N8315
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1034 OF 2019

BETWEEN:
VNA SECURITY SERVICES LIMITED
Plaintiff/Cross Defendant

AND:
BUP DEVELOPMENT CO. LIMITED
Defendant/Cross Claimant

Lae: Dowa AJ
2020:18th March &13th May

PRACTICE AND PROCEDURE – application by plaintiff/cross-defendant seeking court to strike out defendants/ cross claimants defence and enter judgment in favour of plaintiff/cross-defendant - Whether the Court should strike out the Defendant’s Defence and Cross-claim and enter summary judgment for the Plaintiff - Court has the discretion to grant orders sought, or refuse same and make such other orders to do justice in the circumstances - Summary judgment only available where it is clear Defendant has no defence, and there are no triable issues being raised in a defence - not simple and clear case of debt – there are matters that need to be properly tried – application seeking entry of summary judgment refused - Order 4 Rule 38 of the National Court Rules, and Rule 12 of the Motions (Amendment) Rules 2005.

Cases Cited:

Collector of Taxes v Field (1975) PNGLR 144, 
Niugini Mining v Bumbandy (2005) SC 804
The State v Henshi Engineering (1998) SC 594)
Tsang v Credit Corporation (1993) PNGLR 112, 

Counsel:

T. Berem, for the Plaintiff/Cross-Defendant
N. Tenige, for the Defendant/Cross-Claimant

RULING
13th May, 2020

1.	DOWA AJ:	 This is a ruling on an interlocutory application by the Plaintiff/Cross-Defendant. By Notice of Motion filed 17th December 2019, the Plaintiff is seeking the following orders:  

“1.  	Pursuant to order 8 rule 41 (1), (2)(e) & (g) and Order 8 Rule 42(1) of the National Court Rules, the Defendant/Cross- Claimant’s Defence & Cross-Claim filed on 15th October be struck out and judgement be entered for the Plaintiff/Cross-Defendant.

2.  	Alternatively, or as a consequence, pursuant to order 12 rule 38 of the National Court Rules, the Defendant/Cross-Claimant’s Defence & Cross-Claim filed on 15th October 2019 be struck out and summary judgement be entered for the Plaintiff/Cross-Defendant.

3.	Costs of this application shall be paid by the Defendant/Cross-Claimant.

4.  	Time be abridged forthwith.

5.  	Any other orders the Court deems necessary.”

2.  The Plaintiff/Cross-Defendant relies on the following documents:

(1)	Notice of Motion filed 17/12/2019
(2)	Affidavit In Support – by Jerry Berem filed 17/02/2019
(3)	Affidavit of Joseph Belan filed 26/02/2020
(4)	Affidavit of Michael Earley filed 26/02/2020
(5)	Affidavit of Joseph Belan filed 13/03/2020

3.	At this stage, I find the documents filed on 17th December 2019 are only relevant as they were filed together with the Notice of Motion.  Affidavits, filed after 17th December 2019 may not be considered for the purposes of this application, according to Order 4 Rule 38 of the National Court Rules, and Rule 12 of the Motions (Amendment) Rules 2005.

Facts

4.	The Plaintiff/Cross-Claimant provided Security Services to the Defendant/Cross Claimant from May 2014 to 29th May 2019.  The Plaintiffs Services were terminated on 30th May 2019.  The Plaintiff filed proceedings seeking damages for K535,847.76.  On 15th October 2019, the Defendant/Cross-Defendant filed its Defence, and Cross-Claim.  The Defendant filed a Cross-Claim of K178,200.00 for outstanding rent.  The Plaintiff alleges, the Defendant/Cross-Claimant failed to serve them the Defence and Cross-Claim despite repeated requests for same.

Issue

5.	Whether the Court should strike out the Defendant’s Defence and Cross-claim and enter summary Judgment for the Plaintiff.

Submissions

6.	At the hearing, Mr Tenige of Counsel for the Defendant wanted an adjournment to file an Affidavit in Response. That application was refused, because it was a second request for adjournment by the Defendant.

7.	Mr Berem of Counsel, for the Plaintiff proceeded with the application.  The facts on default are not disputed.  The evidence provided by the Plaintiff shows, the Defendant/Cross-Claimant failed to serve the Defence and Cross-Claim on the Plaintiff/Cross-Defendant as required under Order 8 Rule 42 of the National Court Rules.  The Defence and Cross-Claim was filed on 15th October 2019, but was not served.

8.	The Plaintiff is seeking orders that the Defence and Cross-Claim be struck out, and summary judgment be entered for the Plaintiff, pursuant to Order 8, Rule 41 (2) (e)& (g), and Order 12 Rule 38, of the National Court Rules.

Application under Order 8 Rule 41(2) of the National Court Rules

9.	The main complaint by the Plaintiff is that the Defendant failed to comply with Order 8 Rule 41 by not serving the Defence and Cross-Claim.

10.	The Court has the discretion to grant the orders sought, or refuse same and make such other orders to do justice in the circumstances.  Under Order 1 Rule 7, of the National Court Rules the Court has a discretion to dispense with the requirements of the rules of court.  The Court can also give extension of time to comply with the rules under order 1, Rule 15 of the National Court Rules.  However, the exercise of the discretion has to be a judicial exercise taking into account the conduct of parties, the interest of justice, the smooth flow of justice administration by the Court, and the impact it would have on the parties.  The rules of the National Court are not an end to themselves, but a means to achieving a just resolution of the dispute between parties.  Refer; Niugini Mining v Bumbandy (2005) SC 804.

11.	I find the Defendant/Cross-Claimant filed a substantial Defence and Cross-Claim.  The proceedings are relatively fresh, noting the Writ of Summons was filed only in September 2019.  I am not prepared to drive the Defendant/Cross-Claimant from the judgment seat at this stage.

12.  In the exercise of my discretion I refuse the application to strike out the Defence and Cross Claim.

Application under Order 12 Rule 38 of the National Court Rules

13.	I now turn to the orders sought, under order 12 Rule 38 of the National Court Rules.  The Plaintiff is seeking Summary Judgment by invoking the powers of the court under that Rule.  As mentioned earlier, the Affidavits in Support of Summary Judgment were filed on 24th and 26th February and 12th March 2020 respectively.  The Notice of Motion was filed 17th December 2019.  The Affidavits were filed contrary to the Motion Rules, and therefore will not be considered.

14.	Assuming that I am wrong about this, I will also refuse the application on the grounds that it is not a clear case.  The Defendant raised a substantial defence disputing the claim.  The Defendant is disputing that there was a binding contractual arrangement for the Plaintiff to provide security services to the Defendant for charge.  The first lot of invoices were rendered in May 2014.  It appears, no payments were made for the last 5 years, yet the plaintiff continued to render services.  This is unusual business practice.  I am not convinced, that it is a simple and clear case of debt.  These are matters that need to be properly tried.  The case law in this jurisdiction is settled.  Summary Judgment is only available where it is clear that the Defendant has no defence, and there are no triable issues being raised in a defence:  Refer to Tsang v Credit Corporation (1993) PNGLR 112, Collector of Taxes v Field (1975) PNGLR 144, The State v Henshi Engineering (1998) SC 594).  In the circumstances, the Court will not grant Summary Judgment sought in the Notice of Motion.

15.	The court has wide powers to grant other orders in place of the orders sought in the Notice of Motion to do justice in the circumstances.  The Court can make orders as to costs, and give the offending party conditions for compliance of the Rules.

16.	The formal orders of the Court are:

a)	The Plaintiff/Cross-Defendant’s Notice of Motion filed 17th December 2019 is refused.

b)	The Defendant/Cross-Claimant shall serve its Defence and Cross-Claim on the Plaintiffs Lawyers within Seven (7) days upon service of these orders.

c)	The Defendant shall pay the Plaintiffs cost on Solicitor/Client basis.

d)	Time be abridged.
________________________________________________________________
Berem Lawyers:	Lawyer for the Plaintiff/Cross-Defendant
Tenige Lawyers:	Lawyer for the Defendant/Cross-Claimant