N6562
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1236 OF 2014
 
BETWEEN 

JOE KUNDA NAUR
SIMBU PROVINCIAL ADMINISTRATOR 
First Plaintiff

AND 
SIMBU PROVINCIAL GOVERNMENT 
Second Plaintiff

AND 

RAYMOND ZAMUA
MANAGING DIRECTOR 
First Defendant

AND 

WORESI BROTHERS ENGINEERING LIMITED
Second Defendant

Kundiawa:  Liosi, AJ
                                                 2016:  22 June &7 December

CIVIL – Motions – Plaintiffs seeking to strike out and or dismiss Defendant’s Defence and crossclaim and judgment be entered for failing to give Discovery with damages to be assessed – Order 9, Rule 15(1) National Court Rules.  

Case Cited:
Ace Guard Dog Security Services Ltd -v- Lindsay Lailai (2003) N2459
Duwa & Senge (1995) PNGLR 140
Motor Vehicle Insurance Ltd -v- Paki (2006) PGNC 130; N3212
POSFB -v- Sailas Imanakuan (2001) SC 677
	
Counsel: 
Mr. Camillus M. Gagma, for the Plaintiffs 
Mr. Peter Kuman, for the Defendants 

Ruling
7th December, 2016
1.	LIOSI  AJ:   This is a ruling on the plaintiff’s notice of motion filed on the 14th April 2016. The motion seeks the following reliefs. 
a.	Pursuant to Order 9, Rule 3 of the National Court Rules, the defendant be ordered to give discovery pursuant to the plaintiffs notice of discovery filed on 10th November, 2015. 
b.	Alternatively, pursuant to Order 9 Rule 15, of the National Court Rules the defendant’s defence and cross-claim filed on 06th February, 2015 be struck out and or dismissed and judgment be entered accordingly for failing to file and serve list of documents. 
c.	The matter be set down for damages to be assessed. 
d.	Costs of and incidental to this proceeding be borne by the defendants, to be taxed   if not agreed. 

2.	Although pleaded in the notice of motion, the plaintiff has not pursued relief number one.
  
3.	The plaintiff relies on the following  materials:
(i)	Notice of discovery filed on 10th November 2015
(ii)	Affidavit of Camillus Gagma sworn on 12th April, 2016 and filed on 14th May, 2016
(iii)	Affidavit of Service of Ralph Gaso sworn on 14th March, 2016 and filed on 18th April, 2016
(iv)	Affidavit of Service of Ralph Gaso sworn on 14th March, 2016 and filed on 22nd March, 2015 
(v)	Affidavit of Joe Kunda Naur sworn on 25th November, 2014 and filed on 25th November, 2014

Background	

4.	 The plaintiff’s Writ of Summons was filled on 8th October 2014 claiming losses and damages as a result of a breach of contract. The claim arises out of a contract entered into with the defendants to rehabilitate and seal certain roads within Kundiawa town. The plaintiffs claim a breach of contract by the defendants in not performing it’s obligations despite been paid under the contract and for specific performance. 

Defendants Defence and Crossclaim

5.	 The defendants in their defence denied the claim by the plaintiffs. It submits the plaintiff breached the contract by not paying the defendants for work done from November to December 2013 and from 28th February 2014 to 1st August 2014. This prompted the defendants to operate an overdraft facility. It states the plaintiff only paid K900, 000.00 when it was owed. K2, 910-652.00. It therefore filed a crossclaim for breach of contract and specific performance as consequential reliefs. 

6.	On the 10th November 2015, the plaintiff filed its notice of discovery which was served on the defendant’s lawyers on 15th December, 2015. The notice of discovery was reserved on 10th March, 2016 after the initial service details form was misplaced. Since then, the defendants have not responded to that notice nor filed a list of documents as required under the National Court Rules. Several letters were sent following upon the notice of discovery of documents within 15 days pursuant to the notice of discovery filed however there has been no response to date. 

The Issues 

7.	a. Whether or not  there was default on the part of the Defendants in complying with the plaintiffs notice of discovery; and; if so 
b. Whether or not the default provisions of the rules ought to be enforced against the plaintiffs; 
c. In the alternative, whether or not the defendants’ defence and cross-claim filed on 06th February, 2015 be dismissed for disclosing no reasonable defence and cause of action, embarrassment and delay in the proceedings pursuant to Order 8, Rule 27 of the National Court Rules?

The Law 

8.	The plaintiff’s application is made pursuant to Order 9, Rule 15(1) of the National Court Rules which reads; 

“1. Notice for Discovery 
(1)	Subject to this rule, where the pleadings between any parties are closed, any of those parties may, by notice for discovery in Form 30 filed and served on any other of those parties, require the party served to give discovery of documents, with or without verification......  
(2)	Discovery on notice 
(1)	A party required under Rule 1 of this Order to give discovery shall, subject to Rule 2 of this Order, give discovery within such time, not being less than 14 days after service in him of the notice for discovery, as may be specified in the notice for discovery.”
                   “15 Default 
(1)	Where a party makes default in filing or serving a list of documents or affidavits 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;   ........ 
(b) if the proceedings were commenced by Writ of Summons and the party in default is a defendant – an order that this defence be struck out and that judgment be entered accordingly.”

9.	The principles of discovery are well settled in this jurisdiction. They are discussed in the case of Duwa & Senge (1995) PNGLR 140 and POSFB -v- Sailas Imanakuan (2001) SC 677 and Motor Vehicles Insurance Ltd -v- Paki (2006) PGNC 130; N3212. In POSFB (supra) it was held that order 9 Rules 15 of National Court Rules clearly provides- 

      “that in an action commenced by Writ of Summons default action can be sought and there is no pre-condition that a court order must first be sought; the wording in the Rule is “as required by or under this division” and the words in the rule makes no reference to “as ordered” 

10.	The Court clearly found that default judgment was open not only to total loss of discovery but also deficient discovery. POSFB is a binding Supreme Court decision and clearly gives authority to the National Court to dismiss an action commenced by Writ of Summons if the party required to give discovery has failed to give discovery of a document whether it be in its original form or a copy and is relevant to proceedings unless it is privileged. In this case the defendants failed to give total discovery. 

11.	In Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2003) N2459, Sakora J said that the proceedings should be dismissed under Order 9(15) (1) if the failure or default were repeated or chronic. 

Did the Defendants default in complying with Plaintiff’s Notice of Discovery

12.	 The plaintiffs rely on the affidavit of Camillus Gagma and Ralph Geso to establish default. The pleadings closed after the plaintiff’s filing of reply to defence and crossclaim on 3rd March 2015. The plaintiff’s have filed affidavits to rely on at trial. The defendants have not.
 
13.	As the defence did not file any affidavit in support of it’s defence and crossclaim, the plaintiff filed it’s notice of discovery on 10th November, 2015. The notice for discovery was served on the defendants not once but twice on 15th November 2015 and 10th March 2016. The defendants have not responded. 

14.	Several letters were sent to the defendant’s lawyers requesting them to give discovery. No response was received to the letters of 9th March and 31st March 2016. Apart from that a Notice to set down for Trial was sent to the defendant’s lawyers under cover of  letter of 12th October 2015 for them to countersign and file for matter to proceed to trial. This was never done.  

15.	Further an application was filed on 26th October 2015, for the matter to be transferred to Waigani to expedite the hearing. This was withdrawn at the insistence of the defendant’s lawyers that the matter be dealt with in Kundiawa. 

16.	In a letter dated 29th February, 2016 a draft consent directions was sent to the defendants lawyers for their comments before finalisation for the Courts endorsement to expedite the matter. There has been no response to this letter and the draft consent directions.
17.	In its letter of 9th March 2016. The plaintiffs followed up on the notice of discovery and the draft consent directions. There has been no response to date. It appears from the foregoing that the failure by the defendants are repeated and chronic. 

Should the Default Provisions of the Rules be enforced against the Plaintiff? 
18.	Clearly the defendants have defaulted in filing and service of its list of documents as required under the Rules. The defendants have not provided such documents to support their defence and crossclaim. Their pleadings are therefore unsupported by affidavit evidence and lacks substance.

19.	Various reminders to provide the list of documents have gone unheeded with no explanation for the default and the defendant’s inaction to remedy the situation thereby causing delay in expediting settlement of the matter. 

20.	Failure to provide the list of documents has caused great prejudice and disadvantage to the plaintiff. The defendants have failed to disclose through discovery the documents they are relying on in their pleadings relating to their defence and crossclaim. 

21.	In the present case, the plaintiff’s claim is to recover the sum of K2.7million paid to the defendants for the road resealing project within Kundiawa town for breach of contract. The defendants failed to complete the project despite been paid the total contract value of the project.

22.	In its defence the defendants generally denied allegations of breach of contract. Instead the defendants allege that due to the delayed payments, interest on bank overdraft accrued and the payments were taken by the bank. Consequently, the defendant was disadvantaged and applied for replenishment of the advance bank overdraft. This demise was brought upon the defendant itself thus incurring its own liability.
 
23.	In any event the defence and crossclaim does not have any merits as it is unsupported by affidavit evidence and unsubstantiated. 

24.	In light of relevant case laws and the facts of this case, I find that the defendants have clearly defaulted. In the circumstances pursuant to Order 9 Rule 15(1) of the National Court Rules the defendants defence and crossclaim are dismissed and damages are to be assessed.

Ruling Accordingly, 

________________________________________________________________
Gagma Legal Services  :      Lawyers for the Plaintiffs
Kuman Lawyers 	      :	    Lawyers for the Defendants