Medical Society of Papua New Guinea v Sapuri [2015] PGNC 19; N5899 (27 January 2015)

N5899

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 477 OF 2012

BETWEEN:

THE MEDICAL SOCIETY OF PAPUA NEW GUINEA INC.
Plaintiff

AND:

MATHIAS SAPURI
First Defendant

AND:

SYLVESTER LAHE
Second Defendant

Waigani: Hartshorn J.
2014: March 27th,
2015: January 27th

Application for an order directing the entry of judgment for the defendant – Order 10 Rule 14 National Court Rules

Cases cited:

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
Damansara Forest Products (PNG) Ltd (In Liquidation) v. R. H. Trading Ltd (2004) N2723
Philip Takori v. Simon Yagari (2008) SC905
William Kunia v. Tom Nakei (2010) N4357

Counsel:

G. B. Purvey, for the Plaintiff
G.P. Manda and P.O. Nii, for the First and Second Defendants

27th January, 2015

1. HARTSHORN J. The first and second defendants are medical practitioners and members of the plaintiff. They were respectively the President and the Secretary of the plaintiff. The plaintiff alleges that the defendants breached fiduciary and other obligations that they owe in respect of the plaintiff and its members. The plaintiff claims amongst others over K1.3 million, the return of a motor vehicle and that the defendants provide an accounting of the plaintiff's funds.

2. The defendants deny the allegations.

Order 10 rule 14 application

3. After the conclusion of the evidence of the plaintiff in chief in the substantive hearing of the proceeding, counsel for the defendants made an oral application pursuant to Order 10 Rule 14 National Court Rules. That Rule gives the discretion to the court to direct the entry of judgment for the defendants generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, an order directing the entry of judgment for the plaintiff could not be supported. This application was opposed by the plaintiff.

4. Counsel for the defendants relied upon the decision of Davani J. in Damansara Forest Products (PNG) Ltd (In Liquidation) v. R. H. Trading Ltd (2004) N2723 in which the application under Order 10 Rule 14 was refused and my decision of William Kunia v. Tom Nakei (2010) N4357 in which the application was granted.

5. In Kunia v. Nakei (supra), I mentioned that the wording of Order 10 Rule 14 is very similar to Rule 34.7 of the New South Wales Supreme Court Rules 1970 and a similar rule in England and that decision on those provisions are persuasive in our jurisdiction.

6. I also stated that:

"Such an application, according to Ritchie's Supreme Court Procedure, New South Wales, is similar to the application for 'nonsuit' at common law. It will be granted if a verdict could not reasonably be given for the plaintiff on the evidence adduced: Hiddle v. National Fire & Marine Insurance Co of New Zealand [1896] UKLawRpAC 14; [1896] AC 372 at 375-6; De Gioia v. Darling Island Stevedoring & Lighterage Co Ltd [1941] NSWStRp 53; (1942) 42 SR (NSW) 1; Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 330-1; [1959] ALR 367. If the evidence is equivocal about the existence or non-existence of a fact that the plaintiff must establish, the case must fail and a dismissal order is appropriate: Bell v. Thompson (1934) 34 SR (NSW) 436; Carr v. Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301."

7. Counsel for the defendants submitted amongst others, that the amended statement of claim was deficient as the plaintiff had not pleaded details of relevant bank accounts, where the alleged funds had been paid, that the defendants had used the subject funds for their own or someone else's use and the breach of a particular Rule or Act or a Rule of the constitution of the plaintiff. Reliance is placed upon the decisions of Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694 and Philip Takori v. Simon Yagari (2008) SC905 as to the requirements of pleading. It was submitted that the pleading was fundamentally flawed.

8. Counsel for the defendants submitted further that the plaintiff's constitution was not before the court, there was no evidence of a resolution of the plaintiff to commence this proceeding or to hire a lawyer and that objection had been taken to copies of relevant bank statements of an account of the plaintiff being admitted into evidence.

9. As to the submissions of the defendants concerning the plaintiffs pleading, Order 10 Rule 14 refers to the ground to be relied on as "........, on the evidence given, an order directing the entry of judgement for the plaintiff could not be supported." (my emphasis). Having regard to what is stated at para 6 above, and from a consideration of the wording of the Rule, I am of the view that the wording does not permit a challenge to a pleading under this Rule. Consequently, I will not consider the defendants submissions on this point.

10. As to the defendants' submissions concerning the evidence given on behalf of the plaintiff, counsel for the plaintiffs submitted amongst others that a breach of the plaintiff's constitution is not being pleaded. The plaintiff is alleging a breach of fiduciary duty. As to the resolution to commence proceedings, that is referred to by both of the plaintiffs witnesses and it is contained in the list of documents tendered by consent.

11. To succeed in this action, the plaintiff has to prove on the balance of probabilities that amongst others the defendants were in a fiduciary relationship in respect of the plaintiff and its members and that the defendants are in breach. There is evidence that amongst others, the defendants were members and held elected positions in the plaintiff. Further, funds were withdrawn from the account of the plaintiff when the defendants did and did not have control, that money was received that should have been deposited into the plaintiffs account, and that there have not been proper acquittals in respect of the plaintiffs account.

12. Given the above, I am of the view that this court's discretion to direct the entry of judgment for the defendants should not be exercised in this instance.

13. The application of the defendants pursuant to Order 10 Rule 14 National Court Rules is refused.

14. I will hear counsel on whether the defendants should be granted leave to adduce evidence in the proceeding and on the question of costs.

____________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff
Greg Manda Lawyers: Lawyers for the First and Second Defendants