N4604

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 224 OF 2009

BETWEEN:

KAWASO LIMITED
Plaintiff

AND:

OIL SEARCH (PNG) LIMITED
Defendant

Waigani: Hartshorn J.
2010: 16th April,
: 3rd June

Application to Dismiss Proceeding – Order 9 Rule 25 (1) (a) National Court Rules – Default in compliance with Order to answer interrogatories 

Facts:

This application is made pursuant to Order 9 Rule 25 (1) National Court Rules. The Defendant applies for the proceeding to be dismissed for the plaintiff's failure to comply with Orders of this court requiring it to provide answers to Oil Search's notice to answer interrogatories. The Plaintiff opposes the application on the basis that there is an adequate explanation for the delay in providing answers and that the answers to the interrogatories are known to Oil Search and should not have been the subject of the interrogatory procedure.

Held: 

1.	The explanations given by the Plaintiff for the delay are not reasonable.

2.	The withholding of instructions so that the proceeding brought by Kawaso would not proceed, is not evidence of a plaintiff committed to pursuing its claim, but rather, is evidence of intentionally not complying with prescribed time limits or an order of this court.

3.	An interrogatory is not objectionable merely because the answer is known to the interrogator or because the interrogator has other means of proving the matter: Attorney General v. Gaskill (1882) 20 Ch D 519 and Lyell v. Kennedy (1883) 8 App Cas 217 at 228.
 
4.	There is a lack of good faith on the part of Plaintiff in its compliance with the interrogatory procedure and the court order and in its prosecution of its claim.

5.	If a plaintiff decides without the consent of the other party or permission of the court not to continue the prosecution of his claim for a period of time and as a consequence defaults in complying with prescribed time limits or a court order, he is liable to suffer the consequences.

Cases

Papua New Guinea Cases

Nil

Overseas Cases

Attorney General v. Gaskill (1882) 20 Ch D 519
Lyell v. Kennedy (1883) 8 App Cas 217 
Danvillier v. Myers [1883] WN 58
Haigh v. Haigh (1885) 31 Ch D 478 

Counsel:

Mr. R. Manrai, for the Plaintiff
Mr. T. Dawidi, for the Defendant

3rd June, 2010

1. HARTSHORN J: The defendant Oil Search (PNG) Ltd, applies for the proceeding to be dismissed as the plaintiff Kawaso Ltd, has defaulted in complying with Orders of this court requiring it to provide answers to Oil Search's notice to answer interrogatories.

2. The application is made pursuant to Order 9 Rule 25 (1) National Court Rules.

3. Kawaso opposes the application on the basis that:

a)	there is an adequate explanation for the delay in providing answers;

b)	the answers to the interrogatories are known to Oil Search and should not have been the subject of the interrogatory procedure.

Background

4. The chronology of events culminating in this application is:

•	3 December 2009	- Oil Search's notice to answer interrogatories is served upon the lawyers for Kawaso,
•	12 December 2009	- Kawaso's lawyers request an extension of time,
•	21 December 2009	- the time for Kawaso to provide answers expires,
•	12 & 13 January 2010 - Kawaso's lawyers request copies of Oil Search's discovered documents,
•	28 January 2010	- Oil Search informs that if answers are not received within 5 days, an application to dismiss the proceeding will be made,
•	15 February 2010	- Oil Search files motion for answers to be provided,
•	16 February 2010	- motion is served upon Kawaso's lawyers,
•	5 March 2010- after 2 adjournments for non-attendance of counsel for Kawaso, Kawaso is ordered to provide its answers by 17 March 2010 and the motion is adjourned to 17 March 2010,
•	17 March 2010- there is no appearance on behalf of Kawaso and no answers are filed,
•	19 March 2010 - the present motion seeking dismissal is served upon Kawaso's lawyers.

Delay

5. Counsel for Kawaso submitted that the reasons for the delay in supplying the answers were adequately explained by Kawaso's Managing Director. From a perusal of the affidavit of Mr. Sosoro, the reasons for delay are that he was on leave and then there was a death in his clan requiring him to attend to customary obligations. After these obligations had been completed, he travelled to Fiji and then to his village. Further, Mr. Sosoro deposes that he withheld instructions from Kawaso's lawyers as he did not want this proceeding to proceed because of negotiations with Oil Search concerning a new agreement.

6. To my mind, the explanation is not a reasonable excuse. Following the performance of his customary obligations, one would have thought that as this court had ordered that answers be provided by 17 March 2010, the Managing Director of a company claiming in excess of K5 million would have made time to ensure compliance with the court order to avoid being in breach and to avoid the claim being dismissed.

7. Further, the withholding of instructions so that the proceeding brought by Kawaso would not proceed, is not evidence of a plaintiff committed to pursuing its claim, but rather, is evidence of intentionally not complying with prescribed time limits or an order of this court. The cases of Danvillier v. Myers [1883] WN 58 and Haigh v. Haigh (1885) 31 Ch D 478 are English authorities cited in Ritchie's Supreme Court Procedure New South Wales. They are persuasive in our jurisdiction. They are established authorities concerning when a court will order dismissal in respect of the English and New South Wales Supreme Court Rules similar to our Order 9 Rule 25 National Court Rules. Such circumstances include where the default in complying with a court order concerning answering interrogatories, is considered intentional.

Known answers

8. As to the submission made on behalf of Kawaso that the answers to the interrogatories are known by Oil Search and therefore should not have been the subject of the interrogatory procedure, I refer to the affidavit evidence of Mr. Michael Wilson. Annexed to Mr. Wilson's affidavit is a draft answer to interrogatories on behalf of Kawaso. Mr. Wilson deposes amongst others, that a statement has been made in the draft answers that the information sought is known to Oil Search.

9. As to this point, an interrogatory is not objectionable merely because the answer is known to the interrogator or because the interrogator has other means of proving the matter; Attorney General v. Gaskill (1882) 20 Ch D 519 and Lyell v. Kennedy (1883) 8 App Cas 217 at 228 cited in Ritchie (supra). In any event no application has been made to the court by Kawaso to limit or prevent unnecessary interrogatories.

10. After considering the above, the fact remains that Kawaso has failed to comply with the court order made on 5 March 2010. The reasons given for the delay to my mind are not reasonable and rather, there is evidence of an intention not to comply with prescribed time limits or a court order merely because of negotiations concerning a new agreement. No application was made to limit or prevent the interrogatories and no consent was obtained from Oil Search to delay the proceeding or to delay having to comply with the interrogatory procedure.

11. If a plaintiff decides without the consent of the other party or permission of the court not to continue the prosecution of his claim for a period of time and as a consequence defaults in complying with prescribed time limits or a court order, he is liable to suffer the consequences.

12. The circumstances that have been shown to exist concerning Kawaso's response to the court order and indeed its response to Oil Search's notice to answer interrogatories, leads to the view that there is a lack of good faith on the part of Kawaso in its compliance with the interrogatory procedure and the court order and in its prosecution of its claim.

13. The circumstances are such that Oil Search is entitled to the relief that it seeks in its notice of motion.

Orders

a)	the proceeding is dismissed,

b)	the plaintiff shall pay the costs of and incidental to the proceeding to the defendant,

c)	time is abridged.
___________________________________________________________

Warner Shand Lawyers: Lawyers for the Plaintiff 
T. Dawidi, Oil Search (PNG) Limited: Lawyers for the Defendant