Agriculture Resources Technology (PNG) Ltd v Department of Agriculture & Livestock

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J.
• Judgment Date: 07 April 2015
• Citation: (2015) N5948
• Court: National Court
• Year: 2015
• Judgement Number: N5948

Full : WS 68 of 2009; Agriculture Resources Technology (PNG) Limited v Department of Agriculture & Livestock and Anton Benjamin, Secretary for Agriculture & Livestock and Martin Bal, Manager, National Agriculture Development Plan and The Independent State of Papua New Guinea (2015) N5948

National Court: Hartshorn J.

Judgment Delivered: 7 April 2015

N5948

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 68 OF 2009

BETWEEN:

AGRICULTURE RESOURCES TECHNOLOGY

(PNG) LIMITED

Plaintiff

AND:

DEPARTMENT OF AGRICULTURE & LIVESTOCK

First Defendant

AND:

ANTON BENJAMIN, SECRETARY FOR

AGRICULTURE & LIVESTOCK

Second Defendant

AND:

MARTIN BAL, MANAGER, NATIONAL

AGRICULTURE DEVELOPMENT PLAN

Third Defendant

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Fourth Defendant

Waigani: Hartshorn J.

2014: 7th August,

2015: 7th April

Application pursuant to Order 9 Rule 5(1)(b) National Court Rules

Cases cited:

Logicrosce Ltd v Southend United Football Club (The Times, 5 March 1988)

Public Officers Superannuation Fund Board v. Sailis Imanakuan (2001) SC677

Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2003) N2459

Rural Development Ltd v. Maria Laka (2007) SC897

Media Niugini Ltd v. Anderson Agiru (2012) SC1203

Counsel:

Mr. G. Geroro, for the Plaintiff

Ms. I. Mugugia, for the Contemnors

7th April, 2015

1. HARTSHORN J: This is an application by the plaintiff Agricultural Resources Technology (PNG) Ltd for the defence of the defendants to be struck out and judgment entered for an alleged failure to correctly provide a verified list of documents.

Background

2. The plaintiff alleges that it was agreed that it would receive K 7 million from the Department of Agriculture and Livestock for amongst others, the management of the Central New Ireland Cocoa and Coconut Plantation Rehabilitation Project. The plaintiff has not received those funds and commenced this proceeding seeking amongst others the sum of K 7 million and damages.

Application

3. The plaintiff now applies for the defendants’ defence to be struck out and judgment entered pursuant to Order 9 Rule 15 (1) (b) National Court Rules as:

a) the verified list of documents filed on behalf of the defendants has been incorrectly signed and verified by a lawyer. It is contended that a lawyer cannot depose to matters of fact;

b) the verified list of documents is defective as it does not list all of the relevant documents that are in the possession of the defendants.

4. The plaintiff relies upon, the Supreme Court decision of Public Officers Superannuation Fund Board v. Sailis Imanakuan (2001) SC677 (Amet CJ, Gavara Nanu and Kandakasi JJ) and the National Court decision of Sakora J in Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2003) N2459 in support of its application.

5. The defendants submit that:

a) Order 9 Rule 2(3) (a) National Court Rules does not specify who should verify when discovery with verification is given by an agent of the State. The person who verified on behalf of the State, the Acting Solicitor General is an officer of the State and is able to sign and verify the list of documents;

b) the documents listed in the verified list of documents are the only documents of which the defendants are aware.

6. Order 9 Rule 15 (1) (b) National Court Rules is as follows:

“15. Default. (23/15)

(1) Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit, including—

(a) ……..

(b) if the proceedings were commenced by writ of summons and the party in default is a defendant—an order that his defence be struck out and that judgment be entered accordingly.”

7. As to whether the list of documents was incorrectly signed and verified, Order 9 Rule 8 National Court Rules relevantly provides that:

“8. Deponent. (23/8)

(1) …… an affidavit verifying a list of documents of a party….may be made —

(a) by the party; or

(b)(c)(d)…..

(e) where the party is the Independent State of Papua New Guinea or an officer of the State suing or sued in his official capacity—by an officer of the State.

(2) ….

(3) …… where the party is a person to whom Sub-rule (1)(c), (d) or (e) applies, the party shall choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.”

8. In this instance the verified list of documents filed on behalf of the defendants is signed and verified by the Acting Solicitor General, Ms. Jubilee Tindiwi. There is no evidence to the effect that Ms. Tindiwi is not an officer of the State and that she does not have knowledge of the facts. Further, no reference was made to any National Court Rule that prohibits a lawyer signing or verifying a list of documents. Consequently, I do not find in favour of the plaintiff on this ground.

9. As to the list of documents being defective as it does not list all of the relevant documents in the possession of the defendants, counsel for the plaintiff submitted that there are no documents listed that concern how and when decisions concerning the payment or non payment of funds were made. There is though, no evidence that the plaintiff has requested other documentation from the defendants or has sought orders from this court for the defendants to provide discovery of specific documentation.

10. I note the statement in POSFB v. Imanakuan (supra) that in their Honours’ view Order 9 Rule 15 (1) is not restricted to a default in terms of filing and serving a list of documents:

“…. but also includes default of a party required to give discovery failing to list any document whether it be in its original form or a copy and is relevant to the proceedings unless it is privileged from production.”

11. In POSFB v. Imanakuan (supra), the Supreme Court held amongst others that there was default within the meaning of Order 9 Rule 15 (1) National Court Rules and that the National Court judgment appealed was correct. The default included a failure to list documents that the respondent had previously admitted receiving and having in its possession.

12. In Ace Guard Dog v. Lailai (supra) the plaintiffs had been in default in filing a list of documents for about 2 ½ years and had failed to file within 2 extensions of time that had been given by the defendant.

13. In this instance, there is no admission by the defendants that they have or had other relevant documents in their possession and no issue is taken with time.

14. Further in this regard, I make reference to the Supreme Court decisions of Rural Development Ltd v. Maria Laka (2007) SC897 (Batari, Lay and Hartshorn JJ) and Media Niugini Ltd v. Anderson Agiru (2012) SC1203 (Cannings, Gabi...