Onia v Bongali [1997] PGDC 1; DC10 (21 February 1997)

Unreported District Court Decisions

[1997] PNGDC 10 - ERIC ONIA & ANOTHER V WILDRED BONGALI & ANOTHER

[1997] PNGDC 10

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO DCC 1003 OF 1996

ERIC ONIA & ALOYSIUS DAU

COMPLAINANTS/RESPONDENTS

V

WILDRED BONGALI & HELA NIGHT PATROL

DEFENDANTS/APPLICANTS

Port Moresby

Kubak M

14 February 1997

21 February 1997

PRACTICE AND PROCEDURE - Application to set aside exparte judgment - Whether Applicants have a defence on the merits - Applicant is required to state material facts showing defence on merits - Assertions that Respondents were terminated for wrongful conducts and were paid their entitlements per se do not sufficiently amount to material facts showing a defence on the merits - Application refused.

Cases Cited

Barker v. The Government of Papua New Guinea & Ors. [1976] PNGLR 340

Leo Duque v. Avia Andrew Paru (1996) SC 510

Teo Soo Chin v. Santa (PNG) Pty Ltd (1995) per Los, J

Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1972] PNGLR 145

Counsel

A Kongri for Complainants/Respondents

S Holland for Defendants/Applicants

DECISION

21 February 1997

KUBAK M:  The Defendants/Applicants apply to set aside the judgement made exparte against them on the 13th December, 1996.  They also apply to have the matter relisted for Hearing.  The Applicants make the application under Section 25 of the District Courts Act saying that although regular, the judgement must be set aside in the exercise of the Court’s discretion since the Defendants/Applicants have a defence on the merits in respect of the claim made by the Respondents.  In support of their application, the Applicants rely on the affidavit of Mr David K. Yalal, formerly of the Applicant’s lawyer’s office, Yapao Lawyers.  This affidavit was sworn on 15th January 1997.

The rules regarding the setting aside of Exparte Orders on Default Judgement in this jurisdiction are well settled.  They are as set out in the Barker v The Government of Papua New Guinea, Davis and Buse [1976] PNGLR, 340 at p.341 - 342:

N2>“1.      There must be an affidavit stating facts showing a defence on the merits;

N2>2.       There must be reasonable explanation why judgement was allowed to go by default;

N2>3.       The application must be made promptly and within a reasonable time.”

For purposes of this application, I will deal with these three Rules in the order as quoted herein.

Let me say that although the rules apply to Default Judgement setting aside application under the National Court Rules, they are equally applicable to similar applications under Section 159 of the District Courts Act, Ch. No. 40 and indeed Section 25.

In support of the application herein Mr Holland for the Applicants has argued that they have a defence on the merits to the claim by the Complainants.  In this regard paragraph 4, in particular, of Mr Yalal’s affidavit is relied on where in he deposes:

N2>“4.      I am instructed that the Applicant has merits on his defence as the Complainants/Respondents were terminated for their wrongful conducts and were paid their entitlements the same.”

Mr Holland as similarly submitted in strong terms that the Applicants, in respect of the other two requirements, have also satisfied the same and the Court should, in the exercise of its discretion under Section 25 of the Act, set aside the exparte orders and have the matter relisted for hearing.

On the materials before me, it is my view that the Applicants have indeed not only offered a reasonable explanation to this Court as to why judgement was allowed to be made exparte, but have come back to Court promptly and within a reasonable time with their application.

The only question therefore which remains to be answered is as to whether the Defendant’s have a defence on the merits as to the claim.  Mr Kongri for the Respondents has argued that the Applicants do not have a defence on the merits to the claim.  That the affidavit supporting do not disclose facts showing a defence on the merits to the claim.

In the recent Unreported Supreme Court Judgement of Leo Duque -v-  Avia Andrew Paru [1996] SC. 510, the Supreme Court (Kapi, DCJ, Salika, Sevua JJ) had the following to say at pp. 5 - 6:

“The Appellant relies on the affidavit of Mr George T. Yapao who was the new lawyer for the Appellant.  He made the application to set aside judgement.  He annexed a proposed defence and simply deposed in paragraph 7 of his affidavit the following:

‘Upon instructions I know and believe that if this judgement be set aside and the matter is allowed to proceed to trial proper the Defendant has a good prospect of success.’

Counsel for the Respondent has submitted that this affidavit failed to provide any material facts giving rise to a defence on the merits.

The Appellant himself also filed on affidavit in support of the application.  Counsel for the Respondent has submitted that this affidavit also failed to raise any facts which would give rise to a defence on the merits.

On the other hand, Counsel for the Appellant has submitted that it is sufficient for the lawyer to simply make reference to his instructions and simply expresses a legal opinion that there is a defence on the merits.

It is clear form the authorities we have set out earlier in our judgement and subsequent cases in this jurisdiction that as a matter of practice, an Applicant must in an affidavit state material facts showing a defence on the merits.

In the present case, it was the responsibility of the Appellant to state material facts showing a defence on the merits.  As we have indicated before, the Appellant filed an affidavit setting out the reasons why judgement was entered but he failed to state any facts which shows any defence on the merits.  A proposed defence prepared by the lawyer is not capable of serving this purpose.  The expression of an opinion by the lawyer that there is a good prospect of success can only amount to a legal opinion.  It is not capable of raising the material facts.”

Their Honours went on to dismiss the appeal which was against a refusal by the National Court to set aside a default judgement entered against the Appellant.  Their reason was that they were not satisfied there was a defence on the merits.

Paragraph 4 of Mr Yalal’s affidavit quoted above therefore, by virtue of Leo Duque’s case, is required to state material facts showing a defence on the merits.  What paragraph 4 does, in my view, is to assert that the Respondents were terminated for the wrongful conducts and were paid their entitlements.  To my mind, such assertions per se do not sufficiently amount to material facts showing a defence on the merits.”

In the present case, the material facts needed to be stated on affidavit would be details of the asserted wrongful conducts as well as of entitlements paid.  It is, in my view, not sufficient to make the assertions as appear on Mr Yalal’s affidavit, and argue that such, amounts to material facts showing a defence on the merits, because they do not.  On their own a claim as to wrongful conduct or paid entitlements are an insufficient statement of material facts.

To further exemplify what, in my view, would amount to material facts amounting to a defence on the merits, let me note what Justice Los in an unnumbered National Court  Judgement, Teo Soo Chin  -v-  Santa (PNG) Pty Ltd [1995] at p.4:

“As to whether there is defence on the merit, I consider Mr Sheppard’s affidavit does not help much, however, the affidavit of Tiang Kung Seng does help.  The Deponent has made calculations on each head of the claims by the Respondent and he came to a much lower figure than the calculation by the Applicant. Assuming the Applicant’s calculation is correct then the Respondent’s calculation is incorrect, in which case the Respondent would be unjustly enriched if the judgement is let to stand.  I consider therefore that the Respondent has shown defence on the merit.  On this basis I would set aside the judgement.”

In the present case, it is my view that paragraph 4 simply contains nothing more than mere demands and does not condescend upon particulars which is what is required.  If authority be required for this then I refer to Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1972] PNGLR 145.

Having made the above observations, it is my considered view that this application must fail.  I will therefore refuse the application with costs.

Application refused.