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Kintip Surgery Pty Ltd v Oilmin Field Services Pty Ltd [2003] PGDC 23; DC211 (21 July 2003)

DC211

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 26 OF 1997

Kintip Surgery P/L
Complainant

V

Oilmin Field Services P/L
Defendant

Mt.Hagen: M. M. Pupaka
1998: 9th – 11th Nov.
1999: 26th March, 6th Dec.

Civil claim – part heart case – complainant’s evidence fully in – defense case incomplete – defense witnesses not cross-examined – chances of defense witnesses being recalled nil – defense case closed – Practice and Procedure – part heard defense case closed – defense witness not cross-examined – not fair to accept and rely upon untested defense witness evidence – defense not made out – predictable consequence in law – defense dismissed and judgement entered for the complainant as claimed

COUNSEL
Mr. Kopunye for the Complainant
Mr. Steele for the Defendant

21st July 2003

M. M. PUPAKA PM: This matter has a checkered history. It is necessary to set out the important details of its historical background. The decision of this Court would be better understood within the case’s historical context.

The complainant, a duly incorporated company with full capacity carries on and is, inter alia, engaged in a private medical practice under the name ‘Kintip Surgery’ at Mt. Hagen in the Western Highlands Province. The defendant is a similarly competent legal entity and is principally engaged in carrying on oil and mineral explorations in PNG.

Previous to the commencement of this proceeding the parties had a binding business contract upon which they had acted and enjoyed benefits for some time. Essentially theirs was a contractual relationship whereby the complainant would supply medical officers, health extension officers, consultations and pharmaceuticals supplies to the defendant at the latter’s various exploration sites and also provide staffing services at Mt. Hagen.

For sometime the complainant delivered upon its contractual obligations and tendered invoices for payment, which the defendant paid. Their otherwise profitable relationship turned sour when the defendant refused to pay certain amounts, which it said were ‘overcharges’ by the complainant.

On or around 27th January 1997 the complainant took out a Default Summons against the defendant claiming outstanding and unpaid monies amounting to K5, 270.72. The defendant filed a defense denying the claim, repeating its earlier assertion that most of the sums claimed were overcharges – except a sum of K568.61 which it admitted owing.

The hearing of the matter began on the 9th of November 1998. The complainant’s case was presented on the 9th & 10th of November 1998 through its two witnesses.

After the complainant’s case closed, the defense also called two witnesses on the 10th of November 1998. However both of these witnesses did not complete giving evidence. They were stood down, one after the other, when it became apparent that a so-called ‘key defense’ witness ought to be called first in order for other witnesses’ evidence to be fully appreciated. They were to be re-called to complete testifying after the defenses’ key witness – a Mr. Malcolm Carruthers, who was in Australia at the time – had testified. Thereafter the part heard defense case was not started for a relatively long time, the reasons as to why were at times not very clear.

Mr. Carruthers of the defense finally began giving evidence on 26th of March 1999. Again this witness did not complete giving evidence. A document forming part of his evidence was said to have been ‘short served’ and thus the complainant needed an adjournment. Then when the hearing of the witness resumed on the 28th of April 1999, the defense sought a longer adjournment because the witness was not yet back in the country due to work permit problems. Hearing of this witness was further adjourned to 16th June 1999, which did not eventuate due to the unexplained absence of the complainant and its lawyer.

The hearing of the witness (Mr. Malcolm Carruthers) resumed once again on the 6th of December 1999. During the course of the hearing of the witness the complainant applied to recall briefly its own principal witness (Dr. Kulunga), which was allowed for reasons given at the time. Mr. Carruthers than continued to testify for the defense but he did not complete testifying, as it was late in the day. He was to be cross-examined the next day. However on the next day (7th December), Mr. Kopunye of council for the complainant was not available. As a result the cross-examination of Mr. Carruthers was further adjourned to the following day, the 8th December 1999. On the 8th of December both lawyers simply failed to turn up in court. Consequently the case was adjourned sine die as nothing further could be done until parties advised as to their readiness for continued hearing.

Thereafter, on numerous occasions, the matter was listed at the request of the parties. However on the appointed days the parties failed to appear. Then on 15th May 2002 the complainant’s lawyers filed a Notice of Motion, essentially seeking orders for the defense of the defendant to be struck out on the bases that the defendant had failed to make its witnesses available for purposes of cross-examination. Going by the notations on the court file, there seems not to have been any meaningful attempt by the complainant to move this Motion upon Notice.

Consequently on the 6th of August 2002, upon an application in court by Mr. Steele for the defendant the Notion of Motion filed by the complainant was dismissed. Also Mr. Steele advised the court that day that the defense case is being formally closed. From thenceforth the matter was put on decision mode, with a direction that parties file submissions for consideration by the court.

Again the parties, from then on to date, have made no concerted effort to file final submissions. To date there is no final or other submissions from the parties on the court file. Consequentially, based on past experiences, I can only presume that there will be no submissions from the parties any time soon or at all.

In all the circumstances, I am of the view that the court ought to proceed to determine the fate of this proceeding on the bases of the record and the evidence already on file. It is only fair and in the interest of finality and as a matter of good administration of court proceedings.

The complainant presented evidence through its two witnesses, principally through Dr. Kulunga. All three defense witnesses did not complete testifying, especially Mr. Malcolm Carruthers who was the key witness of the defendant. Whilst the first two defense witnesses did not fully testify at any rate, Mr. Malcolm Carruthers’ evidence in chief, which seems to be contested, has not been properly tested through cross-examination.

In the end the defence have not fully established their defense to the claim in the usual way. In all fairness I cannot accept that a valid defense on the merit has been made out in the conventional way – it is impossible for the court to draw that conclusion in the circumstances.

Ergo, in my considered view, there can only be one result borne out by all these in law: The defense of the defendant ought to be dismissed as being not made out and judgement entered for the complainant. I order that that is to be so in this case and give orders accordingly.

Kopunye Lawyers :Complainant
Warner Shand Lawyers :Defendant