N3245

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 100 of 2003

BANK OF SOUTH PACIFIC LIMITED
Plaintiff

v

NATHAN PIARI
Defendant

Waigani: Lay J
2005: 5 December

PRACTICE AND PROCEDURE - dispensing with consent to set down for trial - O1 r.7 - O10 r.4 - considerations.

PRACTICE AND PROCEDURE - counsel’s duty to assist the court.

Cases Cited

Anthony John Polling v MVIT [1986] PNGLR 228; 
Dennis Charles Young v Niugini Nius Pty. Limited[1899-89] PNGLR 45; Mesia Novau v Nimrod Mark [1992] PNGLR 229; 
Brinks Incorporated and Brinks Air Courier Australia Pty Ltd v Brinks Pty Ltd (1997) N1567;
Karl Paul v Aurai Kispe (2001) N2085; 
Kurt Reimann v George Skell (2001) N2093;
Bank Of South Pacific Limited v Public Curator (2003) N2320; 
Graham B. Price and Swanita Pty Ltd v Pacific Legal Group Lawyers (2004) N2509; 
Martha Loko-Tilto v Qantas Airways Ltd SC541 (1998); 
POSFB v Sailas Imanakuan(2001) SC677.

Counsel
Mr K. Imako, for the Plaintiff

1.	 LAY J: The Plaintiff moved the Court for an order dispensing with the requirement of consent of the Defendant to set this suit down for trial. The Motion came before me on 21 March 2005. I asked counsel for the Applicant to refer me to my jurisdiction to grant the order. He was unable to do so. The matter was adjourned to 23 March 2005 to enable counsel time to research. On 23 March Counsel was still unable to assist the Court and the matter was reserved for decision. 

2.	 The facts are that judgement for damages to be assessed was entered against the Defendant on 5 April, 2004. Since 28 June, 2004 when the Defendant was served with the order and a draft Consent to Set Down for Trial the Defendant has failed or neglected to endorse and return the consent form.

3.	 Pursuant to O1 r7:

7.	Relief from Rules. (1/12)

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

4.	 The general principles with respect to the application of this rule are as follows:

1.	If justice requires that the severity of a rule should be relaxed then the Court should relax it;

2.	There has to be some reasonable justification or excuse for non compliance with the rule the non compliance with which is sought to be waived;

3.	If the other party is in as good a position as they would have been if the rule had been complied with the Court should not be very strict;

4.	If the non compliance with the rule affects the rights of the other party the court should make such orders as will protect those rights.

Anthony John Polling v MVIT [1986] PNGLR 228 (Wilson J)

5.	It would be very unusual circumstances which would permit the rule to be used to reduce the times set out in the rules for filing of pleadings in the proceedings: Dennis Charles Young v Niugini Nius Pty. Limited[1899-89] PNGLR 45 (Andrew J);

6.	The rule can be used to cure a defect in the manner in which the proceedings were commenced: Mesia Novau v Nimrod Mark [1992] PNGLR 229 (Sakora J); or to raise an issue in defence which was not pleaded: Brinks Incorporated and Brinks Air Courier Australia Pty Ltd v Brinks Pty. Ltd (1997) N1567 (Injia J); but not to cure a serious defect in an originating process where the proceedings will not be statute barred: Karl Paul v Aurai Kispe (2001) N2085 (Injia J); it may be used to waive the requirement of 3 clear days notice of a motion where the urgency of the matter warrants it if the effect on the rights of the other party are minimal: Kurt Reimann v George Skell (2001) N2093 (Kandakasi J) or when seeking possession of land, to proceed inside the 21 days for notice to an occupant, if the defendant consents: Bank Of South Pacific Limited v Public Curator (2003) N2320 (Kandakasi J); or to accept court pleadings which have been signed irregularly in the name of a firm rather than by a lawyer: Graham B. Price and Swanita Pty Ltd v Pacific Legal Group Lawyers (2004) N2509 (Sawong J); or to dispense with the requirements of O10 r12(3) (motion to set aside verdict in undefended trial): Martha Loko-Tilto v Qantas Airways Ltd SC541 (1998) (Hinchliffe, Salika and Sevua JJ); or, in combination with Constitution s155 to order, without a motion, that a husband be substituted for his deceased wife as a party to proceedings: POSFB v Sailas Imanakuan(2001) SC677 (Amet CJ, Gavera-Nanu & Kandakasi JJ).

5.	Pursuant to O4 r31:

31.	Directions. (5/7)

(1)	The Court may exercise its powers under this Rule at any time after the commencement of the proceedings.

(2)	The Court shall give such directions as are convenient for the just, quick and cheap disposal of the proceedings.

(3)	Without limiting the generality of Sub-rule (2), the Court may—

(a)	make orders for defining the issues by pleading or otherwise; and

(b)	direct that the whole or any part of the evidence be given on affidavit or orally; and

(c)	make any orders relating to the conduct of the proceedings which it might make on motion by a party.

6.	 I consider that the powers conferred by those Rules include a power to dispense with the consent of the Defendant. The Defendant has had a lengthy period of opportunity in which to sign the consent to the Notice to Set Down for Trial or to make his case as to why the matter is not ready for trial, and he has done nothing. Order 10 rule 4 does not require the consent of the Defendant for the Plaintiff to file a Notice to Set Down for Trial, but practice directions do so. Having had an extensive opportunity to sign the consent, the Defendant is in the same position as if the Practice Direction had been complied with and the consent signed.

7.	 I therefore dispense with the requirement for the Defendants consent to setting down of the matter for trial.

8.	 Before I leave this matter I just wish to return to counsel’s assertion made twice to the court, that he could find no authority to assist the court on the issue under consideration. As the amount of authority referred to above indicates, only counsel who is prepared to fall far short of their obligation to their client and the court could say authority could not be found. 

9.	 A counsel "…is an assistant in the administration of justice. Cases must be decided according to the law and those who hold themselves out as helping in the attainment of a just result must do what they can to ensure that the law is applied correctly to the case.": Re Gruzman; Ex parte The Prothonotory (1968) 70 SR NSW 316 at 323. Relied upon in Koniel Alar and Hosea Biu v The State [1979] PNGLR 300 (Prentice, Wilson and Andrew JJ) per Wilson J. . It is the duty of counsel to draw relevant matters to the attention of the Court: State v Fambin Diofilia Joseph[1992] PNGLR 238 (Jalina J), to research the law and make reference to relevant authorities: N2035 The State v Ngetto Rex Rongo (Kandakasi J) N2322 State v Zacharry Gelu & Anor(Kandakasi J); FC10 R v Amdjuonye Peitsakuna [1971-72] PNGLR 6 (Minogue CJ, Clarkson & Kelly JJ).

10.	 To mark the Court’s disapproval of this practice of failing to assist the Court, even on simple points, the applicant should be deprived of its costs. My practice in future will be to refuse an application where counsel is not prepared to assist the court, with liberty to re-apply when counsel is in a position to assist, as is his duty.

11.	 It is a matter of some regret that this order has been delayed because counsel did not assist the Court.

ORDERS:

1.	The consent of the Defendant is dispensed with for the purpose of filing a Notice to Set Down for Trial;
2.	Costs of the application to be paid by the Applicant Plaintiff.

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BSP Legal Division: Lawyer for the Applicant/Plaintiff