N9297

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 160 OF 2015

BETWEEN
PEANANU POISA, BENNY POSA, MICHLYN POSA, NANCY POISA, STEVEN POISA, EMMANUEL POISA AND JANET POISA
Plaintiff

AND
WARNER SHAND LAWYERS
Defendant

Waigani:  Linge A J
2021:  14th September

PRACTICE AND PROCEDURE – Application for variation of Consent Orders – Order 12 Rule 1 National Court Rules and Section 155(4) of the Constitution – Whether proper to order variation of Consent Orders.

Cases Cited:

Hornibrook (NG) Ltd v WI (2012) PGNC 87; N4702
John Siune v Rendle Rimua (2013) PGNC 83 N5110
Tasman Building Company v Kilroy Genia & Anor [2011] PGNC 174 N4412
Ace Guard Dog Security Services Limited v Lindsay Lailai & Anor (2003)NZ459, 
Takoa Pastoral Co. Limited v Dr. Temu (2009) PGNC 131; N3739

Counsel:

Mr. D Dusava, for the Plaintiffs
Mr. B Frizzel, for the Defendants

RULLING ON MOTION

14th September, 2021
1.	LINGE A J:    The Plaintiffs brought an action against Warner Shand Lawyers claiming inter alia professional negligence for failure to commence proceeding for the plaintiffs against Motor Vehicle Insurance Limited.
2.	The plaintiffs’ suit was against Warner Shand Lawyers as the defendant without naming or connecting any lawyers in the claim.
3.	This Motion filed on the 16th August 2021 by the plaintiffs pursuant to Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution seeks to vary an earlier consent order obtained on the 7th March 2019 in the following terms:
“1.	That paragraph 2 of the Order of 7 March 2019 be varied forthwith and the named defendant and its lawyers shall disclose the name of the proper defendant to be named in these proceedings within fourteen (14) days of the date of the Order.
	2.	That costs be in the cause.
	3.	That the time for the entry of these order be abridged to the time 		of settlement by the Registrar which shall take place forthwith.”
4.	The consent order of the 7th March 2019 reads:
“1.	By consent directions of 4th October 2018 are vacated.
2.		By consent these proceedings be stayed until the plaintiff 	complies with Order 5 Rules 37 (1) to (4) inclusive.
	3.	Costs in the cause.”
5.	Order 5 Rules 37 (1) to (4) reads:	
	1.	Where proceedings are commenced against any person in a business name, the plaintiff shall, as soon as practicable, take all reasonable steps (whether by way of discovery of documents, interrogatories or otherwise) for the purpose of ascertaining the names of the defendant and shall, so far as practicable, make amendments so that the proceedings are continued against the person sued in his own name and not in his business name.
2.	Where proceedings are commenced against any person in a business name, the plaintiff shall not, without the leave of the Court, take any step in the proceedings, except in respect of service of the originating process and except for the purpose of compliance with Sub-rule (1), until amendments are made in accordance with that Sub-rule.
3.	Where an amendment is made under this Rule, the mode of amendment and service after amendment shall be in accordance with Order 8 Rules 56, 57 and 58.
	4.	A party may make any amendment pursuant to Order 8 Rule 51 	notwithstanding that he has made an amendment under this Rule.”
6.	I will consider this motion on two (2) fronts:
	1.	Whether the court has the jurisdiction to vary the order and 	to cause Warner Shand Lawyers to disclose the name of the 	defendant.
	2.	Whether the identity and naming of the lawyer as the defendant 	in the 	employ of Warner Shand Lawyers, a subject of discovery?
7. 	Order 5 Rule 37 (1) – (4), is a mandatory requirement on the plaintiff to take reasonable steps as soon as practicable through the process of discovery of documents, interrogations or otherwise for purpose of ascertaining the names of the defendant, and make amendments where necessary, so proceedings are continued with the right person in his own name and not the business name.  
8.	Discovery is a process of obtaining documents and admissions from answers to interrogatories from other parties to the litigation and from non- parties.
9.	The general rule is that a defendant is bound to discover all of the facts within his knowledge, and to produce all documents in his possession which are material to the plaintiff’s case, even if it discloses material contrary to his case.
10.	Courts must be vary of parties who utilize the procedure purely as if in a fishing expedition.  
11.	So there are limitation or restriction in the general purpose of discovery and these are:
(1)		The scope of discovery is limited by the facts on which the 	parties have joined issue in the pleading,
(2)		The use of discovered information is strictly for the purpose of 	the conduct of the cause or matter in which discovery was given; 	and
(3)		Discovery is subject to limited rights to claim privilege. See Ace 	Guard Dog Security Services Limited v Lindsay Lailai & Anor 	(2003) N2459, Sakora J
12.	In Takoa Pastoral Co. Limited v Dr. Temu (2009) PGNC 131; N3739 per Kandakasi J, the Court held that:
1.	The purpose of requiring and giving discovery is not only to enable a party in any proceeding before the court to obtain facts and information about the other’s case and work out both its own and the others strength and weaknesses but to help identify relevant issues for trial and or enable a fair and reasonable out of court settlement where possible; and
2.	Where a party fails to give discovery in breach of the allegation to do so, that party stands the risk of the court making the appropriate order at the party’s costs.
13.	In this Motion, the plaintiffs are basically indicating that they are unable or unwilling to give discovery (production of documents and interrogatories) even though the consent order of 7th March 2019 requires them to comply with Order 5 Rule 37 (1) – (4) inclusive, which is a process in discovery of documents.
14.	As an alternative, the plaintiffs are seeking the Courts intervention to vary that consent order of 7th March 2019 so that the named defendant (Warner Shand Lawyers) and its lawyers, “shall disclose the name of the proper defendant to be named in these proceedings within fourteen (14) days of the date of the Order”.
15.	The requirement and procedures for entering into Consent Order is settled law and these are:
	(i).	Draft order must have the written consent of the parties or their 			lawyers,
	(ii).	The Judge presiding over the matter must also endorse the draft 			order,
	(iii).	an application to enter a consent order should not generally be 			made ex-parte or in chambers, a proper recording of proceedings 		must be kept.  See Hornibrook (NG) Ltd v WI (2012) PGNC 87; 		N4702.
16.	The consent order of the 7th March 2019 was properly consented to and signed off by lawyers of both parties on the 6th March 2019 before it was endorsed by the Court. 
17.	The jurisdiction of the court to vary the consent order pertains, if the original order has become unworkable and any actual variation would be limited to what is necessary to give effect to the original agreement by giving effect to, complement or enforce the original orders.
18.	In John Siune v Ian Rendel Rimua (2013) PGNC 83; N5110 the court held that it is appropriate to vary an original order under O 12 R 8 (4) and to invoke O12 R 1 of the NCR and Section 155 (4) of the Constitution if the court is not altering the Order in a substantive way and if the purpose and effect of the variation is given effect to, complement or enforce the original order.
19.	In his submission the plaintiff lawyer urged the court to have regard to its general power to grant order as the nature of the case requires, in terms of Order 12 Rule 1 of the National Court Rules and by inference the inherent power of the Court in Section 155 (4) of the Constitution.
20.	He also submitted that this matter should have been sorted out in the pleading stage.
21.	The defendant lawyer submitted that his request for verified documents were not produced by the plaintiff’s lawyer and other requests for example to produce copies of two (2) letters referred to in the Statement of Claim were ignored.
22.	The plaintiffs just did not take steps through the process of discovery to identify the name of the lawyer who had carriage of the matter and now comes before this court to seek an order for the defendant, Warner Shand to identify one amongst its lawyers as the defendant, for purpose of progressing the plaintiff case and this proceeding.
23.	The plaintiffs have failed to properly obtained the name of the lawyer through examination, discovery and interrogation. By their action the plaintiffs are admitting that they either are unable to comply or are not in compliance with the Consent Order of the 7 March 2019.  So why should they be entitled to the court granting them the order they seek. (see Tasman Building Company v Genia [2011] PGNC 174; N4412).
24.	Perhaps the proceeding should not have been instituted in the first place as there was no identifiable lawyer/defendant to connect the act of professional negligence being alleged.
Conclusion
25.	It is a fundamental requirement and practice in a cause of action that a proper defendant is identified and pleaded and more so in a business name or a partnership so that it is clear to the court and the other party who can then properly answer by interrogatories, discover or produce documents however, this is not the case here.
26.	I find that Warner Shand Lawyers had undertaken a best endeavour effort to check this record of cases and matters during the material time but came up with nothing. 
27.	The allege cause of action arose in 2001 some 19 years ago and by operation of law is statute barred pursuant to the Frauds and Limitation Act, 1988.
28.	It is not the duty of the Court to cure the pleading. This is the responsibility of the plaintiff and his legal counsel (if any) to produce or discover.  It is a fundamental tenet of our adversary system.
29.	The application by the plaintiff to vary the consent order of 7 March 2019 is not a mere consequential one which is to give effect to the consent order.
Order 
1.	The defendants’ application pursuant to its Notice of Motion filed on 16 August 2021, to vary the Consent Order of 7 March 2021 is refused.
2.	These proceeding remained stayed and the plaintiff is given a further one (1) month up to the 30th October 2021 to comply with Order 5 Rule 37 (1) – (4) inclusive.
3.	Parties bear their own costs.
4.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.
The Court orders accordingly.

_______________________________________________________________
B S Lai Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant