Aisip L Duwa v Ronald Moyo Senge

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 28 September 1995
• Citation: [1995] PNGLR 140
• Court: National Court
• Year: 1995
• Judgement Number: N1360

National Court: Sakora J

Judgment Delivered: 28 September 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AISIP L DUWA

V

RONALD MOYO SENGE

Lae

Sakora J

16 June 1995

28 September 1995

PRACTICE AND PROCEDURE — Discovery — Notice for discovery — Notice to produce documents — Striking out in default of production — Notice for discovery served before close of pleadings — When action under the Rules amounts to abuse of process — Rules of the National Court — O 8 rr 51, 52 — O 9 rr 1, 2, 5, 6, 10, 14, 15.

Facts

The plaintiff served a notice to produce documents on the defendant in respect of documents listed in the defendant's list of documents. The plaintiff had previously served a notice for discovery on the defendant before the close of pleadings contrary to O 9 r 1 of the Rules of the National Court. The plaintiff sought an order striking out the defence and the cross claim of the defendant, he having failed to provide the documents requested in the notice to produce because they were not in his possession.

The Court addressed the questions whether (1) the conduct of the plaintiff in seeking production of documents which he knew were not in the possession of the defendant amounted to an abuse of process; and (2) an order to strike out pleadings should be made in favour of a plaintiff who was himself in breach of the Rules of the National Court.

Held

The plaintiff acted in breach of the Rules of the National Court in serving a notice for discovery before the close of pleadings. His lawyer's action in seeking orders for th eproduction of documents which he knew were not in the possession of the defendant amounted to harassment and an abuse of process. The application to strike out should be dismissed.

Cases Cited

Papua New Guinea cases cited

Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11.

Hornibrook Constructions Pty Ltd v Kawas Corporation Pty Ltd [1986] PNGLR 301.

Wenam Elkum v PNG [1988-89] PNGLR 662.

Other case cited

Donaldson v Harris and Hamood (1973) 4 SASR 299.

Counsel

P Ousi, for the plaintiff.

R Senge, in person on his own behalf.

28 September 1995

SAKORA J: This is an application by the plaintiff pursuant to a notice of motion filed 1 May 1995 seeking orders under O 9, r 15 of the National Court Rules (NCRs) because of breach of rule 9 of the same Order. It is argued in this respect, therefore, that the default provisions available under the first-mentioned rule should be accorded the plaintiff and the defendant's defence and counter-claim struck out and judgment entered in favour of the plaintiff (r 15 (1) (b) ).

The defendant is being sued upon an alleged oral agreement, for the purchase (by the defendant from the plaintiff) of a business known as Alice's Food Bar in the city of Lae.

It will assist later discussions in the determination of this application if a brief outline of the history of these proceedings is given in chronological order at this juncture. And I do so in the following manner:

* The originating process, writ of summons 196 of 1994, was issued out the registry of the National Court of Justice on 11 April 1994.

* The process was duly served on the defendant on 7 June 1994.

* The defendant duly filed his notice of intention to defend (dated 16 June 1994) on 20 June 1994.

* On 14 July 1994 the defendant duly filed his defence and cross-claim.

* On 18 July 1994 the defendant filed his request for further and better particulars.

* The plaintiff's lawyers filed a notice for discovery (dated 25 July 1994) on 29 July 1994. This date for filing is contrasted with the date of 3 August 1994 deposed to by Mr Ousi in his affidavit of 10 April 1995.

* The notice for discovery elicited from the defendant a list of documents (dated 12 August 1994) which was filed on 16 August 1994.

* On 18 August 1994 the plaintiff's lawyers filed his answers to the request for further and better particulars. On this day also was filed his defence to the counter-claim.

* Between August and November 1994 the plaintiff's lawyers wrote to the defendant on three occasions requesting copies of documents on the defendant's list of documents: 19 August, 26 September and 12 October. These correspondence are identified as Annexures 'A', 'B' and 'C' respectively to the 10 April 1995 affidavit of Mr Ousi.

* Annexure 'D' to the abovementioned affidavit is the 21 October 1994 response of the defendant to those repeated requests for copies.

* The plaintiff's notice to produce documents was not filed till 28 October 1994 (over two weeks after the last of those repeated letters of request) and it was not served on the defendant till 15 November 1994.

* The repeated requests of 1994 for copies renewed in two more letters to the defendant in 1995: of 6 January and 8 February (Annexures 'E' and 'F' to the abovementioned affidavit), the latter giving him 30 days to comply, otherwise application pursuant to O 9, r 15 NCRs (this application) would be made.

* Annexure 'G' is the 31 January 1995 response of the defendant to those requests.

* The plaintiff's lawyers then filed a notice of motion on 1 May 1995 seeking those orders under O 9, r 15 NCRs.

* The defendant filed his notice of intention to defend (to the notice of motion) on 10 May 1995.

* On 22 May 1995 the defendant filed a notice of amendments to the list of documents.

The alleged default of the defendant relied upon here is non-compliance with the procedural requirements under O 9, r 9 NCRs. The rule reads as follows:

"9. Document referred to in pleading or affidavit

(1) Where a pleading or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him, require him to produce the document for inspection.

(2) A notice to produce under this Rule shall be in accordance with Form 32.

(3) Where a notice to produce a document is served on a party under sub-rule (1) of this Rule, he shall, within four days after the service, serve on the party requiring production a notice:

(a) appointing a time within seven days after service of the notice under this sub-rule when, and a place where, the document may be inspected ...;

(b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege, or

(c) stating that the document is not in his possession, custody or power and stating to the best of his knowledge, information and belief where the document is and in whose possession, custody and power it is." (underlining mine)

Now, the due compliance with the requirements of sub-r (3) of r 9 is dependent upon, or pre-supposes, the occurrence of due notice under sub-r (1). Thus, if there is no notice to produce, in accordance with Form 32 NCRs, a party is not legally and procedurally obliged to do anything at that stage. Furthermore, a party can only produce a document that is in one's possession, custody or power. That is when it can properly be said to be discoverable: accessible (physically) to the requesting party and relevant to the issues thrown up by the claim, counter-claim or defence. Otherwise, the situations envisaged under sub-rule (3) (b) and © of the Rule exist. Production of documents under r 9 is for the purpose of enabling the requesting party to inspect those documents and, if necessary, make copies of them. So it is envisaged that the discoverable documents will be both original and readily accessible. Lost documents cannot be discovered through inspection., nor can privileged documents.

What documents have the plaintiff's lawyers been requesting repeatedly and persistently here ? The documents are purportedly from the list furnished by the defendant (dated 12 and filed 16 August 1994, referred to above). And this list was compiled as a direct consequence of his being served with a notice for discovery. I must note here that it was at this juncture of the pleadings that in my opinion, the plaintiff's lawyers began misconceiving certain procedural requirements and defaulting in some under the NCRs themselves. As a start they misconceived what Woods J. referred to as automatic discovery in his decision in Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11. They served on the defendant a Notice for Discovery (filed 29 July 1994) before they filed the plaintiff's Answers to the defendant's request for further and better particulars, and before they served notice to produce cocuments (filed 28 October 1994).

The point being made here is that the plaintiff' lawyers proceeded to automatic discovery long before pleadings had closed. Order 9, rule 1 NCRs is in the following terms:

"1. Notice for discovery

(1) Subject to this Rule where the pleadings between any parties are closed, any of those parties may, by notice for discovery in Form 30 filed and served on any other of those parties, require the party served to give discovery of documents, with or without verification." (underlining mine)

Sub-rule (3) provides that automatic discovery under this Rule does not apply to...