N7225

  PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE] 

  WS 399 OF 2005

BETWEEN: 
HANJUNG POWER LIMITED 
Plaintiff

AND:
PACIFIC MMI INSURANCE LIMITED 
Defendant

  Waigani: Hartshorn J. 
                2009: 5th & 7th October 
      2010: 11th March    

DISCOVERY – inspection of documents previously discovered – whether lawyer without practicing certificate permitted to attend inspection
	    
Cases cited: 
Papua New Guinea Cases

Nil

Overseas Cases

Davies v. Eli Lilly & Co [1987] 1 All ER 801 

Counsel:

Mr. F. Griffin, for the Plaintiff 
Ms. K. Nugi, for the Defendant

11th March, 2010

1.	HARTSHORN J.  The defendant, Pacific MMI Insurance Limited (Pacific MMI) applies pursuant to s. 155(4) Constitution for an order that the lawyers for the plaintiff, Hanjung Power Ltd (Hanjung), produce for inspection at the offices of the lawyers for Pacific MMI, the discovered documents of Pacific MMI that were previously provided to the lawyers for Hanjung (discovered documents).

2.	The reason for the order sought is that for some unascertained reason the lawyers for Pacific MMI do not have a list of and/or copies of the discovered documents.

3.	Hanjung opposes the application as:

a)	The notice of motion does not state the National Court Rule relied 	upon,
b)	The re-inspection would be performed by a solicitor from outside of 	the jurisdiction who does not hold a current practicing certificate from the Papua New Guinea Law Society.

4.	The lawyers for Pacific MMI were initially permitted by the lawyers for Hanjung to re-inspect the discovered documents. The re-inspection was not completed as the lawyers for Hanjung refused to allow the re-inspection to continue as they had concerns as to whether some documents had been deleted or tampered with and that the initial re-inspection was being conducted by a solicitor from outside of the jurisdiction who did not have a practicing certificate from the Papua New Guinea Law Society.

5.	Pacific MMI submits that there is no provision in our Rules for re-inspection and that is why application is made pursuant to s. 155(4) Constitution.

6.	Hanjung submits that Order 9 National Court Rules provides exclusively for discovery and inspection and if re-inspection is not provided for, Pacific MMI is not entitled to it. I note in this regard that although Order 9 does not provide for re-inspection of discovered documents, it is not expressly prohibited. 

7.	An appropriate description of the purpose of discovery is contained in the case of Davies v. Eli Lilly & Co [1987] 1 All ER 801. Sir John Donaldson MR said:

“The right is peculiar to the common law jurisdictions.  In plain language, litigation in this country is conducted ‘cards face up on the table’. Some people from other lands regard this as incomprehensible. ‘Why’ they ask, should I be expected to provide my opponent with the means of defeating me?  The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object.”

8.	Hanjung is not claiming privilege as the reason for the non-continuation of the re-inspection. Further, the fact that permission was initially granted for re-inspection is indicative that Hanjung’s complaint is not with re-inspection, but with how it is undertaken.

9.	I am of the view that it is in the interests of justice that both parties are able to present to the court their respective cases with knowledge of each other's and their own discoverable documents, and that the re-inspection should continue. This, to my mind, is in accordance with the obligation of each party to give continuing discovery. I am not satisfied that Hanjung will suffer prejudice as a result.

10.	The concern that Hanjung has concerning a solicitor from outside the jurisdiction without a current practising certificate from the Papua New Guinea Law Society being present at or conducting the re-inspection is valid.

11.	The case of Davies v. Eli Lilley (supra) is authority to the effect that only in exceptional circumstances will a person be permitted to undertake inspection of documents if that person is not a party's legal adviser nor an employee of the legal adviser nor a professional expert in the case. This decision is of persuasive value in our jurisdiction.

12.	There is no evidence that the solicitor who attended at or conducted the initial re-inspection with counsel for Pacific MMI, on behalf of Pacific MMI, is a professional expert in the case. He is not Pacific MMI’s legal adviser in Papua New Guinea as he does not have the requisite practicing certificate and there is no evidence that he is employed by the Papua New Guinea law firm that acts on behalf of Pacific MMI. In the absence of evidence of a current practicing certificate or that he is a professional expert in the case or that exceptional circumstances exist, such a person should not be present at or conduct an inspection of documents in Papua New Guinea.

13.	Further, as to where the re-inspection should occur, as the discovered documents are at the offices of the lawyers of Hanjung; that is where the re-inspection shall take place.

Orders

14.    The Orders of the Court are:
	
a)	The plaintiff's lawyers shall produce for inspection at the offices of 	the plaintiff's lawyers the defendant’s discovered documents.
b)	The inspection shall commence at 9.00am and continue until 5.00pm 	on the day or days agreed for such purpose between the parties.  The inspection must be completed by 1st April 2010.
c)	At the inspection, one lawyer for the plaintiff will be present at all times while one lawyer for the defendant conducts the inspection.  Each of those lawyers must hold a current practicing certificate from the Papua New Guinea Law Society.
d)	Each party shall pay their own costs of and incidental to this motion.
_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff                                        
Kassman Lawyers:  Lawyers for the Defendant