N6354

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE] 

	  WS 477 OF 2012	

BETWEEN 

THE MEDICAL SOCIETY OF 
PAPUA NEW GUINEA INC.
 Plaintiff

AND

MATHIAS SAPURI
First Defendant

AND:

SYLVESTER LAHE
Second Defendant

          Waigani: Hartshorn J. 
             2015: 6th March 
                2016: 29th January     

Application for leave to adduce evidence – Order 10 Rule 14 (3) National Court Rules 

Cases cited: 	

Parry v. Aluminium Corporation Ltd [1940] 151 L.T. 318

Counsel:	

Mr. G. B. Purvey, for the Plaintiff 
Mrs. P.O. Nii, for the First and Second Defendants

29th January, 2016

1. 	HARTSHORN J: The first and second defendants are medical practitioners and members of the plaintiff. They were respectively the President and the Secretary of the plaintiff. The plaintiff alleges that the defendants’ breached fiduciary and other obligations that they owe in respect of the plaintiff and its members. The plaintiff claims amongst others over K1.3 million, the return of a motor vehicle and that the defendants provide an accounting of the plaintiff’s funds.

2. 	The defendants’ deny the allegations.

Order 10 rule 14 (1) application

3.  	After the conclusion of the evidence of the plaintiff in chief in the substantive hearing of the proceeding, counsel for the defendants’ made an oral application pursuant to Order 10 Rule 14 (1) National Court Rules. That Rule gives the discretion to the court to direct the entry of judgment for the defendants’ generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, an order directing the entry of judgment for the plaintiff could not be supported. This application was opposed by the plaintiff.

4. 	In a reserved decision the application of the defendants’ pursuant to Order 10 Rule 14 (1) National Court Rules was refused. A hearing was then conducted to consider whether the defendants’ should be granted leave to adduce evidence in the proceeding and as to costs. The question of leave arises pursuant to Order 10 Rule 14 (3) National Court Rules. 

5. 	The plaintiff submits that the defendants’ should not be granted leave to adduce evidence as:

a)	Counsel for the defendants’ did not make an election as to whether the defendants’ would be calling evidence;

b)	If such an election is not made, then the defendants’ are deemed to have waived their right to call evidence, and if their no case submission is not successful pursuant to the practice at common law;

c)	The defendants’ have not been willing to produce any evidence at an earlier stage and have failed or refused to comply with requests to provide an accounting to show what has become of certain funds. Further, they have failed to provide valid audit reports, invoices, receipts or other records to support expenditure;

d)	In discovery prior to trial, no documents were produced concerning certain cash withdrawals and so would not have been able to be produced at trial;

e)	The defendants’ chose to take the risk of making a no case submission and of it failing, and then being precluded from adducing evidence;

f)	As officeholders of the plaintiff, the defendants’ have always been under a duty to act openly and transparently in dealing with the plaintiff’s funds since 2007. The defendants’ should have been willing and able to produce documents or other evidence showing what had happened to the plaintiff’s funds, but they have consistently refused to do so.

6. 	The defendants’ submit that they should be granted leave to adduce evidence as:

a)	They were entitled to make an application under Order 10 Rule 14 (1) National Court Rules and should not now be denied their right to adduce evidence;

b)	The defendants’ right to a fair trial is accorded to them by s. 37 Constitution and their rights would be breached if they are not given the right to defend the plaintiff’s claim and make their defence;

c)	If the defendants’ are not permitted to adduce evidence, this would amount to a denial of a fair hearing, a miscarriage of justice and a breach of the principles of natural justice contained in s. 59 Constitution;

d)	Pursuant to s. 158 Constitution, the court must give paramount consideration to the dispensation of justice. Further, as stated in Philip Takori v. Simon Yagari (2006) SC906, a party has a right to be heard. These principles would be infringed if the defendants’ were not permitted to adduce evidence.

Order 10 Rule 14 National Court Rules

7. 	Order 10 Rule 14 is as follows:

“14.	Judgement by direction.

(1)	Where the plaintiff is the beginning party, a defendant may, at any time after the conclusion of the evidence for the plaintiff in his case in chief, move the Court for an order directing the entry of judgement for that defendant in the proceedings generally or on any claim for relief in the proceedings on the ground that, on the evidence given, an order directing the entry of judgement for the plaintiff could not be supported.

(2)	Where the ground of a defendant's motion under Sub-rule (1) is established, the Court may direct the entry of judgement for the defendant accordingly.

(3)	Where a defendant's motion under Sub-rule (1) is refused, the defendant may not, without leave of the Court, adduce evidence in the proceedings or on the claim for relief in question, as the case may be.

(4)	Where fewer than all defendants apply under Sub-rule (1), the Court may refuse to make an order under Sub-rule (2) until the conclusion of the evidence given for all the parties.”

Consideration

8.	 Order 10 Rule 14 (3) National Court Rules, provides that a defendant may not, without leave of the court, adduce evidence in the proceeding where his motion for an order directing the entry of judgment for the defendant has been refused. I have not been able to find any authority on the interpretation of this provision and neither counsel assisted in this regard.

9. 	There is no similar provision in Rule 34.7 New South Wales Supreme Court Rules 1970 or, as far as I am aware in the Supreme Court Rules in England and Wales. 

10.	 It has been the practice in England, Australia and Canada for counsel for a defendant, when making application at the end of a plaintiff’s case for the entry of judgment to the defendant on the ground that the plaintiff has not made out his case, for counsel for the defendant to make an election as to whether the defendant will or will not call evidence. If counsel for the defendant elected not to call evidence, the Judge would give a ruling on the no case submission. If counsel for the defendant elected to give evidence, the Judge would normally refuse to consider whether to enter judgment until all of the evidence of the parties had been given.

11. 	The reason for this practice was explained by Goddard LJ in Parry v. Aluminum Corporation Ltd [1940] 151 L.T. 318. His Lordship said:

“…. It is very undesirable for the Judge to give a ruling in a case which may afterwards be upset by the Court of Appeal, when the defendant may be in a position to say: “I must have a new trial, because my evidence was never heard.” I think that the right course is for the Judge to refuse to rule unless counsel says that he is going to call no evidence.”

12. 	Consequently, His Lordship was of the view that the right course is for the Judge to refuse to rule unless counsel says that he is going to call no evidence.

13. 	As our Order 10 Rule 14 (3), as referred to, unlike the rules of court procedure in other jurisdictions, specifically provides that the defendant may not adduce evidence if his motion for a no case judgment is refused, without leave, the practice of counsel for the defendant making an election whether to call evidence for the defendant, is not required in this jurisdiction.

14. 	Order 10 Rule 14 (3) appears to have been drafted in my respectful view, to take into account the reasons for the practice of election by defence counsel, as stated by Goddard LJ in Parry v. Aluminum Corporation Ltd (supra) and that a judge would refuse to hear a judgment application until all the evidence was heard, if counsel for the defendant had elected to give evidence.

15. 	Order 10 Rule 14 (4) National Court Rules also supports this view as it permits the court to refuse to make an order directing the entry of judgment for a defendant, where not all defendants apply for such an order, until the conclusion of the evidence given for all of the parties - the assumption being that a court should not refuse to make an order directing judgment for the defendant where all of the defendants or the only defendant applies for an order directing the entry of judgment for a defendant.

16. 	So pursuant to Order 10 Rule 14 (1) and (3) National Court Rules, a defendant can apply for judgment for the defendant after the close of the plaintiff’s case, but by so doing he takes the risk of losing the right to adduce evidence if he is unsuccessful in his application.

17. 	The defendants’ submissions that if they are not permitted to adduce evidence, this will result in a substantial miscarriage of justice and a breach of natural justice as they will be denied a fair trial, denied the right to defend and denied the right to be heard, fail to take into account that it was the decision of counsel for the defendants’ to make an application under Order 10 Rule 14 (1) National Court Rules. This court did not in any way coerce counsel for the defendants’ to make the application. Counsel for the defendants’ took the risk that if the application under Order 10 Rule 14 (1) was unsuccessful the defendants’ lost their right to adduce evidence. The defendants’ position is of their own making. Further, in making the application counsel would have been aware of the wording of Order 10 Rule 14 (3) and no submission was made to the contrary on behalf of the defendants’. 

18.	 As to the dispensation of justice, this applies to all parties and a plaintiff is entitled to rely on decisions made by a defendant. 

19. 	The defendants have not established to this court’s satisfaction, why leave should be granted to them under Order 10 Rule 14 (3) National Court Rules, to adduce evidence following the refusal of their application for an order directing the entry of judgment in their favour. 

20. 	As to costs, they should follow the event and there were no submissions to the contrary made.

Orders

21.

a)	The application by the defendants’ for leave to adduce evidence pursuant to Order 10 Rule 14 (3) National Court Rules is refused;

b)	The defendants’ shall pay the plaintiff’s costs of and incidental to the defendants’ application under Order 10 Rule 14 (1) and the hearing concerning whether leave should be granted pursuant to Order 10 Rule 14 (3) National Court Rules;

c)	The hearing of the balance of the trial being final submissions by counsel shall be adjourned to a date to be fixed;

d)	Time is abridged.

_____________________________________________________________
Young & Williams Lawyers: 	Lawyers for the Plaintiff       
Greg Manda Lawyers:    Lawyers for the First and Second Defendants