John Pias v Michael Kodi, Bernard Pregwart, August Tiona, Leo Nuia and The Papua New Guinea Defence Force Commander, The Independent State of Papua New Guinea (2004) N2690

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 October 2004
• Court: National Court
• Citation: (2004) N2690
• Year: 2004
• Judgement Number: N2690

Full Title: John Pias v Michael Kodi, Bernard Pregwart, August Tiona, Leo Nuia and The Papua New Guinea Defence Force Commander, The Independent State of Papua New Guinea (2004) N2690

National Court: Cannings J

Judgment Delivered: 18 October 2004

1 Practice—pleadings—application by plaintiff to amend statement of claim—National Court Rules, O8, r50—application made during trial on assessment of damages—application made after plaintiff and defendants closed cases and before submissions—plaintiff's contention that amendment necessary to make pleadings accord with evidence—defendant's objection to certain evidence previously overruled—whether application should be granted—discretionary matter for Court—identification of relevant considerations re exercise of discretion—application of considerations—ruling.

2 New Guinea Company Ltd v Thomason [1975] PNGLR 454, MVIT v Pupune [1993] PNGLR 370, Komboro George v MVIT [1993] PNGLR 477, MVIT v Etape [1994] PNGLR 596, MVIT v Tabanto [1995] PNGLR 214, The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273, Kewa and Others v Kombo unreported, WS No 1036 of 2000, National Court, 15.10.04 referred to

Ruling on Motion

___________________________

N2690

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 171 OF 1998

JOHN PIAS

Plaintiff

V

MICHAEL KODI, BERNARD PREGWART

AND AUGUST TIONA

1st Defendants

LEO NUIA, THE PAPUA NEW GUINEA

DEFENCE FORCE COMMANDER

2nd Defendant

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

3rd Defendant

MT HAGEN : CANNINGS J

7, 13, 18 OCTOBER 2004

RULING ON MOTION

Practice – pleadings – application by plaintiff to amend statement of claim – National Court Rules, Order 8, Rule 50 – application made during trial on assessment of damages – application made after plaintiff and defendants closed cases and before submissions – plaintiff’s contention that amendment necessary to make pleadings accord with evidence – defendant’s objection to certain evidence previously overruled – whether application should be granted – discretionary matter for Court – identification of relevant considerations re exercise of discretion – application of considerations – ruling.

Cases cited

New Guinea Company Ltd v Thomason [1975] PNGLR 454

MVIT v Pupune [1993] PNGLR 370

Komboro George v MVIT [1993] PNGLR 477

MVIT v Etape [1994] PNGLR 596

MVIT v Tabanto [1995] PNGLR 214

The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273

Kewa and Others v Kombo unreported, WS No 1036 of 2000, National Court, 15.10.04

Mr A Manase for the plaintiff

Mr J Poya for the defendants

CANNINGS J:

INTRODUCTION

This is a ruling on a motion to amend a statement of claim. The substantive case is about a claim for damages. The plaintiff was assaulted and injured by officers of the Papua New Guinea Defence Force at the Plumes and Arrows Hotel, Mt Hagen on 5 July 1997. He claims that they committed a common law assault on him. Furthermore that they submitted him to torture, inhuman treatment and/or treatment inconsistent with respect for his inherent dignity as a human person, contrary to his Basic Rights under Section 36 of the Constitution.

BACKGROUND

On 24 February 1998 a writ of summons was filed. The main relief sought by the plaintiff was damages. At that time the plaintiff was represented by Dowa Lawyers.

In March 1998 the first-named defendant, Michael Kodi, was convicted by the National Court (Sawong J) of unlawfully causing grievous bodily harm to the plaintiff. Those were separate, criminal proceedings. But they related to the same incident giving rise to the present proceedings. Michael Kodi was sentenced to four years imprisonment.

On 19 June 1998 the second and third defendants filed a notice of intention to defend and a defence. At that time the second and third defendants were represented by the Solicitor-General. The first defendants, who were officers of the Defence Force at the time of the incident, were not represented. They remain unrepresented.

On 2 May 2001 Pato Lawyers commenced acting for the plaintiff.

On 5 November 2001 the plaintiff’s statement of claim was amended pursuant to a Court order. A new, amended statement of claim was filed. That is the document the plaintiff now wants to further amend.

On 3 September 2003 default judgment was entered against the defendants, with damages to be assessed.

In November 2003 the principal affidavits were sworn, filed and served on the defendants.

In September 2004 the case was set down for trial in October 2004.

On 1 October 2004 Paul Paraka Lawyers commenced acting for the defendants.

On 5 October 2004 the trial on assessment of damages commenced in Mt Hagen. Three witnesses gave oral evidence. They were each cross-examined on affidavits that they had sworn, which were admitted into evidence. A number of other affidavits were tendered. The defendants’ counsel, Mr Poya, objected to some parts of the affidavits being tendered. He submitted that evidence was being given about things not included in the pleadings, eg details of the plaintiff’s lost income. He relied on the rule of pleading and evidence that if there is nothing in the pleadings of a party about an alleged fact, no evidence in support of that alleged fact can be adduced at the trial. I overruled those objections, as I considered that the pleadings were sufficiently broad to encompass the matters on which evidence was being led. I added that such issues could still be made the subject of submissions. The plaintiff’s counsel, Mr Manase, closed the plaintiff’s case. Mr Poya indicated that the defendants had no evidence to call. So the evidence was all in. The trial was then adjourned to the afternoon of 7 October 2004 for submissions.

On the morning of 7 October 2004 the plaintiff’s lawyers filed a notice of motion, by which the plaintiff seeks leave to amend the statement of claim. It was served on the defendants’ lawyers at lunchtime. The plaintiff seeks leave to amend paragraphs 15 and 17 of the statement of claim, plus the summary of the relief sought. The proposed amendments are shown in the following table.

COMPARISON BETWEEN EXISTING STATEMENT OF CLAIM AND
PROPOSED AMENDMENTS

Para Present statements, per statement of Proposed statements, per notice of
No claim filed 05.11.01 motion filed 07.10.04

15 Nine categories of special damage (eg Twelve categories of special damage
medical treatment, Mt Hagen General (eg medical treatment, Mt Hagen
Hospital; specialist medical treatment General Hospital; specialist medical
in Australia) are particularised, treatment in Australia) are
totalling K15,350.00. particularised, totalling K28,948.65.

19 Claim made that plaintiff is unable to Claim made that plaintiff is unable to
continue in his employment and continue in his employment and
continues to suffer loss of income, continues to suffer loss of income,
particularised as: particularised as:

(a) loss of salary of K1,200.00 per (a) loss of salary of K1,200.00 per
fortnight, from 5 July 1997; and fortnight, from 5 July 1997 =
K187,200.00; and
(b) loss of profits of his business
(particulars of which will be provided (b) future loss of salary, comprising:
prior to trial). [But no further (i) loss of commission income from
particulars were provided or sought.] January 1996 to January 2000 =
K496,892.00; (ii) income from
transport hire = K637,000.00; and (iii)
advance money lost = K91,000.00.

Relief Eight remedies are claimed: Eight remedies are claimed:
sought
1. damages pursuant to the Wrongs 1. damages pursuant to the Wrongs
(Miscellaneous Provisions) Act; (Miscellaneous Provisions) Act;
2. special damages of K15,350.00; 2. loss of income (salary) both past
3. damages for distress, frustration and future = K811,200.00;
and psychological suffering; 3. special damages of K28,946.65;
4. loss of business earnings;
5. aggravated damages for breach of 4. loss of business income =
constitutional rights; K1,133,892.00;
6. costs; 5. damages for distress, frustration
7. interest pursuant to the Judicial and psychological suffering;
Proceedings (Interest on Debts and 6. aggravated damages for breach of
Damages) Act; and constitutional rights;
8. such further orders the Court 7. interest pursuant to the Judicial
deems fit. Proceedings (Interest on Debts and
Damages) Act; and
8. such further orders the Court
deems fit.

When the trial resumed late in the afternoon of 7 October 2004, Mr Manase brought the notice of motion to the attention of the Court. He asked that it be dealt with immediately. Mr Poya objected, as the defendants had been short-served. Mr Poya’s application for an adjournment was upheld. The case was adjourned to 13 October 2004 to deal with the motion.

On 13 October 2004 the Court received written and oral submissions from each...