Rural Development Bank Ltd v Maria Laka (2007) SC897

• Jurisdiction: Papua New Guinea
• Judge: Batari, Lay and Hartshorn JJ
• Judgment Date: 02 November 2007
• Citation: (2007) SC897
• Docket Number: SCA No. 35 of 2006
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC897

Full Title: SCA No. 35 of 2006; Rural Development Bank Ltd v Maria Laka (2007) SC897

Supreme Court: Batari, Lay and Hartshorn JJ

Judgment Delivered: 2 November 2007

SC897

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 35 of 2006

BETWEEN

RURAL DEVELOPMENT BANK LTD

Appellant

AND

MARIA LAKA

Respondent

Waigani: Batari, Lay and Hartshorn JJ.

2007: 30 October and 2 November

SUPREME COURT- civil appeal - National Court Rules Order 9 rule 15 - failure to give agreed supplementary discovery - whether failure attracts jurisdiction under rule - whether striking out appropriate first response of Court to default.

Facts

The respondent obtained judgment for damages to be assessed against the appellant on an ex parte application when the appellant failed to file a supplementary list of documents and produce further documents agreed upon if they were available. There was no evidence before the judge that the motion for judgment had been served. The appellant applied to set aside the judgment, which application was refused, the judge holding that there was an undertaking by counsel for the appellant which the court should enforce, and that there was evidence of service of the motion for judgment and the judge hearing the application for judgment was satisfied as to service.

Held

1. An agreement to provide further discovery is not discovery required by Order 9 Rule 15 or production required under Order 9 Div.1. Consequently a breach of such an agreement does not give the court jurisdiction to strike out pleadings and enter judgment under that rule;

2. A court may only proceed to hear a motion in the absence of a party if satisfied that the motion was duly served on that party, unless the conditions set out in Order 4 rule 38(2) are shown to exist;

3. An affidavit in proof of service should be filed the day prior to hearing of the motion;

4. Striking out should not be the first response of the Court if compliance with the requirement for discovery can be achieved by other orders in a manner which will facilitate a fair trial.

Cases Cited

PNG Cases Cited

Curtain Bros (PNG) Ltd v UPNG (2005) SC789

SCA No. 11 of 1991 Westpac Bank-PNG-Limited and Bank of South Pacific Ltd v Hugo Canning Co Pty Ltd, unnumbered an unreported 20th December 1991

Overseas Cases Cited

Logicrosce Ltd v Southend United Football Club (The Times, 5 March 1988)

Arrow Nominees Inc v Blackledge, 2000 All ER (D), 854

References

National Court Rules

Counsel

R. Bradshaw, For The Appellant

B. Nouairi, For The Respondent

2 November, 2007

1 BY THE COURT: The respondent was an employee of the appellant and was terminated from her employment. She then commenced proceedings for wrongful dismissal against the appellant. After close of pleadings the respondent sought discovery. There was a delay of some six weeks by the appellant in giving discovery, after which the respondent filed a motion for judgment. On the eve of hearing the motion, the appellant filed and served its list of documents. The motion for judgment was dismissed with costs to the respondent.

2 After inspection of documents the respondent contended to the appellant that further documents ought to be discovered which she considered central to certain grounds of her claim. The appellant's response was:

"We also advised that we are seeking instructions from our client with a view to preparing a supplementary list of documents to include the documents your client requested and will file and serve the same shortly." (letter of the 19th of May 2005 appellant's lawyers to respondent's lawyers appeal book page 42).

3 On the 28 July, 2005, the lawyers for the respondent gave notice that if the respondent had not received the required documents by 4 August 2005, she may move for default judgment. That letter referred to "... the supplementary list of documents disclosing documents regarding the appointment of former managing director... will in due course be filed and served on us... your advice that the particular document requested by our client regarding her approved annual leave, is yet to be obtained from your client, and there is undertaking that once this is done a copy will be forwarded". On the 12 September, 2005, lawyers for the appellant advised that they had been instructed to issue a cross claim.

4 On the 4th of October, 2005, the respondent filed a notice of motion seeking inter alia, an order that the appellant's defence be struck out and default judgment entered. The application was heard ex parte and granted. The appellant applied to set aside the order, which application was refused. It is from that refusal that the appellant now appeals.

5 The first two grounds of appeal are related and are that:

a The trial judge erred in not giving due weight and consideration to the evidence of non service of the application for default judgment provided by the Appellant and relied heavily on evidence of service that was provided by the respondent after the respondent had obtained default judgment and after the appellant raised the issue of service;

b The trial judge, erred in assuming that the trial judge at the hearing of the application for default judgment had been satisfied with the evidence of service (if any) provided at the hearing of the default judgment application on 17 October 2005 when there was no evidence before him that that was the case.

6 The respondent concedes that when the application for default judgment filed 4 October 2005 was heard, no affidavit of service had been filed in Court. The respondent contends that the National Court Rules do not require an affidavit of service to be filed before the hearing of a motion for judgment, that Order 4 rule 43(2) is confined to situations contemplated by Rule 43(1) i.e., service on persons who have not given a notice of intention to defend and who are not in default in giving that notice. Further the respondent submits that the court may be moved without previously filing or serving a motion pursuant to Order 4 rule 38(2).

7 It is clear from Order 4 rule 46 (b) that the court may only dispose of a motion in the absence of a party where that party has been duly served. Order 4 rule 43 provides:

" SERVICE

(1) Where notice of the motion is to be served on a person who has not given a notice of intention to defend and is not in default in giving a notice, the notice of motion shall be served personally.

(2) An affidavit of service of the notice of motion shall be filed not later than the day before the day on which the motion is to be made.

8 Sub-rule 2 is not included in the New South Wales rules from which our rules were derived. It is a local addition. We do not agree with the proposition that rule 43(2) is confined to situations envisaged by rule 43(1). In our view the two sub rules are rules of general application as to service and proof of service. Where it is necessary to prove service of the motion then that proof must be provided in accordance with rule 43(2). To proceed ex parte there must be proof of due service on the absent party. Therefore in our view the judge hearing the application for judgment fell into error in proceeding when there was no affidavit before him proving service and there were no circumstances of urgency bringing the matter within Order 4 rule 38(2). Counsel's assurances, absent in this case, are not sufficient to fulfil the requirements of the rules.

9 The respondent submits that on the application to set aside the judgment the judge fully appreciated the position which applied at the time of the application for default judgment and there was then, on the application to set aside, evidence that the motion and affidavit in support had been served on the lawyers for the appellant.

10 On the application to set aside the judge was faced with two affidavits, one from an officer of the court swearing that his firm had not been served, based on his perusal of the inward document register kept by the firm's receptionist, a typed copy of which was provided. On the other hand he had an affidavit sworn by a clerk in the employ of the respondent which was sworn just under a month after he said service was effected. What was noticeable about that affidavit was that it did not make reference to or attach any document or note made by the deponent created contemporaneously with service, from which he would be able to refresh his memory.

11 The court made a strong point of the fact that an officer of the court, referring to counsel for the respondent, would be very unlikely to mislead the judge. However, the judge did not note that as service was purportedly affected by counsel's clerk, anything that counsel told the judge was hearsay because counsel's knowledge would be restricted to what his clerk told him that he did. Nor did the judge note the point which we have just made, that the clerks affidavit was sworn almost a month after service. As he served a number of documents on that day his role was obviously at least in part to serve documents and...