Unreported National Court Decisions
N1466
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 888 OF 1995
ALOIS MALORI - PLAINTIFF
V
INVESTMENT CORPORATION OF PAPUA NEW GUINEA - FIRST DEFENDANT
AND
VAI REVA - SECOND DEFENDANT
Waigani
Sevua J
10 May 1996
12 July 1996
Counsel
Mr L Titimur for Plaintiff
Mr S Jubi for Defendants
12 July 1996
SEVUA J:  The plaintiff, by way of notice of motion, seeks the following orders:
1.       Default judgment against the defendants;
2.       The second defendant’s notice of intention to defend and defence be struck out; and
3.       The matter be placed in the next call over list for a hearing date for damages to be assessed and other orders.
To assist in the determination of this application, it is necessary to outline a brief history of these proceedings in chronological order:
·         Writ of Summons issued out of the registry of the National Court, Waigani, 29 September, 1995.
·         Service of the writ effected on both defendants through their lawyer  same day (29 September, 1995).
·         Notice of Intention to defend by both defendants filed 27 October, 1995.
·         Defence for both defendants filed 10 November, 1995.
·         Reply by the plaintiff filed 24 November, 1995.
·         Amended reply filed by plaintiff 27 November, 1995.
·         Notice for discovery filed by plaintiff 29 November, 1995 and served on defendants same day.
·         Notice for discovery filed by defendants 31 January, 1996 and served on plaintiff same day.
·         Plaintiff’s list of documents filed 19 March, 1996 and served on the defendants same day.
·         Notice of change of lawyers filed by plaintiff 12 April, 1996 and served on the defendants same day.  Eremas Andrew, previous lawyer for plaintiff ceased to act for plaintiff and Kevin Latu Lawyers assumed carriage of this matter on behalf of plaintiff.  Counsel having carriage of this matter on record is Lawrence Titimur.
·         Defendants’ list of documents filed 12 April, 1996, but the plaintiff disputes this.
·         Notice of Motion and affidavit of Lawrence Titimur filed by plaintiff 18 April, 1996 and served on defendants same day.  This notice of motion is the present application before me.
The plaintiff claims that the defendants have defaulted in the filing of their list of documents pursuant to it’s notice for discovery filed and served on 29 November, 1995; therefore, in pursuance of Order 9, Rule 15 (1) (b), the defendants’ defence should be struck out and judgment in default entered in favour of the plaintiff.
Much of counsels’ arguments revolved on whether the defendants’ list of documents was filed on 12 April, 1996, as insisted by the defendants.  As I said earlier, the plaintiff disputes this fact and I will refer to the relevant affidavits on this issue a little later, but at this juncture, let me reiterate that the plaintiff’s notice for discovery was filed and served on 29 November, 1995, a little over 4 months before 12 April, 1996.  That notice for discovery required both defendants to file their list of documents within 15 days of service.  In this case, 15 days from 29 November, 1995 expired on 14 December, 1995.  The defendants did not comply with this.  Why didn’t the plaintiff proceed diligently in applying for default judgment?  Instead, the plaintiff consented to an extension of time for the defendants’ list of documents to be filed on 4 April, 1996.  This Court, notes that this consent was given on 2 April, 1996 after the plaintiff was advised by facsimile that Mr Koiri, whom I assume, was acting for the defendants, was out of Port Moresby.  The defendants were warned on 2 April, 1996 that if their list of documents were not filed and served by 4 pm on 4 April, 1996; the plaintiff would move for default judgment.
On 10 April, 1996, Kevin Latu Lawyers took over carriage of this matter on behalf of the plaintiff from Mr Eremas Andrew and Mr Titimur advised the defendants accordingly in writing that day.  He further advised them that the plaintiff had consented to their request for a further extension of time to 12 April, 1996, for them to file and serve their list of documents.  It will be noted at this juncture that, the delays and requests for extension were being caused and made by the defendants, and the plaintiff was also readily consenting to these requests, but in my view, his former lawyer, Mr Eremas Andrew was, to a certain extent, responsible for this state of affairs.
Two days short of six months, from the day the plaintiff filed and served his notice for discovery, lawyers are still arguing about whether or not the defendants had filed their list of documents on 12 April, 1996.  This is just not good enough.  Whilst the plaintiff may have consented to these extensions thereby becoming a party to these procrastinations and prolonged delays, what sort of legal advice was he getting?
In my view, this state of affairs is just unsatisfactory.  It is the type of situation that my learned brother Sakora J described in Riri & Riri v Nusai & ors, unreported, N1375, 9 October, 1995 as:
“too much lawyering and too much litigation.”
Lawyers must realise and appreciate that running back and forth with motions and applications does not assist their clients dispose of their cases diligently and at costs they can afford.
Sometimes, it is the lawyers who give bad and wrong advises to their clients so that there are inordinate delays, procrastinations, unnecessary prolonging of cases and at the end of the day, the clients are made to pay hefty bills.  “Too much lawyering and too much litigation” does not assist their clients much in achieving their desired intentions.
The first defendant is a corporate defendant whilst the second defendant is its Managing Director.  In my view, the conduct and attitude of the defendants were the cause of all these unnecessary delays.  The first defendant with its vast financial resources digs its toes and forces the plaintiff to consent to these delays.  In turn, the plaintiff consents to this conduct and curtails his action.  The fact that the defendants insist that their list of documents were filed on 12 April, 1996, the eleventh hour, clearly demonstrates their attitude to and their conduct of the whole proceedings.  There is no excuse, in my view, for a corporate defendant like the first defendant in this case, to continue to procrastinate and prolong this matter unnecessarily.  If it is not the defendants who were responsible for all these delays, it must be their legal advisers.
In so far as the date of filing of the defendants’ list of documents is concerned, it is difficult, without cross-examination, to correctly ascertain the truth of evidence relating to the filing of this list.  On the one hand, the plaintiff had deposed to his searching of the Court file at the registry at 9.30 am on Monday, 15 April, 1996 and again at 1.30 pm on Tuesday, 16 April, 1996.  He did not sight a sealed copy of the defendants’ list of documents in the Court file.  On the contrary, the defendants say, they did file their list of documents on 12 April, 1996, and they rely on the affidavit of Lucas Nilkare.  I note here that the original list of documents bears the filing date as 12/4/96.  If I were to accept this, why didn’t the plaintiff locate this at the time he conducted the two searches?  It is quite strange, in my view.
I can only guess that the list of documents was misplaced by the registry staff and this is not unusual.  There is far too much of this negligence going on in the registry and the Registrar must do something about this apparent negligence.  I can only assume that the document was misplaced therefore the plaintiff could not locate the document in the file on the 15 & 16 April, 1996.
Despite having said that, I consider that the seemingly inordinate delays caused by the defendants and their lawyers cannot be excused or condoned.  It is my view that the plaintiff was forced into making this application because of the attitude of the defendants.  Both defendants are located in Port Moresby.  Their legal advisers are also located in Port Moresby.  There could be no reason for the delays on the part of both the defendants and their lawyers, either in giving instructions, or legal advice.  I consider that the defendants must shoulder most of the blame for all the delays caused in this action.
The defendants sought to rely on the case of Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11, a case that involved a default by the defendant in not responding to a notice for discovery pursuant to Order 9, Rule 1, automatic discovery, after close of pleadings without a Court order as envisaged by Rule 5.  The plaintiff in that case had availed himself of the process however, the defendant did not comply with the rules and therefore the striking out of the defence and the entry of judgment for the plaintiff was justified.  That situation is not exactly the same in this case, however, it is relevant only, in so far as the principles enunciated therein, applies to the purpose of discovery.  That case clearly demonstrates the principle that, if, a defendant defaults in complying with the rules relating to discovery, his defence can be struck out and judgment entered against him.  In my view, that is what should happen in the present case, except that, I have before me, the Court file, which contains the defendants’ list of documents clearly marked, “No 18, National Court, Filed 12/4/96”.
Whilst I would like to say that the plaintiff’s evidence as to the searches he carried out were not lies, it is quite difficult for me to reconcile it with the fact that the document, giving rise to this application, is physically in existence in the Court file and is visibly marked, “Filed 12/4/96”.  I do not think the plaintiff was lying in his affidavit and I would reject any insinuation that he did.
In my view, either the document was misplaced on the dates the plaintiff carried out his searches or, someone in the registry had intentionally and dishonestly stamped the document with the date of filing as 12/4/96 when it could have been filed sometime after 12/4/96.  I really cannot tell either way, as there is no evidence of either of these matters before me.
Earlier on I adverted to some remarks I cited from the decision of my learned brother Sakora, J in relation to the attitude of the defendants’ lawyers.  I wish to reiterate that here.  It is my view that, this application would not have been prompted had the defendants’ lawyers not procrastinated, delayed and given all kinds of excuses for their inability to comply with the requirement for discovery pursuant to the plaintiff’s notice for discovery and the National Court Rules.  My brother Sakora J was in fact quoting Brunton AJ in Wenam Elkum v PNG [1988-89] PNGLR 662, which I wish to refer to as well, because I consider that the statement reflects the situation in the present case too.  At p. 665, Brunton AJ said:
“Pleadings are not devices which those with long pockets can manipulate and gain unfair advantages over their adversaries. To do so is to abuse the process of the Court and to run the risk of having the offending pleading struck out.”
His Honour also described the tactics employed by the lawyers for the State in that case as follows, at p. 665:
“A tactic of litigation by attrition: a corporate defendant such as the State with its lawyers on fixed salaries digs into its toes and forces the plaintiff’s to prove their case.  The plaintiffs who have to pay private lawyers their solicitor-client costs, are thus pressured to discontinue or curtail their action or make concessions on purely economic grounds, irrespective of the legal merits of their cases.”
I agree with His Honour’s comments and, I find in the present case that the defendants’ lawyers’ attitude is somewhat similar to what these comments reflect.
In my opinion, the defendant’s filing of list of documents on the eleventh hour is totally unacceptable and their lawyers’ conduct inexcusable.  It is my judgment that the registry was at fault and that is the only reason I would reluctantly refuse the plaintiff’s application.  Be that as it may, I reiterate that in this case, there has been “too much lawyering” by the defendant’s lawyers with the resulting effect of procrastinations and protracted delays largely caused by the defendants and their lawyers.  They must bear the costs of these delays.
In the final analysis, the plaintiff’s application is reluctantly refused, however I order that the defendants pay the costs of today’s proceedings and costs of proceedings on 10 May.  I further order that these costs be paid within seven days.
Lawyer for Plaintiff: Kevin Latu Lawyers
Lawyer for Defendants: Thirwlwall Aisi & Koiri