N8367

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 599 of 2014

BETWEEN:
RALPH AUGUSTINE SAULEP
trading as SAULEP LAWYERS
Plaintiff

AND:
AUSTRALIA AND NEW ZEALAND
BANKING GROUP (PNG) LTD
First Defendant

AND:
MICHAEL KANDIU
Second Defendant

Waigani: Hartshorn J
2019: 14th October

PRACTICE AND PROCEDURE - Application for affidavits to be struck out or taken off the file– Order 11 Rule 28 National Court Rules 

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases

Darling v. Palm Springs Ltd [2002] NSWSC 793
Millington v. Loring (1880) 6 QBD 190
Thomas v. SMP (International) Pty Ltd [2010] NSWSC 822

Counsel:

Mr. R.A. Saulep, the Plaintiff in person
Ms. E. Noki, for the First Defendant
Mr. P. Othas, for the Second Defendant

14th October, 2019

1. HARTSHORN J: This is a decision on a contested application by the plaintiff Mr. Saulep for three affidavits filed by and on behalf of the second defendant Mr. Kandiu to be struck out or taken off the court file. The grounds for the relief sought are that the deponents of the said affidavits depose to factual allegations which are scandalous, irrelevant or are otherwise oppressive. Mr. Saulep relies upon Order 11 Rule 28 National Court Rules.

Background

2.Mr. Saulep acted for a vendor on the sale of a property to Mr. Kandiu. On 27th September 2013 at settlement, the vendor received from Mr. Kandiu three cheques made payable to Saulep Lawyers Trust Account, one of which was an ANZ bank cheque in the sum of K 165,764.00. The cheques were banked into Mr. Saulep’s Trust Account with the Bank South Pacific (BSP) on the same day. After the cheques were deposited, Mr. Saulep wrote out a Trust Account cheque in the sum of K 165,764.00 to the vendor. On 30th September 2013, Mr. Kandiu requested the ANZ bank to cancel the bank cheque. ANZ advised Mr. Saulep’s bank, BSP to dishonour the bank cheque and return it. Mr. Saulep was not notified by either ANZ, Mr. Kandiu or BSP of what had occurred and he did not become aware of the cancellation of the bank cheque until a later reconciliation of his Trust Account. Mr. Saulep requested the ANZ to restore or repay the said amount to him, but the ANZ refused. Mr. Saulep then commenced this proceeding claiming amongst others various declaratory relief, orders and damages.

3. Summary judgment was entered for Mr. Saulep against the first defendant, ANZ and Mr. Kandiu for damages to be assessed.

This application

4. Mr. Saulep submits that the two affidavits of Mr. Kandiu and the affidavit of Mr. Sam Bonner, the then lawyer for Mr. Kandiu, should be struck out or removed from the file as they are scandalous and oppressive as amongst others, a criminal conspiracy is alleged. Further, the affidavits are irrelevant. This is because judgment has been entered with damages to be assessed and the three affidavits do not contain any evidence in regard to an assessment of damages.

5. ANZ submits that the relief sought should be refused as amongst others, the said affidavits disclose a conspiracy and in addition the affidavits may assist the court in its assessment of damages actually suffered by Mr. Saulep. Further, the appropriate time to object to these affidavits is at the hearing of the assessment of damages.

6. Mr. Kandiu submits amongst others that the relief sought should be refused as the affidavits are not in use at this stage. The appropriate time to object to their use is at the hearing of the assessment of damages. To bring this application now is an abuse of process, it is submitted.

Consideration

7. Order 11 Rule 28 National Court Rules is as follows:

“28.	Scandal, etc. (38/8)

Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the Court may order that —

(a)	the matter be struck out; or
(b)	the affidavit be taken off the file.”

8.    In regard to the submissions that Order 11 Rule 28 may only be relied upon when the subject affidavit is to be used at the hearing of the court and also that to apply before such hearing is an abuse of process, no authority was cited in support of these submissions. The Rule is silent as to when application pursuant to it may be made. 

9.     I note that order 11 Rule 28 is exactly the same and is no doubt derived from, Part 38 rule 8 Supreme Court Rules, New South Wales, Australia. The New South Wales Supreme Court decisions of Darling v. Palm Springs Ltd [2002] NSWSC 793 and Thomas v. SMP (International) Pty Ltd [2010] NSWSC 822 are cases in which Part 38 Rule 8 or its equivalent were relied upon for applications that resulted in the New South Wales Supreme Court striking out paragraphs of certain affidavits prior to hearing.

10. Decisions of the New South Wales Supreme Court are of persuasive value in this jurisdiction. Given the above and in the absence of any convincing reasons to the contrary, I am satisfied that an application may be made pursuant to Order 11 Rule 28 National Court Rules prior to the hearing at which the subject affidavit may be used.

11. As to the submission of Mr. Saulep that the three subject affidavits are irrelevant, from a perusal of the affidavits and without in any way forming a view as to the veracity of their content, I concur with the submissions of ANZ that the affidavits are relevant as their content may be relevant as to the quantum of damages actually suffered by Mr. Saulep.

12. As the content of the affidavits is relevant, it is not scandalous. I refer in this regard to Millington v. Loring (1880) 6 QBD 190, cited in Ritchie’s Supreme Court Practice NSW at 3407. To my mind the same principle applies to the other heads of attack of Mr. Saulep.

13. Consequently, for the above reasons, the relief sought by Mr. Saulep is refused.

Orders

14.  It is ordered that:

a)	All of the relief sought in the notice of motion of the plaintiff filed 26th  October 2017 is refused;

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

c)	Time is abridged.
_________________________________________________________________
Saulep Lawyers:  Lawyers for the Plaintiff                
Bradshaw Lawyers:  Lawyers for the First Defendant                                        
Paul Othas Lawyers:  Lawyers for the Second Defendant