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Jowa v Konts [2012] PGNC 206; N4796 (10 September 2012)

N4796

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 376 OF 2012

JAMES JOWA
Plaintiff

AND

JACOB KONTS
First Defendant-Cross Claimant

AND

TOYOTA TSUSHO (PNG) LTD TRADING AS ELA MOTORS
Second Defendant-Cross Claimant

AND

PIERCE DAVID
First Cross Defendant

AND

NEW TRIBES MISSION
Second Cross Defendant

Kainantu & Goroka: Ipang AJ
2012: 24th August & 10th September

CIVIL LAW – Motion to struck out Defence – Order 8 Rule 27, Order 4 Rule 11 National Court Rules – Motion to have Cross Defendants struck out.

PRACTICE & PROCEDURE – Application to dismiss for failure to disclose a defence or state any clear defence and for cross – Defendants to be removed as parties to the proceedings.

Held

1. The Notice of Motion filed by the Plaintiff dated 17th August, 2012 is dismissed for abuse of Court process.

2. There is no evidence of Plaintiff requesting the Defendants to correct the defects. There is also no evidence of Plaintiff applying to the Court for appropriate orders to compel the Defendants to correct the defects.

Cases Cited

Philip Takori & Ors v Simon Yagari PGSC 3; SC 905 (29 February, 2008)
Guatal v PNG [1991] PNGLR 230
Kerry Lerro t/a Hulu Hara Investments Ltd v Philip Staggi Valontine Kambori & Independent State of Papua New Guinea (2006) N3950

Counsel

Mr. J. Wanis, for the Plaintiff

Mr. T. Anis, for the Defendants

RULING

10th September, 2012

1. IPANG AJ: There is before this Court a motion filed on the 16th of August, 2012 by the Plaintiff. The Plaintiff through his motion is seeking to have the Defence filed by the Defendants on the 12th June, 2012 struck out and also the Cross Defendants to be struck out.
   
2. Initially, Plaintiff's counsel took issue with the Defendants' Intention to Defend however decided to forgo that after realizing such a notice was filed on the 23rd August, 2012 a day prior to hearing of the motion. Likewise, the Defendants' counsel decided to forgo issue of been short served with the motion but conceded to the motion being moved.
   
3. Mr. S. Wanis of counsel for the plaintiff filed a very brief affidavit in support of the motion. His affidavit was sworn on the 16th of August, 2012 and filed on the 17th of August, 2012. In paragraph 2 of his affidavit he stated that the Defendants and Cross Claimants do not disclose a Defence. Secondly, the counsel stated that the Defendants and Cross Claimants have unnecessarily added the Cross Defendants to this proceeding.
   
4. Plaintiff through Counsel Mr. Wanis invoked Order 8, Rule 27, Order 4 Rule 11 and Order 7 Rule 2 of the National Court Rules (NCR) to have the Defence struck out and Order 8 Rule 38 (2) of the National Court Rules (NCR) to have the Cross-Defendants struck out.
   
5. The Order 4 Rule 11 and Order 7 Rule 2 of National Court Rules (NCR) provide in detail as to the form and manner of giving notice and related matters. Plaintiff's counsel at the outset and prior to moving his motion has forgone the issue of Notice of Intention to Defend. It is therefore not an issue to be determined by this court.
   
6. Plaintiff's lawyer in advancing his argument to have the Defence struck out argued that the claim in the Writ of Summons endorsed with a Statement of Claim is based on contract. Plaintiff argued that after servicing of the plaintiff's vehicle a Toyota 10 Seater Land Cruiser Registration No. HAL 421, First Defendant did a road test on the vehicle. He drove out of the Second-Defendants' Workshop and had a collision with another vehicle at the back of the Airport Road.
   
7. Plaintiff says the paragraph 8 of the Defence filed does not state any clear defence or did not disclose any defence. In paragraph 11 of the Statement of Claim, the plaintiff wrote several correspondences requesting for a vehicle replacement and compensation for loss of business.
   
8. The Order 8 Rule 27 of the National Court Rules state:
   

"27. Embarrassment, etc. (15/26)

(1) Where a pleading –

• (a) Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
  
• (b) Has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
  
• (c) Is otherwise an abuse of the process of the court,
  

The court may at any state of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out."

9. Plaintiff argued that Defendants' have no clear defence or did not disclose any defence.This is specific to Order 8 Rule 27 Sub rule 1 (a).
   
10. As a matter of practice and rule, a statement of claim, counter claim, cross-claim or defence (for this purpose) must clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim, cross-claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
    
11. My task since the application is made is none other than to determine whether Defendants have no clear defence or they did not disclose any defence at all. Specifically, the plaintiff referred to his paragraph 8 of the Statement of Claim. Plaintiff argued that there is an implied contract of Motor Vehicle Bailment made between the Plaintiff and the Second- Defendant that while the vehicle is in the Second Defendant's Workshop, the vehicle would be repaid, repair cost paid and the vehicle would be re-delivered to the plaintiff. Plaintiff says Defendants did not deny there was an implied contract. In response to the paragraph 11 of the Statement of Claim, defendants in paragraph 8 of their defence say they admit plaintiff wrote to the Second-Defendant but say the letters should be referred to for their full terms and effect.
    
12. It is crystal clear from my analyzing of the Defendants' defence or response to plaintiff's paragraph 8 of Statement of Claim that they have not come out clear to admit or deny nor raised any clear defence. In Takori v Yagari PGSC 3; SC 903 (29 February, 2008), the court sounded the warning that if a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified and instead leaves it to guess work, it should be struck out.
    
13. Plaintiff is asking this court to exercise its discretion to strike out the Defendants' defence for not disclosing any defence. I am mindful that I will exercise my discretion only in cases where the defence is obviously and almost incontestably bad.
    
14. The National Court in Kerry Lerro t/a Hulu Hara Investments Ltd v Philip Stagg Valentine Kambori & Independent State of Papua New Guinea (2006) stated the relevant principles:
    

"the pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under 0.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that if frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with 0. 1, r. 7 of the Rules in appropriate cases."

15. I now have to decide whether the Defendants' defence filed failed to disclose any defence at all or such defence as it stands is insufficient? If so, then, is this defence so obviously and uncontestable bad that it is beyond repair and the only option left is to struck out the defence.
    
16. I have carefully perused the Defendants' defence as contained in paragraph 8 as it stands is insufficient. Paragraph 8 of Defendants' defence did not sufficiently disclose a reasonable defence based on law. Or put it this way, the Defendants' defence did not disclose sufficient particulars.
    
17. It is my humble view that the Defendant's Statement of Defence (paragraph 8) is not so ambiguous so as to leave the Court to guess work. It only lacks particularity. It is not incontestably bad that it is beyond repair so that I will have no option but to dismiss or strike it out. There is a way out of this. There is provision in the National Court Rules (NCR) especially Order 8 Rule 36, Rule 50 and Rule 51 to remedy this shortfall. It is a good but fair and equitable practice for the plaintiff faced with such practice of insufficient particulars of defence to request for further and better particulars with clarity. Plaintiff should have applied to the court and secured appropriate orders under Order 8 rule 36 seeking for further and better particulars from the Defendants.
    
18. From perusing the court file, I am satisfied plaintiff has not exhausted this remedy to seek for further and better particulars of the defence. So, the plaintiff prematurely made this application before this court without appreciating these principles. There is an obligation on a plaintiff in any proceedings having such problems to point them out to the defendant and give him or her, the opportunity to take corrective measures. Where a defendant is requested and fails to take appropriate steps, plaintiff is at liberty to apply to court for appropriate orders to compel defendant to correct the defects failing which attract consequential orders.
    
19. In Philip Takori v Simon Yagari (supra) the Supreme Court stated:
    

"The National Court often hears a lot of application and readily grants orders aimed at correcting the kinds of deficiencies we speak of or order compelling a plaintiff (or a defendant) to take corrective measures. These kinds of orders are made with a view to doing justice on the substantive merits of the case at less costs and delay to the parties. Hence, the practice of the National Court that we are aware of is, often one of slow to finally shutting out a party except in the clearest of cases and where there is deliberate and inexcusable failure to comply with Court Orders or the Rules of the Court, only as a last resort and only if no measure of amendments will do."

20. For the reasons given, I would dismiss the plaintiff's motion dated 16th August, 2012 seeking to have the Defendants' defence struck out as been abuse of process. I also dismiss the orders sought for striking out cross–defendants as parties. There is a proper pleading of the cross-claim by the Defendants.
    
21. The Plaintiff's motion dated 17th August, 2012 is dismissed with costs.
    

_______________________________________

Warner Shand Lawyers: Lawyer for the Plaintiff

Bradshaw Lawyers: Lawyer for the Defendant