national court of justice

LAS KOROWA

v

KOI KALA; and
PAI WAI

mt. hagen: cannings j

12 November; 21 December 2004

Practice and procedure – Application by plaintiff for entry of judgment arising from default of defendant in complying with previous orders of the Court – Failure to file and serve a list of documents within 14 days after previous order – Failure to pay K200.00 costs within 14 days after previous order – National Court Rules, Order 9, Rule 15 – Court's discretion – Relevant considerations – Ruling. 

Facts

This is an application by the plaintiff based on Order 9 of the National Court Rules. The plaintiff is seeking to strike out the defendants' defence and enter judgment against the defendants.

These proceedings arise from a motor vehicle accident. On 4 April 2002 two public motor vehicles (PMVs) collided on the Highlands Highway between Mt Hagen and Kwip in the Western Highlands Province. Both PMVs were damaged. The case is about who is responsible for the collision and who is responsible for paying compensation in the form of damages for the cost of the repairs. I do not know if anyone was injured in the accident. The case is not about compensation for personal injury.

The plaintiff, Las Korowa, is the owner of one of the PMVs, a 15-seater Mazda bus, registration No P546W, driven by Wak Ken. The plaintiff is suing the defendants for damage caused to his bus. The first defendant, Koi Kala, is the owner of the other PMV, a Toyota Dyna, registration No P9336. The second defendant, Pai Wai, is the driver of the first defendant's vehicle. There is a dispute about who was in the wrong. The plaintiff claims that the accident was caused by the negligence of the second defendant. However, the defendants assert that the collision was solely due to the negligence of the plaintiff's driver, Wak Ken.

Held
1.	The first thing the Court has to address in an application under Order 9, Rule 15(1)(b) of the National Court Rules is whether defendant was in default in filing or serving a list of documents as required by or under Division 1 of the Order 15. If default is established, the Court has a discretion to exercise. But there is a range of matters relevant to the exercise of the discretion.

2.	All the considerations outlined support the exercise of the Court's discretion in favour of the plaintiff.

3.	The defendants' defence will be dismissed, together with their cross-claim, and the plaintiff will have judgment on liability.

Papua New Guinea case cited
Andrew Kerowa and Securimax Security Limited v Gilbert Som Keke (2004) N2756.

Counsel
Ms J Nandape, for the plaintiff.
Mr T Kuma, for the defendants.

21 December 2004

Cannings j. This is an application by the plaintiff to strike out the defendants' defence and enter judgment against the defendants. 

Background 
Highway accident
These proceedings arise from a motor vehicle accident. On 4 April 2002 two public motor vehicles (PMVs) collided on the Highlands Highway between Mt Hagen and Kwip in the Western Highlands Province. Both PMVs were damaged. The case is about who is responsible for the collision and who is responsible for paying compensation in the form of damages for the cost of the repairs. I do not know if anyone was injured in the accident. The case is not about compensation for personal injury.

Parties
The plaintiff, Las Korowa, is the owner of one of the PMVs, a 15-seater Mazda bus, registration No P546W, driven by Wak Ken. The plaintiff is suing the defendants for damage caused to his bus.

The first defendant, Koi Kala, is the owner of the other PMV, a Toyota Dyna, registration No P9336. 

The second defendant, Pai Wai, is the driver of the first defendant's vehicle.

There is a dispute about who was in the wrong. The plaintiff claims that the accident was caused by the negligence of the second defendant. However, the defendants assert that the collision was solely due to the negligence of the plaintiff's driver, Wak Ken.

Procedural history
On 15 May 2003 the plaintiff's lawyers, Tamutai Lawyers, of Mt Hagen, filed a writ of summons and statement of claim. 

On 10 July 2003 the defendants filed a notice of intention to defend.

On 11 August 2003 Mawa Lawyers, of Mt Hagen, commenced acting for the defendants.

On 10 September 2003 the plaintiff filed a notice of motion, seeking entry of default judgment, for K37,542.26, on the ground that the defendants had not filed a defence. 

On 19 September 2003 the defendants filed a defence and cross-claim.

On 6 March 2004 Hinchliffe J dismissed the plaintiff's motion, which had been filed on 10 September 2003. 

On 22 March 2004 the plaintiff issued a notice for discovery, requiring the defendants to give discovery of documents, with verification, within 15 days after service of the notice. 

On the same day, 22 March 2004, the plaintiff filed a reply to the defence, together with a defence to the cross-claim.

On 18 June 2004 the plaintiff filed a notice of motion, seeking orders that the defendants' defence be struck out for failing to comply with the notice for discovery and that judgment be entered in favour of the plaintiff, with damages to be assessed.

On 10 September 2004 that notice of motion was determined by Gavara-Nanu J. His Honour made the following consent order:

1	That the defendants shall file and serve on the plaintiff a verified list of documents within 14 days as of the date of making this order and failure to do so shall result in the defendants' defence being dismissed. 

2	That the defendants shall pay the plaintiff's costs of K200.00 within 14 days and failure to do so shall also result in the defendants' defence being dismissed.

24 September 2004 was 14 days after the date of Gavara-Nanu J's order. By that day, the verified list of documents had not been filed and the K200.00 costs had not been paid.
On 30 September 2004 the defendants filed a verified list of documents. The defendants' counsel, Mr Kuma, asserts that the list was filed before then. But there is no evidence of that.

On 6 October 2004 the plaintiff filed a notice of motion, seeking orders that:

the defendants' defence, which had been filed on 19 September 2003, be dismissed; 

judgment be entered in favour of the plaintiff on liability; 

the defendants' cross-claim be dismissed; and 

the matter be remitted to the call-over list for trial on assessment of damages. 

A supporting affidavit by Judy Nandape of Tamutai Lawyers states that, by 4 October 2004, the defendants had not served their verified list of documents on the plaintiff. Nor had they received the K200.00 costs referred to in the consent order of 10 September 2004.

On 12 November 2004 the plaintiff's notice of motion, filed on 6 October 2004, was argued before me at Mt Hagen. 

RELEVANT LAW

The plaintiff's application is based on Order 9 of the National Court Rules. Order 9 deals with discovery, interrogatories and admissions. Division 1, consisting of Rules 1 to 16, deals with discovery and inspection of documents.

Rules 1 to 8 deal specifically with the discovery process. Any party can require another party to "give discovery", ie provide a list of documents relevant to the proceedings. The Court can also, if necessary, order that discovery be given.

Rules 9 to 13 contain procedures for inspection of documents. A party or the Court can require another party to produce documents for inspection.

Rules 14 to 16 are general provisions dealing with both discovery and inspection.

Order 9, Rule 15 (default) confers a discretion on the Court when a party is in default under Division 1. It states:

(1)	Where a party makes default in filing or serving a list of documents or affidavit 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—

(a)	if the party in default is a plaintiff—an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings; or

(b)	if the proceedings were commenced by writ of summons and the party in default is a defendant—an order that his defence be struck out and that judgment be entered accordingly.

(2)	Where a party has a solicitor—

(a)	an order under any of the Rules of this Division need not, for the purposes of enforcement of the order by committal or sequestration, be served personally; but

(b)	if the order has not been served personally, the order shall not be enforced by committal of any person or by sequestration of the property of any person if that person shows that he did not have notice or knowledge of the order within sufficient time for compliance with the order.

(3)	Where a party has a solicitor, and an order under this Division against the party is served on the party by leaving a copy of the order at the office of, or posting it to, the solicitor or his agent, the solicitor shall, if he fails without reasonable cause to notify the party of the order, be guilty of professional misconduct.

PLAINTIFF'S SUBMISSIONS

Ms Nandape, for the plaintiff, asserted that this was a straightforward matter of non-compliance with a Court order, which ought to result in judgment being entered against the defendants.

The order made by Gavara-Nanu J on 10 September 2004 required the defendants to do two things. First, to file and serve a verified list of documents within 14 days. Secondly to pay the plaintiff's costs within 14 days. The defendants neither filed and served the verified list, nor paid the costs, within 14 days. This means that Order 9, Rule 15(1)(b) applies. 

Ms Nandape also pointed to the self-executing nature of the order of 10 September 2004: failure to comply with either part of the order would result in the defendants' defence being dismissed.

DEFENDANTS' SUBMISSIONS

Mr Kuma, for the defendants, submitted that there were some confusion arising from the order of 10 September 2004, as it was not entered until 4 October 2004. He also submitted that he had, in fact, filed the documents within the 14 days period. But they had not been processed by the Registry until six days later. He had used his best endeavours to comply with the Court's order.

THE COURT'S DISCRETION

Steps to follow under Order 9, Rule 15(1)(b)
This is an application under Order 9, Rule 15(1)(b) of the National Court Rules. So the first thing the Court has to address is whether the defendant was in default in filing or serving a list of documents as required by or under Division 1 of Order 15.

If default is established, the Court has a discretion to exercise. It may make such order as it thinks fit, including an order striking out the defendant's defence and entering judgment in favour of the plaintiff. 

Are the defendants in default?

Clearly, yes. I accept Ms Nandape's submission that the defendants are in default of Gavara-Nanu J's order of 10 September 2004 in two respects. 

First, the verified list of documents should have been filed and served by 24 September 2004. But it was not filed until 30 September 2004 and there is no affidavit of service that shows when it was served.

Secondly, the defendants did not pay K200.00 costs of the plaintiff.

RELEVANT CONSIDERATIONS TO TAKE INTO ACCOUNT

The order made by Gavara-Nanu J was an order made under Division 1 of Order 9 and it was not complied with. Therefore the circumstances are ripe for the Court making an order, including that the defendants' defence be struck out and that judgment be entered against the defendants. However it is a discretionary matter and the Court must be satisfied that it is appropriate to make an order in those terms. There is a range of matters relevant to the exercise of the discretion. 

I consider the relevant considerations to be:

the extent or seriousness of the default;

whether there are good reasons for the default;

the terms of previous orders made by the Court;

whether there are any unresolved issues in the case;

the conduct of the lawyers; and

the interests of justice.

APPLICATION OF RELEVANT CONSIDERATIONS 
I now apply the above considerations to the present case.

Extent of default

As indicated above there are two aspects of the defendants' default.

As to the first, they were six days late in filing a verified list of documents. It could be said, putting things in a favourable light, that this was not a wholesale default. The defendants made a serious attempt to comply. However, they were given 14 days to comply and the extent of their non-compliance was almost 50% of the time that they had been given. I conclude that it was a serious default. 

As to the failure to pay the K200.00, I accept Ms Nandape's assertion that this has still not been paid. The amount involved is small. But it is a clear and serious default.

Overall, the level of non-compliance with the Court's order of 10 September 2004 is significant.

Reasons for default
I cannot accept Mr Kuma's explanation that the documents were filed before the due date of 24 September 2004, then retrieved on 30 September 2004. That is a lame excuse, which I have heard too much of during recent circuits to Mt Hagen. (See, for example, Andrew Kerowa and Securimax Security Limited v Gilbert Som Keke (2004) N2756.)

If a lawyer is having difficulty getting documents immediately sealed by the National Court Registry, it is incumbent on the lawyer to query or challenge the delay or to make a formal application for an extension of time to comply with the Court's order. Lawyers who file documents, hope for the best, and do not follow up on delays are courting disaster.

As to the failure to pay the K200.00 costs, Mr Kuma submitted that the defendants were based out of town and difficult to contact. I suggested that the sum was not a great impost and that Mr Kuma's firm should have paid the money. Mr Kuma replied that authority to do that would have to come from his firm's head office in Port Moresby. With respect, this was another head-shaking excuse, which does not establish a good reason for not complying with a Court order.

Terms of previous orders
I pay particular attention to the terms of Gavara-Nanu J's order of 10 September 2004. It was clearly stated that failure to comply with either part of the order "shall result in the defendants' defence being dismissed". I accept Ms Nandape's submission that the order is self-executing.

Whether there are any unresolved issues

On 19 September 2003 the defendants filed a cross-claim, which asserted that the plaintiff's driver was in the wrong, and that it was his negligence which caused the motor vehicle accident. This issue is foreclosed by the dismissal of the defendants' defence. The cross-claim is, in effect, a mirror image of the defence. If the defence is struck out, it follows that the cross-claim ought to be dismissed. There will be no unresolved issues.

Conduct of lawyers

I cannot help but be critical of the manner in which this case has been conducted by the defendants' lawyers. Gavara-Nanu J's order of 10 September 2004 was a consent order, plain and clear in its terms. The defendants were given 14 days to do certain things. The order was like a time-bomb ticking away. The defendants' lawyers were told what they had to do to defuse it. Two simple things:

file and serve a verified list of documents; and 

organise the payment of K200.00 to the plaintiff's lawyers.

They did neither within the time stipulated. It was lax conduct.

Interests of justice

In interpreting laws such as Order 9, Rule 15 of the National Court Rules, the National Court must be conscious of its duty under Section 159 of the Constitution to get paramount consideration to the dispensation of justice.

The Court should not unnecessarily prevent a person who wants to have their day in Court from arguing their case. But parties who come to the Court must comply with the orders of Court. If they do not comply, the right, that they would otherwise have had, to put their side of their story in a trial, can be lost.

The interests of justice in this case favour the exercise of the Court's discretion by interpreting Order 9, Rule 15 in a way that will see a party penalised heavily, but fairly, for disregarding an order of the Court. 

Conclusion
All of the considerations I have outlined support the exercise of the Court's discretion in favour of the plaintiff. The Court's orders have not been complied with. There are no special circumstances to warrant departure from the natural consequence of that, which is that the defendants' defence will be dismissed, together with their cross-claim, and the plaintiff will have judgment on liability. 

Order 
The order of the Court will be in terms of the orders sought in the notice of motion filed on 6 October 2004. Thus:

1	the defendants' defence filed on 19 September 2003 is dismissed;

2	the defendants' cross-claim filed on 19 September 2003 is dismissed;

3	judgment is entered for the plaintiff on liability, with damages to be assessed;

4	the issue of damages shall be remitted to the call-over list for trial; and

5	the defendants shall pay the plaintiff's costs of these proceedings, to be taxed if not agreed.

Lawyers for the plaintiff: Tamutai Lawyers.
Lawyers for the defendants: Mawa Lawyers.