N2690

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 171 OF 1998

JOHN PIAS
Plaintiff

V

MICHAEL KODI, BERNARD PREGWART
AND AUGUST TIONA
1st Defendants

LEO NUIA, THE PAPUA NEW GUINEA
DEFENCE FORCE COMMANDER
2nd Defendant

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
3rd Defendant

MT HAGEN : CANNINGS J
7, 13, 18 OCTOBER 2004

RULING ON MOTION

Practice – pleadings – application by plaintiff to amend statement of claim – National Court Rules, Order 8, Rule 50 – application made during trial on assessment of damages – application made after plaintiff and defendants closed cases and before submissions – plaintiff’s contention that amendment necessary to make pleadings accord with evidence – defendant’s objection to certain evidence previously overruled – whether application should be granted – discretionary matter for Court – identification of relevant considerations re exercise of discretion – application of considerations – ruling.

Cases cited:
New Guinea Company Ltd v Thomason [1975] PNGLR 454
MVIT v Pupune [1993] PNGLR 370
Komboro George v MVIT [1993] PNGLR 477
MVIT v Etape [1994] PNGLR 596
MVIT v Tabanto [1995] PNGLR 214
The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273
Kewa and Others v Kombo unreported, WS No 1036 of 2000, National Court, 15.10.04

Counsel:
Mr A Manase for the plaintiff
Mr J Poya for the defendants

CANNINGS J: 

INTRODUCTION

This is a ruling on a motion to amend a statement of claim. The substantive case is about a claim for damages. The plaintiff was assaulted and injured by officers of the Papua New Guinea Defence Force at the Plumes and Arrows Hotel, Mt Hagen on 5 July 1997. He claims that they committed a common law assault on him. Furthermore that they submitted him to torture, inhuman treatment and/or treatment inconsistent with respect for his inherent dignity as a human person, contrary to his Basic Rights under Section 36 of the Constitution.

BACKGROUND 

On 24 February 1998 a writ of summons was filed. The main relief sought by the plaintiff was damages. At that time the plaintiff was represented by Dowa Lawyers.

In March 1998 the first-named defendant, Michael Kodi, was convicted by the National Court (Sawong J) of unlawfully causing grievous bodily harm to the plaintiff. Those were separate, criminal proceedings. But they related to the same incident giving rise to the present proceedings. Michael Kodi was sentenced to four years imprisonment.

On 19 June 1998 the second and third defendants filed a notice of intention to defend and a defence. At that time the second and third defendants were represented by the Solicitor-General. The first defendants, who were officers of the Defence Force at the time of the incident, were not represented. They remain unrepresented.

On 2 May 2001 Pato Lawyers commenced acting for the plaintiff. 

On 5 November 2001 the plaintiff’s statement of claim was amended pursuant to a Court order. A new, amended statement of claim was filed. That is the document the plaintiff now wants to further amend. 

On 3 September 2003 default judgment was entered against the defendants, with damages to be assessed. 

In November 2003 the principal affidavits were sworn, filed and served on the defendants.

In September 2004 the case was set down for trial in October 2004.

On 1 October 2004 Paul Paraka Lawyers commenced acting for the defendants.

On 5 October 2004 the trial on assessment of damages commenced in Mt Hagen. Three witnesses gave oral evidence. They were each cross-examined on affidavits that they had sworn, which were admitted into evidence. A number of other affidavits were tendered. The defendants’ counsel, Mr Poya, objected to some parts of the affidavits being tendered. He submitted that evidence was being given about things not included in the pleadings, eg details of the plaintiff’s lost income. He relied on the rule of pleading and evidence that if there is nothing in the pleadings of a party about an alleged fact, no evidence in support of that alleged fact can be adduced at the trial. I overruled those objections, as I considered that the pleadings were sufficiently broad to encompass the matters on which evidence was being led. I added that such issues could still be made the subject of submissions. The plaintiff’s counsel, Mr Manase, closed the plaintiff’s case. Mr Poya indicated that the defendants had no evidence to call. So the evidence was all in. The trial was then adjourned to the afternoon of 7 October 2004 for submissions. 

On the morning of 7 October 2004 the plaintiff’s lawyers filed a notice of motion, by which the plaintiff seeks leave to amend the statement of claim. It was served on the defendants’ lawyers at lunchtime. The plaintiff seeks leave to amend paragraphs 15 and 17 of the statement of claim, plus the summary of the relief sought. The proposed amendments are shown in the following table.

COMPARISON BETWEEN EXISTING STATEMENT OF CLAIM AND PROPOSED AMENDMENTS	
Para
No	Present statements, per statement of claim filed 05.11.01	Proposed statements, per notice of motion filed 07.10.04	
15	Nine categories of special damage (eg medical treatment, Mt Hagen General Hospital; specialist medical treatment in Australia) are particularised, totalling K15,350.00.	Twelve categories of special damage (eg medical treatment, Mt Hagen General Hospital; specialist medical treatment in Australia) are particularised, totalling K28,948.65.	
19	Claim made that plaintiff is unable to continue in his employment and continues to suffer loss of income, particularised as:

(a)	loss of salary of K1,200.00 per fortnight, from 5 July 1997; and

(b)	loss of profits of his business (particulars of which will be provided prior to trial). [But no further particulars were provided or sought.]	Claim made that plaintiff is unable to continue in his employment and continues to suffer loss of income, particularised as:

(a)	loss of salary of K1,200.00 per fortnight, from 5 July 1997 = K187,200.00; and 

(b)	future loss of salary, comprising: (i) loss of commission income from January 1996 to January 2000 = K496,892.00; (ii) income from transport hire = K637,000.00; and (iii) advance money lost = K91,000.00. 	
Relief sought	Eight remedies are claimed:

1.	damages pursuant to the Wrongs (Miscellaneous Provisions) Act;
2.	special damages of K15,350.00;
3.	damages for distress, frustration and psychological suffering;
4.	loss of business earnings;
5.	aggravated damages for breach of constitutional rights;
6.	costs;
7.	interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act; and
8.	such further orders the Court deems fit.	Eight remedies are claimed:

1.	damages pursuant to the Wrongs (Miscellaneous Provisions) Act; 
2.	loss of income (salary) both past and future = K811,200.00;
3.	special damages of K28,946.65; 
4.	loss of business income = K1,133,892.00; 
5.	damages for distress, frustration and psychological suffering; 
6.	aggravated damages for breach of constitutional rights; 
7.	interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act; and 
8.	such further orders the Court deems fit.	

When the trial resumed late in the afternoon of 7 October 2004, Mr Manase brought the notice of motion to the attention of the Court. He asked that it be dealt with immediately. Mr Poya objected, as the defendants had been short-served. Mr Poya’s application for an adjournment was upheld. The case was adjourned to 13 October 2004 to deal with the motion.

On 13 October 2004 the Court received written and oral submissions from each counsel on the motion and reserved its ruling. 

PLAINTIFF’S SUBMISSIONS

Mr Manase stated that the motion to amend the statement of claim was made under Order 4, Rule 50 of the National Court Rules. He submitted that this rule gives a broad discretion to allow parties to amend the pleadings. This can be done during the course of a trial. It can even be done after the evidence and after submissions by the defence counsel, as happened in New Guinea Company Ltd v Thomason [1975] PNGLR 454.
 
Evidence of the matters now sought to be pleaded has already been tendered. The defendants were served with the plaintiff’s affidavits many months ago. They did not make any objection to the use or contents of the affidavits until the trial. Their failure to give notice of any objection until the trial means that they are taken to have consented to the use of the affidavits, by virtue of Section 35(1) of the Evidence Act. The proposed amendment will simply make the pleadings accord with the evidence already tendered. 

No substantial prejudice would be done to the defendants in the present case. Any inconvenience caused to them can be compensated by an order for costs. So the application should be granted. 

DEFENDANTS’ SUBMISSIONS

Mr Poya strenuously objected to the Court granting leave for the proposed amendments. The Rules of the Court must be adhered to. The principles governing pleadings are well settled. Parties and their lawyers must adhere to the Rules to ensure that proceedings are conducted fairly. The defendants made proper objections to the tendering of the contentious material in the affidavits during the course of the trial. The objections were overruled on the basis that they could be made in the submissions. If these late amendments are permitted, the submissions may not have much value. 

The plaintiff’s statement of claim has already been amended once, in November 2001. The plaintiff has had ample time to precisely plead his claim, but has defaulted. He has failed to comply with Order 8, Rule 29 of the National Court Rules, which require him to give the necessary particulars of his claim. If the Court grants leave in these circumstances it will open the floodgates for future litigants to produce evidence of facts not pleaded; and then seek eleventh-hour amendments to their pleadings. This defeats the purpose of having pleadings. 

The proposed amendment to the statement of claim significantly increases the total amount of the claim. That will seriously prejudice the defendant. The value of the amended claims substantially outweighs the amount of costs that could be awarded to the defendants. 

RELEVANT LAW

Overview

There are general rules of pleadings and evidence that are relevant to this motion. 

Several provisions of the National Court Rules are also relevant. Order 8, Division 2 (Rules 29-36) is about particulars. Rule 29 imposes a general obligation to provide particulars. Rule 33 (not mentioned by either counsel) imposes specific obligations where a claim for damages for personal injuries is made. Order 8, Division 4 (Rules 50-59) is about amendment of pleadings. Rule 50 is the provision relied on by the plaintiff in the present case. 

The Evidence Act, Section 34, is also relevant. It deals with objections to affidavits. 

Pleadings and evidence

The general rule is that the pleadings set the foundation for the case. In a case commenced by a writ of summons, pleadings are the plaintiff’s statements made in the statement of claim that is attached to the writ of summons, the defendant’s statements made in the defence, the plaintiff’s statements made in a reply and so on. The general rule about pleadings has two practical consequences. First, no evidence can be adduced of something that has not been pleaded. Secondly no claim for relief can be made for something that has not been pleaded. (MVIT v Pupune, Supreme Court, [1993] PNGLR 370.)

If a defendant is to successfully submit that a claim for relief is beyond the pleadings, it must show that it has objected to evidence of that claim being adduced in the trial. If, for example, a plaintiff’s evidence of economic loss was not objected to, the defendant cannot later hark back to the pleadings and submit that the plaintiff is not entitled to damages for economic loss on the ground that it was not pleaded. (Pupune, at pages 373-375; MVIT v Etape, Supreme Court, [1994] PNGLR 596; MVIT v Tabanto, Supreme Court, [1995] PNGLR 214.)

National Court Rules 

Order 8, Rule 29 states:

29.	General

(1)	A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.

(2)	Rules 30 to 34 do not affect the generality of Sub-rule (1). 

Order 8, Rules 33 and 34 state:

33.	Particulars to be given in death or personal injuries cases

(1)	Where a claim is made by the plaintiff for damages for breach of duty, and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person the statement of claim endorsed on the writ of summons shall set forth full particulars of the claim, including—

(a)	the date and place of birth of each plaintiff; and
(b)	a statement in summary form, of the material facts relied on as giving rise to the cause of action; and
(c)	particulars of the injuries alleged to have been sustained by each plaintiff; and
(d)	where relevant, a statement in summary form of the medical treatment received by each plaintiff; and
(e)	where relevant, a statement as to whether or not with respect to each injured plaintiff that plaintiff has sustained any permanent disability and, if so, particulars of that disability; and
(f)	particulars required by any Act under which a claim is brought; and
(g)	details of each item of special damages claimed, including wages and other economic loss, both present and future; and
(h)	particulars of the alleged negligence of the defendant, where negligence is alleged; and
(i)	where relevant, the average weekly earnings (less income tax) of each plaintiff during the months previous to the injury and the period employed during those months; and
(j)	where relevant, the average weekly amount which each plaintiff is earning or is able to earn in some suitable employment or business after the injury; and
(k)	where relevant, the payment, allowance or benefit received from his employer by each plaintiff during the period of his incapacity; and
(l)	where relevant, particulars of the persons dependent on the plaintiff's earnings,

set out, as far as may be practicable, in that order.

(2)	The claim shall conclude with a summary of the relief claimed, without quantifying either general damages or costs.

(3)	In this rule, "personal injuries" includes any disease and any impairment of a person's physical, nervous or mental condition.

(4)	The particulars of claim referred to in Sub-rule (1) shall, for all purposes of these Rules, be treated as a statement of claim.

(5)	Rule 13(3), (4) and (5) shall apply, with appropriate modifications, to the particulars of claim referred to in Sub-rule (1).

34.	Out of pocket expenses

Where, in proceedings on a common law claim, a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys.

Order 8, Rule 50 states:

(1)	The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

(2)	All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3)	Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.

(4)	This Rule does not apply to the amendment of a minute of a judgement or order. 

Evidence Act

Section 35 states:

(1)	Where a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to use in the proceedings an affidavit by a witness concerning particular facts as to which no order under Section 34 has been made he may, not less than five clear days before the hearing, give notice, accompanied by a copy of the affidavit, to the party or person (if any) against whom it is to be used that he desires to do so.

(2)	Unless a party to or a person interested in the proceedings gives notice, not less than two clear days before the hearing, to the party or the person who gave notice under Subsection (1) that he objects to the use of the affidavit, he shall be taken to have consented to the use of the affidavit, and the affidavit may be used in the proceedings unless the tribunal otherwise orders.

(3)	On application of a party or person interested, or of its own motion, the tribunal may order that a subpoena be issued requiring a person who has made or intends to make an affidavit to attend before the tribunal to give evidence on oath or for cross-examination, or both.

RELEVANT CONSIDERATIONS RE EXERCISE OF DISCRETION

The effect of Order 8, Rule 50 is to give the Court discretion, when it is required to determine an application for an order to amend a document, including any pleadings. There have been many PNG cases on such applications. They were conveniently summarised by Gavara-Nanu J in The Papua Club Inc v Nusaum Holdings Ltd and Others (2002) N2273. Those cases have also been cited extensively in the written submissions of both Mr Manase and Mr Poya. The Court commends each counsel for those submissions. 

In the Papua Club case the Court granted an application by the plaintiff to amend its statement of claim on the third day of a trial that was due to last more than four days. Gavara-Nanu J reviewed the authorities, both in PNG and overseas, and succinctly summarised the policy considerations underlying the broad discretion given to the Court by Order 8, Rule 50. 

His Honour summarised, at pages 12-13, five considerations the Court should weigh in the balance when determining such applications. They are: 

1	Will the amendment enable the Court to determine the real question in controversy between the parties?

2	Will the amendment correct any defect or error in the proceedings? 

3	Will the amendment cause real prejudice or injustice to other party?

4	Is the application for such amendment made mala fide or bona fide?

5	Can the other party be fairly compensated with costs for the amendment? 

To those considerations I would add three others which I recently applied in Kewa and Others v Kombo (unreported, WS No 1036 of 2000, National Court, Mt Hagen, 15.10.04):

6	Is the party applying for the amendment prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings? 

7	Where do the interests of justice lie?

8	Is the proposed amendment efficacious? That is, is it a proper amendment?

APPLICATION OF RELEVANT CONSIDERATIONS 

I apply the above considerations to the present case.

1	The proposed amendment will tend to enable the Court to determine the proper amount of damages the defendants are liable to pay to the plaintiff. This consideration therefore favours the exercise of the Court’s discretion to make an order under Order 8, Rule 50, that the plaintiff be granted leave to amend his statement of claim. 

2	The failure to plead all the particulars which are now proposed to be inserted in the statement of claim is a pleading error. It appears that the plaintiff’s lawyers (Dowa Lawyers, followed by Pato Lawyers) failed to comply with Order 8, Rules 29 and 33 of the National Court Rules. The proposed amendment is calculated to correct these errors. So this is another consideration supporting the exercise of the Court’s discretion.

3	The issue of prejudice is finely balanced. I have carefully considered Mr Poya’s submission that the amendment will cause prejudice to the defendants. The amendment might significantly increase the amount of damages that the plaintiff is awarded. The amendment, if granted, will expose the defendants to the risk of being ordered to pay a significantly increased amount. There is some merit in this argument. Although I ruled earlier in the trial that the evidence being adduced on details of the lost income came within the ambit of the pleadings, I added that those submissions could still be made later. If I now allow the proposed amendment, the force of the defendants’ submissions will be reduced. So I consider that some prejudice will be caused to the defendants by the proposed amendment. This is a consideration which weighs against the exercise of the Court’s discretion. 

4	I consider that the application is being made bona fide, to correct an error or oversight in the statement of claim. This supports the exercise of the Court’s discretion.

5	As to whether the defendants can be compensated by an order for costs, Mr Poya argued that the increase in the amount of the claim that would be brought about by the amendment was far more than any award of costs. With respect, that is a simplistic approach. If the amount of the claim is increased, it does not necessarily follow that the plaintiff will be awarded that amount. The plaintiff still has the burden of proving each component of the claim, on the balance of probabilities. That burden is yet to be discharged. Previous cases show that parties who are successful with similar applications have to pay the other side’s costs. See, for example, Komboro George v MVIT, National Court, [1993] PNGLR 477. At the end of a trial on a claim for damages received in a motor vehicle accident the plaintiff applied to amend his statement of claim. The purpose of the amendment was to bring the pleadings into line with the Act under which the claim was made. Woods J allowed the amendment and ordered the plaintiff to pay the defendant’s costs of the trial. In the present case I consider that the defendants can be compensated with costs. 

6	I do not consider that the plaintiff is prevented by his conduct from amending the statement of claim. However, his lawyers have taken him very close to the borderline beyond which it would not be proper to allow such a late amendment. They have gone close, by pleading "loss of business income" and little more. I must consider the plaintiff’s conduct, in light of the defendants’ conduct. Despite the November 2001 amended statement of claim being rather general, there was no request by the defendants for further and better particulars. Then, after the principal affidavits were served in November 2003, there was no objection taken to their contents until after the trial commenced. I accept Mr Manase’s point that the defendants could have objected under Section 35(2) of the Evidence Act. Their failure to object earlier makes it harder to conclude that the way in which the plaintiff and his lawyers have conducted the case, should be held against the plaintiff. I therefore regard this sixth consideration as a neutral factor. 

7	History shows that the courts in PNG have been quite flexible when dealing with these sorts of applications. It is clear that the plaintiff was the victim of a vicious and unlawful assault and that his Basic Rights were violated. He has come, in good faith, it appears, to the Court to seek redress. I do not consider that the Court would be dispensing justice according to law if he were denied the opportunity to fully ventilate his claims by the failure of his lawyers to draft proper pleadings. There are counter-arguments to that approach. If the proposed amendment were denied and the plaintiff then received only a small amount of damages he could perhaps bring an action for damages against his lawyers. And, as Mr Poya submitted, the Rules of Court exist to bring fairness and rigour to the proceedings. Parties who are in default of the Rules have to suffer the consequences. I have considered those counter-arguments. They are proper things to take into account. But I conclude that, on balance, the interests of justice lie in allowing the plaintiff to amend his statement of claim.

8	I consider that the proposed amendment is not clearly an improper one. (By contrast in Kewa v Kombo the proposed amendment referred to a non-existent law and was considered improper. It was thus disallowed.) In the present case the proposed amendment tends to illuminate details of the plaintiff’s alleged lost business income. 

RESULT OF WEIGHING RELEVANT CONSIDERATIONS

All of the considerations except No 3 and No 6 favour the granting of the application to amend the statement of claim. No 3 is the issue of prejudice. The defendants will suffer some prejudice by the amendment. But they can be compensated with a costs order. The degree of prejudice is not sufficient to outweigh the other considerations. No 6 concerns the conduct of the plaintiff and his lawyers which, when compared to the defendants’ conduct, is a neutral factor.

I therefore grant this application. However, as the application has been necessitated by inadequacies in the plaintiff’s pleading, the defendants must be compensated by an order for costs. The trial has become unnecessarily complicated. It is therefore appropriate that, irrespective of the outcome of the trial and the amount of damages that is awarded, the plaintiff pay the defendants’ costs of the trial – not just this motion. 

REMARKS

I will grant the application to amend the statement of claim. But, as indicated above, I am critical of the plaintiff’s lawyers for the inadequacies in the pleadings. There are two other remarks to reiterate. First, the objections to the evidence that were made during the course of the trial and the objections to this application were – though overruled – justifiably made. The defendants are at liberty – as I ruled during the trial – to raise these issues in submissions. Secondly, the plaintiff still has the burden of proving each component of his claim. Those issues also remain open to submissions.

ORDER

The Court will make the following orders:

•	The plaintiff has leave to file the document headed "further amended statement of claim" annexed to the affidavit of Alfred Manase of 7 October 2004, which shall hereafter be regarded as a fresh document.

•	The plaintiff shall immediately file, endorse and serve the fresh document in the manner prescribed by Order 8, Rules 57 and 58(b) of the National Court Rules. 

•	The plaintiff shall pay the defendants’ costs of the whole trial to which the notice of motion of 7 October 2004 relates, irrespective of the result of the trial, including all costs associated with that motion, to be taxed if not agreed.

•	Time for entry of these orders is abridged to the time of settlement, which shall take place forthwith. 
__________________________________________________________
Lawyers for the plaintiff		:	Pato Lawyers
Lawyers for the defendants		:	Paul Paraka Lawyers