N6007

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1405 OF 2013

BETWEEN

HELIOS No. 58 LIMITED t/a PAPS MARINE SUPPLIES
Plaintiff

AND

PAPUA NEW GUINEA MARITIME TRANSPORT LIMITED
Defendant

Waigani: Ipang, J
2015: 19th March & 15th May

CIVIL - Motions– Plaintiff seeking to strike out defendant's document titled, "List of Documents alleging non-compliance with National Court Rules – Order 9, Rule 15 (1) (b) of the National Court Rules (NCR) and to strike out defendants defence filed and enter judgment accordingly. 

Cases Cited:

Credit Corporation (PNG) Limited v Gerald Jee [1998-89] PNGLR 11 

Counsel:

Mr. Soa Gor, for the Plaintiff
Mr. Anave Ona, for the Defendant 

15 May, 2015

1.	IPANG, J: By Notice of Motion filed on the 11th February, 2015 the plaintiff seeks the following orders:

•	That the defendant's documents entitled "List of Documents" filed on the 24th November 2014 is struck out for being non compliance with the requirements of the National Court Rules pursuant to Order 9, Rule 15 (1) (b) of the National Court Rules (NCR). 

•	That the defendants defence filed on the 14th January, 2014 be struck out and judgment be entered accordingly pursuant to Order 9, Rule 15 (1) (b) of the National Court Rules (NCR) or alternatively; 

•	That defendant must file and serve its property verified List of Documents within 7 days of these orders failing which defendants defence filed on the 14th January, 2014 will be struck out. 

•	That defendants to pay costs of this application pursuant to Order 22, Rule 13 of the National Court Rules (NCR) 

2.	In support of the motion, the plaintiff relies on the affidavit of Soa Gor sworn and filed on the 11th of February, 2015.

3.	Basically Gor deposed that he had assisted Mr. Simon Nutley of Fiocco Nutley Lawyers to act for the plaintiff. He stated in his affidavit that the plaintiff filed its Notice of Discovery with Verification on the 28th October, 2014 and served on the Defendants Lawyers on the 10th November, 2014.

4.	On the 14th November, 2014 Plaintiff wrote to the Defendants Lawyers requesting the Defendants Lawyers to give discovery of their clients Bank Statement for 1st January to 31st December, 2013 Cash Book for 2013, details of all payments for 2013 and monthly accounts for 2013. This letter was served on Defendants Lawyers on the same date, the letter was written. On, the 24th November, 2014, Defendants Lawyers filed a document entitled, "List of Documents". 

5.	Plaintiff noted when pursuing the "List of Documents" that it was irregular and a nullity as it did not comply with requirements of the National Court Rules. 

6.	On the 28th November, 2014, Plaintiff's Lawyers wrote to the Defendants Lawyers notifying the Defendants Lawyers of the Defendants failure to file and serve a properly verified List of Documents. This letter was written and served on the Defendants Lawyers on the same day it was written. Then again on the 19th of December, 2014 Plaintiff Lawyers directing their attention to their letter of 28th November, 2014 and Defendants Lawyers lack of response. At the time of filing the affidavit in support of the motion, Plaintiffs Lawyers say Defendants Lawyers have not responded to their letter of 19th December, 2014.

7.	Plaintiff's Lawyer submitted that at the time of having sworn and filed his affidavit the Defendants Lawyers have not filed and served their clients verified List of Documents. Damien Palmer who also filed an Affidavit in Support dated 11th February, 2015 and deposed to the fact that his lawyers had advised him that the document titled "list of Documents" filed by the Defendants on the 24th of November, 2014 is irregular as it fails to comply with the requirements of the National Court Rules.

8.	Palmer stated that he believed the Defendants is well out of time and has continuously defaulted by not filing and serving its properly verified List of Documents despite several attempts by the Plaintiffs Lawyers to get them to do so. 

9.	Defendant through counsel say the defendant does not have in its possession, custody or power the documents plaintiff has referred to. 

10.	In the case of Credit Corporation (PNG) Limited v Gerald Joe [1988-89] PNGLR 11 at p.12 the Court stated:

"…The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their respective cases, and thus to provide the basis for the trial or to adduce in evidence at trial relevant documentary evidence material to support or result the case made by or against them, to eliminate surprise at or before the trial relating to documentary evidence and to reduce the cost of litigation... "

11.	In 1995, Sakora,J in Aisip Duwa v Ronald Moyo Senge [1995] PNGLR 140 has stated: 

"And one of the most important process of the pre-trial procedure employed in an endeavour to achieve those aims (the guiding principles for rules of procedure which would best serve the needs of society) is that of discovery. " 

12.	Plaintiff require discovery of the following documents from the Defendant:

•	Bank Statement 
•	Cash Book for 2013
•	Details for all payments for 2013
•	Monthly accounts for 2013

13.	As I alluded to a little earlier, Defendants Lawyer says they do not have in their possession such documents. Documents owned by someone other than the party but in the party's possession are required to be discovered. Documents which are not in the party's physical possession but are controlled by the party or documents over which the party has an enforceable right may also be subject to disclosure. Refer David Bamford, "Principles of Civil Litigation" Law Book Co. 2010 Ed. At p.177.

14.	Given the circumstances explained by David Bamford (supra) Defendants Lawyers failed to give discovery of their clients Bank Statement for 1st January, to 31st December, 2013, Cash Book for 2013, details of all payments for 2013 and monthly accounts for 2013.

15.	I will grant the orders sought in the motion dated 11th February, 2015 in the following:

1.	The Defendant's documents entitled "List of Documents" filed on the 24th November, 2014 is not in compliance with the requirements of the National Court Rules and is struck out pursuant to Order 9, Rule 15 (1) (b) of the National Court Rules 

2.	The Defendant must file and serve its properly verified List of Documents within 07 days of these orders failing which the Defendants Defence filed 14th January, 2014 will stand struck out.

3.	Defendant pays the costs of this application pursuant to Order 22, Rule 13 of the National Court Rules.

_________________________________________________________
Fiocco Nutley Lawyers: Lawyer for Plaintiff
Ona Lawyers: Lawyer for the Defendant