N3818

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 554 OF 2008

BETWEEN

MAINLAND HOLDINGS LIMITED trading as NIUGINI TABLEBIRDS
Plaintiff/Cross Defendant

AND

ALLEN MANDI trading as MUKITO AGRICULTURE SUPPLIES
Defendant/Cross Claimant

Mount Hagen: Makail, J
2009: 16th & 23rd December

PRACTICE & PROCEDURE - Application to dismiss proceeding - Discovery of documents - Notice of discovery - Notice to produce documents - Two distinct processes - Request to provide or supply copies of documents - Inspection of documents discovered pre-requisite - Failure to comply - Effect of - National Court Rules - Order 9, rules 1,2,5,6,9,10,11,12&15.

Cases cited:

Papua New Guinean cases

Aisip L Duwa -v- Ronald Moyo Senge [1995] PNGLR 140; (1995) N1360
Public Officers Superannuation Fund Board -v- Sailas Imanakuan (2001) SC677
Ace Guard Dog Security Services Limited -v- Lindsay Lailai & Anor (2003) N2459 
Motor Vehicle Insurance (PNG) Limited -v- Rex Paki (2006) N3212

Oversea cases

Ormerod Grierson & Co -v- St George’s Ironworks Ltd [1905] 1 Ch 505
Meadows -v- James Telford & Co Pty Ltd (1924) 30 ALR (CN) 13
Mantrary Pty Ltd -v- Brookfield Breeding Co Pty Ltd [1992] 1Qld 91

Texts

Bernard Cairns, Australian Civil Procedure, 7th ed, Law Book Co, 2007 

Counsel:

Mr K Peri, for Plaintiff/Cross Defendant
Mr R Otto, for Defendant/Cross Claimant

23rd December, 2009

INTERLOCUTORY RULING

1. MAKAIL, J: By its notice of motion filed on 2nd December 2009, the defendant/cross claimant whom I shall refer to as "Mukito" seeks to dismiss the proceeding commenced by the plaintiff/cross defendant ("Mainland Holdings") for failure to produce documents for purposes of discovery pursuant to a notice to produce filed on 14th September 2009. The application for dismissal is brought pursuant to the Court’s power under Order 9, rule 15(1)(a) of the National Court Rules, which reads as:

"15. Default. (23/15)

(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) ……………….

(c) ………………." (Emphasis added).

2. The undisputed background facts giving rise to the proceeding and application are these: on 14th May 2008, Mainland commenced proceeding against Mukito to recover a sum of K388,602.95 with interest and cost. It claimed it supplied goods to Mukito and Mukito failed to pay for them. The sum of K388,602.95 represented Mukito’s debt. On 26th June 2008, Mukito filed a defence and a cross claim. In its defence, Mukito denied the claim and alleged that there were a lot of errors with the invoices, accounts records and delivery records kept by Mainland. These errors included duplication of purchase orders and invoices and double charges for the same goods supplied. Also, there were wrong entries in the delivery dockets and original invoices for goods that were never supplied to Mukito. In essence, it claimed the invoices rendered for payment were false.

3. As to its cross claim, it claimed K18,173.13 as refund for payment for goods that were ordered but never delivered because Mainland claimed that the K18,173.13 was payment for its outstanding invoices. After pleadings closed, both parties proceeded to discover each others documents as follows:

- 30th July 2008 - Mainland filed and served notice of discovery on Mukito.

- 20th August 2008 - Mukito provided a verified list of documents to Mainland.

- 20th August 2008 - Mukito filed and served notice of discovery on Mainland.

- 28th October 2008 - Mainland filed and served a verified list of documents on Mukito.

- 26th January 2009 - Mainland filed and served notice to produce on Mukito.

- 22nd April 2009 - Mukito provided or supplied copies of documents to Mainland.

- 22nd April 2009 - Mukito requested Mainland to provide or supply copies of documents in verified list of documents.

4. From 22nd April 2009 to 14th September 2009, Mainland did not produce copies of documents to Mukito, despite numerous follow up requests. Even assurances by lawyers for Mainland that they would provide copies went begging. This led to Mukito filing and serving a notice to produce on 14th September 2009. The notice to produce listed 32 documents which Mainland was to produce. Even after the notice to produce was served, Mainland continued to be in default, even though requests by its lawyers for more time were readily granted by Mukito. This further led to Mukito filing this application to dismiss on 2nd December 2009. This is about 3 months after filing and service of its notice to produce on Mainland.

5. Mukito argues that because Mainland has failed to produce the documents as requested in the notice to produce, the proceeding should be dismissed. It further argues that it is unfair for Mainland not to produce the requested documents, when on its part it had supplied copies of its documents to Mainland. It further argues that despite making many concessions through numerous extensions of time for Mainland to supply the documents, it had failed to comply with the request. Mainland through its lawyers submitted that, the documents were delivered to the lawyers for Mukito yesterday. This was because they had, had difficulty in obtaining them from Lae where Mainland’s office is located. They further submit that Court should be slow to dismiss the proceeding given the substantial amount of money involved in this case; they say about K300,000.00.

6. The facts of this case and arguments of the parties raise the issue of whether or not the proceeding should be dismissed because of Mainland’s failure to provide or supply copies of documents to Mukito pursuant to the notice to produce. The powers vested in the Court by Order 9, rule 15 of the National Court Rules are discretionary. And before I can exercise that discretion in favour of Mukito as sought here, I must be satisfied that Mainland committed breach of Order 9, rule 9. 

7. In that respect, it is instructive that a general overview of the law of discovery is stated at this juncture before a decision can be made in relation to the application for dismissal. I have found a useful discussion on the subject in the text book by Bernard Cairns, Australian Civil Procedure,7th ed, Law Book Co, 2007, at p 271, where the learned author said this in relation to the purpose of discovery of documents:

"Discovery encompasses:

- the disclosure, and subject to privilege, the inspection of an opponent’s  documents;

- written interrogatories seeking admissions from an opposite party;

- procedures that resemble discovery, namely the inspection of the subject matter of the proceeding, the medical examination of the plaintiff in a personal injury proceeding and, the preservation of evidence.

Litigation must be conducted expeditiously and in such a manner that the dispute is decided on its merits. Discovery is intended to promote a fair trial. Unfortunately, the cost and delay associated with discovery can be disproportionate to the benefits likely to accrue from it. Discovery therefore tends to be controlled by litigation management systems in most jurisdictions.

Several advantages are said to flow from discovery:

- it reduces surprise;

- it puts the parties on equal footing at the trial; and

- it helps to define the issues.

The parties must disclose the existence of relevant documents in their possession and made them available for inspections, subject to privilege from production. In protracted commercial litigation, discovery of documents is often a major undertaking. Discovery is an aid to the party prosecution system. Parties must prepare their own cases. Discovery gives access to information in the exclusive possession of the other side. There are, however, limits on discovery. A party need not reveal proposed trial tactics nor is mere evidence disclosed, except where the evidence is a document and is not privileged from production."

8. The learned author goes on to discuss the requirement of inspection of documents at p 283:

"Parties can inspect each other’s documents informally. A party who wishes to inspect the documents set out in the opposite party’s affidavit of documents simply serves a notice requesting inspection. The opponent produces the documents at a reasonable time and place."

9. It has also been held that, a party may copy a document produced for inspection: see Ormerod Grierson & Co -v- St George’s Ironworks Ltd [1905] 1 Ch 505; Meadows -v- James Telford & Co Pty Ltd (1924) 30 ALR (CN) 13 and Mantrary Pty Ltd -v- Brookfield Breeding Co Pty Ltd [1992] 1Qld 91 at 97.

10. In our jurisdiction, the Courts have repeatedly emphasized the importance of discovery and one such case is Aisip L Duwa -v- Ronald Moyo Senge [1995] PNGLR 140; (1995) N1360, where in that case, the plaintiff served a notice to produce documents on the defendant in respect of documents listed in the defendant’s list of documents. The plaintiff had previously served a notice for discovery on the defendant before close of pleadings contrary to Order 9, rule 1 of the National Court Rules. The plaintiff sought an order to strike out the defence and cross claim of the defendant, because the defendant had failed to provide the documents requested in the notice to produce as they were not in his possession.

11. The Court addressed the questions whether -

1. the conduct of the plaintiff in seeking production of documents which he knew were not in the possession of the defendant amounted to an abuse of process; and 

2. an order to strike out pleadings should be made in favour of a plaintiff who is himself in breach of the National Court Rules.

12. Sakora, J held that the plaintiff had acted in breach of the National Court Rules in serving a notice for discovery before the close of pleadings. His Honour held that the plaintiffs lawyer’s action in seeking orders for the production of documents which he knew were not in the defendant’s possession amounted to harassment and an abuse of process. His Honour then dismissed the application to strike out. In dismissing the application, his Honour observed that:

"And one of the most important processes of the pre-trial procedure employed in an endeavour to achieve those aims is that of discovery. In ordinary parlance discovery is the ascertainment of that which was previously unknown. In procedural law, it is one of those pre-trial "devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial. See: Black’s Law Dictionary. In actions begun by writs, lists of documents must be served by each party after close of pleadings, and any party entitled to have discovery may serve a notice requiring an affidavit verifying the list of documents. See: Osborn’s Concise Law Dictionary. This is of course reflected in our NCRs., and O 9, rr 6 (contents of list) and 9(3) b) further reflect an accommodation between full and open discovery, and safeguard against unwarranted intrusions into the opponent’s files."

13. The decision of Aisip L. Duwa (supra) was cited with approval by the Supreme Court in Public Officers Superannuation Fund Board -v- Sailas Imanakuan (2001) SC 677 but in my view, a clear statement of the law on discovery of documents was stated by Sakora, J in Ace Guard Dog Security Services Limited -v- Lindsay Lailai & Anor (2003) N2459 which I am indebted and respectfully adopt relevant parts hereunder to emphasize the importance of discovery of documents:

"Discovery is process of obtaining documents and admissions from answers to interrogatories from other parties to the litigation and from non-parties. In many cases, discovery will be essential to obtaining the evidence to prove one’s case. On the simplest level, it may be that the original contract is held by the defendant: discovery and production of the contract will be necessary for the plaintiff to prove his case. On a more complex level, discovery will yield important diary notes, books and records, (See, Grant Riethmuller: Civil Procedure, LBC Nutshell, 1st ed; 1999 (page 103)). The learned author refers to the old English case of Flight v. Robinson (1844) 8 B 22, and cites an extract from the judgment of Lord Langdale MR (ibid) which I reproduce hereunder and respectfully adopt as pertinent to the discussion of the law here:

"According to the general rule which has always prevailed in this Court, every defendant is bound to discover all of the facts within his knowledge, and to produce all documents in his possession which are material to the case 0of the Plaintiff. However disagreeable it may be to make the disclosure, however contrary to his personal interests, however fatal to the claim upon which he may have insisted, he is required and compelled, under the most solemn sanction, to set forth all he knows, believes, or thinks in relation to the matters in question. The Plaintiff being subject to the like obligation, on requisition of the Defendant in a cross bill, the greatest security which the nature of the case is supposed to admit of is afforded, for the discovery of all relevant truth, and by means of such discovery, this Court, notwithstanding its imperfect mode of examining witnesses, has at all times, proved to be a transcendent utility in the administration of justice."

Discovery must be given even if it discloses material contrary to the party’s case. There are however limited situations where a party may claim privilege from making discovery: See, Grant Riethmuller (supra, page 105). The learned author once again quotes from the judgment of the learned Master of the Rolls in Flight v. Robinson (supra), which I reproduce hereunder and respectfully adopt for this case (ibid):

"It need not be observed what risks attend all attempts to administer justice, in cases where relevant truth is concealed, and how important it must be to diminish those risks, and that if there be any cases, in which for predominant reasons, parties ought to be permitted or to be held privileged to conceal relevant truth, those cases ought to be strictly defined, and strictly limited by authority."

It is instructive and pertinent that I continue my respectful indebtedness to the learned author and recite hereunder the three general restrictions that the general purposes of discovery are subject to that he summaries (supra, page 105):

1. The scope of discovery is limited by the facts on which the parties have joined issue in the pleadings;

2. The use of discovered information is strictly for the purpose of the conduct of the cause or matter in which discovery was given; and

3. Discovery is subject to limited rights to claim privilege."

14. Given the above discussions of the law in respect of discovery of documents and production of documents for inspection purposes, there is no doubt in my mind that discovery of documents and production of documents are intended to give a party access to documents of the opposite party to enable it to prepare its case for the trial proper. But in my view, the process of discovery of documents and process of production of documents for inspection purposes are different and this is where I think Mukito has misconceived the application of a notice of discovery of documents to that of a notice to produce documents. 

15. In my opinion, these are two distinction processes. This is because their applications are different when it comes to obtaining of documents from the opposite party but they have a common resultant effect and that is, access to documents from the opposite party. The distinction between a notice of discovery and notice to produce documents was clearly stated in Motor Vehicle Insurance (PNG) Limited -v- Rex Paki (2006) N3212, where Davani, J observed that:

"On perusal of the rules, it is clear that O.9 r.9 of the NCR is not in mandatory terms. Also, a Notice to Produce is a process adopted by a party if it wishes to have access to a document that is pleaded in the other party’s pleading or affidavit whereas a Notice of Discovery is issued after pleadings have closed. A Notice to Produce is a separate process from a Notice of Discovery although serving the same aim, which is to have access to a document. And O.9 r.3 (a) (b) (c) of the NCR assists in this process, which is that four (4) days after service of the Notice to Produce, a party must by notice, appoint a time within seven (7) days after service of Notice to Produce, and the place, for the document to be inspected. The Notice should also state whether the document/s is/are privileged or available for inspection. And it should be noted that the notice to be served can be in any form when the rules do not provide for the form to be used."

16. Her Honour emphasized that:

"As stated earlier, no doubt, there is a clear distinction between when a Notice of Discovery can issue and when a Notice to Produce can issue which is that Notice of Discovery is issued after pleadings have closed and a Notice to Produce can be issued at any time as long as the document is referred to in pleadings or affidavit."

17. I agree with her Honour’s observations and I have this to add. First, I turn to the notice of discovery.

Notice of discovery

18. The rules governing discovery of documents are found under Order 9, Division 1, Subdivision A, rules 1-9 of the National Court Rules. Order 9, rule 1 states:

"1. Notice for discovery. (23/1)

(1) Subject to this Rule, where the pleadings between any parties are closed, any of those parties may, by notice for discovery in Form 30 filed and served on any other of those parties, require the party served to give discovery of documents, with or without verification.

(2) A party may require another party to give discovery with verification notwithstanding that he has previously required the same party to give discovery without verification.

(3) This Rule does not apply to proceedings on a claim for damages arising out of the death of, or bodily injury to, any person for contribution in respect of damages so arising." (Emphasis added).

19. According to sub-rule 1 of rule 1 of Order 9 above, discovery of documents shall taken place after close of pleadings. The party requiring discovery of documents from the party required to give discovery may require the party giving discovery to give discovery with or without verification. The notice of discovery shall be in Form 30. A party required to give discovery is required by Order 9, rule 2 to file and serve a list of documents in accordance with rule 6 on the party requiring discovery of documents. Order 9, rule 2 states:

"2. Discovery on notice. (23/2)

(1) A party required under Rule 1 to give discovery shall, subject to Sub-rule (2), give discovery within such time, not being less than 14 days after service on him of the notice for discovery, as may be specified in the notice for discovery.

(2) A party required under Rule 1 to give discovery without verification shall, subject to Rule 3, give discovery by filing and serving on the party giving the notice for discovery a list in accordance with Rule 6 of documents relating to any matter in question between him and the party giving the notice for discovery.

(3) A party required under Rule 1 to give discovery with verification shall, subject to Rule 3, give discovery by filing and serving on the party giving the notice for discovery -

(a) an affidavit verifying the list referred to in Sub-rule (2); and

(b) the list so verified, unless the list has already been filed and served on that party.

(4) Where a claim is made against a party -

(a) for the recovery of any penalty recoverable by virtue of any Act; or

(b) for the enforcement of a forfeiture,

he need not include in a list of documents under this Rule any document relating only to a matter in question on that claim."

20. The specific details of a list of documents are found under Order 9, rule 6 which states as follows:

"6. Contents of list. (23/6)

(1) A list of documents required by or under this Division shall, unless the Court otherwise orders, conform to the requirements of this Rule, and be in Form 31.

(2) A list of documents shall enumerate the documents which are or have been in the possession, custody or power of the party making the list.

(3) A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified.

(4) Where a party making a list of documents claims that any document in his possession, custody or power is privileged from production, he shall, in the list, sufficiently state the grounds of the privilege.

(5) A list of documents shall distinguish those documents which are in the possession, custody or power of the party making the list from those that have been but are not in his possession, custody or power.

(6) A list of documents shall, as to any document which has been but is not then in the possession, custody or power of the party making the list, state when he parted with the document and what has become of it.

(7) A list of documents shall appoint a time within seven days after service of the list when, and a place where, the documents in the list may be inspected.

(8) Where a party making a list of documents has a solicitor in the proceedings, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct." (Emphasis added).

21. It is important to note that, according to Order 9, rule 6(7), a list of documents shall appoint a time within 7 days after service the time and place for the documents in the list to be inspected. It is also important to note that Order 9, rule 6 does not state that a party required to give discovery of documents must provide or supply copies of the documents listed in the list of documents. In fact, a party required to give discovery of documents is only required to file and serve a list of documents on the party requesting discovery with or without verification as stipulated under Order 9, rule 2(2)&(3), which I have cited above. Thus, in my view, there is no obligation on the part of the party giving discovery of documents to provide or supply copies of documents discovered or listed in the list of documents to the party requesting them.

Notice to produce

22. I turn to the notice to produce documents. As for production of documents, the rules governing its application are found under Order 9, Division 1, Subdivision B, rules 9-13 of the National Court Rules. Order 9, rule 9 states: 

"9. Document referred to in pleading or affidavit. (23/9)

(1) Where a pleading or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him, require him to produce the document for inspection.

(2) A notice to produce under this Rule shall be in Form 32.

(3) Where a notice to produce a document is served on a party under Sub-rule (1), he shall, within four days after that service, serve on the party requiring production or his guardian at law, a notice -

(a) appointing a time within seven days after service of the notice under this Sub-rule when, and a place where, the document may be inspected; or

(b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege; or

(c) stating that the document is not in his possession, custody or power and stating to the best of his knowledge, information and belief where the document is and in whose possession, custody and power it is.

(4) A notice under Sub-rule (3)(a) shall be in Form 33." (Emphasis added).

23. From my reading of the above rule, I can see that there is no requirement that a party requested to produce documents shall make photocopies and supply or serve them on the party requesting them. As far as I can see, the party requested to produce documents is only obliged to produce them for inspection. The notice to produce shall be in Form 32 and it should be noted that it does not mention anything about copying of documents and supplying them to the party requesting them. Form 32 is laid out below:

"Form 32.
O.9, r.9

NOTICE TO PRODUCE DOCUMENTS
(heading as in Form 1 or Form 3)

The plaintiff (or defendant) requires you to produce for his inspection the following documents referred to in your statement of claim (or defence, or affidavit), dated the . . . . day of . . . 20..
.
(describe documents required)

Dated the . . . day of . . . 20...

To . . . Solicitor for . . .
(Signature)"

24. In my view, Order 9, rule 9 permits a party to serve a notice to produce documents referred to in a pleading or affidavit of the opposite party for inspection purposes. In order for an inspection to take place, the party requested to produce the documents is required within 4 days to file and serve on the party requiring production of documents, a notice appointing a time within 7 days after service of that notice when and a place where the documents may be inspected or if the documents are privileged, the grounds for claiming privilege or if the documents are no longer in the party’s possession, custody or power, where the documents are and whose possession, custody or power they are. The notice of appointment for inspection is in Form 33 and is laid out below:

"Form 33-Notice of Appointment to Inspect Documents
Form 33.
O.9, r.9

NOTICE OF APPOINTMENT TO INSPECT DOCUMENTS
(heading as in Form 1 or Form 3)

You can inspect the documents mentioned in your notice of the . . . day of . . . 20..., (except the deed numbered in that notice)

(here set out particulars required by Order 9 Rule 9(3)(c) where appropriate)
at my office on . . . next the . . . instant between the hours of . . . and . . . o'clock.

Dated the . . . day of . . . 20...

To . . . Solicitor for . . .                                                                    (Signature)

within (15) days after service of this notice on each of them respectively, the defendant C.D. is required to answer interrogatories numbered 1 to 8 (and verify his answers) and the defendant E.F. is required to answer interrogatories numbered 1 to 12 (and verify his answers).

INTERROGATORIES

1. (state the question)
2. (state the question)."

25. But I cannot find anywhere in rule 9 of Order 9, a requirement that the party required to produce the documents is required to provide or supply copies of the documents to the party requesting the production of the documents. This means that according to rule 9, a party required to produce documents is not obliged to provide or supply copies of documents to the party requesting them. It is only required to produce them for inspection. (Emphasis added).

26. The only time copies of the documents may be supplied or obtained by the party requiring production of the documents is after inspection has taken place. This is permitted under Order 9, rule 11. It states:

"11. Power to take copies. (23/11)

A party to whom a document is produced for inspection under this Division may make copies of the document."

27. And another time where copies of documents may be supplied and obtained by the party requiring production of the documents is pursuant to an order of the Court under Order 9, rules 10 and 12 where the Court orders the production of the documents for inspection and upon inspection may deal with the documents as it thinks fit. The phrase "may deal with the document as it thinks fit", in my view includes ordering copies of the documents to be taken from the originals by the party requesting production of the documents. I set out Order 9, rule 10 below for parties to appreciate my point: 

"10. Order for production. (23/10)

(1) Where -

(a) it appears from a list of documents filed by a party under this Division that any document is in his possession, custody or power; or

(b) a pleading or affidavit filed by a party refers to any document; or

(c) it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceedings that there are grounds for a belief that any document relating to any matter in question in the proceedings is in the possession, custody or power of a party,

the Court may, unless the document is privileged from production, order the party -

(d) to produce the document for inspection by any other party at a time and place specified in the order; or

(e) to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.

(2) An affidavit made pursuant to an order under Sub-rule (1)(e) shall, unless the Court otherwise orders, state whether there are in the documents copied any and, if so what, erasures, interlineations or alterations." (Emphasis added). 

28. And Order 9, rule 12(2) states:

"12. Production to the Court. (23/12)

(1) The Court may, at any stage of any proceedings, order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the proceedings.

(2) On production of a document to the Court pursuant to an order under Sub-rule (1), the Court may deal with the document in such manner as it thinks fit." (Emphasis added).

29. Having said that, it seems to me that, the generally accepted practice within this jurisdiction is that, where a party is required to give discovery of documents pursuant to a notice of discovery or a notice to produce and if requested, is also obliged to provide or supply copies of documents to the other party without prior inspection of them. It appears this is the process adopted by the parties in this case where Mukito has provided or supplied copies of its documents listed in its list of documents to Mainland on 22nd April 2009 and in return has asked Mainland to do the same but Mainland has failed to honour that request until the day before the hearing of this application. 

30. This generally accepted practice, in my view seems a reasonable and convenient way of obtaining documents from the opposite party, hence less time and money in terms of collating of information to prepare one’s case. I think this is the informal way of inspection and obtaining copies of the documents from the opposite party. But at the same time, it is my respectful opinion that, such a practice may not be consistent with Order 9, rules 9 & 11, Form 32 and Form 33. And I do not think their Honours Sakora, J and Davani, J turned their minds to addressing this issue under consideration in their decisions of Aisip L Duwa (supra), Ace Guard Dog Security Services Ltd (supra) and Rex Paki (supra) respectively as it was not an issue before them.

31. I say this because it is clear from my reading of Order 9, rule 9 in conjunction with Order 9, rule 11 that, copies of documents may be obtained from the other party after inspection of the documents at the appointed time and place stated in the notice of appointment to inspect documents under Form 33. In my view, that is one of the times a party may provide or supply copies of its documents to the other party and the other is by an order of the Court under Order 9, rules 10 and 12. 

32. Hence, whilst I accept that what the parties have done in this case seemed reasonable and convenient in the circumstances, I am not persuaded that the process they have employed is in compliance with Order 9, rules 9 & 11 or Order 9, rules 10 & 12 of the National Court Rules. For this reason, I am of the view that it is premature for Mukito to demand Mainland to provide or supply copies of the documents at this stage unless it has inspected those documents listed from 1- 32 of the notice to produce.

33. Proceeding on the premise that inspection of documents is a pre-requisite to obtaining of copies of the documents, as far as my reading of sub-rule 1 of rule 1 of Order 9 is concerned, production of documents shall be made pursuant to documents disclosed in a pleading or affidavit. In other words, a party is required to produce documents for inspection if it is served a notice to produce requesting production of the documents if the documents are referred to in its pleadings or affidavits. And as far as my reading of Order 9, rule 6(7) is concerned, a party is only obliged to provide or supply copies of the documents listed in the list of documents pursuant to a notice of discovery after inspection of the documents, if we read that rule in conjunction with Order 9, rule 11.

34. In this respect, I note these 32 documents are indeed relevant to the dispute between the parties as they are the very documents giving rise to Mainland’s claim of K388,602.95 against Mukito. These documents are various invoices issued by Mainland to Mukito. In my view, without these documents (invoices), how would Mukito appraise itself and assess the prospect of success of its defence to Mainland’s claim? As noted earlier, Mukito has denied the debt in its defence on the basis that there are errors in Mainland’s invoices in terms of double charging of same goods supplied to Mukito. Thus, it is crucial that Mukito must have copies of these invoices to verify if the invoices are genuine or not. This would in turn enable it to assess the prospect of success of its defence.

35. Hence, the notice to produce refers to 32 documents listed in the notice of discovery and also at paragraph 5 of the statement of claim. In my view, the procedure adopted by Mukito is correct to the extent that the documents listed in the notice to produce are pleaded at paragraph 5 of the statement of claim of Mainland. They are the same documents listed at part 1 of schedule 1 of the list of documents filed on 28th October 2009. So really, Mukito has followed the correct process to that extent. 
But as I found earlier, Mainland is not legally obliged to provide or supply copies of these documents to Mukito until Mukito has inspected them and thereafter has requested copies from it. If Mainland fails to provide or supply copies of these documents, then Mukito is entitled to invoke the Court’s power under Order 9, rule 15 (1)(a) of the National Court Rules to dismiss the proceeding.

36. I reiterate here that this process is different to that of discovery of documents by notice of discovery under Order 9, rules 1, 2, and 6 of the National Court Rules where if Mainland defaults in filing and serving a list of documents on Mukito, Mukito is also entitled to invoke the Court’s power under Order 9, rule 15(1)(a) of the National Court Rules to dismiss the proceeding which is not the case here.

37. Given that Mukito has not inspected the documents listed in the notice to produce before requesting the copies from Mainland, this is where I think Mukito has misapprehended the application of the notice to produce when it demanded Mainland to produce copies of the documents that were discovered in the notice of discovery and also at paragraph 5 of the statement of claim. In my view, inspection of the documents is a prerequisite to obtaining copies from the party requested to produce the documents. Without inspection of the documents, there cannot be any basis for the demand for copies of the documents by the party requiring their production. 

38. For the foregoing reasons, I find that there is no basis for Mukito to demand Mainland to provide copies of the documents. It follows that there is also no breach of Order 9, rule 9 of the National Court Rules by Mainland. This also means that there is no basis to dismiss the proceeding under Order 9, rule 15(1)(a) of the National Court Rules. In any case, Mukito does not dispute that the lawyers for Mainland had served copies of the documents (invoices) on it a day before the hearing of the application, hence Mainland has eventually complied with the request to provide or supply copies of the documents notwithstanding lack of inspection. It follows Mukito’s application in its amended notice of motion is misconceived and should be dismissed with costs to Mainland.

Ruling and orders accordingly.

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Warner Shand Lawyers: Lawyers for the Plaintiff/Cross Defendant
Paul Mawa Lawyers: Lawyers for the Defendant/Cross Claimant