SC774

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 36 of 2003

BETWEEN:

TELIKOM PNG LTD
First Appellant

AND:

LAURIE EDWARDS
Second Appellant

AND:

ORIS VUVU
Third Appellant

AND:

MESSEM GUNIG
Fourth Appellant

AND:

JERRY UNAGE
Respondent

Waigani:	Kapi CJ
2003: 18th December
2004: 17th December

Counsel:
S. Ketan for the Applicants
Respondent in person

17th December 2004

KAPI, CJ:	This is an application for leave to appeal against a decision of the National Court dated 23rd March 2003.

The circumstances giving rise to this application are as follows:

Jerry Unagi (Respondent) filed a writ against Telikom PNG Ltd (Applicant) and its employees for damages arising from dismissal from his employment based on conspiracy and false representation.

So far as it is relevant to the application before me, the relevant facts may be summarized as follows:

The National Court dismissed the defence and entered judgment for the Respondent with damages to be assessed. This decision was appealed to the Supreme Court (SCA 4 of 2000) and the Supreme Court allowed the appeal and granted the Applicant leave to file defence out of time. The matter was subsequently set down for trial on 23rd October 2002. The trial date was vacated on the basis that there was no judge available to do the trial.

While the parties were awaiting a new trial date, counsel for the Respondent on 12th February 2003 filed a Notice of Discovery of documents with verification within 15 days of service of discovery. A list of documents was filed but not filed within the required time. It was filed two weeks late.

The respondent filed motion on 7th March 2003 to strike out the defence for failing to file list of documents within the required time under o 9 r 15 of the National Court Rules.

The motion came before the trial judge on 24th March 2003 in the following manner. Mr Parkop appeared for the respondent and Mr Yandaken appeared for the Applicant. Mr Parkop had intended to adjourn the matter to Wednesday next as he intended to file an affidavit in reply to the list of documents filed by the Applicant. I infer from this that he had no intention of moving the motion to dismiss at that time.

However, the trial judge pointed out that the list of documents to which Mr Parkop intended to file an affidavit was filed out of time without the leave of Court. His Honour then invited Mr Parkop to move the motion to dismiss the defence and enter judgment. Mr Parkop then seized the opportunity and moved the motion.

My Yandaken in response stated:

"Your Honour, I have just been given this file by my principal this morning to appear before the court when the plaintiff was making his submission. I have nothing to say except that I admit that we have defaulted under the rules to file the discovery documents within the statutory time period. As your Honour pleases, may make any orders."

Counsel for the applicant did not in any way applied for an adjournment of the motion. In fact he admitted that the list of documents was filed out of time and left the matter to the trial judge to make any orders. Whilst I appreciate that My Yandaken may not have come prepared to argue the motion, I infer from what he stated to the Court that he could not defend the motion on its merit.

In view of the admission he made, the trial judge exercised his discretion to dismiss the defence and entered judgment. Counsel for the Applicant has not raised any arguable ground against the decision of the trial judge in striking out the defence and entering judgment for the Applicant. Consequently, I refuse leave to appeal against the decision of the National Court. The applicant to pay the respondent’s costs of the application.

Lawyers for the Applicants		:	Ketan Lawyers
Lawyers for the Respondent		:	Powes Parkop Lawyers