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Peck v Badi [2021] PGNC 20; N8773 (3 March 2021)

N8773

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.1157 OF 2018

BETWEEN:
MURPHY PECK
First Plaintiff

AND:
JOHN PAIS
Second Plaintiff

AND:
AIRPORT TRANSPORT SERVICES
Third Plaintiff

AND:
MARK BADI as driver of motor vehicle owned by
BANK SOUTH PACIFIC LIMITED & OTHERS
First Defendant

AND:
BANK SOUTH PACIFIC LIMITED as the registered owner of motor vehicle,
Toyota Land Cruiser, registration number BEQ 951
Second Defendant

Waigani: David, J
2021: 3^rd March

PRACTICE & PROCEDURE – application by defendants for proceedings to be dismissed in their entirety for plaintiffs’ default in giving discovery - National Court Rules, Order 9 Rule 15(1)(a), Order 12 Rule 1.

Cases Cited:

Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11
Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Rural Development Bank v Laka (2007) SC 897

Counsel:

Samuel Ahabh, for the Defendants

RULING

3^rd March, 2021

1. DAVID, J: INTRODUCTION: This is a ruling on an application for the proceedings to be dismissed in their entirety due to the failure of the plaintiffs to give discovery pursuant to a notice for discovery filed on 5 November 2019 (Notice for Discovery) and served on the plaintiffs on 11 November 2019. The application was moved by the defendants pursuant to a notice of motion filed on 6 May 2020 relying on Order 9 Rule 15(1)(a) and Order 12 Rule 1 of the National Court Rules.
   

BRIEF BACKGROUND

2. The plaintiffs’ claim against the defendants arises out of a motor vehicle accident that occurred on 8 August 2018 along Waigani Drive in the vicinity of Garden Hills in which it is alleged that a motor vehicle, Toyota Camry sedan bearing registration number T4565 owned by the second plaintiff and driven by the first plaintiff and operated under the name of the third plaintiff for a fee was struck by or collided with the second defendant’s motor vehicle, Toyota Land Cruiser, bearing registration number BEQ 951 and suffered loss and damage as a result. It is alleged that the accident was caused by the negligent driving of the first defendant. The plaintiffs claim damages against the defendants under various heads of damages.

3. On 25 September 2019, the defendants filed their amended defence to the plaintiffs’ claim pursued by way of amended writ of summons endorsed with an amended statement of claim filed on 4 September 2019. The defendants essentially deny liability.

4. No reply was filed in relation to the defendants’ amended defence.

NOTICE FOR DISCOVERY

5. On 5 November 2019, the defendants filed the Notice for Discovery and served it on the plaintiffs on 11 November 2019. They required the plaintiffs to give discovery with verification within fifteen days after service of the notice on them.

EVIDENCE

6. The defendants rely on and read the following affidavits:

1. Affidavit in Support of Samuel Ahabh sworn and filed on 6 May 2020;
2. Affidavit of Service of Simon Adani sworn on 13 May 2020 and filed on 19 May 2020;
3. Affidavit of Search of Samuel Ahabh sworn and filed on 11 February 2020; and
4. Affidavit of Service of Simon Adani sworn on 11 February 2021 and filed on 12 February 2021.
   

ISSUE

7. The main issue that arises from the defendants’ notice of motion is that if the plaintiffs have defaulted in giving discovery, whether the proceedings should be dismissed in their entirety?

DEFENDANTS’ SUBMISSIONS

8. Mr Ahabh for the defendants contends that the application made under Order 9 Rule 15(1)(a) of the National Court Rules should be granted as:

1. The plaintiffs have defaulted in giving discovery within the time required under the Notice for Discovery;
2. The default was intentional and causing unnecessary delay in the trial of the substantive matter; and
3. The defendants have been put to the trouble of defending a claim that appears to be deliberately left in abeyance.
   

CONSIDERATION

9. It is trite law that if a party ignores Court process, he does so at his own peril: see Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11; Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130; and Curtain Bros (PNG) Ltd v UPNG (2005) SC788.

10. The Court’s power to enforce discovery is extremely broad and the power vested in it by Order 9 Rule 15(1) of the National Court Rules is discretionary in nature. Where a party gives a notice for discovery, the party that is required to give discovery must do so within the period specified in the notice. The requirement is mandatory: see Order 9 Rules 1 & 2 of the National Court Rules. I consider therefore that where a defendant has served a notice for discovery pursuant to Order 9 Rule 1 of the National Court Rules and the plaintiff has defaulted to give discovery, the proceedings may be dismissed as to the whole or any part of the relief claimed under Order 9 Rule 15(1)(a) where he has failed to offer any reasonable explanation for his default: Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130. Moreover, the default provisions under Order 9 Rule 15(1) of the National Court Rules should only be enforced in the last resort and where it is clear that the party in default really intends not to comply with the notice for discovery: Rural Development Bank v Laka (2007) SC 897.

11. Clearly the plaintiffs have defaulted in giving discovery within the time required under the Notice for Discovery. They were served with the Notice for Discovery on 11 November 2019. They had fifteen days, ie., by 26 November 2019, to give discovery with verification. The delay since service of the Notice for Discovery is more than fifteen months. The delay since the filing and service of the notice of motion on the plaintiffs on 11 May 2020 to the date of hearting is over nine months. The plaintiffs’ default on the evidence demonstrates that it is intentional or is allowing for an inordinate and inexcusable delay in progressing the matter to trial. No reasonable explanation has been provided by the plaintiffs for the delay in complying with the Notice for Discovery despite being accorded further time to comply or forewarned by the second defendant through its letter dated 16 March 2020: see annexure G of Affidavit in Support of Samuel Ahabh sworn and filed on 6 May 2020. I concur with and accept the defendants’ submission that they have been put to the trouble of defending a claim that appears to be deliberately left in abeyance.

12. Should the proceedings be dismissed in their entirety? Yes. After a full and careful consideration and appreciation of the entire circumstances of this case and in the exercise of my discretion, the defendants’ application to dismiss the proceedings in their entirety is granted.

JUDGMENT AND ORDERS

13. For these reasons, I direct the entry of judgment in the following terms:

1. The defendants’ application seeking an order to dismiss the proceedings in their entirety for failure to respond to the defendants’ notice for discovery filed on 5 November 2019 pursuant to Order 9 Rule 15(1)(a) and Order 12 Rule 1 of the National Court Rules is granted.
2. The plaintiffs shall pay the defendants’ costs of and incidental to these proceedings, to be taxed, if not agreed.
3. Time is abridged.
   

Ruling and orders accordingly.
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BSP In-House Lawyers: Lawyers for the Defendants