N7190

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 637 OF 2017

BETWEEN:
NIVANI LIMITED
Plaintiff

AND
WEST NEW BRITAIN PROVINCIAL GOVERNMENT
Defendant

Kokopo: Anis J
2018: 8th, 12th & 13th March & 6th April

DECLARATORY ORDERS – Various contracts - contracts terminated - one party did not accept or treat contract as being terminated - preliminary issues - proper mode of proceeding discussed - whether the facts are substantially disputed - whether matter requires proper pleading - Order 4 Rule 3(2) of the National Court Rules discussed - non disclosure of all the contract documents- matter struck out on preliminary reasons

Cases cited:

Tigam Malewo v. Keith Faulkner (2009) SC960
Yama Security Service Ltd v. Andrew Warupi and Ors (1999) N1919
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
National Capital District Interim Commission v. Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd [1987] PNGLR 135
The State v. Independent Timbers and Stevedoring Ltd (2016) N6832

Counsel:

Ms S. M Kiene, for the Plaintiff
Mr W. Mallo, for the Defendant

JUDGMENT

6th April, 2018

1.	ANIS J: The plaintiff seeks declaratory relief over nine (9) contracts (9 contracts) it said it has entered into with the defendant in 2016.  The contracts relate to the construction and upgrading of sports facilities in Kimbe in West New Britain Province.

2.	The trial began on 8 March 2018.  Presentation of submissions hearings were held on the 12th and 13th of March 2018.  I reserved my ruling thereafter to a date to be advised.  Parties have been advised that my decision would be ready for pronouncement today. 

Evidence

3.	The parties gave their evidence by affidavits.  Their evidence were tendered without objection or cross-examination.  I had used the abbreviation "P" to mark the evidence that were tendered by the plaintiff and the abbreviation "D" to mark the evidence that were tendered by the defendant.  I set them out here.

Exhibit No.	Description	Date Filed
	
“P1”	Affidavit of David John Stein	03/08/17
	
“P2”	Affidavit of David John Stein	18/08/17
	
“P3”	Affidavit of Christopher Edward Stein	20/09/17
	
“P4”	Affidavit of David John Stein	30/10/17	
“P5”	Affidavit of David John Stein	01/11/17	
“D1”	Affidavit of the Williamson Hosea	18/10/17	

Background

4.	As stated, the parties entered into the 9 contracts in 2016.  The defendant had engaged the plaintiff to construct, renovate and upgrade the sports facilities in Kimbe in West New Britain Province, in preparation for what is called 'the PNG Games'.  This was after Kimbe was selected to host the PNG Games for 2017.  The plaintiff commenced work in 2016.  About a year or so later, in July of 2017, the defendant purportedly terminated the 9 contracts following an internal dispute that had arisen between the parties.  The defendant engaged a new contractor to complete the work.  The new contractor commenced and completed the work for the 2017 PNG Games.

5.	The plaintiff it seems has not accepted the fact that the defendant has terminated the 9 contracts.  It seems to have reserved its rights under these contracts.  As I understand it, the underlying reason for filing the proceeding by the plaintiff, is to seek clarity in regard to certain purported clauses under the New Zealand Standard Conditions of contract for building and civil engineering construction (the NZS 3910:2013 guideline).  The plaintiff claims that the purported clauses within the NZS 3910:2013 guideline or that the entire guideline itself was adopted and has formed part of the terms and conditions of the 9 contracts.  On the said premise, the plaintiff claims that it has already referred its dispute to arbitration, pursuant to the purported clauses under the NZS 3910:2013 guideline and it wants an arbitrator to be appointed to determine its dispute thus is seeking the various declarations in its originating summons.

6.	The Defendant maintains its original position, which is that it wants out of the contractual relationship.  It says that as far as it is concern, it has terminated the 9 contracts.  It says that there is nothing else left to do by the parties.  It says that it has fully paid the plaintiff the express sums stated in each of the 9 contracts, which in total is K23,171,381.50.  It says that despite the full payment, the plaintiff did not complete the work and consequently it says that substantial money had to be paid to engage a new contractor to complete the same task.  It says that it is also suspicious of the plaintiff's present proceeding claiming that the plaintiff is attempting to, without any legal basis, engage it (i.e., the defendant) into arbitration or on matters, which would only see it incur substantial and unnecessary costs.  

7.	In regard to the specific legal argument that is raised by the plaintiff concerning the purported inclusion of the adopted clauses in the NZS 3910:2013 guideline into the 9 contracts, the defendant has this to say.  Firstly, it says that the adopted clauses were only meant to be used as aids for the 9 contracts with no legal or binding effects.  Secondly, it says that if the clauses were adopted into the 9 contracts, they were revoked before the 9 contracts were terminated on 19 July 2017.

Preliminary issues

8.	I had raised with counsel for the plaintiff, at the start of the trial and later during the presentation of submissions hearings (the hearing), a number of preliminary issues.  They range from the Court's jurisdiction, the mode of proceeding, the cause of action and the merits of the relief that have been sought by the plaintiff.

9.	I will deal with them first.  

Jurisdiction

10.	The issue of jurisdiction was argued at some length.  But having considered the plaintiff's written submission, which was handed up in Court on 13 March 2018, I will say this.  The plaintiff has acknowledged that the applicable law for the 9 contracts was Papua New Guinea Law.  The confusion arose when the plaintiff made submissions on provisions in the NZS 3910:2013 guideline, which states that New Zealand law shall apply in the event of a dispute.  It is also reflected in the relief that are sought in the originating summons.  

11.	In my view, jurisdiction may or may not be an issue for argument later but not in the present proceeding, as I will explain below.  I will also come back to that in the latter part of my judgment.  For the present purpose though, I am satisfied that I have jurisdiction to deal with the matter.

Mode of proceeding

12.	The defendant submits as a preliminary point that the plaintiff has filed the proceeding under the wrong mode.  It says that the correct mode should be to file a writ of summons and statement of claim.  It refers to Order 4 Rule 3(2) of the National Court Rules and cites two (2) grounds to support the assertion.  Before I consider the arguments, let me set out Order 4 Rule 3(2) herein.

(2)	Proceedings —
(a)	in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or
(b)	in which there is unlikely to be a substantial dispute of fact; or
(c)	in which a person is authorized by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,
are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons issue.

13.	Firstly, the defendant says that the term "Act" under sub-rule 3(2)(a) means an Act of Parliament or Legislations of Papua New Guinea.  It says the plaintiff is asking this Court to assume jurisdiction and interpret or consider New Zealand law or legislations, which are foreign laws, which this Court has no jurisdiction over.  It says that the filing of the originating summons therefore infringes Order 4 Rule 3(2)(a) of the National Court Rules.  I think I have already addressed this point above in my judgment.  The plaintiff has acknowledged that the applicable law for the 9 contracts was PNG law. This is stated at page two (2) of plaintiff's written submission.  But I note that I had also remarked above that the issue may require further attention or consideration at an appropriate forum.  I also note that at the hearing, I had rejected the defendant's counsel's claim regarding his understanding of sub-rule 3(2)(a).  I had pointed out to counsel that whilst the provision refers to an "Act", it also expressly refers to a "contract".  So a party is at liberty to file an originating summons in regard to a contract if the principal question relates to the construction of the contract or on a question of law that arises out of the said contract.  Now, having said that and in regard to this case, I note that the sole question here does not only relate to questions of law or to the construction of the 9 contracts, but also to questions of facts, which I must say seems to be substantially disputed by the parties as I will shortly explain below.  So at this stage of my findings, there is doubt on whether the plaintiff has used the correct mode of proceeding.

14.	Let me move on to consider Order 4 Rule 3(2)(b).  What it means is this.  If the facts of a claim are substantially disputed, a plaintiff should commence proceeding by filing a writ of summons and a statement of claim.  I have considered the arguments of both counsel.  I think it is obvious and as I have indicated above in my judgment, that the material facts as well as the law, are substantially in dispute.  Let me give some examples:

(i)	The plaintiff, based on its relief sought in the originating summons, wants the Court to declare the 9 contracts as legal and still valid.  The defendant disputes that the 9 contracts are still valid.  It says that the 9 contracts were terminated on 19 July 2017.  The plaintiff argues in rebuttal that even if the 9 contracts were terminated, it does not prevent the plaintiff or the parties from arbitrating an internal dispute.  The defendant disputes that.

(ii)	In regard to the main issue concerning the adoption and application of the NZS 3910:2013 guideline, the defendant disputes the claim that the NZS 3910:2013 guideline was adopted into the 9 contracts and is legally binding.  It says that the NZS 3910:2013 guideline was used merely as an aid for the 9 contracts.  The defendant also alleges that in any event, the NZS 3910:2013 guideline had been revoked before the 9 contracts were rescinded or terminated.  Therefore, the facts that surround the purported adoption, application or cancellation of the NZS 3910:2013 guideline are substantially contested.

(iii)	The plaintiff alleges that the parties have also entered into a further variation contract in 2017 to address what it claims were delayed or additional costing and interests that had accrued and were charged.  The defendant denies that such a contract exists.  The plaintiff also contends that the said contract was inbuilt into and has formed part of the terms and conditions of the 9 contracts.  I think this forms the basis of why the plaintiff has denied that the defendant has fully paid to it the total contractual sum for the 9 contracts.  If the plaintiff plans to prove the existence of a further contract or alternatively if the plaintiff plans to prove that the 9 contracts had been varied to include the variation terms so that the plaintiff could claim monies beyond what it has received, these in my view, have to be properly pleaded.  As it is, the facts of this allegation are substantially contested by the parties.

15.	The defendant did not rely on or make any submissions in regard to sub-rule 3(2)(c).  However, that said, I note that the provision would be inapplicable to the plaintiff's case.  Of course, the three (3) considerations under Order 4 Rule (3)(2) are not the only tests where one may use to determine the correct or appropriate mode of proceeding to use.  This is clarified at the final paragraph of sub-rule (2) which reads are amongst those which are appropriate to be commenced by originating summons.  See also the case Tigam Malewo v. Keith Faulkner (2009) SC960.

16.	So in summary and based on my findings, I may now be in a position to have the proceeding struck out.  The plaintiff does not seem to demonstrate with clarity that it has met the requirements of Order 4 Rule 3(2) of the National Court Rules.  However, before I reach a final conclusion on the preliminary issues, there are three (3) other matters, which I think are also relevant that are worth considering.  Let me address them now.

Missing contract document

17.	I had drawn the parties' attention to the individual contracts, which are in evidence.  Each of the contracts is standard and they all have similar provisions.  Clause one (1) is relevant and I note that I had pointed that out to counsel at the hearing.  It reads as follows:

1.	CONTRACT DOCUMENT comprised the following:
1.1	This Contract Agreement
1.2	The General Conditions for Major Works Contract (1992) and the Specification and Conditions and such Addenda are included by any Specific Conditions.

18.	The plaintiff's argument on the application of the NZS 3910:2013 guideline appears to be based on the second leg of clause 1.2.  When queried by the Court, the plaintiff's counsel confirmed that that was the plaintiff's position.  So the material documents for each of the nine (9) contracts are (i), the contract document, (ii), the General Conditions for Major Works Contract (1992) and (iii), other specifications and in this case the plaintiff argues that the NZS 3910:2013 guideline applies through its adoption into the 9 contracts.  I then queried with counsel whether the parties have filed in evidence the second contract document namely the General Conditions for Major Works Contract (1992).  I sensed at the hearing that both parties had not anticipated that to be an issue.  I informed the parties that the document was relevant.  Nevertheless and in response, both parties said that the document was not filed and therefore was not before the Court.  I queried with Mr Mallo, counsel for the defendant, whether such a document exist.  Counsel confirmed its existence.  As for the plaintiff, counsel submitted that the plaintiff was never shown with such a document at the material time before, during and after the signing of each of the contracts, and counsel questioned whether such a document actually exist.  I recall that that immediately caused me to pose the question that if the document did not exist then why was it included as a relevant document under clause one (1) of each of the contracts in the first place for the parties to sign on.  I am reasonably satisfied and find that the document General Conditions for Major Works Contract (1992) does exist and forms part of the contract documents for each of the 9 contracts.  To suggest otherwise by the plaintiff would mean to speak in contravention to clause one (1) of each of the 9 contracts.  That said, the plaintiff may have valid reasons on the said issue, which is why it should perhaps properly plead them using an appropriate mode of proceeding.  I have looked at the evidence.  I confirm that the parties for whatever reasons have not disclosed to the Court a copy of the General Conditions for Major Works Contract (1992).

19.	I therefore find that I do not have before me all the contract documents for the 9 contracts.  What I have are copies of (i), the individual contacts and (ii), the NZS 3910:2013 guideline, which at this stage is disputed as forming part of the contract documents.  "Are the two (2) documents sufficient to enable me to determine the main argument?"  I ask myself.  I would answer "no", to the question.  The plaintiff's main argument here is its claim that the NZS 3910:2013 guideline forms part of clause 1.2 of each of the nine (9) contracts.  The plaintiff filed its evidence, which it intends to use to prove the adoption and application of the NZS 3910:2013 guideline at the material time.  However, I note that according to clause one (1) of each of the nine (9) contracts, it expressly states that the CONTRACT DOCUMENT comprises of the following and it includes the General Conditions for Major Works Contract (1992).  Without that document, which forms a material part of the contract documents for each of the nine (9) contracts, I am incapacitated and thus would not be able to make a finding on the main issue. 

Contracts governed by statute

20.	I also find this next consideration relevant, which is that the 9 contracts are governed by statute.  I make reference to the Public Finance (Management) Act 1995 (PFM Act).  See also the case of Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705.  Mr Mallo submits that the 9 contracts were 'rushed through' because of time constraints.  He also submits that because of that and to comply with the provincial government's contract sealing or limit for award of its contracts, as stipulated under the PFM Act , they had to create these 9 contracts with sums that were below the required sealing instead of them preparing and signing a single contract.  I am not inclined to be drawn into the arguments or to discuss the provisions of the PFM Act at this stage.  In my view, these are not properly pleaded facts or matters and they are not raised as material issues before this Court.

21.	So without going into the implications or the merits of the argument, all I can say is that the matter may require further scrutiny for various reasons including public interest or consideration.  And the way forward towards achieving that may be to have the contracts properly pleaded in a statement of claim.  

Relief

22.	In the originating summons, the plaintiff seeks as follows:

1.	A Declaration that during the period between 18th February 2016 and 16th May 2016, West New Britain Provincial Government (WNBPG) and the Plaintiff entered into nine (9) contracts, under which the Plaintiff agreed to carry out certain infrastructure projects for the 7th PNG Games in Kimbe, West New Britain Province, Papua New Guinea (PNG Games Project), the agreement of which was comprised of nine (9) fully conformed and properly executed contract documents (contracts) namely:-
WNBPSTB/WNBPG-MS:01/2016 (Stage 3),
WNBPSTB/WNBPG-MS:02/2016 (Stage 4A),
WNBPSTB/WNBPG-MS:03/2016 (Stage 4B),
WNBPSTB/WNBPG-MS:8A/2016 (Stage 5A),
WNBPSTB/WNBPG-MS:8B/2016 (Stage 5B),
WNBPSTB/WNBPG-MS:9/2016 (Stage 6),
WNBPSTB/WNBPG-MS:10/2016 (Stage 7),
WNBPSTB/WNBPG-SS:06/2016 (Kulungi) and
WNBPSTB/WNBPG-MS:07/2016 (Kimbe Rugby League).
2.	A Declaration, that on, or around 2nd March 2016 both parties to these contracts agreed to using New Zealand Standard Conditions of Contract (NZS 3910-2013) as the governing conditions of contract for all nine PNG Games Project contracts.
3.	A Declaration, that as a consequence of this agreement to use New Zealand Standard Conditions of Contract (NZS 3910-2013), Clause 1.4.1 of NZS 3910-2013 determines that the contracts are governed by New Zealand law.
4.	A Declaration that in accordance with Clause 13.4.3 of NZS 3910-2013, if parties are unable to agree on the nomination of an Arbitrator, then the New  Zealand Arbitration Amendment Act of  2016 applies, which states, in Schedule 1 Clause 11.3.(b), that an “arbitrator hall be appointed, upon request of a party, by the appointed body”.
5.	A Declaration that the Plaintiff’s application to the appointed body, the Arbitrators’ and Mediator’ Institute of New Zealand Incorporated, for the appointment of an Arbitrator, is valid, and is the correct and proper course of action for the resolution of disputes relating to the nine contracts above.
6.	Such further or other orders as the Court considers appropriate.
7.	Cost of and incidental to this application be costs in the proposed Arbitration proceeding.

23.	Based on the various reasons stated above in my judgment, I note that I am not placed in a position where I would be able to determine the merits of the matter and grant the relief the plaintiff seeks.  My preliminary findings appear to favour the defendant.  Let me also say this.  Granting these relief will not settle the dispute between the parties.  See the case National Capital District Interim Commission v. Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd [1987] PNGLR 135.  Further, it may also prejudice the rights of the parties; it may create confusions and convolute the issues or the disputes.  Let me illustrate.  If I grant the first relief, the order would be too broad.  This Court will declare that the 9 contracts were fully conformed and properly executed contract documents when evidence and arguments put forward by the parties suggest serious controversies.  Firstly, both parties have not filed one (1) of the contract documents.  Both counsel did not assist the Court on what the document General Conditions for Major Works Contract (1992) entails.  Secondly, as stated above in my judgment, the 9 contracts are government contracts and as such are governed by statute namely the PFM Act.  Therefore and in my view, they ought to be properly pleaded including the purported adopted NZS 3910:2013 guideline because I note that the defendant also alleges that compliances with the requirements of the NZS 3910:2013 guideline would see the defendant incur costs beyond its statutory limit or sealing.  And this. The plaintiff's evidence suggests that the parties may have signed another agreement in 2017, which is described as a variation contract.  The defendant denies the existence of such an agreement.  The plaintiff on the other hand also claims that the 2017 contract was inbuilt into the 9 contracts.  So it is uncertain at this stage whether the first relief, which only refers to the 9 contracts, also includes the inbuilt or variation clauses of the purported 2017 contract.  There is no pleading in the originating summons, which clarifies this.  And I note that relief one (1) only pleads events in 2016 and not beyond that.  These are just some examples, which make it difficult for this Court to regard the first relief as something that may be achievable or something that could easily be granted by the Court if the matter is allowed to continue.

24.	 Relief two (2), three (3), four (4) and five (5) deals with the purported adopted NZS 3910:2013 guideline.  I note that I have already covered them above in my judgment.  I have nothing further to add here except to refer to the sub-heading "Remarks" below in my judgment.

Summary

25.	I find that the plaintiff has chosen the wrong mode to commence its proceeding.  I find the facts, as well as the law, to be substantially disputed.  I also find as a preliminary matter that the contract document General Conditions for Major Works Contract (1992) was not produced in evidence by the parties.  Consequently, I find that I would not be in a position to consider the material issue, that is, whether the purported clauses in the NZS 3910:2013 guideline (or the entire guideline) form part of the contract documents for the 9 contracts.  I also find that the relief sought by the plaintiff are vague and will not settle the controversies between the parties if they were to be granted.

26.	I am therefore satisfied that the claim should be struck out at the preliminary stage of my decision.  I must emphasise that my ruling does or will not in any way prejudice the rights of the parties in regard to the 9 contracts.  This includes any substantive arguments that the parties had and have brought to the attention of this Court at the trial of the matter.  I have not considered them (i.e., the substantive arguments) herein.

Remarks

27.	My first remark is this.  I think that reference made by the plaintiff that it had entered into the New Zealand contract, which is the NZS 3910:2013 guideline, may be factually wrong and misconceived.  The 'New Zealand contract' the plaintiff is referring to in evidence is actually a standard precedent contract document or set of guidelines that is used in New Zealand by businesses under New Zealand law, for construction related work.  In New Zealand, if parties intend to enter into a contract for building and civil engineering, I suppose they would enter into separate legally binding agreements, and if they so choose, they may insert into their agreements the various clauses or provisions that are set out in the NZS 3910:2013 guideline.  If two (2) or more parties plan to enter into a contractual relationship of this nature and they wish to fully adopt and use the entire document with included or subtracted variations, they may do so provided of course that they enter into it and sign as parties to the contract to make it legally binding.  But I do not think that the NZS 3910:2013 guideline itself can be treated as a legally binding contract without a proper foundation.  Further, when I look at the last paragraph at page ix of the NZS 3910:2013 guideline, it reads and I quote, In addition, the guidelines have been completely re-written and no longer have any contractual status.  So it may be futile in my view, which is again made as a remark, for a party to point to the entire NZS 3910:2013 guideline and say that that was the contract that was adopted without any contractual basis or foundation.

28.	Now, as I have stated above in the earlier part of my judgment, the plaintiff says that the governing law of the 9 contracts is Papua New Guinea law.  The plaintiff says that its reference to the NZS 3910:2013 guideline relates to the parties' adoption of certain clauses therein, which were to be regarded as part and parcel of the terms and conditions of the 9 contracts.  The defendant, however, says that the purported adopted clauses in the NZS 3910:2013 guideline were used only as a 'guide' or 'an aid' for the 9 contracts.  It says in the alternative that if they have been adopted then they were revoked before the contracts were terminated.  These of course may be fully determined not in this proceeding but perhaps later in a separate proceeding with better pleading and particulars.  But let me say this.  Just by looking at the submissions and pleadings herein, it is unclear whether the plaintiff's argument is that the parties have purportedly adopted the whole or only certain clauses of the NZS 3910:2013 guideline.  This confusion may also have to be clarified later by the plaintiff with detailed particulars.

29.	My second remark is this.  I follow the plaintiff's claim, which is that it wants its internal dispute in the 9 contracts resolved through arbitration.  That of course had let it to send correspondence through its overseas solicitors, to the Arbitrators' and Mediators' Institute of New Zealand Inc.  And it seems that an arbitrator has been identified to deal with the matter.  The plaintiff did that by following the purported adopted clauses in the NZS 3910:2013 guideline, that is, on the premise that the said document formed part of the contract documents.  Assuming that that is the correct approach, I note that the plaintiff has taken the said step to appoint an arbitrator in October of 2017, that is, after the purported termination of the contract in July 2017.  However, I also notice that the plaintiff has not referred to a clause in the 9 contracts which permits continuation of an internal dispute through arbitration after the contracts are or have been terminated.  I refer to the case of Yama Security Service Ltd v. Andrew Warupi and Ors (1999) N1919.  Justice Sevua held and I quote:

Usually, a dispute as to the interpretation or application of a term of a contract is referred to arbitration pursuant to an arbitration clause. In my view, termination of a contract is usually not a dispute requiring arbitration, unless the parties to the contract specifically agree to it in the contract.   (Underlining is mine)

30.	So there is a clear distinction when one talks about arbitration of an internal dispute whilst the contract exists and arbitration after the contract ceases to exist.  So once a contract is terminated, any internal dispute should cease unless there is a clause in the contract, which permits the parties to continue with their internal dispute resolution through an arbitrator etc (first category).  Secondly, a party cannot ask an arbitrator to determine whether the termination of a contract was lawful (which in itself would involve separate legal issues compared to an internal dispute which would only deal with matters that relate to the performance of the contract) after the contract has been terminated unless the contract expressly provides for that (second category).  Justice Sevua in the case of Yama Security highlighted this as I have cited above in my judgment.  I note that the plaintiff's argument may fall into the first category.  And this.  Even if I were to assume that the plaintiff has not repudiated the contracts to this day, it still makes no sense to follow the premise that the plaintiff is trying to resolve an internal matter when the works that were required in these 9 contracts had been reassigned and have been completed by another contractor.  Internal disputes are just that, that is, to resolve internal disputes during the lifespan of a contract, is it not?  The primary aim it seems would be to ensure continuity or to promote completeness or harmony in a contract so that it is successfully completed.  But in a case like this one where a contract has ended and work had been reassigned and has been completed, it seems, in my view, pointless for one party to still want to try to resolve an internal issue.  At that stage, parties should perhaps be more focussed on what their rights are and see if there have been any infringements, and if so, take that next step.  Let us not forget that the option to arbitrate would be available after proceedings are commenced by way of pleadings.  See Order 4 and 5 of the ADR Rules.  

31.	Finally, I say this to the defendant.  If it disputes that it had consented to an arbitration clause(s) in the contracts, it may commence proceeding and seek declaratory orders to stop the arbitration from being conducted.  See the case of The State v. Independent Timbers and Stevedoring Ltd (2016) N6832.  This is of course in addition to its other rights, which, like the plaintiff, may exist in relation to the 9 contracts.

Cost

32.	This proceeding will be struck out so I will award cost to the defendant.  Cost will be awarded on a party/party basis to be taxed if not agreed. 

THE ORDERS OF THE COURT

33.	I make the following orders:

1.	The proceeding is struck out.
2.	Cost of the proceeding is awarded to the defendant on a party/party basis, which may be taxed if not agreed.
3.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
South Pacific Legal Services:		Lawyers for the Plaintiff
Daniels & Associates Lawyers	:	Lawyers for the Defendant