Waine Kerowa v Hargy Oil Palms Limited (2012) SC1194

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 03 September 2012
• Citation: (2012) SC1194
• Docket Number: SCA NO 57 OF 2011
• Year: 2012

Full Title: SCA NO 57 OF 2011;Waine Kerowa v Hargy Oil Palms Limited (2012) SC1194

Supreme Court: Injia CJ, David & Makail JJ

Judgment Delivered: 3 September 2012

SUPREME COURT APPEAL—Pleadings—Amendment of—Appeal against refusal of grant of leave to amend pleadings—Amendment of statement of claim—Grounds of—Deficiency, ambiguity and vagueness of pleadings—Correction of error - Exercise of discretion—Grounds of refusal—Irrelevance—Prejudicial—Delay adverse to defence—No reasonable explanation for delay—Whether discretion properly exercised—National Court Rules—O8, r50.

Cases cited:

The Papua Club Inc v Nusaum Holdings Ltd [2002] PNGLR 230

Michael Kewa -v- Elias Kombo (2004) N2688

Komboro -v- MVIT [1993] PNGLR 477

Eki Investments Limited -v- Era Dorina Limited (2006) N3176

Luke Kyokal Niap -v- PNG Harbours Limited (2009) N3672

JUDGMENT

1. BY THE COURT: The appellant appeals against the decision of the National Court refusing leave to amend pleadings. He sought leave after close of pleadings but before trial to amend the statement of claim to first add the name of his business entity called Kikuwa Pundi Trading, secondly, correct error in the date of accident, thirdly, add more details to the deficiency or ambiguity in the particulars of negligence and also damages. The primary judge held that:

a) the motor vehicle that was damaged in the accident was owned and used by the appellant to run a PMV business and it was not necessary and relevant to grant leave to amend the pleadings to include the business name. In any case, there was no evidence to show that the appellant was trading under the name of Kikuwa Pundi Trading.

b) the proposed amendments would not change the scope of the appellant’s claim and the respondent’s defence.

c) there was a delay of four years and the appellant did not satisfactorily explain the delay in bringing the application for leave to amend.

d) the proposed amendments will prejudice the respondent in its defence to the claim.

Brief Facts

2. The appellant alleged that he operated a PMV business using a Hino truck. On 09th September 2004 at about 11:00 am at Silane village outside Bialla, the respondent’s motor vehicle collided with his truck. He alleged that the driver of the respondent’s motor vehicle was negligent when he drove on the wrong side of the road and at high speed. As a result of the collision, his truck was severely damaged and required...