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ETS Nominees (PNG) Pty Ltd v Catholic Archdiocese of Port Moresby Board of Trustees [1997] PNGLR 670 (8 April 1997)

[1997] PNGLR 670

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ETS NOMINEES (PNG) PTY LTD;
CRAIGIE KINGSTON & PARTNERS PTY LTD; and
M & E PARTNERSHIP (PNG) PTY LTD

V

THE CATHOLIC ARCHDIOCESE OF PORT MORESBY BOARD OF TRUSTEES

WAIGANI: SEVUA J
24 April 1996, 8 April 1997

Facts

After the pleadings had closed, the defendant filed summons for production of certain material and to give evidence. The first plaintiff objects to the summons for production and to give evidence arguing that it was an abuse of the process because firstly, the proper process to be used is a notice for discovery and secondly, the defendant’s summons was filed after the pleadings had closed.

Held

1. It is not legitimate to use a summons for production as a substitute for an application for discovery of documents or as an alternative to an application for further and better discovery.
   
2. Where a party causes a summons for production to be issued calling upon another party to produce documents as a means of obtaining further and better discovery, following the former’s failure to obtain such documents at the usual time through discovery process, the court may set aside the summons as an abuse of process.
   
3. The summons for production caused to be issued by the defendant is an abuse of the process of the court and should be set aside.
   

Cases cited

Botany Bay Instrumentation & Control Pty Ltd & Anor v Stewart & Anor (1984) 3 NSWLR 98.

Finnie v Dalglish (1982) 1 NSWLR 400.

The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564.

Counsels

J Bray, for first plaintiff/applicant.
P Payne, for defendant/respondent.

8 April 1997

SEVUA J. This is an application by the first plaintiff seeking an order that the summons for production and to give evidence filed on 21st May 1996 by the respondent and addressed to the first plaintiff, be set aside on the grounds that it is an abuse of process.

At this juncture, let me briefly refer to the chronological order of events, which transpired in this suit:

• Writ of summons filed 27 February 1995.
  
• Service on defendant 8 March 1995.
  
• Notice of intention to defend filed 9 March 1995.
  
• Defendant’s request for further and better particulars of statement of claim filed 17 March 1995.
  
• Plaintiffs’ answers to defendant’s requests for further and better particulars of statement of claim filed 13 April 1995.
  
• Defendant’s defence filed on 19 April 1995.
  
• Plaintiff’s notice for discovery filed 5 July 1995.
  
• Defendant’s list of document filed 21 July 1995.
  
• Defendant’s notice for discovery filed 21 July 1995.
  
• First plaintiff’s list of documents, second plaintiff’s list of documents and third plaintiff’s list of documents filed 28 August, 1995.
  
• Consent notice to set down for trial filed 20 November 1995.
  
• Summons for production and to give evidence filed by defendant, 21 May 1996.
  

I have not referred to the several interlocutory applications filed previously, as I do not consider this relevant. The primary objective of setting out the major events in chronological order above is to focus attention on the duration of pleadings, i.e., when pleadings commenced and closed. Furthermore, to show that pleadings had in fact, been closed when the defendant filed the summons, the subject of this application.

Counsel for the applicant has raised two objections, the first of which can be disposed of without much consideration. The first objection is that the summons for production and to give evidence was not served on the office of the company personally. If I were to uphold this objection, it would mean, this notice of motion would have to be deferred and I consider that further delay by adjournment is not in the best interest of both parties. The first plaintiff is represented by counsel who is now aware of the summons for production. To adjourn this matter, because there is no affidavit of service would only compound the problem of delay. This objection is therefore overruled.

The second objection is substantive and it is based on the notice of motion itself. The first plaintiff objects to the summons for production and to give evidence because it says, this is an abuse of the process. As I understood, Mr Bray’s argument is that the National Court Rules provide for the process of discovery, which I agree. He says that discovery has long been had pursuant to Order 9 and if the defendant was not satisfied, it could have sought an order pursuant to Order 9 Rule 7.

I follow Mr Bray’s submission, but the course taken by the defendant is also provided for under the Rules. Nevertheless, in my view, the defendant had recourse under Order 9 Rule 7 to invoke the courts discretionary power therein. It failed to avail itself of that procedure prior to the close of pleadings and tried to seek discovery by summons for production. The National Court Rules regulate the process of pleadings, which parties to a litigation should adhere to. In my view, if the defendant had considered it beneficial to its interest to seek discovery of the documents it now seeks by way of summons for production, it should have proceeded by way of discovery. In any event, the documents the subject of the summons, relate to the engagement of the first plaintiff in projects other than the St. Joseph International Primary School project, the subject of this suit, so where is the relevance?

I agree with Mr Payne that the Rules specifically provide for summons for production. That is not disputed. Order 11, Division 1 of the Rules deals with summons to give evidence. In fact, Order 11 Rule (2) gives the Court a discretionary power to issue a summons to give evidence or a summons for production. Order 11, Rule 7 also gives the court a discretionary power to set aside the summons.

If I understood Mr Payne correctly, the defendant is entitled to cross examine witnesses at large and the defendant is entitled to cross examine witnesses on these documents, "although they are not matters in question in these proceedings". If it is correct that the documents being summoned are not relevant or material to the issues in the proceedings, it is clearly an abuse of process and, perhaps oppressive, for the defendant to have a summons for production issued in relation to those documents.

In my view, it is undesirable and improper to allow such procedure, as it will be tantamount to sanctioning abuse of process. I cannot over emphasise the undesirability of discountenance fishing expeditions by parties and their lawyers. The documents being summoned relate to properties described as Whittaker Court, Port Moresby, ADF House, Musgrave St., Port Moresby, Archbishop’s House, Whittaker St., Port Moresby and Basilisk Apartments, Olmsted St., Port Moresby. None of these are physically within the St. Joseph International Primary School locality and none relate to that school.

The defendant had the opportunity and the time to obtain discovery in the usual way and at the usual time if it had considered these documents material to its case. It did not, and it proceeded to find a substitute or an alternative recourse to obtain further and better discovery, which I consider inappropriate.

I would adopt the dictum of Chief Justice Jordan in The Commissioner for Railways v Small, [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 574:

"It is true that a party unlike a stranger, can be required to give discovery, but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place."

I have been unable to find any authority on this issue in our jurisdiction and counsels have not cited any, however, there are English and Australian cases, which have considered similar applications and set aside subpoenas. Powell, J sitting in the Equity Division of the New South Wales Supreme Court in Botany Bay Instrumentation & Control Pty Ltd & Anor v Stewart & Anor (1984) 3 NSWLR 98 held inter alia:

"The Court’s jurisdiction to set aside subpoenas is but one aspect of its jurisdiction to act to prevent an abuse of process".

That case cites a number of English and Australian cases as examples of a variety of situations where courts in the past, have exercised their undoubted jurisdiction to set aside subpoenas. Rath, J also of the Equity Division of the New South Wales Supreme Court held in Finnie v Dalglish (1982) 1 NSWLR 400:

"A subpoena to produce documents used for the purpose of discovery may be set aside whether it is addressed to a party or stranger."

In the present case, whilst the National Court Rules provide for procedures under Order 11, it is my view that, as the defendant had failed to obtain these documents in the usual discovery process, it cannot traverse its failure by having a summons for production issued by the court to remedy that failure, because I consider that as a substitute or alternative for further and better discovery which I further consider an abuse of the process. In any case, the materials required for production are immaterial to the proceedings.

Accordingly, I hold that it is not legitimate to use a summons for production as a substitute for an application for discovery of documents or as an alternative to an application for further and better discovery. I reiterate that pleadings have closed and the defendant had the opportunity and time to discover their documents through the normal procedure prior to the closure of pleadings. It did not, for reasons unknown to this court and the first plaintiff. Therefore, I further hold that in circumstances where a party causes a summons for production to be issued by the court calling upon another party to the proceedings, to produce documents as a means of obtaining further and better discovery following its (the former’s) failure to obtain such documents at the usual time through normal discovery process, the court has a discretion to set aside the summons as an abuse of process.

As adverted to, these documents are not relevant to the issues in the trial. They do not relate in anyway to the project, which is the subject of dispute in this suit. Yet, the defendant sought discovery, not in the usual discovery process, but through what I have concluded as a substitute or alternative application for further and better discovery. This, I find, amounts to an abuse of process.

In the final analysis, I find that the summons for production issued by the court at the instance of the defendant is an abuse of process of the court and the summons should be set aside.

I therefore order that the defendant’s summons for production and to give evidence issued on 21 May 1996 be set aside. The first plaintiff shall have its costs of this application.

Lawyer for 1st plaintiff: Pato Lawyers.
Lawyer for defendant: Blake Dawson Waldron.