N750

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OK TEDI MINING LTD

V

NIUGINI INSURANCE CORPORATION AND OTHERS (NO 1)

Waigani
Kapi DCJ
31 August 1989
1 September 1989
5 September 1989

PRACTICE AND PROCEDURE - National Court - Adjournments - Proceeding set down for trial - Power to adjourn - Principles applicable - Onus on applicant - Actual prejudice to be shown - Injustice to respondent to be weighed - National Court Rules, O 10, r 11.

The National Court Rules, O 10, r 11, provides:

"Time and place of Trial

(1) Where proceedings have been set down for trial under Division 1 of this Order for a specified date, the trial may be held on that or any date.

(2) Notwithstanding sub-rule (1) of this Rule and notwithstanding the setting down of any proceedings for trial under Division 1 of this Order, the Court may make such orders as it thinks fit for fixing the time and place of trial."

A date for trial of a matter involving complex issues, numerous witnesses and documents was specially fixed for hearing and was one month from hearing when the defendants who had obtained experts’ reports and delivered interrogatories received late discovery of very large quantities of documents. On an application for adjournment of the trial date,

Held

(1) The National Court has power to grant or refuse an application for adjournment of proceedings set down for trial under O 10, r 11, of the National Court Rules.

(2) An applicant for adjournment of proceedings set down for trial bears the onus of showing why a refusal to adjourn would result in injustice to him.

(3) The applicant for adjournment should make the application promptly and must prove actual prejudice, not merely speculative prejudice.

(4) The court must also give consideration to the interests of the respondent to the application, that is, whether an adjournment would result in injustice to the respondent.

(5) In all the circumstances, an adjournment of one month should be granted.

Cases Cited

Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32; [1940] 4 All ER 212.
Walker v Walker [1967] 1 WLR 327; [1967] 1 All ER 412.
Watson v Watson (1968) 12 FLR 164; 70 SR (NSW) 203; 88 WN (Pt 2) 270.

Motion

This was a motion on notice by the defendants as applicants for adjournment of proceedings specially fixed for trial.

Counsel

I V Gzell QC with D R Cooper, D G Ryan and S L Kassman, for the applicants/defendants.
A J Sullivan and T Glenn, for the respondent/plaintiff.
Cur adv vult

5 September 1989

KAPI DCJ: The issues involved in this case are complex and the number of witnesses and documents to be led in evidence are so numerous that a special fixture for the hearing of this case was necessary. The matter came before me for fixture in December 1988 and I directed that it be set down for hearing on 2 October 1989. I have given directions regarding pleadings and exchange of reports and documents between the parties with a view to commencing the trial on the given date.

By notice of motion filed on 25 August 1989, the defendants have applied:

1. to adjourn the date of hearing by six weeks, and

2. to strike out cl 16a of the amended statement of claim and replead the issue.

The defendants’ application to adjourn the case has been prompted by the late discovery of documents by the plaintiff. These documents were discovered on 11 August 1989 and Mr Ryan, counsel for the defendants, indicated to me during the hearing of another matter in this case on 14 August 1989, that on a quick examination of the documents, there would be likely prejudice to the defendants in terms of actual discovery and inspection of these documents and consequential action to be taken. He indicated at that time that they would investigate the documents in greater detail and would make an application for an adjournment if the need arose.

Counsel for the defendants submit they have now examined these late-discovered documents; it would take a longer period to investigate, and they would not be in a position to start the trial on 2 October 1989. In brief, counsel for the plaintiff has submitted that at the most, the defendants have only proven potential prejudice. It is submitted that the defendants must show actual prejudice before they can succeed on the application for adjournment.

The National Court Rules, O 10, r 11, provides:

"Time and place of trial

(1) Where proceedings have been set down for trial under Division 1 of this Order for a specified date, the trial may be held on that or any date.

(2) Notwithstanding sub-rule (1) of this Rule and notwithstanding the setting down of any proceedings for trial under Division 1 of this Order, the Court may make such orders as it thinks fit for fixing the time and place of trial."

It is clear from the common law principles as well as from O 10, r 11, of the National Court Rules that this Court has jurisdiction to grant or refuse the applications for adjournment. No local authorities have been cited. I take the law to be applicable in this area as set out in O 10, r 11, of the National Court Rules. The common law cases are helpful in the interpretation and in the application of the terms of this rule. I simply set out the common law cases as a reference to the sources of common law: Halsbury’s Laws of England (4th ed), vol 37, par 508 at 384-385, Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32, Watson v Watson (1968) 70 SR (NSW) 203 and Walker v Walker [1967] 1 WLR 327.

The principles that may be applied under O 10, r 11, may be stated as follows. Where a date has been fixed well ahead of time, the matter should proceed on that date. The reason is obvious: all parties would make arrangements towards the commencement of the trial on that date. Therefore, the onus is on the applicant to show why an adjournment should be granted. Or, to put the matter differently, the applicant must show why a refusal to adjourn would result in injustice to him. In considering the interest of the applicant, the court must also weigh the interest of the respondent. The question arises whether to grant an adjournment would result in injustice to the respondent. The applicant must show actual prejudice and not merely speculative prejudice. That is to say, the applicant must demonstrate from evidence the nature of the prejudice. A party whose interest may be prejudiced by the trial going ahead on the date of the hearing must make the application for adjournment promptly. This is important not only for the opposing party but also important for the court to readjust its calendar should the application be successful.

NATURE OF PREJUDICE

On 11 August 1989, the plaintiff discovered a further list of 448 pages of documents. These documents were made available for inspection by the defendants in Sydney and Tabubil. These late-discovered documents are in great volumes and are greater than the documents that have been previously discovered to the defendants. The affidavits supporting the application for adjournment indicate that the list of documents under letter "C" which covers about 321 pages of the list of documents are contained in 80 cubicles in Sydney and the documents under letter "B1" covering about 47 pages of the list of documents comprise pages in excess of 5,000. The estimate of documents discovered in Tabubil is in excess of 500,000 pages.

It is significant that the late-discovered documents were delivered after the expert reports on liability had been delivered by the defendants. The evidence shows, and it has not been disputed, that 75 per cent of the newly discovered material referred to geological or geo-technical issues and, therefore, this would necessitate a review of expert reports by the defendants. Then again these documents were discovered after interrogatories were delivered and so matters which may arise out of the discovered material were not included in the interrogatories.

I have considered the timetable given by the defendants which would enable them adequately to review and prepare their case for trial and the estimated time given has not been seriously challenged by the plaintiff. It is clear from the evidence that the plaintiffs experts have had access to these documents and if the estimate of inspection of these documents would take less than the time indicated by the defendants’ experts, they would have led such evidence. The period which can be disregarded is the three weeks that has been estimated by the defendants for the English experts to consider the Lukwi materials in Sydney. It is clear now from submissions by the plaintiffs counsel that the plaintiff will not be calling any evidence with regard to an alternative dam at Lukwi.

In essence, the plaintiffs submission is that the defendants have failed to show actual prejudice. At the highest, it is submitted that the applicants have only shown potential prejudice. This is a submission which is not without merit. However, in reviewing the evidence before me, I find that the defendants, through lawyers and experts such as Mr May, have already started going through the material and I accept their evidence in relation to the volume of material that they have to go through, and the difficult task they have to face. I find that they are not speculating as to the amount of time it would take to go through the materials, but give evidence of actual prejudice that has resulted from the large volume of documents they now have to discover and to inspect.

The counsel for the plaintiff has submitted that the trial should proceed on the set date and that the defendant should make an application for adjournment during the trial and the plaintiff estimates that the need to do this would arise about two weeks after the trial has commenced. At that point, the Court would then consider the adjournment of the case to a future date. In a simple case, such a submission may have some weight. However, in this case, there are so many people involved in having to come to this trial it would not be in the best interests of parties to bring everyone to trial for two weeks and face the possibility of another date which may or may not be suitable to all the parties. I consider that in this particular case it is in the interests of the parties to have one hearing date so that all parties can come prepared and have the case heard and complete the case. I consider that this is a case in which the trial should go ahead on 2 October or a new date be set for the hearing. In supporting its submission, counsel for the plaintiff has submitted that the defendants’ lawyers could get the trial ready by 2 October if they applied more resources in discovering and inspecting the documents. I cannot accept this submission on the basis that this is a complex case and it is not possible to simply bring new men, experts or lawyers into the preparation of the case. I am therefore satisfied, on the evidence before me, that the defendants would be prejudiced in their case if the trial were to proceed on 2 October 1989.

The question then arises whether an adjournment of the case would result in injustice to the plaintiff. In this regard counsel for the plaintiff has submitted that it has prepared its trial to such an extent that it would be costly to have the matter adjourned to a later date. The same could be said of any expenses that may have been incurred by the defendants having to prepare for a trial in October. Of course, no evidence has been led before me on this consideration but I would accept that on either side they would incur costs and inconvenience in having to delay matters to a later date. There is sufficient time to cancel any arrangements for 2 October 1989.

I am not satisfied that the adjournment of the case would result in injustice to the plaintiff.

I adjourn this case to 6 November 1989.

STRIKING OUT

The application to strike out is made under O 8, r 27(1)(b), of the National Court Rules that cl 16a of the statement of claim "has a tendency to cause prejudice, embarrassment or delay in the proceedings".

Counsel for the defendants have submitted that cl 16a of the claim pleads a claim that the plaintiff does not intend to prove. The plaintiff has conceded that this clause should be amended in that the only expert evidence which they intend to call is that of the McDougall report and it does not relate to this claim. To leave the clause would be embarrassing to the defendants.

On this basis, I would strike out cl 16a and allow the plaintiff to replead the issue.

Some discussions were held as to the appropriate amended clause. No agreement was possible. There were arguments by the plaintiff as to the form the repleading of the clause would take and certain objections were made by counsel for the defendants. Those are matters I do not have to decide. Whether the clause in its amended form is objectionable is a matter for the future and argument at that time. However, I am entitled to indicate that the repleading of the clause must not offend the rules of pleading under consideration, that is, it must not have a tendency to cause prejudice, embarrassment or delay in the proceedings.

Adjournment granted Pleading struck out with leave to replead

__________________

Lawyers for the applicant/defendants: Brian White and Associates.
Lawyers for the respondent/plaintiff: Blake Dawson Waldron.