|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
BETWEEN:
MARCUS AMITO CULLINAN
AND:
AUSTRALIA & NEW ZEALAND BANKING GROUP (PNG) LIMITED
Defendant
AUSTRALIA & NEW ZEALAND BANKING GROUP (PNG) LIMITED
Cross Claimant
WESTPAC BANK-PNG-LIMITED
Cross Defendant / Second Cross Claimant
WAIGANI: GAVARA – NANU, J
2004: 12th and 15th October
PRACTICE AND PROCEDURE – Adjournment after the matter is set down for trial – National Court Rules, Order 10 r 11 – Court has wide discretion – Adjournment must be in the interest of justice – Onus is on the applicant to show that refusal to adjourn will result in injustice to him.
Cases cited:
Mauga Logging Company Pty Ltd -v- Southern Pacific Oil Palm Development Pty Ltd (No 2) [1977] PNGLR 467
Ok Tedi Mining Ltd -v- Niugini Insurance Corporation and Others (No. 1) [1988-89] PNGLR 355.
Counsel:
C. Copeland for the plaintiff.
I. Shepherd for the defendant/cross-claimant.
A. Mana for the cross defendant / second cross claimant.
GAVARA-NANU J: This matter has been set down for trial on 20th, 21st and 22nd October, 2004. On Tuesday 5th October, 2004, when I conducted the status conference for all the civil maters listed before me for this month, the plaintiff through his counsel, Ms Copeland advised that the matter was ready for trial on the scheduled trial dates, but Mr Shepherd for the defendant/cross claimant advised that his client was not ready and asked that the trial dates be vacated and the matter be adjourned to the Registry for new trial dates to be allocated.
Mr Shepherd told the Court that there are matters which his client needs to investigate before the matter can be tried. He said, it is impossible for the matter to be tried without those issues being properly investigated.
Application for adjournment by Mr Shepherd was opposed by Ms Copeland.
In the course of their submissions, both counsel referred to material evidence from the bar table which I thought should be properly put before the Court. I therefore directed Mr Shepherd to make a proper application to the Court by way of Notice of Motion with any supporting affidavit evidence. I also directed Ms Copeland to file any affidavits in reply.
Following those directions, the formal application for the vacation of the trial dates and for the matter to be adjourned to the Registry for the allocation of new trial dates was made on 12th October, 2004.
In support of the application, Mr Shepherd filed an affidavit sworn by himself on 11th October, 2004. In paragraph 2 of that affidavit, he deposed that by a Consent Order between the plaintiff and the cross defendant/second cross claimant, through their respective lawyers namely, Maladinas Lawyers and Allens Arthur Robinson agreed that the cross defendant/second cross claimant be given leave to file and serve a further amended Defence and second cross claim to the amended cross claim of the defendant/cross claimant.
The two parties agreed that the application for leave by cross defendant/second cross claimant or Westpac bank, against the defendant/cross claimant or ANZ bank be determined by Friday 27th August, 2004, and that the cross claim by the defendant/cross claimant be filed and served by Monday 30th August, 2004, and the Defence to the cross claim by ANZ bank, the defendant/cross claimant, be filed and served on Thursday 30th September, 2004, and further that, any supplementary matters such as further discovery of documents be attended to by or before Monday 11th October, 2004.
On 30th September, 2004, the defendant/cross claimant filed its Reply and Defence to the further amended Defence and the cross claim by the cross defendant/second cross claimant filed on 30th August, 2004. That was in compliance with relief Order No. 2 (ii) of the Orders given on 27th August, 2004.
Mr Shepherd submitted that in further compliance with relief Order No. 2 (iv) of that same Order, they have filed a Notice of Further Discovery. This Notice relates to a report compiled by a Mr Francis Ali on the investigations done on the disappearance of the monies which are subject of these proceedings, which were purportedly in control and custody of the cross defendant/second cross claimant.
In the Notice of Discovery, the defendant/cross claimant has asked the cross defendant/second cross claimant to disclose the report by Mr Francis Ali together with all other related documents.
Mr Shepherd submitted that, that report, a copy of which is annexed as Annexure ‘A’ to his affidavit was prepared before the issue of these proceedings and that the report could not be discovered before this matter was listed. The writ in this matter was issued on 28th May, 2001. The report by Mr Francis Ali is dated 11th May, 2001. Mr Shepherd submitted that, that report now alters the defendant/cross claimant’s case and that it naturally will require further amendment to its cross claim. He also told the Court that, there will be a need for proper discovery and to interview further witnesses and further discoveries may be necessary which also means that the plaintiff and the cross defendant/second cross claimant may amend their pleadings as well.
Mr Shepherd also deposed in his affidavit that a Southern counsel has been briefed to represent the defendant/cross claimant at the trial.
Ms Copeland also swore an affidavit on 12th October, 2004, in support of her client’s case where she gave the history of how this matter has been adjourned several times already and why she says that any further adjournments will prejudice her client. The chronology of the events leading up to this application are covered in Ms Copeland’s affidavit. It is noted from paragraph 2 of Ms Copeland’s affidavit that this matter was first ordered by this Court to be listed on the Call Over list for trial dates to be allocated on 19th December, 2001, but the Order was not entered until 10th January, 2002.
I note from the endorsements in the Court file that, that Order was made by Amet CJ. and Mr Kenneth Frank of Maladinas Lawyers appeared for the plaintiff and Mr Shepherd appeared for the defendant/cross claimant. It appears that the application was contested, and the relief Order No. 1 of that Order was that, requirement for the consent of the defendant/cross claimant for the matter to be set down for trial be dispensed with.
The application which resulted in that Order being given by Amet C.J. was supported by an affidavit sworn by Mr Kenneth Frank. In Annexure ‘C’ to that affidavit, Blakes Dawson Waldron advised Maladinas Lawyers in a letter dated, 15th November, 2001, that it was not ready for trial because they were still investigating some matters.
In paragraph 4 of Ms Copeland’s affidavit she says this matter was first set down for trial on 13th and 14th May, 2002, but on 9th May, 2002, the trial dates were vacated by Davani J. because of her unavailability.
But I note that in paragraphs 4 and 5 of the affidavit sworn by Mr Shepherd on 17th May, 2002, in respect of an application by the defendant/cross claimant to join the cross defendant/second cross claimant, Mr Shepherd says that those trial dates of 13th and 14th May, 2002, were vacated because the cross defendant/second cross claimant was just being joined as a party, and it was not possible for the matter to be tried on those dates. He says that, that happened on 9th May, 2002, at a Call Over before Davani J. He says, for that reason, the matter was adjourned to the Registry.
So after the cross defendant/second cross claimant was joined as a party, new trial dates of 23rd, 24th and 25th June, 2003 were allocated but the trial could not go ahead on those dates because of the Pacific Legal Convention that was held in Madang in which all the judges’ were involved.
Then in a Call Over on 5th June, 2003, new trial dates of 29th, 30th September, 2003 and 1st October, 2003, were allocated.
According to paragraph 9 of Ms Copeland’s affidavit, those trial dates were vacated on 29th August, 2003, because some how the plaintiff’s lawyers were told that, only one date i.e 29th September, 2003, was allocated for the trial of this matter before Davani J. Ms Copeland says in the same paragraph that Davani J. conducted a status conference on 3rd September, 2003, and vacated the trial date.
Then in an Order given on 17th October, 2003, the defendant/cross claimant was granted leave to amend its cross claim.
In paragraph 11 of her affidavit, Ms Copeland says, in the Call Over conducted on 31st March, 2004, 22nd, 23rd and 24th June, 2004, were allocated as new trial dates, but then in a Call Over conducted on 24th April, 2004, the Registrar vacated the trial dates, because Allens Arthur Robinson for the cross defendant/second cross claimant told the Registrar that their client was going to seek leave to file amendments to their cross Defence and would file its second cross claim.
The application for leave by Allens Arthur Robinson was heard on 14th July, 2004, but the application was struck out. They filed another application on 28th July, 2004. That application resulted in the Consent Order being given on 27th August, 2004, which I have adverted to earlier.
Then at a Call Over on 31st August, 2004, all parties agreed to set the matter down for trial on 20th, 21st and 22nd October, 2004.
The Court has a wide discretion when deciding whether a matter can be further adjourned after it has been fixed for trial on given dates. This is implicit from the language of Order 10 r 11 of the National Court Rules, which provides:
When deciding whether to grant or refuse adjournment, the Court must have regard to all the circumstances and be guided by what is fair and just to all parties. Thus, if the Court refuses to grant adjournment, it must be satisfied that the party applying for adjournment would not be denied justice, and that it is in the interest of justice. This point has been stressed in many instances. For instance, in Mauga Logging Company Pty Ltd -v- Southern Pacific Oil Palm Development Pty Ltd (No 2) [1977] PNGLR 467, Kearney J. (as he then was) when discussing the power of the National Court on adjournments at 469 said.
"Order 62 r. 12 appears to vest in the Court a broad discretionary power to adjourn. The question to be kept in mind, I think, is what is expedient in the interest of justice. I think an applicant to adjourn must show some reasonable cause".
His Honour there was considering the Court’s power to adjourn under the old Rules of Court.
Then in Ok Tedi Mining Ltd -v- Niugini Insurance Corporation and Others (No. 1) [1988-89] PNGLR 355, Kapi DCJ (as he then was) in discussing the Court’s power to adjourn under the current National Court Rules at 357 said:
"The principles that may be applied under Order 10 r 11, may be stated as follows. Where a date has been fixed well ahead of time, the matter should proceed on that date, the reason is obvious. All parties would make arrangements towards the commencement of the trial on that date. Therefore, the onus is on the applicant to show why an adjournment should be granted. Or, to put the matter differently, the applicant must show why a refusal to adjourn would result in injustice to him. In considering the interest of the applicant, the Court must also weigh the interest of the respondent. The question arises whether to grant an adjournment would result in injustice to the respondent. The applicant must show actual prejudice and not merely speculative prejudice. That is to say, the applicant must demonstrate from evidence the nature of prejudice. A party whose interest may be prejudiced by the trial going ahead on the date of the hearing must made the application for adjournment promptly. This is important not only for the opposing party but also important for the Court to readjust its calendar should the application be successful".
I respectfully adopt these principles.
Thus, the test to be applied when deciding whether to grant adjournment to the party seeking adjournment is, whether the refusal of the application would be in the interest of justice. If the refusal of the application would result in injustice to the applicant, then the refusal would not be in the interest of justice. The interest of the respondent would be considered and taken into account in the process and as a matter of course.
The applicant in this case must show good reasons or a reasonable cause for an adjournment. In other words, the applicant must show that it is in the interest of justice that adjournment be granted.
Turning now to the events described or outlined by Ms Copeland in her affidavit, there is no evidence that any of the adjournments or the vacation of various trial dates up to now have been caused or forced on by the defendant/cross claimant, except for the initial setting down of the matter for trial but there was a reason given by the defendant/cross claimant in that, it still needed to investigate matters and the possibility of joining a third plaintiff, which now turns out to be the cross defendant/second cross claimant and thus from its point of view, the matter was not ready for trial.
Furthermore, although the defendant/cross claimant in its letter of 15th November, 2001, to Maladinas’ Lawyers did say that a third party may be joined as a party, there was no specific mention of the cross defendant/second cross claimant. There is also no evidence before the Court that the defendant/cross claimant was aware of the report by Mr Francis Ali regarding the disappearance of the money at that time.
The evidence before me is that the report has just come to light. More over, the most recent pleadings filed by both the defendant/cross claimant and the cross defendant/second cross claimant are following the Orders given on 27th August, 2004, and thus the defendant/cross claimant was entitled to file those pleadings.
Ms Copeland has opposed the adjournment simply on the basis that there have been a number of adjournments already and the vacation of various trial dates and that the matter has been outstanding since 2001. However, to my mind, to refuse the adjournment requested by the defendant/cross claimant simply to expedite the trial or hearing of the matter would cause actual prejudice and injustice to the applicant and that it would not be in the interest of justice, bearing in mind that the defendant/cross claimant is not responsible for any of those adjournments.
Mr Mana has neither opposed nor consented to the application in terms of relief Orders Nos. 1, 2, 3 and 5. However, he has expressed reservations on relief Order No. 4, because the report by Mr Francis Ali may be privileged.
The question of whether the report is privileged is of course an issue which can be determined later at the trial proper. That is not for me to determine at this stage. The document on its face value does in my view raise serious questions as to liability of the defendant/cross claimant for the plaintiff’s claims. I cannot ignore that and order that the matter be tried as set down on 20th, 21st and 22nd October, 2004.
The defendant/cross claimant has in my view shown reasonable cause or has shown very good reasons for the trial dates to be vacated. I therefore grant the application and order that the trial dates of 20th, 21st and 22nd October, 2004, be vacated and adjourn the matter to the Registry for new trial dates to be allocated.
On the issue of costs, I have found that, none of the previous adjournments have been caused or forced on by the defendant/cross claimant. For this adjournment, I have found that the defendant/cross claimant has shown reasonable cause for further adjournment and thus it is in the interest of justice to do so.
Moreover, further pleadings filed by the defendant/cross claimant including Notice for Further Discovery on 11th October, 2004, were in compliance with the Orders given by this Court on 27th August, 2004.
In those circumstances, I would not be inclined to make any Orders as to costs, but, I note that Mr Shepherd has conceded costs in this matter. That concession was made in Court. I cannot ignore that, and further, I am of the view that there is merit in the point raised by both Ms Copeland and Mr Mana that Mr Shepherd has not disclosed as to when he obtained the report by Mr Francis Ali.
In those circumstances it is only fair that I exercise my discretion in favour of the plaintiff.
Consequently, I order that defendant/cross claimant pay the plaintiff’s costs for this application.
The cross defendant/second cross claimant will bear its own costs.
________________________________________________________________
Lawyer for the plaintiff : Young & Williams
Lawyer for the defendant : Blake Dawson Waldron
Lawyer for the cross defendant : Allens Arthur Robinson
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2004/29.html