N8774

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.1461 OF 2019

BETWEEN:
KOWATI TUKA, GAWI TUKA, WOWOTO TUKA,
DOCAS TUKA & SHELLY TUKA
Plaintiffs

AND:
TOYOTA TSUSHO (PNG) LIMITED
Defendant

Waigani:  David, J
2021:  10th & 15th February

PRACTICE & PROCEDURE – application by plaintiffs for defendant’s defence to be struck out and that judgment be entered for default in giving discovery – discovery not available in proceedings on a claim for damages arising out of death or bodily injury to a person - application refused – National Court Rules, Order 9 Rules 1, 2, 3 and 15(1)(b).

PRACTICE & PROCEDURE – application by defendant for plaintiffs to pay security for costs before the matter proceeds any further – impecuniosity of a litigant not be used as a reason to penalise the litigant from having access to courts - application refused - National Court Rules, Order 14 Rule 25. 

Cases Cited:
Papua New Guinea Cases

Yarlett v New Guinea Motors (1984) PNGLR 155
Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11
Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130
SC Review No 11 of 1999; Application to Review Pursuant to Constitution s155(2)(b); Application by David Lambu v Peter Ipatas and Edward Konu (The Provincial Returning Officer) and The Electoral Commission (No 3) (1999) SC 601
Nelson Robertson Exports Ltd v Barrell (2004) N2893
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Rural Development Bank v Laka (2007) SC 897
Jain Anopari v Motor Vehicles Insurance Limited (2009) N3697
Albright Ltd v Mekeo Hinterland Holdings Ltd (2013) N5774
Albright Ltd v Mekeo Hinterland Holdings Ltd (2014) SC1400
Re JCA Lumber Co (PNG) Ltd (2015) N6040
Premier Corporation Ltd v Dukemaster (PNG) Ltd (2019) N8057

Overseas Cases

Evans v Bartlam [1937] AC 473, 2 All ER 646
Sir Lindsay Parkinson & Co. Ltd v Triplan Ltd [1973] 2 All ER 273

Counsel:

Raymond Obora, for the Plaintiffs
Gomara Gorua, for the Defendant 

RULING
15th February, 2021

1.	DAVID, J:   INTRODUCTION: Two notices of motion were brought before the Court for hearing.  One was filed by the plaintiffs on 31 August 2020 seeking an order under Order 9 Rule 15(1)(b) of the National Court Rules for the defendant’s defence filed on 16 January 2020 to be struck out and that judgment be entered against the defendant.  The other was filed by the defendant on 23 June 2020 through which the defendant has moved the balance of the motion it did not prosecute earlier seeking orders that; it not be required to give discovery as required by the plaintiffs’ notice for discovery claiming that the footages or recordings of the Closed-Circuit Television (CCTV) sought were privileged from production pursuant to Order 9 Rule 3 of the National Court Rules; and that pursuant to Order 14 Rule 25 of the National Court Rules, the plaintiffs pay security for costs before the matter proceeds any further.   The defendant’s application to dismiss the entire proceedings which was the first relief sought in the defendant’s notice of motion was refused by the Court on 6 November 2020.  This is the ruling of the Court.

PLEADINGS

2.	By writ of summons to which was endorsed a statement of claim filed on 12 November 2019 and subsequently amended by amended writ of summons to which was endorsed a statement of claim filed on 27 February 2020, the plaintiffs, who assert that they are dependents of the deceased, the late John Tuka (the deceased), and as persons interested make a claim against the defendant pursuant to Section 27 of the Wrongs (Miscellaneous Provisions) Act, alternatively under the common law, for damages arising from the death of the deceased on Monday, 13 May 2019 during the course of his employment with the defendant (which commenced in 2006) as a detailer at the defendant’s Lae Branch Car Wash Bay.  It is alleged that the death of the deceased was by electrocution through a faulty electrical wiring of a Water Blaster at the Car Wash Bay and was caused by the negligence of the defendant through the actions or omissions of its employees when the defendant’s Service Manager, Iga Ila assigned and directed a second year apprentice mechanic, one Ronny Patrick to work on and repair a Water Blaster that had a faulty electrical wiring and convert it from a four phase to a three phase electrical power driven equipment which Mr. Patrick undertook, but did not complete and left the Water Blaster unattended and without any notice or warning of its defect.   It is also alleged that when the deceased used the Water Blaster unaware of the danger posed by the unfinished electrical repair work, he was electrocuted.   Furthermore, it is alleged that the defendant committed breaches of its statutory duties under the Industrial Safety Act in relation to the provision of; competent staff; proper plant and equipment, work appliances and apparatuses; safe place of work; and safe system of work. 

3.	On 16 January 2020, the defendant filed its defence.   The defendant joined issue with many of the matters pleaded in the plaintiffs’ statement of claim.  It essentially denies liability.

4.	In the defence, the defendant avers, among others, that:

1.	It is a company incorporated under the Companies Act, 1997.
2.	At all material times, it was operating as a Toyota brand vehicle dealer throughout Papua New Guinea with its Head Office located at Scratchley Road, Badili, National Capital District.
3.	The deceased was employed by the defendant as a cleaner and commenced employment on 18 January 2007. 
4.	The deceased collapsed while at work in Lae on 13 May 2019.
5.	The deceased was immediately rushed by the deceased’s employees to GM Flores Hospital, but was pronounced dead on arrival.
6.	The Medical Certificate of Death dated 16 May 2019 and Autopsy Report dated 15 May 2019 show that the deceased’s death was due to acute myocardial infarction (heart attack).
7.	The deceased’s death was not due to electrocution as there were no signs of burns or external injuries.  
8.	The deceased was a known hypertension patient.
9.	It denies all allegations of negligence against any of its employees alleged to have contributed towards the death of the deceased by electrocution. 
10.	It denies any breach of statutory duties.
11.	It has always provided a safe place of work and system of work which includes regular safety briefings by its Safety Security Health Environment Quality Division. 
12.	No CCTV cameras were installed at the Car Wash Bay area at the material time.
13.	As a gesture of goodwill and of showing the defendant’s sorrow and appreciation of the deceased’s services to the defendant, it paid K20,000.00 to the deceased’s relatives.

5.	On 20 March 2020, the plaintiffs filed their reply to the defendant’s defence filed on 16 January 2020.  They essentially joined issue with the defendant’s defence.  

NOTICE FOR DISCOVERY

6.	On 3 April 2020, the plaintiff filed a notice for discovery (Notice for Discovery) and served it on the defendant on the same day.  The Notice for Discovery required the defendant to give discovery of the footages or recordings of the CCTV placed at the Car Wash Bay of the defendant’s Lae Branch on Saturday, 11 May 2019 between the hours of 08:00 am and 01:00 pm and on Monday, 13 May 2019 between the hours of 8:00 am and 11:00 am within fourteen days after service.  No issue has been raised by the defendant about the service of the Notice for Discovery or any irregularity as to form. 

EVIDENCE

7.	The plaintiff relies on and reads the following affidavits:

1.	Affidavit of Hane Pitus sworn on 25 August 2020 and filed on 31 August 2020;
2.	Affidavit of Jacklyn Bob sworn and filed on 2 October 2020; and
3.	Affidavit of Raymond Obora sworn and filed on 16 October 2020.

8.	The defendant relies on and reads the affidavit of Stanis Bai sworn and filed on 23 October 2020.

ISSUES

9.	The main issues that arise from the two motions are:

1.	Whether the defendant’s defence should be struck out and judgment entered accordingly?
2.	Whether the plaintiffs should be ordered to pay security for costs before the matter proceeds any further? 

APPLICATION TO STRIKE OUT DEFENCE AND ENTER JUDGMENT 

10.	Mr Obora for the plaintiffs contends that the application made under Order 9 Rule 15(1)(b) of the National Court Rules should be granted as:

1.	The defendant has defaulted in giving discovery required under the Notice for Discovery of the footages or recordings of the CCTV placed at the Car Wash Bay of the defendant’s Lae Branch on Saturday, 11 May 2019 between the hours of 08:00 am and 01:00 pm and on Monday, 13 May 2019 between the hours of 8:00 am and 11:00 am;
2.	The default was intentional; and
3.	No reasonable explanation was provided by the defendant for the delay in complying with the Notice for Discovery despite being accorded further time to comply. 

11.	Mr. Gorua argues that the application should be dismissed as:

1.	Evidence from Steven Bai, defendant’s Manager, Safety Security Health Environment Quality Division shows that no CCTV cameras were installed at the Car Wash Bay area at the Lae Branch at the material time, so given that, discovery was unnecessary as there were no CCTV footages or recordings to produce.    
2.	In the alternative, the footages or recordings of the CCTV were privileged from production under Order 9 Rule 3 of the National Court Rules;
3.	Pursuant to Order 9 Rule 1(3) of the National Court Rules, discovery is not available in proceedings for damages arising out of the death of or bodily injury to a person. 

12.	It is trite law that if a party ignores Court process, he does so at his own peril:  see Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11; Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130; and Curtain Bros (PNG) Ltd v UPNG (2005) SC788. 

13.	The Court’s power to enforce discovery is extremely broad and the power vested in it by Order 9 Rule 15(1) of the National Court Rules is discretionary in nature.  Where a party gives a notice for discovery, the party that is required to give discovery must do so within the period specified in the notice. The requirement is mandatory:  see Order 9 Rules 1 & 2 of the National Court Rules.  I consider therefore that where a plaintiff has served a notice for discovery pursuant to Order 9 Rule 1 of the National Court Rules and the defendant has defaulted, his defence may be struck out and judgment entered against him where he has failed to offer any reasonable explanation for his default:  Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130.  Moreover, the default provisions under Order 9 Rule 15(1) of the National Court Rules should only be enforced in the last resort and where it is clear that the party in default really intends not to comply with the notice for discovery:  Rural Development Bank v Laka (2007) SC 897.

14.	Discovery on notice under Order 9 Rule 1(1) of the National Court Rules is not available in all proceedings.   Order 9 Rule 1(3) limits the application of Order 9 Rule 1(1) as it expressly excludes the application of the rule in proceedings on a claim for damages arising out of the death of or bodily injury to any person:  see Jain Anopari v Motor Vehicles Insurance Limited (2009) N3697.  I accept the defendant’s submission in that regard.  

15.	In case I am wrong in making the above finding (which I think I am not), I find for now and for this purpose alone that a reasonable explanation for the defendant’s default is provided in the affidavit of Steven Bai, ie, no CCTV cameras were installed at the Car Wash Bay area at the material time.  This is in congruence with the defendant’s defence that no CCTV cameras were installed at the Car Wash Bay area at the material time contrary to the plaintiffs’ allegation.  Hence, discovery was unnecessary.   I note that the plaintiffs dispute this assertion and rely on the evidence of Mr. Obora:  see paragraph 6 and annexure D of Mr. Obora’s affidavit.  Mr. Obora as a lawyer and counsel for the plaintiffs is not a proper person to depose to material facts which have come to his knowledge from instructions and information received from the plaintiffs.  A witness with knowledge of events or material facts should depose to such events or facts. Nonetheless, the question as to whether CCTV cameras were installed at the Car Wash Bay area at the material time is a substantive matter that can be determined at trial. 

16.	 In the circumstances, it cannot be deemed that the defendant intentionally intended not to comply with the notice for discovery, the reason being that the defendant states that there was nothing to discover or produce.  Additionally, and as I have observed above, under Order 9 Rule 1(3) of the National Court Rules, discovery is not available in proceedings for damages arising out of the death of or bodily injury to a person. 

17.	In view of the reasons I have given above, it is unnecessary for me to consider other matters or arguments raised by the parties. 

18.	The plaintiff’s application to strike out the defendant’s defence and enter judgment against the defendant is refused.

APPLICATION FOR SECURITY FOR COSTS

19.	 The defendant applies for security for costs to be paid before the matter proceeds any further under Order 14 Rule 25 of the National Court Rules. Mr. Gorua contends that it is necessary for such an order to be made because it will be an expensive exercise to defend this action when; there is reason to believe that the plaintiffs will be unable to pay the costs of the defendant if ordered to do so; and medical evidence it has of the death of the deceased shows that the deceased died of natural causes by way of an acute myocardial infarction (heart attack). The defendant has suggested that the plaintiffs pay security for costs in the sum of K10,000.00. 

20.	Mr. Obora argues that the application should be refused as the plaintiffs were “small people” or grass roots people with little or no means of pursuing a dependency claim arising from the negligence of the defendant’s employees which had a reasonably good prospect of success as they had in their possession medical reports of the deceased that show that he was electrocuted as opposed to the defendant’s claim of the deceased dying of acute myocardial infarction (heart attack) in the course of his employment at the Car Wash Bay area at the defendant’s Lae Branch.

21.	An application for security for costs should be made promptly and before considerable expense is incurred:  Yarlett v New Guinea Motors (1984) PNGLR 155.

22.	The Court has an unfettered discretion in deciding whether to grant or refuse an application for security for costs under Order 14 Rule 25 and all the circumstances of the case must be considered:  Yarlett v New Guinea Motors (1984) PNGLR 155, Re JCA Lumber Co (PNG) Ltd (2015) N6040, Evans v Bartlam [1937] AC 473, 2 All ER 646, Albright Ltd v Mekeo Hinterland Holdings Ltd (2013) N5774, Albright Ltd v Mekeo Hinterland Holdings Ltd (2014) SC1400. 

23.	In Yarlett v New Guinea Motors (1984) PNGLR 155, McDermott, J in following Sir Lindsay Parkinson & Co. Ltd v Triplan Ltd [1973] 2 All ER 273 suggested some of the factors that may be considered in deciding how to exercise the discretion and these are:

	1.	Whether the claim is bona fide and not a sham;
	2.	Whether there is a reasonably good prospect of success;
	3.	Whether there is an admission on the pleadings or elsewhere that money is due;
	4.	Whether money has been paid into account;
	5.	Whether the application for security is being used oppressively; and
	6.	Whether want of means has been brought about by any conduct of the parties. 

24.	These criteria were adopted and applied in Nelson Robertson Exports Ltd v Barrell (2004) N2893, Re JCA Lumber Co (PNG) Ltd (2015) N6040, Premier Corporation Ltd v Dukemaster (PNG) Ltd (2019) N8057. 

25.	These proceedings were filed on 12 November 2019.  The defendant’s notice of motion to move the application for security for costs was filed on 23 June 2020.   The application was not made promptly.  This militates against the grant of the application.

26.	Is the claim a bona fide one and not a sham? Yes.  This is demonstrated by the nature of the pleadings.  The Court’s record shows and the parties do not dispute that the defendant’s application to dismiss the proceedings under Order 12 Rule 40(1) of the National Court Rules for failing to disclose a reasonable cause of action or for being frivolous or vexatious or for being an abuse of the process of the Court was dismissed by the Court on 6 November 2020.  This militates against the grant of the application.

27.	Is there a reasonably good prospect of success?   Medical evidence relied on by the opposing parties on the cause of death of the deceased is conflicting.  The plaintiffs state that the medical reports they have support the assertion that the deceased died of electrocution whilst the defendant states that the medical reports it has support its contention that the deceased died of acute myocardial infarction (heart attack).  The cause of death of the deceased is disputed so it is a substantive matter for determination at trial.  This is a neutral factor for the purposes of this application.

28.	Is there an admission on the pleadings or elsewhere that money is due?  No.  This militates against the grant of the application.

29.	Has any money been paid into account?  No.  There is no evidence of any such payment having been made.  In its defence, the defendant avers that as a gesture of goodwill and of showing the defendant’s sorrow and appreciation of the deceased’s services to the defendant, it paid K20,000.00 to the deceased’s relatives. This militates against the grant of the application.

30.	Is the application for security for costs being used oppressively?  Yes, I think so.  The argument about the plaintiffs being impecunious litigants has been raised by the defendant.  The Supreme Court has stated its position on this issue already in the case of SC Review No 11 of 1999; Application to Review Pursuant to Constitution s155(2)(b); Application by David Lambu v Peter Ipatas and Edward Konu (The Provincial Returning Officer) and The Electoral Commission (No 3) (1999) SC 601.  There, in dealing with the petitioner’s ability to pay the costs of the review where he had indicated in his affidavit evidence that he did not have money to immediately pay security for costs, the Supreme Court stated:

“In considering this issue, we bear in mind the principle that in a cause of action in the National Court, insolvency or poverty of the plaintiff is no ground for requiring security for costs (see Cowell v Taylor (1885) 31 Ch. D. 34). The impecuniosity of a litigant ought not be used as a reason to penalise the litigant from having access to the courts.” 

31.	I adopt the sentiments expressed by the Supreme Court and apply them here.  It will therefore neither be fair nor reasonable to deny the plaintiffs access to justice on the ground of their impecuniosity to seek security of costs and stay proceedings until security is furnished.  All the circumstances of a case must be considered and I have done so here in favour of the plaintiffs.  This militates against the grant of the application.

32.	Has the plaintiffs’ want of means been brought about by any conduct of the parties?  The defendant denies the plaintiffs’ allegations.  The cause of death of the deceased is conflicting and disputed.  As I have alluded to earlier, that is a substantive matter for determination at trial.  Therefore, this is a neutral factor for the purposes of this application. 

33.	In all the circumstances of this case, it is fair and reasonable that the plaintiffs should not be ordered to pay security for the defendant’s costs of and incidental to the proceedings.  The defendant’s application for the plaintiffs to pay security for costs before the matter proceeds any further is refused.   

JUDGMENT AND ORDERS

34.	For these reasons, I direct the entry of judgment in the following terms:

1.	The plaintiffs’ application seeking an order to strike out the defendant’s defence filed on 16 January 2020 and enter judgment against the defendant pursuant to Order 9 Rule 15(1)(b) of the National Court Rules is refused.
2.	The defendant’s application seeking an order for the plaintiffs to pay security for costs before the matter proceeds any further is refused.
3.	The costs of the parties’ applications shall be in the cause.
4.	Time is abridged.

Ruling and orders accordingly.

____________________________________________________________________
Raymond Obora Lawyers: Lawyers for the Plaintiffs
Ela Motors In-house Lawyers: Lawyers for the Defendant