Yama Security Services Ltd v Bank South Pacific Ltd [2017] PGNC 413; N7651 (3 October 2017)

N7651

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO. 1258 OF 2015

YAMA SECURITY SERVICES LIMITED & 8 OTHERS
Plaintiffs

-V-

BANK SOUTH PACIFIC LIMITED
First Defendant

GARTH McILLWAIN
Second Defendant

Waigani: Kariko, J
2017: 2^nd & 3^rd October,

PRACTICE & PROCEDURE – oral application to dispense with Rules – application in effect to vary or set aside directional orders – no proper application with supporting affidavit – no reasonable explanation for not complying with directions – purpose of the Commercial Listing Rules

PRACTICE & PROCEDURE – oral application for adjournment of trial that has commenced – relevant principles – no proper application – no sufficient cause to warrant adjournment of trial – prejudice to other parties – need for proper management of commercial cases pursuant to the Commercial Listing Rules

Cases cited

Coecon Ltd v National Fisheries Authority of Papua New Guinea (2002) N2182
Melina Ltd v Fred Martens (2001) N2183
Michael Yona v Wamp Nga Enterprises Ltd (2009) N3644
Ok Tedi Mining Ltd v Niugini Insurance Corporation & Ors [1988-89] PNGLR 355
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126

Legislation

National Court Rules
Commercial Listing Rules

Counsel

Mr B Lomai, for the Plaintiffs
Mr M M Varitimos, QC with Mr D Wood and Ms E Ortlauf, for the First Defendant
Mr I Molloy with Mr A Mana, for the Second Defendant

RULING

3^rd October, 2017

1. KARIKO, J: Two oral applications have been made on behalf of the plaintiffs (collectively, the Yama Group of Companies). The applications followed my ruling not to entertain the hearing of two filed notices of motion – the first of which sought to have Mr Varitimos disqualified from representing the first defendant (BSP) and for the trial to be adjourned, and the second was for the first defendant’s defence to be struck out and summary judgement entered for the plaintiffs. Consequential to the ruling, I ordered the trial that had been fixed for a 10 days hearing proceed.
   

Application to dispense with the Rules

2. Mr Lomai for the plaintiffs then sought to tender into evidence three affidavits previously filed in support of his clients’ claim whereupon he was asked by me whether his clients had complied with directions of the Court for parties to give proper notice of the affidavits they intended to be relied upon at the trial. Eventually Mr Lomai conceded that the relevant direction had not been complied with by his clients but then he moved the first of his oral applications purportedly pursuant to O10r9A(17) National Court Rules asking the Court to dispense with the requirements of the Rules, so that his clients be allowed to tender into evidence the affidavits in question.
   
3. Counsel for the defendants (Mr Varitimos for the first defendant and Mr Molloy for the second defendant) both strongly opposed the application firstly pointing out that what Mr Lomai was seeking was not a dispensation of the requirements of the Rules but in effect relief contrary to previous directions of the Court. That, counsel urged could only be considered if a proper application is filed and served which application must necessarily seek to vary or set aside the relevant directions previously made. Those directions include a direction of the court made 16^th March 2017 (in relation to notice to rely on affidavits) and a direction of the court made 12^th September 2017 that the plaintiffs are not permitted to tender any affidavits into evidence at the trial. The latter direction followed that failure of the plaintiffs to give their notice to rely on affidavits and was ordered pursuant to a notice of motion by the first defendant that was properly served on the plaintiffs and where the first defendant had forewarned the plaintiffs earlier by letter that it intended to seek such an order from the court.
   

Application for adjournment

4. In reply, Mr Lomai advised the Court that upon instructions, he had tried to brief a Queens Counsel (QC) to appear for his clients but the QC was not available for the set dates for the trial. Mr Lomai also informed the Court the plaintiffs had now withdrawn their instructions to him to act for them. For those reasons he made the second oral application, namely to have the trial adjourned.
   
5. Again, counsel for the defendant both strenuously opposed the application. Counsel referred to Order 10r9A(13)(1) National Court Rules which states that a trial once fixed for hearing may only be adjourned by leave of the court “upon sufficient cause being shown” . Counsel also made submissions on the relevant principles regarding an application for adjournment of a trial, and referred to the following case authorities - Coecon Ltd v National Fisheries Authority of Papua New Guinea (2002)N2182, Kandakasi, J; Melina Ltd v Fred Martens (2001)N2183, Kandakasi,J; Michael Yona v Wamp Nga Enterprises Ltd (2009) N3644’ Makail J; Ok Tedi Mining Ltd v Niugini Insurance Corporation & Ors [1988-89] PNGLR355, Kapi, DCJ; PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126, Kandaksi, Hartshorn & Sawong,JJ.
   
6. The principles that emerge from the cases include:
   
   • The application must be made promptly and as soon after the need for such and application arises
   • Such circumstances should be beyond the control of the applicant
   • Prior notice must be given of the intention to apply for an adjournment
   • Proper formal application must be filed and served.
   • Affidavit in support of the application must be filed and served
   • Evidence must be produced showing that the applicant has otherwise taken all relevant steps to prepare for trial.
   • The applicant must demonstrate sufficient cause” or the existence of good reason why the adjournment should be allowed
   • The other parties must not be prejudiced by any adjournment
     
7. Mr Lomai did not contradict those principles but stressed that the withdrawal of instructions by his client plus the fact that the engagement of a QC to represent the plaintiffs had not been finalised constituted “sufficient cause” and a denial of the application for adjournment would be prejudicial to the plaintiffs as they would have to represent themselves in the proceeding and that would not be in the interest of justice.
   

Consideration and determination

8. Having considered all the submissions, I first determine that the application to dispense with the Rules is misconceived because O10r9A (17) is not applicable and in any case the application has not been properly filed and served. The directional orders of 16^th March 2017 and 12^th September, 2017 remain. No application has been made to set aside or vary those orders and neither has those orders been appealed against.
   
9. Since May of last year there have been five occasions when directions have been issued all with the aim to properly manage the conduct of the trial of this complex and serious commercial case that involves very substantial monetary claims. The directions have been issued consistent with the purpose of the Commercial Listing Rules for the effective and expeditious resolution of a commercial dispute. The plaintiffs were at all times aware of the very clear directions issued by the court and the consequences of non-compliance. The plaintiffs were also aware that they were at liberty to make application regarding the directions. They failed to make any application. There was more than sufficient time to make such application and well before the scheduled trial date. To submit that it was merely an oversight not to comply with the direction to give notice regarding affidavit evidence, is unacceptable.
   
10. The defendants have prepared for this trial on the basis of the relevant directional orders regarding the conduct of the trial and in particular the evidence for the trial. That means that they did not expect there to be any evidence introduced for the plaintiffs. To allow the affidavits in despite the earlier directions would also mean the defendants have been denied the right to file proper objections to those affidavits. I refuse the application to allow the plaintiffs to tender affidavit evidence in this trial.
    
11. In relation to the oral application for adjournment, it is my view that based on the relevant legal principles, the application should be refused. I am not satisfied that the plaintiffs have been seeking the engagement of a QC. There is simply no material properly before the court to support that advice from Mr Lomai. I find it curious that the matter of representation by a QC was not raised earlier, and it was raised only when it became obvious to me that Mr Lomai was having difficulty with the application concerning the affidavits for his clients. While the reasons are not clear, it appears that for the same reason, instructions were then purportedly withdrawn from Mr Lomai. I am in agreement with the submission that the withdrawal of instructions on the date of the trial cannot be considered “sufficient cause” to allow an adjournment of the trial, especially when there is no material properly before the court explaining why the instruction have been withdrawn and at the “11^th hour”.
    
12. I do not doubt that the defendants who have had this case hanging over their heads for some years have incurred considerable expenses in preparing for trial and in compliance with the directions of the Court and they will be prejudiced by any further adjournment of the case. In the case of the second defendant, there is advice before the court that he is a stroke patient and to my mind any prolonging of the trial would adversely affect his health. To allow the adjournment sought would also in my view be contrary to proper management of commercial cases as intended by the Commercial Listing Rules.
    
13. After considering all the relevant facts and the submissions, as stated earlier I also refuse the oral application for adjournment of the trial and order that the trial proceed.

________________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Plaintiffs
Ashurst Lawyers: Lawyers for the First Defendant
Allens Linklaters: Lawyers for the Second Defendant