Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 05 September 1989
• Court: National Court
• Citation: [1988-89] PNGLR 355
• Year: 1989
• Judgement Number: N750

Full Title: Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355

National Court: Kapi DCJ

Judgment Delivered: 5 September 1989

N750

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OK TEDI MINING LTD

V

NIUGINI INSURANCE CORPORATION AND OTHERS (NO 1)

Waigani

Kapi DCJ

31 August 1989

1 September 1989

5 September 1989

PRACTICE AND PROCEDURE — National Court — Adjournments — Proceeding set down for trial — Power to adjourn — Principles applicable — Onus on applicant — Actual prejudice to be shown — Injustice to respondent to be weighed — National Court Rules, O 10, r 11.

The National Court Rules, O 10, r 11, provides:

"Time and place of Trial

(1) Where proceedings have been set down for trial under Division 1 of this Order for a specified date, the trial may be held on that or any date.

(2) Notwithstanding sub-rule (1) of this Rule and notwithstanding the setting down of any proceedings for trial under Division 1 of this Order, the Court may make such orders as it thinks fit for fixing the time and place of trial."

A date for trial of a matter involving complex issues, numerous witnesses and documents was specially fixed for hearing and was one month from hearing when the defendants who had obtained experts' reports and delivered interrogatories received late discovery of very large quantities of documents. On an application for adjournment of the trial date,

Held

(1) The National Court has power to grant or refuse an application for adjournment of proceedings set down for trial under O 10, r 11, of the National Court Rules.

(2) An applicant for adjournment of proceedings set down for trial bears the onus of showing why a refusal to adjourn would result in injustice to him.

(3) The applicant for adjournment should make the application promptly and must prove actual prejudice, not merely speculative prejudice.

(4) The court must also give consideration to the interests of the respondent to the application, that is, whether an adjournment would result in injustice to the respondent.

(5) In all the circumstances, an adjournment of one month should be granted.

Cases Cited

Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32; [1940] 4 All ER 212.

Walker v Walker [1967] 1 WLR 327; [1967] 1 All ER 412.

Watson v Watson (1968) 12 FLR 164; 70 SR (NSW) 203; 88 WN (Pt 2) 270.

Motion

This was a motion on notice by the defendants as applicants for adjournment of proceedings specially fixed for trial.

Counsel

I V Gzell QC with D R Cooper, D G Ryan and S L Kassman, for the applicants/defendants.

A J Sullivan and T Glenn, for the respondent/plaintiff.

Cur adv vult

5 September 1989

KAPI DCJ: The issues involved in this case are complex and the number of witnesses and documents to be led in evidence are so numerous that a special fixture for the hearing of this case was necessary. The matter came before me for fixture in December 1988 and I directed that it be set down for hearing on 2 October 1989. I have given directions regarding pleadings and exchange of reports and documents between the parties with a view to commencing the trial on the given date.

By notice of motion filed on 25 August 1989, the defendants have applied:

1. to adjourn the date of hearing by six weeks, and

2. to strike out cl 16a of the amended statement of claim and replead the issue.

The defendants' application to adjourn the case has been prompted by the late discovery of documents by the plaintiff. These documents were discovered on 11 August 1989 and Mr Ryan, counsel for the defendants, indicated to me during the hearing of another matter in this case on 14 August 1989, that on a quick examination of the documents, there would be likely prejudice to the defendants in terms of actual discovery and inspection of these documents and consequential action to be taken. He indicated at that time that they would investigate the documents in greater detail and would make an application for an adjournment if the need arose.

Counsel for the defendants submit they have now examined these late-discovered documents; it would take a longer period to investigate, and they would not be in a position to start the trial on 2 October 1989. In brief, counsel for the plaintiff has submitted that at the most, the defendants have only proven potential prejudice. It is submitted that the defendants must show actual prejudice before they can succeed on the application for adjournment.

The National Court Rules, O 10, r 11, provides:

"Time and place of trial

(1) Where proceedings have been set down for trial under Division 1 of this Order for a specified date, the trial may be held on that or any date.

(2) Notwithstanding sub-rule (1) of this Rule and notwithstanding the setting down of any proceedings...