PNG Law Reports 1993
[1993] PNGLR 360
N1197
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
LUP IOHOI
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
Goroka
Sakora J
23 September 1993
PRACTICE AND PROCEDURE - Notice of motion - Not served as required by the National Court Rules - Grant of leave to serve notice of motion refused - Breaches of National Court Rules not condoned.
DAMAGES - Personal injuries - Motor vehicle accident.
Facts
After the notice of intention to defend and defence were filed and the case listed for trial, counsel for plaintiff sought certain interlocutary orders pursuant to notice of motion previously filed but not duly served on the defendant. Counsel for defendant objected to the Court entertaining the application on the basis of non-compliance with O 4 r 42 National Court Rules, which requires minimum time for service.
Held
1.       Objection of the defendant trust upheld.
2.       The two notices of motion had not complied with the requirements of the National Court Rules.
3.       No case was made out to grant leave to serve the notice of motion.
4.       Notice of motion dismissed.
Counsel
M A Pryke, for the plaintiff.
A Kandakasi, for the defendant.
23 September 1993
SAKORA J:  The applicant/plaintiff took out a writ of summons on 11 November 1991 against the respondent/defendant trust, claiming damages resulting from injuries he received in a motor vehicle accident alleged to have occurred on 12 October 1990 along the Barabuna road near Kainantu in the Eastern Highlands Province.
After numerous delays and adjournments, (which I shall advert to during the course of this decision) since the filing of the notice of intention to defend and the defence itself on 16 December 1991, Sevua AJ (as he then was) on 19 August 1993 gave a special listing for trial on Tuesday and Wednesday 21 and 22 September 1993. Mr Pryke and Mr Kandakasi, counsel for the plaintiff and defendant, respectively, were before His Honour when the trial dates were nominated.
On the first day of the scheduled trial, Tuesday 21 September, Mr Pryke advised the Court that he wished to apply for certain orders pursuant to two notices of motion, one dated and filed 15 September and the other dated 19 August and filed 20 August 1993. I had become aware of the intended application only the day before, Monday 20 September, when advised by Mr Kandakasi in response to my query as to why he was in Court then rather than a day later for the trial.
I hasten to add here that the motions were set down for hearing on Monday 20 September at 1.30 pm, firstly, with the full knowledge that the trial was set down for the very next day and, secondly, without having consulted my associate as to the listing of other matters for that day. Order 4 r 38(3) of the National Court Rules provides that, except with the leave of the Court, and subject to these Rules, a motion shall be moved only on a date fixed by the Court for the hearing of motions. As it happened, there were criminal matters listed for that day at the call-over for the month. And the motion was set down despite the knowledge and understanding (or there ought to have been) by counsel that there had been full listings for criminal and civil matters this month (and some in November, there being no sittings in October in Goroka), and that Fridays are our motions days, save, of course, when urgent applications involving freedoms and liberties of the person necessarily need to be entertained.
Mr Kandakasi raised objection to the Court entertaining the application because, he said, the notice of motion had not been served as required by the National Court Rules. That is to say, the notice of motion had not been served within three clear days as stipulated under 0 4 r 42, which reads:
"42.    Time for service of notice
Where notice of a Motion is required to be served, it shall, unless the Court otherwise orders, be served not less than three days before the date named in the notice for hearing the motion. "
The rule is in mandatory terms with the use of the imperative "shall".
It is to be noted that nowhere in the documentation available to the Court now can be located affidavits of service in respect of these two notices of motion, as required by 0 4 r 43 (2) which reads as follows:
"43.    Service
(2)      An affidavit of service of a notice of motion shall be filed not later than the day before the day on which the motion is to be made."
Once again, the rule is in mandatory terms; similarly, the use of the imperative "shall".
Thus, strictly speaking, the applicant purported to proceed with two notices of motion that had not been duly served on the respondent.
National Court Rules, 0 4 r 38 makes abundantly clear the necessity for giving notices in interlocutory proceedings such as these. The rule reads as follows:
"38.    Notice necessary
(1)      Subject to sub - rule (2), a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service in the proceedings. 
(2)      A person may move the Court without previously filing or serving notice of the motion:
(a)      where the preparation of the notice, or the filing or service, as the case may be, of the notice would cause undue delay or other mischief to the applicant; or
(b)      where each party interested, other than the applicant, consents to the order; or
(c)      where under these Rules or the practice of the Court for the time being the motion may properly be made without the prior filing or service, as the case may be, of notice of the motion; or
(d)      where the Court dispenses with the requirements of sub - rule (1)." 
There was and is nothing before me to suggest that the circumstances envisaged by sub - rule (2) (a) - (c) exist here, nor did the applicant seek dispensation with the requirements of sub - rule (1) under sub - rule (2) (d).
And to compound matters further, that is, to perpetuate the non - compliance with the rules, the applicant intended to rely on affidavits that had not been filed and served on the respondent as required.
National Court Rules, 0 4 r 44 reads as follows:
"44.    Affidavits
(1)      Where a motion is founded on facts or on facts and documents, unless the Court otherwise orders, an affidavit setting forth those facts and having annexed to it those documents (if any) shall be filed with the notice of motion, and a copy of the affidavit shall be served on the parties sought to be affected by the motion with the notice of motion.
(2)      A respondent may, before the date appointed for the hearing or, by leave of the Court within such further time as may be fixed by the Court, file an answering affidavit and shall on the same day serve a copy of it on the applicant. "
In respect of sub - rule (1) here, it has to be noted that the copy of the affidavit has to be served with the notice of motion three clear days before the date of hearing. And the documentation now before the Court demonstrates no evidence of the Court having ordered otherwise in this respect.
And in respect of sub - rule (2), the very fact that the respondent has no answering affidavits before the Court is further testimony to what is becoming increasingly obvious as the applicant's continued disregard for the National Court Rules.
Now, in order to fully understand and appreciate the objection of the learned counsel for the respondent in its proper context in this case, I have deemed it necessary to inquire into the background to these notices of motion. In this respect, it was necessary that I hear counsel on the subject - matters of the two notices of motion as well as the grounds of the objection. I should point out at this juncture that my adopting this course of action was not intended to be an acceptance by the Court that these originating processes for the intended application had complied with the National Court Rules.
But before I deal with the submissions of counsel, it is necessary that I outline briefly here the history of this case. After that, what I say will make sense and have significance.
.         There was a motor vehicle accident along Barabuna road, near Kainantu.
.         Writ of summons WS 782/91 issued 11/11/91 by William Neill Lawyers. Their city agents Blake Dawson Waldron Lawyers.
.         Notice of intention to defend and the defence both filed 16/12/91 by Young & Williams Lawyers. 
.         Notice to set down for trial dated 7/1/92 filed by William Neill Lawyers on 8/1/92.
.         Notice of trial dated 8/1/92 filed by William Neill Lawyers issued by A/Registrar; date of trial nominated as 3/2/92.
.         No record on file as to what happened between 8/1/92 and 29/4/92; presumably the case got forgotten by all concerned.
.         Amended statement of claim filed on 29/4/92 by William Neill Lawyers. How did this happen after a trial date had been given?
.         Then on 23/10/92 the case came before me (after I had been transfered here in August 1992). The file notation then recommenced. On that day Miss Hasu of Pryke & Hasu Lawyers appeared for the plaintiff, and Mr Kandakasi appeared for the defendant trust. Counsel indicated the case would go to trial for 1 1/2 days, and the trial date of 19/2/93 was designated.
.         Trial date of 19/2/93 vacated.
.         Case not resurrected for March circuit in Goroka.
.         Court not sitting in Goroka in April (involved in Oro and Milne Bay Circuits).
.         Court sits in Goroka in May 1993, case had been set down tentatively for 21/5 and 22/5. But Pryke & Hasu Lawyers advise (by letter dated 17/5) Young & Williams Lawyers involved in cases in Mt Hagen and, thus, unable to attend to the trial of the Goroka case. New trial date of 14/6/93 requested and granted, with my instructions for associate to advise parties' lawyers that, if they are not ready to proceed on new trial date, case will be taken off the list.
.         On 7/6/93 Pryke & Hasu Lawyers take out summons to give evidence: Const. John Wama of Bomana Police College.
.         On 2/6/93 Miss Hasu of Pryke & Hasu Lawyers appears and advises Court that 14/6/93 is Queen's Birthday holiday. Case, therefore, re - scheduled for 15/6. In any case, from the correspondence from Young & Williams Lawyers, 15/6 would not suit them; they have Mt Hagen cases 15/6 - 18/6.
.         On 15/6/93, only Miss Hasu of Pryke & Hasu Lawyers appears and is advised Judge taken ill. Case stood over to next call - August, because Judge on holiday in July.
.         On 30/7/93 plaintiff's lawyers, Pryke & Hasu Lawyers, file yet another amended Statement of claim. Filed also notice of motion dated 30/7 for hearing on 6/8.
.         On 2/8/93, before Sevua AJ, Miss Hasu advises Court of readiness of parties for trial - 2 days trial indicated. She then needs to liaise with Mr Kandakasi of Young & Williams Lawyers on trial dates. Case stood over generally.
.         On 6/8/93, Miss Hasu appears before Sevua AJ. Court sets the case down for trial for 18 - 19/8. It seems the notice of motion for 6/8 not proceeded with.
.         On 16/8/93, plaintiff's lawyers file yet another notice of motion for hearing on 18/8. There is no proof this notice of motion was served. Note: the notice of motion was dated and filed 16/8 for hearing 18/8, thus could not be served three (3) clear days before hearing date (deliberate breach of service rules?).
.         Plaintiff's lawyers then filed on 20/8/93 yet another notice of motion dated 19/8 (one of the dates of the scheduled trial), unilaterally nominating 20/9 as hearing date. This notice of motion was after the orders of Sevua AJ on 19/8 granting leave to amend the statement of claim (draft amended statement of claim had been annexed to the 16/8 notice of motion), and further ordering that copy of the amended statement of claim "be served on the defendant forthwith". 
His Honour also granted leave for the plaintiff's lawyers to withdraw two previous amended statements of claim. His Honour further ordered that the plaintiff file and serve within 7 days particulars of economic loss, loss of future earning capacity, and special damages. And his Honour set the case down for trial for 21 and 22 September 1993.
This chronology of events tells an incredible story - in the light of cases such as claims for damages for personal injuries - where there is always, or ought to be, the greatest need for settlement of claims with expedition. Where procrastination obviously is not in the best interest of the injured and suffering claimant or destitute dependant claimants.
Except for those unavoidable occasions that have tended to delay, a major part of the history of this case demonstrates a very chequered past, a past that is a litany of inactivity and aborted processes and proceedings.
When I surveyed and reviewed the history of this case, a recurring thought throughout has been the inability and inefficiency on the part of the plaintiff's lawyers to obtain proper instructions and prosecute the claim for damages with expedition and in due compliance with procedural requirements. One cannot help but ask why is it that amendments, if considered necessary and according to instructions, were not sought and incorporated long before trial dates were requested and granted on those many occasions? Why is it that notices of motion, whilst breaching the procedural requirements as demonstrated earlier here, were invariably set down for hearing (made returnable) on or close to the designated trial dates?
Why is it that when counsel, especially counsel for the plaintiff, stood to advise the Court that the case was ready for trial, and estimated the duration of the trial, and, as a consequence, trial dates were given by the Court, there was no indication (or inkling at all) that applications would be made also on those trial dates?.
Now, returning to the latest spate of notices of motion. On 19 August 1993, Sevua AJ entertained an application by the plaintiff pursuant to a notice of motion dated 16 August 1993 and filed same date. There is no evidence that that notice of motion was duly served on the defendant trust. It is safe to conclude, therefore, that the plaintiff's lawyers proceeded in breach of National Court Rules 0 4 rr 38,42,43 and 44, as previously described above. In any case, it would seem his Honour, in the exercise of the Court's discretion, acceded to the plaintiff's requests and made orders favourable to him. As mentioned earlier, leave was granted to amend the statement of claim some 21 months after the writ of summons had been issued.
As a price for the favourable exercise of the Court's discretion, his Honour gave the following directions and made the following orders: 
"Pursuant to the powers conferred upon me by Order 8 rule 50 (1) of the National Court Rules, I will grant leave to the plaintiff to amend his statement of claim. I make the following orders:
1.       Leave is granted to the plaintiff to amend the statement of claim as per the draft annexed to the notice of motion dated 16 August, 1993.
2.       Pursuant to Order 8 rule 55(1) the plaintiff is to serve the defendant with a copy of the amended Statement of Claim, forthwith.
3.       Leave is granted to the plaintiff to withdraw the amended statement of claim filed on 29th April, 1992, and also the amended statement of claim filed on 30th July, 1993.
4.       The plaintiff is to file and serve within 7 days of today, particulars of economic loss, loss of future earning capacity, special damages and out of pocket expenses. 
5.       The defendant is to file its amended defence within 14 days of today's date.
6.       The plaintiff is to pay the defendant's costs in respect of this application including costs of airfares and accommodation for counsel and witnesses.
7.       For entry of this order be abridged to the date of settlement which shall take place forthwith.
8.       This matter is fixed for hearing on 21st and 22nd September, 1993 before Sakora,J."
It would seem that instead of proceeding to take the full advantage of the Court's exercise of discretion in their client's favour, by complying with the time requirements specified and directed by the Court, the plaintiff's lawyers were only concerned with making further applications to vary his Honour's orders and obtain extensions to the time limits.
Thus, instead of doing the things required to be done, on their own part, to give practical expression to the Court's exercise of discretion, the plaintiff's lawyers come to this Court seeking further indulgence of the Court, i.e., to further exercise the Court's discretion to undermine the orders of 19 August 1993, made then in the exercise of the Court's discretion.
The lawyers' default in this respect is amply demonstrated by, firstly, not taking out the order and entering it, as is customary. Instead they waited around for the Assistant Registrar to prepare the order and have it entered - which he did on 9 September 1993.
Secondly, instead of ensuring that time limits were observed in compliance with the orders of the Court, the lawyers let time limits expire and then came to this Court seeking retrospective extension of time: see paras 1 and 2 of the 15 September 1993 notice of motion. And this is sought in complete disregard, it would seem, for the rules and requirements on service.
Thus, the amended statement of claim does not have a copy of it served forthwith and the particulars are not served within 7 days (as ordered by the Court). A draft of the amended statement of claim was attached to the 16 August notice of motion heard on 19 August 1993.
Why could not a copy be served soon after the 19 August order, or at least within days of that order? Why could not the Particulars be filed and served in sufficient time before expiry of the seven days - before 25 August. Instead, the particulars were filed on the last day, 25 August. How could they possibly hope to serve it within the required time limit?
In an effort to support the latest notice of motion (dated 15 September 1993), the unavailability of an Assistant Registrar is offered as justification for non - compliance with the orders. And these come in the form of affidavits: of M A Pryke, sworn 15 September and filed same date, and of W Lumuwe, sworn 21 September. It is noted that these affidavits are not properly before the Court, because they have not been served in compliance with the National Court Rules (as explained above). I refer to them and comment on them merely to demonstrate and emphasise the point that they form a litany of errors on the part of the plaintiff's legal representatives.
Instead of clarifying the situation, the above mentioned affidavits exhibit a confused and convoluted state of affairs. For instance, at para 3 of the affidavit of W Lumuwe, he says he filed the notice of motion and affidavit together with the amended statement of claim on 19 August (the document itself says filed 20 August). At para 4 he says he went back to Assistant Registrar Anakapu on 20 August and was handed the sealed copies of the notice of motion and affidavit. Why was not the amended statement of claim sealed and handed back on 20 August with the notice of motion and affidavit, if, in fact, it was filed on 19 August as he deposes to? There was nothing else the Assistant Registrar had to do apart from sealing and filing it (and handing back the copies).
I would have to conclude that, if the amended statement of claim had indeed been filed on 19 August, as W Lumuwe deposes to, sealed copies would certainly have been issued to him on 20 August together with copies of the notice of motion and affidavit (he received). Now, if the copies of the notice of motion and affidavit had been issued to him on 20 August, as he deposes to, why were not copies of these served on the defendant trust long before 20 September?
In this respect, I refer to the affidavit of M A Pryke sworn 16 September and filed 21 September (the unserved affidavit). I refer to it only to illustrate the confused and convoluted state of affairs. From a perusal of para. 2 of that affidavit, one is compelled to ask: why is it that Mr Pryke faxed the notice of motion and the affidavit sworn/dated 19 August, in purported service on the defendant's lawyers on 10 September, when these documents had been sealed and returned to W Lumuwe by Assistant Registrar Anakapu on 20 August? If what Mr Pryke and Mr Lumuwe, respectively, say is true, why then did it take 22 days to attempt service by facsimile (20/8 - 10/9)?
So, what is the real story about documents lying around unattended in the National Court Registry here? And even if there was no Assistant Registrar here for a certain period, were all other avenues closed to the plaintiff's lawyers? Since the defendant's lawyers are in Port Moresby, and certain documents were ordered by the Court to be served on them long before the trial date, would it not have been prudent for the plaintiff's lawyers to seek to file documents in Waigani through their city agents and have them served expeditiously and conveniently through these agents? And if the problems or difficulties here in Goroka were as suggested in those affidavits, why weren't the defendant's lawyers advised of these?
In the end, what this Court is faced with here are two situations: firstly, the plaintiff failing to take full advantage of Court orders made in his favour in the exercise of the Court's discretion on 19 August 1993, thereby forfeiting these considerations through non - compliance with the conditions - the stipulated time limits, and, secondly, the notices of motion and supporting affidavits that have not been served in compliance with the National Court.
In support of the applications, Mr Pryke referred me to O 12 r 8, where, I think, he was relying on sub-rule (3), because sub - rules (1) and (2) do not seem to be applicable here. That sub - rule reads as follows: 
"8.      Setting aside or varying judgment or order
(3)      The Court may, on terms set aside or vary an order:
(a)      .... or 
(b)      where notice of motion for the setting aside or variation is filed before entry of the order." 
As we have seen above, the orders of 19 August 1993 were left for the Assistant Registrar to attend to (instead of the party itself), and was eventually entered on 9 September 1993.
There are, as we have seen, two notices of motion urged upon the Court by Mr Pryke: that filed on 20 August 1993 and the one filed 15 September 1993. Without concerning myself with the query as to why the plaintiff did not enter the order immediately, and left it for the Assistant Registrar to attend to it some 21 days later, it would seem that the notice of motion filed on 20 August would be the one covered by O 12 r 8(3)(b). That notice of motion sought variation of the order for costs - the time within which to pay - to enable payment after trial rather than before.
The sub - rule says the Court may vary the order if the notice of motion is filed before the entry of the order sought to be varied.
The first step towards the Court entertaining the notice of motion in this respect is that it has been filed as envisaged by O 12 r 8(3)(b). Then the next step in the procedural hurdle to overcome is that the rules as to service of the notice of motion and supporting affidavits be complied with, i.e. those rules under Order 4 (already dealt with here). In this case, the 20 August 1993 notice of motion and intended affidavits do not comply with the service requirements. Thus, I do not see how O 12 r 8 can be of any avail to the applicant/plaintiff.
Next, Mr Pryke referred me to National Court Rules O 1 r 15. The rule deals with extensions and abridgements of time fixed by the Rules or by Court judgments and orders. The proper application of this rule, of course, presupposes that the rules pertaining to interlocutory applications, under Order 4, have been complied with.
As noted repeatedly already, the two notices of appeal do not comply with the service requirements under Order 4.
As part of his argument Mr Pryke concedes the errors and defaults highlighted here, that is that no positive steps were taken to comply with the National Court Rules, leading to the failure to comply with orders of the Court of 19 August 1993. But he describes these errors and defaults collectively as mere technicalities, and asserts that no, or no undue, inconvenience or disadvantage has been caused to the defendant trust.
Contrary to the plaintiff's contention here, it is abundantly clear that those rules under Order 4 pertaining to notices of motion for interlocutory applications are in mandatory terms. Interlocutory applications such as the plaintiff contemplates here, of course, affect the nature and extent of the claims against the defendant. Thus, anything likely to affect the pleadings must give sufficient notice to the opposing party so that that party is enabled to know what is really being claimed so that he may, if he so desires, make a payment into Court.
And if the notice of motion is founded on facts or on facts and documents, as envisaged by O 4 r 44 (1), if affidavits in this respect are not filed with the notice of motion and served on affected parties, then those parties, the respondents, may not be able to file answering affidavits, as envisaged by O 4 r 44(2). They, therefore, will be disadvantaged and prejudiced.
I note here that the plaintiff has not urged upon me Order 1 rr 7 and 8, which are in the following terms: 
"7.      Relief from Rules
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. 
8.       Non - compliance with Rules not to render proceedings void
Non - compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and upon such terms, as the Court thinks fit."
In the end, it is the opinion of this Court that to indulge the plaintiff and accede to further exercise of discretion in his favour at this juncture, when the trial should be underway, would be to formally and judicially condone breaches of the National Court Rules and disobedience of the orders of the Court.
I have taken considerable time here to outline the background to these applications before me in order to demonstrate that it is now nigh on time for the Court to take a proper control over this case and announce that "enough is enough", and that the National Court Rules must be complied with. The Court cannot, and ought not, tolerate any further procrastination here. The Court must not be seen to be condoning disobedience of its own orders.
It is, therefore, the judgement of this Court that the objection of the defendant trust here should be upheld. I find that the two notices of motion, dated 20 August and 15 September 1993, had not complied with the requirements of the National Court Rules. In this respect, I reject the plaintiff's submission that here is a situation proper for the continued exercise of the Court's discrection. Thus, I hold that no case has been made out for me to grant leave to serve the notice of motion at this stage. I dismiss the notices of motion. 
Reverting, if only briefly, to my earlier comment about the expeditious disposal or settlement of cases of this nature, it becomes glaringly obvious from the review of the history of this case that, whilst lawyers are running around filing all manner of applications before the Courts, victims and dependants of victims of motor vehicle accidents invariably suffer, and continue to suffer.
One wonders how it is that a piece of legislation initially intended to enable victims and/or dependants, following motor vehicle accidents, to receive compensatory payments from a statutory body specifically created by the legislation to receive claims and process payments (where warranted), find it so costly and time - consuming to have their claims settled. This case came to the official attention of the Courts in November 1991. The accident in question occurred the year before, in 1990. And here we are in late September 1993 talking about amended statements of claim, etc. 
Lawyer for the plaintiff: Pryke & Hasu.
Lawyer for the defendant: Young & Williams.