N4255

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 644 of 1994

BETWEEN:

DAULO LANDOWNERS ASSOCIATION INCORPORATION
Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Salika, DCJ
2010: 2nd, 10th March
2011: 15th April

CIVIL PRACTICE AND PROCEDURE – Claim for damages – Default judgment on liability granted – Matter for assessment of damages – Pleadings – Particulars of Claim not clear – Order 8 of National Court Rules – provides a guide – Pleadings not clear – custom not pleaded – Court cannot award any damages – Court does not know who caused the tort.

Counsel:

Mr M Wilson, for the Plaintiffs 
Ms J Doa, for the Defendants

15 April, 2011

1. SALIKA DCJ: BACKGROUND: By a Writ of Summons filed on 15 August 1994, the plaintiff in its Statement of Claim claimed the following:-

1.	The plaintiff is an incorporated land group registered under the provisions of the Land Groups Incorporation Act, Ch, No. 147 of the Revised laws, and able to sue in its corporate name.

2.	The plaintiff is made up of 4,883 customary land owners of all the land in the Daulo Constituency of the Eastern Highlands Province.

3.	The plaintiff is and was at all material times the owner and entitled to the possession and use of land water-ways, animals and crops situated in and on the land commonly known as Daulo Pass in the province of Eastern Highlands.

4.	On or about the beginning of the 1950s to the date of issue of this writ, the defendant its servants or agents wrongfully entered the said land to build a road and bridges for the Highlands Highway road, despite repeated objections by the plaintiff and efforts to have the defendant its servants or agents vacate and deliver up the same, its servants or agents has failed to do so.

5.	Further or in the alternative, the defendant its servants or agents have failed to pay any or any sufficient compensation to the plaintiff for the defendant's trespass and continued occupation of and use of the said land.

6.	The plaintiff further claims that the defendant its servant or agents since the early 1950s to the date of issue of this writ not only wrongfully committed the matters pleaded in paragraphs 4 and 5 hereof but also dug up and graded the soil chopped down trees and grass, used and polluted streams, rivers and other water-ways, placed metal fixtures, trucks and heavy equipment which are rusting and abandoned, cut down mountains and hills filled up dunes and other depressions in the land with foreign objects, and poured excess gravel and tar on the land.

7.	By reasons of the foregoing the plaintiff's gardening land has been occupied, destroyed eroded and/or covered by landslides, drinking waters polluted, hunting grounds either occupied or destroyed, environment polluted by rusting, abandoned bridge, trucks equipment, gravel and tar, birds and animals killed or migrated to other environs to the plaintiff's detriment, bush materials for building houses, huts, fences and other wooden or grass structures destroyed cut down or removed, forcing the plaintiff to move from flat habitable areas to mountainous and difficult areas to live causing noise and other pollutions emanating from passing trucks, cars, buses and other motor vehicles using the said highway.

8.	Despite numerous requests by the plaintiff, the defendant failed and continues to fail to pay any or any adequate compensation to make good the wrongs pleaded herein.

9.	By reason of all the matters aforesaid, the plaintiff has lost and/or use of its land, waters, grass, trees, crops, birds and animals and habitat, and has suffered loss and damage.

2. After the filing of the Writ the plaintiff moved for default judgment by notice of motion filed on 9 November 1994.

3. Default judgment was granted on 13 December 1994.

4. The defendants filed Notice of Motion on 11 December 1995 to set aside the default judgment ordered on 13 December 1994.

5. The defendants never moved that motion.

6. The plaintiff filed a Notice of motion on 17 July 2001 to dismiss the defendants Notice of Motion filed on 11 December 1995 for want of prosecution.

7. On 22 August 2001 the Court ordered the following:

1.	The defendant's notice of motion filed on the 11th December 1995 is dismissed for want of prosecution.

2.	The plaintiff shall file a Particulars of Damages occurring 15 August 1988 to 15 August 1994 within 30 days from the date of these orders and that such be served upon the defendants.

3.	The plaintiff shall not proceed with any damages occurring before 15 August 1988.

4.	Costs be in the cause.

8. It appears to me that the Court was alert to the fact that the Claim for Damages before 15 August 1988 could not be claimed as they were time barred pursuant to s.16 of the Frauds and Limitation Act.

9. As a result of the orders made on 22 August 2001, the plaintiff through its lawyers on 6 September 2001 filed the Particulars of the Claim.

10. Since then affidavits have been filed to substantiate the claim.

11. On 26 November 2001, the Court endorsed consent orders of the parties ordering the defendants to file and serve any affidavits in reply within 14 days from that date.

12. The plaintiffs were ordered to file and serve their final submission on quantum by 10 December 2001 while the defendants were to file and serve theirs by 20 December 2001.

13. Since then the matter has not progressed to trial for various reasons – Change of lawyers by both the plaintiffs and the defendant has been a factor in this.

THE CLAIM AND THE PLAINTIFF

14. The plaintiff is Daulo Landowners Association (Incorporated) which is a landowner association.

15. The Associate is claiming damages. Is the Association a landowner of the subject land? The answer is No, the association is not the landowner.

16. Who then are the owners of the land that the plaintiff is seeking to claim damages for? The owners of the land have not been properly identified in the affidavits that have been filed.

17. The claim relates to damages done over a stretch of the Okuk Highway on the Daulo Pass, the Association is claiming to represent the people from that area.

18. This claim appears to be a blanket claim.

19. Who has suffered as a result of the road being built?

20. There is nothing in the affidavits filed that they are land owners and on what basis they claim landownership.

21. What has the plaintiff suffered that it should take this action? This is a question that I must ask because it has not been properly pleaded.

22. If anything some members of the plaintiff association may have suffered damages. This is not adequately pleaded, if at all.

23. The point I am making is that the plaintiff as it is, is not the proper plaintiff and the people however many may be, have not given specific consent for the plaintiff to take the matter to court on their behalf.

THE LAW ON PLEADINGS & PARTICULARS

24. Apart from the point on whether the plaintiff is the correct plaintiff, I raise the matter of proper pleadings. I am mindful of the fact that a default judgment has been entered in this matter but should it have been entered without proper pleadings?

25. The entire Order 8 of the National Court Rules provides a good guide as to how to plead a cause of action in a civil claim.

26. The Statement of Claim in this case does not state any particulars of damage.

27. The particulars filed on 6 September 2001 by the plaintiff does not assist the Court very much concerning the allegations. The pleadings in this case are very poor and poorly drafted.

28. What are the specific allegations against the defendant or what tortous act did the defendants or its servants and agents do that has resulted in the plaintiffs suffering damages? These again have not been properly pleaded.

29. Order 8 Rule 29 makes it mandatory for the party pleading to provide particulars of his or her claim. It provides:-

Rule 29: General

(1)	A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.

(2)	Rules 30 to 34 inclusive of this Order do not affect the generality of sub-rule (1) of this Rule.

30. It is now settled and established law in this country that facts which give rise to a cause of action must be pleaded with clear, adequate and sufficient particulars not to put the defendant guessing as to what he would expect at the trial.

31. The case authority of Mond v Okoro (1992) PNGLR 501 is just one example of that point. Sakora, J in that case said:-

"The purpose of pleadings in civil actions is to ensure that the scope of the dispute between the parties is defined with some precision. Every party is thereby made aware of the case to be made by his opponent, and his preparation for the trial can be directed to the actual controversy. They are intended to inform each party of the case he will have to meet at the trial, and to inform the court of the issues for adjudication. And pleadings require the parties to plead facts in support of a claim or defence. Facts must be specifically alleged so that the opposite party is not surprised. Certain rules of pleadings such as notices and time limits come into play also to ensure parties do not attempt "trial by ambush" (Bernard C Cairns, Australia Civil Procedure, 2nd ed. 1986.96. See also Bredmeyer J in Siaguru v Unagi (supra) at p.373).

The basic requirements of pleadings are that they must contain in summary form a statement of all material facts relied on but not the evidence by which they are to be proved, and not propositions of law. These then ought to define the issues between the parties clearly and precisely, giving the opposite party fair notice of the case he has to meet. It is, therefore, not a device for parties to indulge in what has been called the "Particulars Game", under which each party seeks to open up the case of his opponent by requesting further and better particulars, so as to compel his opponent to reveal as much of his case as he possibly can (Jack Jacob, Sir The Reform of Civil Procedural Law and Other Essays in Civil Procedure, 1982, 73).

Pleadings of facts put parties on their guard telling them what they will have to meet when the case comes on for trial. This prevents "surprise at the trial" (per Cotton LJ in Philipps v Philipps (1878) 4 QBD 127). They show, or ought to, on their face whether a reasonable cause of action or defence is disclosed (Prince v Gregory [1959] 1 WLR 177)."

32. While that case was in relation to an Election Petition, the principles relating to pleadings are the same. One must be precise and particular about ones allegation.

33. The Supreme Court on this point said in MVIT V John Etape (1994) PNGLR 596

"Particulars are, in fact, an extension of the pleadings as they control the generality of the pleadings. In Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364, McClemens J said at 365: Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. Evidence enables the tribunal, within the ambit of the general definition of the issues, affected by the pleadings and limited by the particulars, to decide where the truth lies".

34. Pleadings and particulars are for the following reasons:-

(a)	they furnish a statement of the case sufficiently clear to the other party a fair opportunity to meet it.

(b)	they define the issues for determination in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial.

(c)	they give the defendants an understanding of a plaintiffs claim.

35. When I apply the law as authoritatively stated in the case authorities I have alluded to earlier, I am sorry to say that proper and sufficient pleadings are missing from this claim. Even the request for further and better particulars did not produce what was requested and did not cure the obvious defects in the pleadings.

36. As a consequence here is a claim which is clearly defective and lacking in any particularity such that the defendant does not know what it, or its servants and agents, did to warrant it to be taken to court. The defendant did not know what it was defending itself from. The plaintiff through counsel say this is a case of "trespass" but "trespass" is not specifically pleaded, and is not pleaded at all.

37. This is a clear case of abuse of the court process. The plaintiff may argue that the defendant did not request any further and better particulars but I say that the plaintiff must take that first responsibility to ensure that his or her claim is sufficiently clear and specific in its pleadings so that the defendant can reply to those specific allegations.

38. Even after the court made orders on 22 August 2001 for the plaintiffs to file particulars of damage from 15 August 1988 to 15 August 1994, the plaintiffs attempt to particularize the damage is very poor to say the least. When the court made the orders for the plaintiff to particularize their claim, it saw the bad state the pleadings were at that stage, but the plaintiffs did not take proper heed.

39. There are no pleadings to say who caused the erosion or what caused the soil erosion or the cause of water pollution.

40. I note from the plaintiffs submission that its claim should be determined on the basis of s.5(g) (ii) of the Customs Recognition Act.

41. I take into account that part of plaintiffs' submission or the application of custom in this case, but custom has not been specifically pleaded in the pleadings. The plaintiffs cannot rely on it now. It is absurd to say that the claim is under custom when custom is not pleaded at all.

42. Is this the proper way to invoke custom or does one have to plead it in the claim? I am of the firm opinion that if s. 5(g)(ii) of the Customs Recognition Act was to be relied on by the plaintiff to make a claim against the Defendant it ought to have pleaded such in its statement of claim, but it did not.

43. Counsel did not ask for any amendment of the pleadings to the claim to include custom.

44. The end result is that this court cannot award any damages against the defendant for failure to plead custom and for insufficiency of pleadings in general.

45. This court does not know who caused the tortuous act such that orders for damages should be made against that party. The claim is dismissed.

46. Costs of the proceedings are awarded to the defendants.
________________________________________
Warner Shand Lawyers: Lawyer for the Plaintiff 
Solicitor-General: Lawyer for the Defendant