his possession, custody or power.

(6)	A list of documents shall, as to any document which has been but is not then in the possession, custody or power of the party making the list, state when he parted with the document and what has become of it.

(7)	A list of documents shall appoint a time within seven days after service of the list when, and a place where, the documents in the list may be inspected. 

(8) Where a party making a list of documents has a solicitor in the proceedings, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.

I find that the other arguments offered on behalf of the plaintiffs in their objection to the application before me now are irrelevant. In particular, Mr Poro submits that the defendant cannot raise here the issue of quantum, as this had not been pleaded in the Defence. This line of argument conveniently ignores the fact that, whilst it was incumbent upon the plaintiffs to prove to the required standard (civil) due performance of the alleged contract for services, no discovery had been made of documents relevant to the issue of damages and quantum. Thus, the discoverable documents would necessarily include the following:

•	Wages books;
•	Written Employment Contracts as required under s 20 of the Employment Act;
•	Written records of Oral employment contracts as required under s 15 (1) of the Employment Act;
•	Guard shifts records;
•	Group tax records; and 
•	NasFund records.
I agree with the defendant that these documents would form the basis upon which both liability and quantum would be considered and determined.

Part of the plaintiffs’ claim is for the balance of both contracts, asserted as being 33 months pursuant to the contracts. To this end, the Court would have to be assisted to assess loss of profits on proof of actual reasonable loss sustained (rather than mere assertion). The plaintiffs would have to demonstrate to the Court’s satisfaction the financial position of the two plaintiff companies and their respective expected (projected?) incomes. Thus, documents collectively described as the business records of the companies would have to be made discovery of by the plaintiffs. I further agree, therefore, that the plaintiffs have failed to provide documents (or lists of) that are critical to the issues in dispute between the parties.

In this respect, they have been guilty of defaulting in their obligation(s) under the NCR.

In the end result, it is the judgment of the Court that the defendant’s application(s) should be granted, and I do so grant with the following consequential orders:

1.	That pursuant to O. 9, r. 15 NCR, the proceedings WS Nos. 1358 and 1359 of 1999 be dismissed.
2.	That the plaintiffs pay the costs of the first and second defendants in their respective actions.
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Lawyers for the applicants/defendants:	Gadens Lawyers
Lawyers for the respondents/plaintiffs:	Poro Lawyers