Van de Pol v Lae Golf Club Incorporated [2017] PGNC 40; N6658 (14 February 2017)

N6658

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1170 OF 2009

BETWEEN

THEO VAN DE POL

Plaintiff

AND
LAE GOLF CLUB INCORPORATED
Defendant

Lae : Murray, J

2012 : 22 May

2017 : 14 February

Cases Cited:
Bruce Tsang vs. Credit Corporation Limited [1993] PNGLR 112.
Chief Collector of Taxes vs. TA Field Pty Limited [1975] PNGLR 144.
Curtain Brothers QLD Pty Limited & Kinhill Kramer Pty Limited vs. The State [1993] PNGLR 285.
Debt International Private Limited vs. Ambogo Sawmill Pty Limited [1987] PNGLR 117.
Hornibrookes Constructions Pty Limited vs. Kawas Express Corporation Pty Limited [1986] PNGLR 301.
Kumul Builders Pty Limited vs. Post & Telecommunication Corporation [1991] PNGLR 299.

Legislations Cited:
Wrongs & Miscellaneous Provision Act

Counsel:

S. Bluette, for the Plaintiff
P. Ousi, for the Defendant

DECISION

14^th February, 2017

1. MURRAY J: Before me on 22^nd May 2012 were 4 applications.

2 applications by way of Notice of Motion filed by the Plaintiff and the other 2 applications also by way of Notice of Motion filed by the Defendant. The first application filed by the Plaintiff seeks an order for Summary Judgment, while the second application seeks various orders in terms of a declaration and orders for Discovery and Production of Documents.
As for the Defendant’s applications, both applications seek an order to set aside firstly a notice to produce filed by the Plaintiff on 1^st August 2011 and secondly to set aside a summons for production.

Background

2. By way of background, the Plaintiff’s claim is for damages for breach of contract and for Negligence. The circumstances giving rise to such claim are that: On or about 9.00 am on 4^th April 2009, the Plaintiff whilst playing Golf at the Lae Golf Club with two (2) others namely Mrs. Henao Hodges and Mr. Nasi Dau, was injured by a motorized buggy that was driven by the caddy assigned to

Mrs. Henao Hodges.

Chronology of events in the National Court

• On 17^th September 2009 the Plaintiff filed this proceeding against the

Defendant, claiming the injuries he sustained were as a result of the Defendant’s failure provide a safe environment for its members, which he is one of.

• On 30^th November 2009, the Defendant filed its amended defence.
  
• On 16^th November 2009, the Plaintiff filed his reply.
• On 23^rd November 2009, a Notice to set down for trial which was endorsed by both parties through their respective lawyers was filed.
  
• On 15^th March 2010, the Defendant filed and served on the Plaintiff a Notice for Discovery.
  
• In response to the said notice, a verified list of documents was filed by the Plaintiff on 30^th March 2010. That was later amended on 7^th April 2010.
  
• On 1^st April 2010, the Plaintiff filed and served a Notice for Discovery.
  
• In response to that, the Defendant filed its list of documents on 15^th April 2010.
  
• On 4^th May 2011 the Plaintiff filed and served a notice to produce also dated 4^th May 2011.
  
• On 13^th May 2011 by consent of the parties the Notice to Produce field

4^th May 2011 was set aside by this Court.

• On 23^rd May 2011, the Plaintiff filed and served another notice to produce.
  
• In response to that notice, the Defendant filed and served a motion on

1^st June 2011 to set aside that notice.

• On 18^th July 2011, the Plaintiff filed and served a summons for production.
  
• On 20^th July 2011, whilst the Defendant’s application filed on 1^st June 2011 was pending, the Plaintiff filed an amended notice of motion seeking declaratory orders that the notice to produce he filed on 23^rd May 2011 is lawful.
  
• On 1^st August 2011, the Defendant filed an application to set aside this summons for production filed by the Plaintiff on 18^th July 2011.
  
• On 25^th November 2011, the Plaintiff filed a motion seeking Summary Judgment on Liability.
  

3. By end of 2011, there were four (4) applications pending. All those four (4) applications as I have set out above came before me on 22^nd May 2012, which I heard and reserved my decision to today.

4. By agreement of both counsel, I heard the Plaintiff’s motions first, starting with the motion for summary judgment. Then I heard the Defendant’s motions and reserved.

5. Following the order of Hearing I proposed to consider the Motion for Summary Judgment first. If I find in favour of the Plaintiff, that would be the end of the matter. However if I refuse the application for summary judgment, I will then proceed to consider the Plaintiff’s second motion which seeks - essentially 2 things: (1) the order for discovery, and (2) a declaratory order that the notice for production and summons to produce are lawful.

Application for Summary Judgment

6. The application is made pursuant to Order 12 Rule 1 and Rule 38 of the

National Court Rules.

Order 12 Rule 1 and 38 reads:

“1. General Relief

The Court may at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”

“38. Summary Judgment

(1) Where, on application by the Plaintiff in relation to any claim for relief

or any part for any claim for relief of the Plaintiff –

(a) there is evidence of the facts on which the claim or part is based; and

(b) there is evidence given by the Plaintiff or some responsible person that, in the belief of the person giving the evidence, the Defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,

the Court may, by order, direct the entry of such judgment for the Plaintiff on that claim or part, as the nature of the case requires.

(2) Without limiting sub-rule 1, the Court may under the sub-rule direct the entry of judgment for the Plaintiff for damages to be assessed.

(3) In this rule, damages ‘include value of goods’.”

7. This application is supported by the following affidavits, namely;

(1) Affidavit of the Plaintiff himself sworn 25^th November 2011.

(Document 46).

(2) Affidavit of Mrs. Henao Hodges sworn 4^th February 2012 and filed on

6^th February 2012. (Document 52).

(3) Affidavit of the Plaintiff himself again sworn 4^th February 2012 and filed on 6^th February 2012. (Document 53).

8. Mr. Bluette of counsel for the Plaintiff submitted the only defense raised by the Defendant against his client’s claim is that the defendant is not responsible for the supervision of the caddy. It does not give any explanation or reasons to say if it is not responsible, then who is. By failing to say who is responsible in its defence, Mr. Bluette submitted, the Defendant has no defense that will warrant a trial and so summary judgment should be entered. Further, Mr. Bluette submitted as an Occupier of the premises where the injury was sustained, the Defendant owed a duty of care under Part XII of the Wrongs (Miscellaneous Provisions) Act 1975, Chapter 297 and there is no defense to that. Hence summary judgment be entered.

9. In response Mr. Ousi of counsel for the Defendant submitted the Defendant’s defence is contained in the amended defence filed 30^th October 2009. In the defence, the Defendant say that the caddy was authorized by the Plaintiff to drive his motorized buggy, whilst the Plaintiff has through his affidavit affidavits stated that the caddy was not authorized to drive his buggy.
In response to that, the Defendant has filed affidavits which will be relied upon and which will show that the facts in dispute are firstly the Defendant say that the caddies are not its employees and that they were there for the convenience of the members. Furthermore members themselves pay the caddies for their services and not the Defendant. As such it gives rise to real issues that need to be determined at trial proper.

10. With respect to the issue of occupier’s liability as raised by the Plaintiff, it was submitted by Mr. Ousi that Section 52 (2) of the Wrongs & Miscellaneous Provisions Act refers to a visitor. The Plaintiff is not a visitor. He was a member of the club.
The issue of whether a member is a visitor is a matter for trial proper. It is not a case where the Plaintiff sustained injury as a result of negligence by the Defendant, in so far as it relates to the premises itself. Furthermore, this was not a situation where a rascal drove the buggy. It was a person whom the Plaintiff authorized and so it does not come within Section 52 (2) of The Wrongs & Miscellaneous Provisions Act. As far as the Defendant is concern it provides the premises to the members to play golf. In conclusion Mr. Ousi submitted the application by the Plaintiff must be refused on the basis that firstly the Defendant has a verified defence filed, secondly the Defendant has not admitted or made any admissions to the claim by the Plaintiff and thirdly given the matters raised in the affidavits by both sides, there are real issues of fact and law that must be determined in a trial proper.

11. The principles relating to applications for summary judgments are well settle in this jurisdiction. A summary judgment is a discretionary power and maybe granted if there is evidence of facts on which the claim is based and the evidence is given by some reasonable person that in his belief the Defendant has no defence to that claim or part of the claim. (see Hornibrook Constructions Pty Limited vs. Kawas Express Corporation Pty Limited [1986] PNGLR 301 and Bruce Tsang vs. Credit Corporation PNG Limited [1993] PNGLR 112.
The discretion conferred on the Court should be exercised only in a clear case and with considerable care. Summary judgment should be granted only where there is no serious tribal issue of fact or law. If there is no dispute as to fact and there is clear admissions of the claim or part of the claim then judgment must be entered for the Plaintiff. (see Chief Collector of Taxes vs. TA Field Pty Limited [1975] PNGLR 144; Debt International Private Limited vs. Ambogo Sawmill Pty Limited [1987] PNGLR 117; Kumul Builders Pty Limited vs. Post & Telecommunication Corporation [1991] PNGLR 299; and Curtain Brothers QLD Pty Limited & Kinhill Kramer Pty Limited vs. The State [1993] PNGLR 285.

12. In the case of Bruce Tsang vs. Credit Corporation Limited (supra) the Supreme Court said at p.288; “As to the second element the Plaintiff must show in the absence of any defence or evidence from the Defendant that in his belief the Defendant has no defence. If a defence is filed or evidence is given by the defendant, as in his case the Plaintiff must show that upon the facts and or the law the Defendant has no defence. The Plaintiff may not be entitled to summary judgment if there is a serious conflict on questions of fact or law. Whether a case should go to trial on these issues will be determined on the facts of which case.”

13. The Defendant in this case filed a defence. The defence was filed on
15^th October 2009 and later amended on 30^th October 2009. Given that a defence has been filed the Plaintiff must show that upon the facts and or the law the Defendant has no defence to his claim that he was injured by a caddy who is an employee of the Defendant. This is disputed by the Defendant. The Defendant in its defence say that caddies are there for the conveniences of its members, like the Plaintiff, and their services are paid by the members who choose to use them. This gives rise to an issue that obviously needs to be tried. Furthermore, I agree with Mr. Ousi that another issue that arises which requires a full hearing is that of occupier’s liability. The Plaintiff’s claim is that the Defendant is liable for the injuries he sustained under Section 52 (2) of the Wrongs & Miscellaneous Provision Act.
On the other hand, the Defendant denies that and in defence states that, that Act does not apply or is not applicable in this case because it refers to a visitor.
The Plaintiff is not a visitor but rather a member of the Club, hence not a visitor.
Clearly there is another issue for trial. In the circumstances I do not agree with the Plaintiff that this case is an appropriate case for summary judgment to be entered and accordingly I dismiss the application and order costs of the application to the Defendant.

Application for various Declaration and Orders for Discovery and Production

of Documents

14. In light of my ruling with respect to the Plaintiff’s application for summary judgment, I now proceed to consider the Plaintiff’s second motion.

15. The Plaintiff’s second motion is an amended one filed on 20^th July 2011. It seeks seven (7) different orders. I will address each of those individually.

16. The first order the Plaintiff seeks is an order pursuant to Order 12 Rule 1 for a declaration that the Notice to Produce filed and served on 23^rd May 2011 is lawfully constituted in accordance with Order 11 Rule 2 of the National Court Rules.

17. The Order is being sought as a reaction to the Defendant’s application to set aside the Notice to Produce filed and served by the Plaintiff on 23^rd May 2011.

18. The Notice to Produce filed by the Plaintiff on 23^rd May 2011 is a Notice in Form 43, purportedly issued under Order 11 Rule 2 of the National Court Rules.

19. The Notice as filed is as follows:

IN THE NATIONAL COURT )
OF JUSTICE AT LAE )
PAPUA NEW GUINEA )

W.S NO. 1170 of 2009

BETWEEN:
THEO VAN DE POL
- Plaintiff -

AND:
LAE GOLF CLUB INCORPORATED
- Defendant -

_____________________________________________
NOTICE TO PRODUCE
FORM 43, SCHEDULE 1,
NATIONAL COURT RULES 1983
_____________________________________________

Dated: 23 MAY, 2011
Filed: 23 MAY, 2011

NONGGORR WILLIAM LAWYERS
ALLOTMENT 10 SECTION 22
CNR SHRIKES SCRESCENT AND CASSOWARY ROAD
LAE
PO Box 1483 LAE
LAE
Telephone: [phone]
Facsimile: [phone]
DOCID: 11163-NOCHLAWYERS-454-/LPK:VPK

IN THE NATIONAL COURT ) W.S NO. 1170 of 2009
OF JUSTICE AT LAE )
PAPUA NEW GUINEA )
BETWEEN:
THEO VAN DE POL
- Plaintiff -

AND:
LAE GOLF CLUB INCORPORATED
- Defendant -

NOTICE TO PRODUCE

To The Defendant: LAE GOLF CLUB INCORPORATED

The Plaintiff requires you to produce before the National Court in Lae on 1 June 2011 certified copies of the following documents for the purpose of evidence:

All Documentation including All Committee Minutes of Meeting of the Defendant and Security Incident Reports that are within the Defendant’s possession, custody, or power and documents in the possession of Agents and Contractors and Past Agents and Past Contractors of the Defendant that are relevant to conduct by persons occurring between 1 January 2000 through to 24 May 2011 on the Defendant’s premises that is capable of constitution an offence under the Criminal Code Act 1974.

______________
Mr. RAY WILLIAM OF

NONGGORR WILLIAM LAWYERS

BY HIS EMPLOYED LAWYER

Mr. SEAN BLUETT

LAWYER FOR THE PLAINTIFF

Dated the Twenty Third Day of May 2011
20. This is the Notice which the Defendant wants to set aside, under Order 11 on the basis that it is an abuse of the process of the Court, whilst the Plaintiff is asking this Court to declare it proper under Order 11 Rule 2 of the National Court Rules.

21. Order 11 Rule 2 of the National Court Rules reads:

“2. Power to issue.

The Court may, in any proceedings, issue a summons to give evidence or a summons for production as a summons both to give evidence and for production in Form 42, 43, 44, 45 or 46, or in such other form as the Court may direct for the attendance on any trial or other occasion of the person named before the Court, officer, examiner or other person having authority to take evidence.”

22. This provision comes under Division 1 of Order 11 which is titled: Summons as to Give Evidence. Rule 1 defines a summons for production and summons to give evidence as follows:

• “Summons for Production” means:

an order in writing requiring the person named to attend as directed by the order and produce a document or thing for the purpose of evidence; and

• “Summons to give evidence” means:

an order in writing requiring the person to attend as directed by the order for the purpose of giving evidence.

23. In my view Order 11 Rule 2 gives the Court a discretionary power to issue a summons to give evidence and for production of a thing or document for the purpose of evidence at trial. This would in my view involve an application to be made, in the course of a trial for such an order to be made, before a Notice in form 43 can be served, which is unlike the process of discovery under Order 9 Rule 1.
Order 9 generally provides a process to obtain documents before the trial starts.

24. In the present case, the Plaintiff filed and served a Notice to produce under Order 11 Rule 2, after the Defendant filed and served its List of Documents on
15^th April 2010. At that point in time, the matter was ready for trial, but trial had not begun.

25. It seemed, the Plaintiff was not satisfied with the List of Documents filed and wanted further and better discovery, and instead of asking for that through the Discovery process under Order 9, he went to Order 11 Rule 2, and now seeks an order to justify what I consider was an error on his part.

26. In my view that is an abuse of process because for the reasons set out above, Order 11 Rule 2 is not applicable given the circumstances in this case.

27. For those reasons, I dismiss the Plaintiff’s application for the first order sought in the Amended Notice of Motion and grant the Application by the Defendant moved under Order 11 Rule 7 to set aside the Notice to Produce.

28. I now move on to consider the second order sought by the Plaintiff in his Amended Notice of Motion, the Plaintiff seeks an order pursuant to Order 9
Rule 10 for production of documents which he says relates to conduct of persons on the Defendant’s premises capable of constituting an offence under the Criminal Code Act.

29. Order 9 Rule 10 is in the following terms:

“10. Order for production.

(1) Where –

• (a) it appears from a list of documents filed by a party under this Division that any document is in his possession, custody or power; or
  
• (b) a pleading or affidavit filed by a party refers to any document; or
  
• (c) it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceedings that there are grounds for a belief that any document relating to any matter in question in the proceedings is in the possession, custody or power of a party,

the Court may, unless the document is privileged from production, order the party –

(d) to produce the document for inspection by any other party at a time and place specified in the order; or

(e) to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.

(2) An affidavit made pursuant to an order under Sub-rule (1)(e) shall,

unless the Court otherwise orders, state whether there are in the documents copied any and, if so what, erasures, interlineations or alterations.”

30. The Plaintiff has, in my view misapplied the provisions of Order 9 Rule 10.
This provision gives the Court a discretionary power to order the production of document for inspection by a party at a time and place specified in the order that is mentioned or referred to, in either a List of Documents filed, or a pleading filed or an affidavit filed or from evidence given in Court that may have not been included with documents for inspection conducted at the time and place nominated in the List of Documents filed, which is the normal discovery process.

31. It does not apply in the manner the Plaintiff has asked for in his application.

32. Rather, it is a process that follows on from Order 9 Rule 6 and Order 9
Rule 9.

33. In my view, Order 9 rule 10 will only be necessary if a party does not make available for inspection of a document that ought to have been made available for inspection under either Order 9 Rule 6 or Order 9 Rule 9.

34. Order 9 Rule 6 & Order 9 Rule 9 are in the following terms:

“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 been 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 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 instruction, the list and the statements in the list are correct.”

“9. Document referred to in pleading or affidavit.

(1) Where a pleading or affidavit filed by a party refers to a document,

any other party may, by notice to produce served on him, require him to produce the document for inspection.

(2) A notice to produce under this Rule shall be in Form 32.

(3) Where a notice to produce a document is served on a party under

Sub-rule (1), he shall, within four days after that service, serve on the party requiring production or his guardian at law, a notice –

(a) appointing a time within seven days after service of the notice under this Sub-rule when, and a place where, the document may be inspected; or

(b) claiming that the document is privileged from production and

sufficiently stating the grounds of the privilege; or

(c) stating that the document is not in his possession, custody or power and stating to the best of his knowledge, information and belief where the document is and in whose possession, custody and power it is.

(4) A notice under Sub-rule (3)(a) shall be in Form 33.”

35. In this case, the Affidavit of Nigel Merrick, (see schedule 2 of Defendant’s List of Documents) nominated a date, place and time for the Plaintiff to inspect the Defendant’s discovered documents. However, it seems the Plaintiff never did that.
To my mind, he has not requested and attended any inspection. As such he is not entitled to seek an order under Order 9 Rule 10.
On that basis I dismiss his application for the second order he seeks in his Amended Notice of Motion.

36. I now move on to consider the third order sought by the Plaintiff. The third order he seeks an order similar to the second order he sought, which I have refused. Therefore, for the same reasons as set out above, I dismiss the application for the third order sought in the Notice of Motion.

37. I now move on to consider the fourth order sought by the Plaintiff. The fourth order the Plaintiff seeks is an order that this Court declare the Meeting Minutes of the Defendant are not privileged from production.
In making this application, the Plaintiff has failed to cite the jurisdictional basis for this application. On this basis alone, I dismiss the application by the Plaintiff for the fourth order sought in the Amended Notice of Motion.

38. I now move on to consider the fifth order sought by the Plaintiff. The fifth order the Plaintiff seeks is an order for the Defendant to amend his List of Documents, in particularly schedule 2. He seeks that schedule 2 be amended by nominating a new time, date and place for inspection of the Defendant’s discovered documents.

39. Like the other applications dealt with, this application is also misconceived in that, there is no need for an order to be made as sought. There is no evidence by the Plaintiff that would give rise for such an order to be made.
He could simply request the Defendant to nominate a new time, date and place for inspection, instead of running to Court and wasting the Court’s time.
For this reason, the Plaintiff’s application for the fifth order he seeks in his Amended Notice of Motion is also dismissed.

40. The last order the Plaintiff seeks is for this Court to award him costs on a Solicitor/Client basis.
Having dismissed all the other applications, this application is also dismissed, as having no merits.

41. As I have dismissed all the applications by the Plaintiff, I order costs to the Defendant to be taxed if not agreed to.

Defendant’s Application to set aside the Summons from production dated and filed 18^th July 2011.

42. Like the Notice to Produce filed by the Plaintiff, which I have now set aside, the Summons for Production was also purportedly filed under Order 11 Rule 2.

43. As the Plaintiff has filed this document in the same manner as he did with the Notice to produce, for the same reasons that I set aside the Notice to Produce, I also set aside the Summons for Production and order the Plaintiff pay the Defendant the costs of and incidental to this application by the Defendant.

__________________________________________________________________
Niugini Lawyers : Lawyer for the Plaintiff
Warner Shand Lawyers : Lawyer for the Defendant