Unreported National Court Decisions
N1954
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. MFS-4 OF 1998
BETWEEN: JOHN NIALE
PLAINTIFF
AND: SEPIK COFFEE PRODUCERS LTD
1ST DEFENDANT
AND: ANDREW MARINBUKIE
2ND DEFENDANT
AND: PETER KUMBUN
3RD DEFENDANT
AND: JOEL APAI
4TH DEFENDANT
AND: WANGIWAN KIAMI
5TH DEFENDANT
AND: MOSES BAKNAUS
6TH DEFENDANT
Madang & Waigani
Sawong J
10 April 2000
1 May 2000
PRACTICE AND PROCEDURE – Discovery – Default – Failure to deliver list of documents – Right of party to apply for dismissal of proceedings – Order 9 r 15 National Court Rules.
Facts
The first Defendant/Applicant, by Notice of Motion sought to have the Plaintiffs claim against the first Defendant dismissed and have judgment entered in its favour against the plaintiff on the first Defendants cross claim on the basis that the Plaintiff has failed to deliver a list of documents pursuant to Notice for Discovery.
Cases Cited
Credit Corporation (PNG) Ltd  v Jee [1988 – 89] PNGLR 11
Titus Keran v Jerry Warum & Another [1994] PNGLR 130
Counsel
A. Kandakasi, for Applicant/First Defendant
No Appearance, for Plaintiff/Respondent
1 May 2000
SAWONG J: This was an exparte application by Notice of Motion, by the First Defendant/Applicant to have the Plaintiff’s action against the First Defendant dismissed, and to have judgement entered against the Plaintiff on the Applicant’s cross claim.
The matter proceeded exparte, because, I was satisfied that the Plaintiff’s lawyers had been duly served but they did not appear. Consequently I granted leave to Mr. Kandakasi to proceed exparte.
I now proceed to the substance of the Application. The application was made pursuant to Order 9 r 15 (1) (a) National Court Rule.
In support of the present application, Mr Kandakasi relies on two affidavits which he deposed. The first one was sworn on 7 March 2000 and filed on 14 March 2000. The second affidavit is sworn and filed on 10 April 2000. The latter affidavit is the affidavit of service.
In the first affidavit, Mr Kandakasi deposes that under cover of a letter dated 6 January 2000 he served a Notice of Discovery to the Plaintiff’s lawyers. He further deposed that, subsequently there were exchanges of correspondence between the parties. These are not really relevant. Thus on 17 February 2000 the Plaintiff’s lawyers advised that they would provide a list of documents for inspection as soon they received them from their client in Wewak.
On March 6, 2000 Mr Kandakasi gave notice that he had not received the list of documents and that if this was not filed and served on him on the following day, he would make any necessary application to the Court without any further notice or warning.
The Notice of Motion in this mater was originally set down for hearing on 3 April 2000, but this did not proceed and it was adjourned to 10 April 2000 at 9:30 am for hearing.
On 3 April 2000, Mr Kandakasi notified the Plaintiff’s lawyers of the new date and time of the hearing of the Notice of Motion.
The Notice of Discovery was served under cover of the letter of 6 January 2000. Since then the plaintiff has failed to answer that notice, except to refuse to comply.
I now turn to consider the basis of the present application, namely Order 9 r 15 (1) (a) National Court Rule. It reads:
“(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”
There is no doubt that the Court has the power to dismiss a plaintiff’s action if a plaintiff is in default. However it is quite clear that this rule is discretionary one. Accordingly, it must be exercised upon proper principles. 
Mr Kandakasi in his submissions referred to two cases in support of his application. These were Credit Corporation  v  Jee [1988 – 89] PNGLR 11 and Titus Keran  v  Jerry Warum and Other [1994] PNGLR 130.
In my view, the principles relating to the obligations to comply with notice for discovery are succinctly set out in Credit Corporation v Jee (Supra). But the facts of that case is quite different to the present case. In the Jee’s case (supra), the Court was concerned with the application of Order 9 r 15 (b). In that case the Defendant was in default of filing and serving a list of documents pursuant to a Notice of Discovery. There the Defendant failed to comply and an application was made by the plaintiff to strike out the defendants’ defence and have judgement entered against the defendant.
The case of Warum is not exactly on the issue before this court and therefore I do not consider it applicable in this case.
In the present case, I am satisfied that the Plaintiff has defaulted. He was duly served with the Notice of Discovery. He has failed to answer that Notice. He has offered no evidence showing any reason why he has defaulted.
In the circumstances, I order that the plaintiff’s proceedings against the First Defendant/Applicant be dismissed. I also order that Plaintiff’s/cross defendant’s defence be struck out and judgement be entered for the First Defendant/Applicant for damages to be assessed.
The Applicant must have its Costs.
Lawyer for the Applicant: YOUNG & WILLIAMS
Lawyer for the Respondent: WARNER SHAND