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
• Court: National Court
• Citation: (2004) N2690
• Date: 18 October 2004
• Year: 2004

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 John Etape [1994] PNGLR 596, MVIT v Salio Tabanto [1995] PNGLR 214, TThe Papua Club Inc v Nusaum Holdings Ltd [2002] PNGLR 230, Michael Kewa v Elias Mai Kombo (2004) N2688 referred to

Ruling on Motion

___________________________

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 s36 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 =
(b) loss of profits of his business K187,200.00; and
(particulars of which will be provided (b) future loss of salary, comprising:
prior to trial). [But no further (i) loss of commission...