Yamanka Multi Services Ltd v National Capital District Commission [2016] PGNC 310; N6513 (27 July 2016)

N6513

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 768 OF 2001

BETWEEN

YAMANKA MULTI SERVICES LIMITED

trading as Lilian Fast Food
Plaintiff

AND

NATIONAL CAPITAL DISTRICT
COMMISSION
Defendant

Waigani: Hartshorn J.
2015: 13^th November

2016: 27^th July

Application for production of documents

Cases Cited:

National Capital District Commission v. Jim Reima (2009) SC993
Paul Tohian v. Tau Liu (1998) SC566

Counsel:

Mr. A. Kwimberi, for the Plaintiff
Mr. N. Kopunye, for the Defendant

27^th July 2016

1. HARTSHORN J: This is a decision on a contested application by the defendant, the National Capital District Commission (NCDC) for the production of documents. The documents sought to be produced are those that disclose that notice was given by the plaintiff, Yamanka Multi Services Ltd, (Yamanka) in accordance with s. 5 Claims By and Against the State Act (Claims Act). Application is made pursuant to Order 9 Rules 10, 11 and 12 and Order 12 Rule 1 National Court Rules.
   

Background

2. Yamanka operated a fast food bar. It is alleged that NCDC directed that Yamanka cease operating its fast food business because of unhealthy and unsanitary conditions. These conditions, it is alleged, were caused by the construction of roadworks by and on behalf of NCDC. Yamanka claims amongst others, compensation and damages.
   
3. This proceeding was commenced in 2001. Its history includes that default judgment was entered on 15^th November 2004 in respect of paragraphs 14, 15, 18, 19 and 20 of the amended statement of claim filed 31^st August 2004. An application to set aside that default judgment was refused on 18^th February 2010. By consent order, Yamanka has since filed a further amended statement of claim and NCDC has filed an amended defence.
   

This application

4. NCDC contends that Order 9 Rule 12 National Court Rules permits the court, “at any stage of any proceedings”, to order any party to produce to the court a document relating to any matter in question in the proceeding. Further, Order 9 Rule 10 (1) (b) provides for a document to be produced where a pleading or affidavit filed by a party refers to any document. In this instance, the affidavit of Ms. Lari Raula refers to a s. 5 Notice as does the affidavit of Ms. Faith Barton-Keene filed herein.
   
5. Yamanka contends that NCDC is not entitled to the relief that it seeks as it has not required Yamanka to file a list of documents, there is no pleading as to a s. 5 Notice, and NCDC can utilise the normal discovery procedure. Further, Yamanka contends that NCDC’s application is an abuse of process essentially because the s. 5 Notice issue is not pleaded.
   

Consideration

6. It is clear from Order 10 (1) (b) National Court Rules that this court may, unless the document is privileged, order a party to produce a document for inspection where a pleading or affidavit filed by a party refers to any document. The court is given a discretion in this regard.
   
7. Order 9 Rules 9 to 12 do not restrict inspection or production to a document referred to in a pleading. Consequently, I am not satisfied that it is an abuse of process for NCDC to bring this application. There is also no requirement that the discovery procedure must have been utilised before the production procedure under the National Court Rules.
   
8. In this instance, although the s. 5 Notice issue has not been pleaded, it has been referred to in affidavits filed by NCDC.
   
9. I also note the Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566 which held that compliance with s. 5 Claims Act is a condition precedent to the commencement of a proceeding which relates to a claim against the State where a s. 5 Notice is required to be given, and the Supreme Court case of National Capital District Commission v. Jim Reima (2009) SC993 that held that NCDC is an entity of the State and that notice pursuant to s. 5 Claims Act must be given before proceedings are commenced. It is then an issue relating to this proceeding.
   
10. Consequently, I am satisfied that NCDC is entitled to the relief that it seeks.
    

Orders

11.

a) The relief sought in paragraphs 1 and 3 of the Amended Notice of Motion filed 29^th October 2015 of the defendant is granted;

b) The plaintiff shall pay to the defendant the costs of and incidental to the said Amended Notice of Motion;

c) This matter returns for mention at 9:30 am 7^th September 2016;

d) Time is abridged.
_____________________________________________________________
Kwimberi Lawyers : Lawyers for the Plaintiff
Kopunye Lawyers : Lawyers for the Defendant