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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1988–89] PNGLR 355
• Date: 05 September 1989
• Year: 1989

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

1 Practice and procedure—application for adjournment—power of the Court to adjourn—principles applicable

2 Practice and procedure—striking out part of statement of claim under National Court Rules O8 r27(1)(b)

___________________________

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, O10, r11.

The National Court Rules, O10, r11, 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 O10, r11, 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

The following cases are cited in the judgment:

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...