N3145

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 618 OF 2003

BETWEEN:

ALBERT AGUA trading as OMILI RECYCLING
Plaintiff

AND:

COCA COLA AMATIL (PNG) LTD
Defendant

Lae: Gabi, J
2007: 7 February

PRACTICE AND PROCEDURE – Application to strike out defence – Order 9 rule 15 of National Court Rules – Rule deals with default in giving discovery – Not available to a party who seeks to enforce an order for filing affidavits within a specific time for purposes of trial.

Cases Cited

Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11
John Niale v Sepik Coffee Producers Ltd and Others (2000) N1954
Titus Keran v Jerry Ubrum & Anor [1994] PNGLR 130

Counsels

V Narokobi, for the Plaintiff
P Ousi, for the Defendant

RULING

7 February, 2007

1. GABI, J:	Introduction: There are two (2) applications on notice before me. The plaintiff’s application, which is made pursuant to O.9 r.15 (b) of the National Court Rules, is to strike out the defendant’s defence and to enter judgment against the defendant for failing to comply with a court order, set the matter down for assessment of damages and costs of the application. The defendant, on the other hand, applied for the dismissal of the plaintiff’s notice of motion, acceptance of the affidavits of defendant’s witnesses as filed within time or in the alternative for leave to file its witness’s affidavits pursuant to O.1 r.15 (1) and (2) of the National Court Rules.

2. The plaintiff filed and relied on the following affidavits: affidavit of Albert Agua sworn on 23 September 2005; affidavit of Yagas Joe sworn on 26 September 2005; affidavit of Vergil Narakobi sworn on 20 October 2005; and affidavit of Albert Agua sworn on 26 October 2005. In support of its application, the defendant filed the following affidavits: affidavit of Jack McGinty dated 14 October 2005; affidavit of Tasup Linny dated 17 October 2005; and two (2) affidavits of Jenny Numbos dated 17 October and 1 November 2005 respectively.

Facts

3. The brief facts are that on 16 May 2003, the plaintiff filed this action in the Registry at Waigani. This is a claim for breach of contract. On 3 July 2003, the defendant filed its defence. On 17 September 2004, the defendant filed a notice of discovery with verification. On 25 February 2004, the plaintiff filed his list of documents. On 22 October 2004, an order was made for the proceedings to be transferred to the National Court in Lae for trial. On 25 November 2004, the defendant gave a second notice of discovery with verification. It appears that a second list of documents was not filed in respect of that notice. On 11 July 2005, the matter was set down for trial on 14th and 15 September 2005. On 14 September 2005, the trial date was vacated due to the fact that 15 September was a public holiday. By consent the parties agreed to certain orders including filing of affidavits. The parties agreed that the plaintiff would file and serve his affidavit on the defendant within fourteen (14) days of the order. The defendant would in turn respond by filing and serving its affidavits within fourteen (14) days after service of the plaintiff’s affidavits. On 26 September 2005, the plaintiff filed his affidavits and served them on the defendant on 27 September 2005. The defendant had until 11 October 2005 to file its affidavits in response. On 18 October 2005, the plaintiff’s Lawyers warned the Lawyers for the defendant that as they have failed to file the affidavits within time, an application would be made to strike out the defence and enter judgment for the plaintiff. The defendant filed its affidavits on 19th and 20 October and 2 November 2005 respectively. It appears the affidavits for the defendant’s witnesses were sent to the plaintiff by facsimile on or about 2 November 2005.

Submissions 

4. Mr Narokobi of Counsel for the plaintiff argued that the defendant has breached the order and has not offered any reasonable explanation for the delay. As such, he submitted that judgment should be entered for the plaintiff with damages to be assessed and referred me to the cases of Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11; Titus Keran v Jerry Ubrum & Anor [1994] PNGLR 130; John Niale v Sepik Coffee Producers Ltd and Others (2000) N1954. 

5. Mr Ousi submitted that he has explained the delay in his affidavit and that a delay of nine (9) days is not an unreasonable delay. He argued that the delay in no way would prejudice the plaintiff, who may be compensated by an appropriate order for cost. The defendant has a bona fide defence and a dismissal of the proceedings would be unfair and contrary to the interest of justice.

The Law

6. Order 9 rule 15 (1) of the National Court Rules provides:

"15. Default. (23/15)

(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 judgement be entered accordingly."(Emphasis added).

7. Order 9 rule 15 provides that when a defendant is in default in filing or serving a list of documents or in producing any document "as required by or under this Division," the Court can order that his defence be struck out and judgment be entered accordingly. This division deals with discovery and inspection of documents. A party may give notice of discovery. A party required to give discovery "shall" do so within the period specified in the notice. It is a mandatory requirement (See O.9 rules 1 & 2 of National Court Rules).

8. In this case, the question of discovery does not arise. The defendant gave notice of discovery with verification on 17 September 2003. On 25 February 2004, the plaintiff filed his list of documents. The defendant filed a second notice for discovery on 25 November 2004. It appears that the plaintiff has not filed a list of documents in response to that notice. However, the defendant has not complained about that to the Court. It is therefore not an issue before me. I am of the view that O.9 r.15 is not available to the plaintiff.

9. Even, if I were wrong in that view, I am of the opinion that the failure to comply with the order is not fatal in that no prejudice is caused to the plaintiff. The affidavits were to be filed in preparation of a trial. No date for trial was given. In fact, I believe that no date for trial has been given to date. Secondly, the defendant has a bona fide defence and must be allowed to raise it at the trial. Finally, Mr Ousi had explained the delay, which is not unduly long and I accept the explanation.

10. For all these reasons, I dismiss the plaintiff’s application and make the following:

1.	The plaintiff’s notice of motion filed on 26 October 2005 is dismissed;

2.	The affidavits of Jack McGinty, Tasup Linny and Jenny Numbos are accepted as filed within time pursuant to O.1 r.15 (1) and (2) of the National Court Rules;

3.	Cost is in the cause.

________________________________

Narokobi Lawyers: Lawyers for the Plaintiff	
Warner Shand Lawyers: Lawyers for the Defendants