Rural Development Bank Ltd v Maria Laka (2007) SC897

• Jurisdiction: Papua New Guinea
• Date: 02 November 2007
• Citation: (2007) SC897
• Docket Number: SCA No. 35 of 2006
• Court: Supreme Court
• Year: 2007

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

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 O9 r15 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

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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...