N5948

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 68 OF 2009

BETWEEN:

AGRICULTURE RESOURCES TECHNOLOGY
(PNG) LIMITED
Plaintiff

AND:

DEPARTMENT OF AGRICULTURE & LIVESTOCK
First Defendant

AND:

ANTON BENJAMIN, SECRETARY FOR
AGRICULTURE & LIVESTOCK
Second Defendant

AND:

MARTIN BAL, MANAGER, NATIONAL
AGRICULTURE DEVELOPMENT PLAN
Third Defendant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Defendant

Waigani: Hartshorn J.
2014: 7th August,
2015: 7th April

Application pursuant to Order 9 Rule 5(1)(b) National Court Rules

Cases cited: 

Logicrosce Ltd v Southend United Football Club (The Times, 5 March 1988)
Public Officers Superannuation Fund Board v. Sailis Imanakuan (2001) SC677 
Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2003) N2459 
Rural Development Ltd v. Maria Laka (2007) SC897 
Media Niugini Ltd v. Anderson Agiru (2012) SC1203 

Counsel:

Mr. G. Geroro, for the Plaintiff 
Ms. I. Mugugia, for the Contemnors 

7th April, 2015

1. HARTSHORN J: This is an application by the plaintiff Agricultural Resources Technology (PNG) Ltd for the defence of the defendants to be struck out and judgment entered for an alleged failure to correctly provide a verified list of documents.

Background

2. The plaintiff alleges that it was agreed that it would receive K 7 million from the Department of Agriculture and Livestock for amongst others, the management of the Central New Ireland Cocoa and Coconut Plantation Rehabilitation Project. The plaintiff has not received those funds and commenced this proceeding seeking amongst others the sum of K 7 million and damages.

Application

3. The plaintiff now applies for the defendants' defence to be struck out and judgment entered pursuant to Order 9 Rule 15 (1) (b) National Court Rules as:

a)	the verified list of documents filed on behalf of the defendants has been incorrectly signed and verified by a lawyer. It is contended that a lawyer cannot depose to matters of fact;

b)	the verified list of documents is defective as it does not list all of the relevant documents that are in the possession of the defendants.

4. The plaintiff relies upon, the Supreme Court decision of Public Officers Superannuation Fund Board v. Sailis Imanakuan (2001) SC677 (Amet CJ, Gavara Nanu and Kandakasi JJ) and the National Court decision of Sakora J in Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2003) N2459 in support of its application.

5. The defendants submit that:

a)	Order 9 Rule 2(3) (a) National Court Rules does not specify who should verify when discovery with verification is given by an agent of the State. The person who verified on behalf of the State, the Acting Solicitor General is an officer of the State and is able to sign and verify the list of documents;

b)	the documents listed in the verified list of documents are the only documents of which the defendants are aware.

6. Order 9 Rule 15 (1) (b) National Court Rules is as follows:

"15.	Default. (23/15)

(1)	Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit, including—

(a) 	……..	
(b)	if the proceedings were commenced by writ of summons and the party in default is a defendant—an order that his defence be struck out and that judgment be entered accordingly."

7. As to whether the list of documents was incorrectly signed and verified, Order 9 Rule 8 National Court Rules relevantly provides that:

"8.	Deponent. (23/8)

(1)	…… an affidavit verifying a list of documents of a party….may be made —

(a)	by the party; or
(b)(c)(d)…..
(e)	where the party is the Independent State of Papua New Guinea or an officer of the State suing or sued in his official capacity—by an officer of the State.

(2)	….

(3)	…… where the party is a person to whom Sub-rule (1)(c), (d) or (e) applies, the party shall choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts."

8. In this instance the verified list of documents filed on behalf of the defendants is signed and verified by the Acting Solicitor General, Ms. Jubilee Tindiwi. There is no evidence to the effect that Ms. Tindiwi is not an officer of the State and that she does not have knowledge of the facts. Further, no reference was made to any National Court Rule that prohibits a lawyer signing or verifying a list of documents. Consequently, I do not find in favour of the plaintiff on this ground.

9. As to the list of documents being defective as it does not list all of the relevant documents in the possession of the defendants, counsel for the plaintiff submitted that there are no documents listed that concern how and when decisions concerning the payment or non payment of funds were made. There is though, no evidence that the plaintiff has requested other documentation from the defendants or has sought orders from this court for the defendants to provide discovery of specific documentation.

10. I note the statement in POSFB v. Imanakuan (supra) that in their Honours' view Order 9 Rule 15 (1) is not restricted to a default in terms of filing and serving a list of documents:

"…. but also includes default of a party required to give discovery failing to list any document whether it be in its original form or a copy and is relevant to the proceedings unless it is privileged from production."

11. In POSFB v. Imanakuan (supra), the Supreme Court held amongst others that there was default within the meaning of Order 9 Rule 15 (1) National Court Rules and that the National Court judgment appealed was correct. The default included a failure to list documents that the respondent had previously admitted receiving and having in its possession.

12. In Ace Guard Dog v. Lailai (supra) the plaintiffs had been in default in filing a list of documents for about 2 ½ years and had failed to file within 2 extensions of time that had been given by the defendant.

13. In this instance, there is no admission by the defendants that they have or had other relevant documents in their possession and no issue is taken with time.

14. Further in this regard, I make reference to the Supreme Court decisions of Rural Development Ltd v. Maria Laka (2007) SC897 (Batari, Lay and Hartshorn JJ) and Media Niugini Ltd v. Anderson Agiru (2012) SC1203 (Cannings, Gabi and Hartshorn JJ) which both considered Order 9 Rule 15 National Court Rules.

15. In both decisions the following passage from the judgment of Mr. Justice Millett in Logicrosce Ltd v Southend United Football Club (The Times, 5 March 1988) was reproduced and it bears further repetition: 

 "the object of the rules as to discovery is to secure the fair trial of the action in accordance with due process of the court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such a disobedience amounts to contempt or defiance of the court - if that object is ultimately secured, by 'for example' the late production of a document which has been withheld.

But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render the further proceeding unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceeding and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke."

15. For the above reasons the relief sought by the plaintiff should be refused.

Orders

16. The Orders of the Court are:

a)	The relief sought in the notice of motion of the plaintiff filed 25th June 2014 is refused;

b)	The plaintiff shall pay the defendants' costs of and incidental to the notice of motion;

c)	Time is abridged.
_____________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Plaintiff 
Office of the Solicitor General: Lawyers for the Defendants