N4861

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 840 OF 2006

BELDEN MEMI trading as BELDEN MEMI & ASSOCIATES
Plaintiff

AND

NOKONDI INVESTMENTS LIMITED
Defendant

Goroka: Ipang AJ
2012: 5 & 19 October

CIVIL LAW – Motion by Plaintiff seeking to strike off Defendant's Defence and judgment to be entered – Rule 15 (2) (c) of the Listing Rules 2005

CIVIL LAW – Motion by Defendant seeking to dismiss Plaintiffs being for abuse of Court process – Order 12 Rule 40 (1) (c) of the National Court Rules. 

Cases Cited

Philip Takori v Simon Yagari (2008) SC 905 
Yap v Tan & Ors [1987] PNGLR 227
Hadkinson v Hadkinson [1952] All ER 567
Chuck v Cremer [1846] EngR 924, (1846) 47 ER 820
Witham v Holloway (1995) 183 CLR 525
Dr. Allan Kulunga v Western Highlands Provincial Government (2006) SC 859 

Counsel

Mr. D.A.Umba, for the Plaintiff
Mr. P.Punau, for the Defendants 

RULING

19, October, 2012

1. IPANG AJ: There are two (2) motions before this Court. The first motion is filed by the Plaintiff on the 5th of September, 2012 and the other motion is dated 14th September, 2012 filed by the Defendant. 

2.	The motion filed by the Plaintiff seeks the following orders: 

1.	The Defendant's Amendment Defence filed on the 29th May, 2008 struck off and judgment entered against the Defendant pursuant to Rule 15 ((2) C of the Listing Rules 2005.
2.	The issue of damages shall be determines at a later date to be agreed by both parties. 
3.	Costs is entered against the Defendants.

3.	The Defendant's motion seeks the following orders: 

1.	The Court dispenses with service requirements of this Notice of Motion pursuant to Orders:

i.	Rule 7 of the National Court Rules. 
ii.	The Plaintiff's motion is dismissed for abuse of Court process pursuant to Order 12 Rule 40 (1) (c) of the National Court Rules.
iii.	The Court gives further directions to parties to file and serve each other Court documents and progress the matter to its finality. 
iv.	Costs be in cause. 

Background

4.	The parties in these proceedings entered into an agreement whereby the plaintiff would dispose off four (4) real estate properties owned by the defendant through sale. It was agreed that the plaintiff would sell the properties at his own expenses and later claim reimbursement from the defendant. So, whilst the Plaintiff was in the process of selling the properties, the defendant terminated the plaintiff's services. The Plaintiff claimed to have incurred personal expenses totalling K38, 325.50 for which he has now sued the defendant. 

5.	On the 15th of June, 2012 through the Notice of Motion dated 24th May, 2012 supported by Mr. Umba's affidavit of 24 May, 2012, the Court granted the following orders that the Defendants' Lawyers shall within 14 days endorse and forward the Pleadings Book to the Plaintiff's Lawyers. The Defendants' lawyers have defaulted in complying with the Court Order thus prompting the plaintiff to file the motion currently on foot before this court.

6.	In this affidavit sworn on the 12th September, 2012 and filed on the 14th of September, 2012, Mr. Punau of Counsel for the Defendants deposed of the following:

I am also the only employed lawyer based in our Goroka Office since our Mokawau Mukwesipu left to join the Magisterial Services in 2010.

Ms. Jacinta Hasu was then in charge of the practice therein, however decided to retire from practice.

The files here in Goroka were being attended to by our Port Moresby Office since then until I left my last employer to join Steven Lawyers in late May 2012.

This matter was filed in 2006 and I can recall having to attend to this matter in June 15th 2012 of which Mr. Umba move for orders that we endorse the Pleadings Book and forward to him within 14 days.

I didn't object to his motion and bear the cost of K500 of which we have paid. This matter as I have alluded to in my earlier paragraph that it is an old case just like other files we have. Having to go through the massive file itself I needed further confirmation from Ms. Hasu before I endorsed the Pleading Book and forward them to the Plaintiffs lawyer as per the Order.

I was unable to do so as Ms. Hasu was heavily involved in the National Elections and to date she does not want to have anything to do with the practice. 

7.	Mr. Punau of Counsel for the Defendant was present in Court on the 15th of June, 2012 when Mr. Umba for the Plaintiff moved for the orders that the Defendant's lawyers endorsed the Pleading Book and forward to him within 14 days. In paragraph 7 & 8 of his affidavit, Mr. Punau explained the difficulty he faced with endorsing the Pleading Book. The Defendant Counsel decided to take the odd approach that was to sit on the Court Order until the Plaintiff's motion is filed. The better and correct approach was for the Counsel to come to Court and seek extension of the Court Order rather than intentionally knowing and deliberately breaching the Court Order. 

8.	It is settled law in this jurisdiction that it is the obligation of every person against whom the order is made that it be obeyed unless and until the order is discharged. See Yap v Tan & Ors [1987] PNGLR 227; Hadkinson v Hadkinson [1952] All ER 567 and Chuck v Cremer [1846] EngR 924; (1846) 47 ER 820. In Chuck v Cremer (supra) the law still remains. 

"A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular and who might be affected by it might be discharged. As long as it existed it must not be disobeyed."

9.	In Witham v Holloway (1995) 183 CLR 525 at pp. 533-4 Brennan, Deane, Toohey and Gaufron, JJ started that:

"Even when proceedings are taken by the individual to secure the benefits of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the Court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interest. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or simply, procedural orders, are made in the interests of justice. Non compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties." 

10.	In Midopa Trading Limited v PNG Motors Ltd & 1 Or (WS. No. 219 of 2005) (16 February, 2012) unreported, Yagi, J cited the Supreme Court case of Dr. Allan Kulunga v Western Highlands Provincial Goverment (2006) SC 859. The principles in Kulunga case are equally relevant and applicable in this instant case in the context of failure to comply with Court Order. 

11.	The Supreme Court in Kulunga case held that where there is a failure to comply with Court Order or direction the defaulting party must show by appropriate evidence three (3) things: a reasonable explanation for allowing the time period to expire, the facts and circumstances that prevented the party from complying with the Court Order, and thirdly, the application for extension was made without unnecessary and undue delay.

12.	The Defendant through its Counsel has not satisfied the 3 requirements. The explanation offered by Mr. Punau in his affidavit that Ms. J.Hasu has retired from the practise and that he needed confirmation from Ms. Hasu before he endorse the Pleading Book is not satisfactory. Counsel deposed that their files in Goroka were attended to by their Port Moresby office when he joined Steven Lawyers in late May, 2012. There was no evidence before the Court that he made any attempt to get confirmation from their Port Moresby office to endorse the Pleading Book.

13.	So even if Ms. J.Hasu was heavily involved in the National Election and cannot make herself available, he could still get assistance from their Port Moresby office which the Defendants counsel did not do. There was nothing at all preventing him not to do that. There was nothing at all preventing Mr. Punau from complying with the Court Order. Better still, the Defendant's Counsel had the option available to apply for an extension of time to allow for compliance however he has not made use of that. He has also not provided any explanation why he did not utilize that option. 

14.	Given the circumstances and reasons I have alluded to, I am satisfied the Plaintiff has made out a case and therefore I grant the orders sought in the Plaintiffs motion dated 5th September, 2012. In doing so I strike out the Defendants motion dated 14th September, 2012 with costs to be agreed, if not to be taxed. 

15.	The following orders are granted: 

1.	Plaintiffs application is granted. Defendant's Amended Defence filed on the 29th May, 2008 is struck out and default judgment entered against the Defendant.

2.	The matter returns to Court for trial on assessment of damages at a later date to be agreed by both parties.

3.	Defendants motion is dismiss with costs. Costs to be agreed if not to be taxed. 
__________________________________________
D.A. Umba Lawyers: Lawyers for the Plaintiff
Stevens Lawyers: Lawyers for the Defendant