Aisip L Duwa v Ronald Moyo Senge

• Jurisdiction: Papua New Guinea
• Citation: [1995] PNGLR 140
• Date: 28 September 1995
• Court: National Court
• Year: 1995

National Court: Sakora J

Judgment Delivered: 28 September 1995

1 Practice and procedure—Notice for discovery—principles—automatic discovery—order for general discovery—list of documents—notice to produce—default procedures—abuse of process—amendment of proceedings—National Court Rules O8 r51, O8 r52; O9 r1, r2, r5, r6, r10, r14, r15

2 Credit Corporation (PNG) Ltd v Gerald Jee [1988–89] PNGLR 11, Wenam Elkum v The Independent State of Papua New Guinea [1988–89] PNGLR 662 and Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 referred to

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Sakora J: This is an application by the plaintiff pursuant to a Notice of Motion filed 1 May 1995 seeking orders under O9, r15 of the National Court Rules (National Court Rules) because of breach of r9 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 (r15(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 Alices 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 O9, r15 National Court Rules (this application) would be made.

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

. The plaintiff's lawyers then filed a Notice of Motion on 1 May 1995 seeking those orders under O9, r15 National Court Rules.

. 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 O9, r9 National Court Rules. 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 subrule (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 subrule 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 subrule (3) of r9 is dependent upon, or pre–supposes, the occurrence of due notice under subrule (1). Thus, if there is no notice to produce, in accordance with Form 32 National Court Rules, 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 subrule(3)(b) and (c) of the Rule exist. Production of documents under r9 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 National Court Rules 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...