N11145

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 100 OF 2023 (IECMS-CC3)

BETWEEN:
RENTON PTE LIMITED
Plaintiff-First Cross-Defendant

V

PACIFIC HELICOPTERS LIMITED
Defendant/Cross-Clamant/Second Cross-Claim Defendant

JAVELIN AVIATION LIMITED
Second Cross-Defendant/Second Cross
Claimant

WAIGANI: ANIS J
6 DECEMBER 2024; 12 FEBRUARY 2025

DISCOVERY – Order 9 Rule 15(1)(a)(b) – National Court Rules - whether documents sought exist for purposes of discovery – whether bank statements sought are relevant and should be discovered – whether Court has jurisdiction to order discovery of documents from third parties outside of the jurisdiction – Order 6 Rule 21 – National Court Rules – application - ruling

Cases cited
Ace Guard Dog Security Services Limited v. Lindsay Lailai & Or (2003) N2459
POSF v. Sailas Imanakuan (2001) SC677
Credit Corporation (PNG) Ltd v. Jee [1988] PNGLR 11

Counsel
G Geroro for the plaintiff & second cross-defendant/second cross-claimant
M Goodwin for the defendant

DECISION

1.	ANIS J: This was a hearing concerning discovery of documents.  Two motions were filed, one by the plaintiff and second cross-defendant/second cross-claimant, and the other by the defendant.  The motions were filed after both parties alleged that their various requests for discoveries had not been complied or fully complied with.

2.	The present proceeding is related to proceeding OS 7 of 2023.  Briefly, the dispute relate to an Aircraft Charter Agreement (the Charter) dated 15 April 2021 and subsequent agreements entered thereafter, between the defendant Pacific Helicopters Limited (PHL) and the plaintiff Renton Pte Ltd (Renton).  It concerns, amongst others, the terms and conditions as agreed between the parties and monies that are allegedly owed.  Javelin Aviation Limited (Javelin) was later joined in the proceeding by PHL in PHL’s defence and cross-claim.  Javelin responded by filing a defence and cross-claim against PHL.

MOTIONS

3.	PHL’s notice of motion filed 7 November 2024 (PHL’s NoM) seeks the following relief:

1.	Pursuant to the Notice to Second Cross-Defendant Produce Documents filed 28 August 2023 and served on 30 August 2023, and the Order of the Court dated 22 July 2024 in this and related proceeding OS (COMM) NO. 7 of 2023(IECMS),  the Second Cross-Defendant, Javelin Aviation Limited, is ordered to produce to the Defendant/Cross-Claimant its Bank Statements within 14 days of the date of this order, as far as they contain details of the following alleged transactions from 1 June 2016:

1.1	The payment of US$9,297,470 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd.

1.2	The payment of US$9,194,262 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Limited and/or Asia Pacific Aerospace Pty Ltd.

1.3	The payment of US$2,200,000 or any other amount from Javelin Aviation Limited to Asia Pacific Aerospace Pty Ltd.

2.	Pursuant to the Notice to Second Cross-Defendant to Produce Documents filed 28 August 2023 and served on 30 August 2023, the Order of the Court dated 22 July 2024 in this and related proceeding OS (COMM) NO. 7 of 2023 (IECMS), and Order 9, Rules 5, 7 and 21, of the National Court Rules, the Second Cross-Defendant, Javelin Aviation Limited, is ordered to provide to the Defendant/Cross-Claimant with details of its Bank Statements held since 1 June 2016 (including name of Bank, account number, and address of Bank) within 14 days of the date of this order.

3.	Pursuant to Order 6, Rule 21 of the National Court Rules, the Defendant/Cross is granted leave to file and serve a Summons for Production of Bank Statements of the Second Cross-Defendant, Javelin Aviation Limited, from 1 June 2016, on the overseas Bank (s) of Javelin Aviation Limited, as far as they contain details of the following alleged transactions with the Second Cross-Defendant, Javelin Aviation Limited, from 1 June 2016:

3.1	The payment of US$9,297,470 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd.

3.2	The payment of US$9,194,262 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd Limited and/or Asia Pacific Aerospace Pty Ltd.

3.3	The payment of US$2,200,000 or any other amount from Javelin Aviation Limited to Asia Pacific Aerospace Pty Ltd.

4.	Pursuant to Order 6, Rule 21 of the National Court Rules, the Defendant/Cross-Claimant is granted leave to file and serve a Summons for Production of Bank Statements on EFS Asset Financing Pte Ltd, Asia Pacific Aerospace Pty Ltd, and their Banks, so far as they contain details of the following alleged transactions with the Second Cross-Defendant, Javelin Aviation Limited, from 1 June 2016:

4.1	The payment of US$9,297,470 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd.

4.2	The payment of US$9,194,262 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Limited and/or Asia Pacific Aerospace Pty Ltd.

4.3	The payment of US$2,200,000 or any other amount from Javelin Aviation Limited to Asia Pacific Aerospace Pty Ltd.

4.	And the Renton and Javelin’s notice of motion filed 28 November 2024 (R&J’s NoM) seeks the following relief:

1.	Pursuant to Order 9 Rule 15(1)(a) and (b) of the National Court Rules and the inherent jurisdiction of the Court under section 155(4) of the Constitution of PNG, an Order that the Defendant/Cross-Claimant/ Second Cross-Claim Defendant (PHL) produce for inspection by Renton/Javelin all documents, records and reports evidencing the ’forensic assessment” referred to at paragraph 7 of its Cross-Claim filed herein on 3 May 2023 within three (3) days of such Order, failing which:

(a)	PHL’s Defence and Cross-Claim filed herein on 3 May 2023 shall stand dismissed; and 

(b)	PHL’s Defence to Second Cross-Claim filed herein on 6 September 2023 shall stand dismissed; and 

(c)	Judgment be entered in respect of Renton’s Amended Writ of Summons filed herein on 22 March 2023; and

(d)	Judgment be entered in respect of Javelin’s Second Cross-Claim filed herein on 24 August 2023.

LAW

5.	The Court’s power to order discovery or enter default judgment premised on want of compliance with discovery, is discretionary as provided for under 9 Rule 15(1) of the National Court Rules.  Order 9 Rule 15(1) states in part as follows:

Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit , including-…

[Underlining mine].

6.	With that, I note the case authorities cited by the parties which are relevant, including Ace Guard Dog Security Services Limited v. Lindsay Lailai & Or (2003) N2459, POSF v. Sailas Imanakuan (2001) SC677 and Credit Corporation (PNG) Ltd v. Jee [1988] PNGLR 11.

PLAINTIFFS’ MOTION

7.	I will deal with R&J’s NoM first.

8.	I note the submissions of the parties.  Mr. Geroro, in responding to Mr Goodwin’s submissions that (i) the documents sought have already been provided to the plaintiff twice and (ii) that there is no such document as a “Forensic Report” as alleged by the plaintiff, changed or limited his client’s request on discovery to only those documents that had or may have been provided by the defendant’s accountant who were Deloitte.  This to me means that Renton & Javelin have accepted that there is no “Forensic Report” as they had or have alleged in their request for discovery.  But regardless, I also note and accept the overwhelming evidence of PHL that support its claim.  They support PHL’s contention that the documents that had been discovered from its forensic assessment or investigation on the matter had been provided to Renton and Javelin on two occasions.

9.	I note that none of the earlier affidavits filed by PHL referred to a Forensic Report as alleged by Renton and Javelin.  There are also consistencies in the evidence by PHL on the matter.

10.	The submission by Renton and Javelin to now limit their request for discovery to the so called Forensic Report, in my view, is baseless.  I uphold the submission by PHL that there is no such document in existence that is discoverable by Renton and Javelin.  The request also raises other issues such as privilege information as submitted to by Mr. Goodwin which I also agree.  

11.	The relevant evidence I have taken into account in my assessment were the affidavits of (i), Edward Matane filed 7 November 2024 in this proceeding, Bobby Nutley filed 27 July 2023 in OS 7 of 2023 and Cameron Dale Craig filed 7 March 2023 in OS 7 of 2023.

12.	For these reasons, I dismiss R&J’s NoM with cost to be awarded on a party/party basis to be taxed if not agreed.

DEFENDANT’S MOTION

13.	I now turn to PHL’s notice of motion filed 7 November 2024 (PHL’s NoM).

14.	In principle, I am minded to grant the orders that are sought.  The request and inquiry by PHL, in my view, is a genuine one.  A main issue for trial, premised on the pleadings and particularly the cross-claim of PHL is that the helicopters in question had not been purchased by Javelin or third parties.  I also note that in response to an earlier Court Order made by this Court against Javelin in OS 7 of 2023, Javelin provided no material evidence such as purchase documents or receipts to support its assertions that the helicopters were purchased.  Had the documents been disclosed, as ordered by the Court or as requested by PHL, it is possible that we may not have reached this stage of the proceeding and perhaps some of the issues could have been resolved.

15.	However, this has not occurred and here we are.

16.	I uphold submissions by Mr. Goodwin that bank statements could be easily obtained and disclosed to the Court as part and partial of the discovery process.  In regard to request for bank names of third parties or request for summons to be issued to overseas third parties, I also uphold Mr. Goodwin’s submissions in that regard.  I make particular reference to Order 6 Rule 21 of the National Court Rules, which was relied upon by PHL which is directly relevant, where it states:

21.	Other documents

Service outside Papua New Guinea of a document other than originating process is valid if the service is in accordance with the prior leave of the Court or is confirmed by the Court.

SUMMARY

17.	In summary, I am minded to grant relief 1, 2, 3, 4, 5 and 6 of the PHL’s NoM.  The only variations I will make concern relief 1 and 2.  I will order Javelin to provide its bank accounts as sought therein within 21 days instead of 14 days.

ORDERS OF THE COURT

18.	I make the following orders:

1.	The Plaintiff and the Second Cross-Defendant/Second Cross-Claimant Notice of Motion filed 28 November 2024 is refused.

2.	The Second Cross-Defendant/Second Cross-Claimant shall pay the Defendant’s cost of the Notice of Motion on a party/party basis to be taxed if not agreed.

3.	Pursuant to the Notice to Second Cross-Defendant Produce Documents filed 28 August 2023 and served on 30 August 2023, and the Order of the Court dated 22 July 2024 in this and related proceeding OS (COMM) NO. 7 of 2023(IECMS),  the Second Cross-Defendant, Javelin Aviation Limited, is ordered to produce to the Defendant/Cross-Claimant its Bank Statements within 21 days of the date of this order, as far as they contain details of the following alleged transactions from 1 June 2016:

3.1	The payment of US$9,297,470 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd.

3.2	The payment of US$9,194,262 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Limited and/or Asia Pacific Aerospace Pty Ltd.

3.3	The payment of US$2,200,000 or any other amount from Javelin Aviation Limited to Asia Pacific Aerospace Pty Ltd.

4.	Pursuant to the Notice to Second Cross-Defendant to Produce Documents filed 28 August 2023 and served on 30 August 2023, the Order of the Court dated 22 July 2024 in this and related proceeding OS (COMM) NO. 7 of 2023 (IECMS), and Order 9, Rules 5, 7 and 21, of the National Court Rules, the Second Cross-Defendant, Javelin Aviation Limited, is ordered to provide to the Defendant/Cross-Claimant with details of its Bank Statements held since 1 June 2016 (including name of Bank, account number, and address of Bank) within 21 days of the date of this order.

5.	Pursuant to Order 6, Rule 21 of the National Court Rules, the Defendant/Cross Claimant is granted leave to file and serve a Summons for Production of Bank Statements of the Second Cross-Defendant, Javelin Aviation Limited, from 1 June 2016, on the overseas Bank (s) of Javelin Aviation Limited, as far as they contain details of the following alleged transactions with the Second Cross-Defendant, Javelin Aviation Limited, from 1 June 2016:

5.1	The payment of US$9,297,470 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd.

5.2	The payment of US$9,194,262 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd Limited and/or Asia Pacific Aerospace Pty Ltd.

5.3	The payment of US$2,200,000 or any other amount from Javelin Aviation Limited to Asia Pacific Aerospace Pty Ltd.

6.	Pursuant to Order 6, Rule 21 of the National Court Rules, the Defendant/Cross-Claimant is granted leave to file and serve a Summons for Production of Bank Statements on EFS Asset Financing Pte Ltd, Asia Pacific Aerospace Pty Ltd, and their Banks, so far as they contain details of the following alleged transactions with the Second Cross-Defendant, Javelin Aviation Limited, from 1 June 2016:

6.1	The payment of US$9,297,470 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Ltd.

6.2	The payment of US$9,194,262 or any other amount from Javelin Aviation Limited to EFS Asset Financing Pte Limited and/or Asia Pacific Aerospace Pty Ltd.

6.3	The payment of US$2,200,000 or any other amount from Javelin Aviation Limited to Asia Pacific Aerospace Pty Ltd.

7.	The Defendant/Cross-Claimant’s costs of and incidental to this application shall be paid by the Second Cross-Defendant on a party/party basis to be taxed if not agreed.

8.	Time for entry of these orders is abridged to the time of settlement which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Lawyers for the Plaintiff& Second Cross-Defendant/Second Cross Claimant: Geroro
Lawyers for the Defendant: Goodwin Bidar Nutley