Lunga v Robin [1998] PGDC 16; DC39 (9 October 1998)

Unreported District Court Decisions

[1998] PNGDC 19 - JOHN LUNGA V JOHN ROBIN

[1998] PNGDC 19

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 27 OF 1998

JOHN LUNGA (Complainant)

v

JOHN ROBIN (Defendant)

Kimbe

P Monouluk M

30 September 1998

9 October 1998

PRACTICE AND PROCEDURE - Application to set aside default judgment - Irregularity in proceeding - Judgment obtained on mistaken view of default summons - Principles applicable.

Cases referred to

Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764

Green & Co Pty Ltd v Green [1976] PNGLR 73

Wong v Haus Bilas Corporation [1988-89] PNGLR 42

Representation:

Counsel/Representative:

Applicant/Defendant: Mr L. Mongko

Complainant/Respondent: No appearance

9 October 1998

P MONOULUK M:

N1>[1]      This is an application to set aside a default judgment entered against the applicant by this court on the 27th August 1998. The judgment was entered pursuant to Part VIII, Division 3: s55 - s159 of the District Courts Act (Ch40).

N1>[2]      The judgment on the face of it was entered in full compliance with the requirement of the Act (supra). The applicant was duly served on 11 August 1998. By 25 August 1998 no notice of intention to defend was filed and on 27 August 1998 the applicant was not available and so the order was made against him.

N1>[3]      A closer look at the default summons revealed a grave error. The summons heading reads "Default Summons Upon Complaint For A Civil Debt" yet the format of the summons is that of an ordinary summons. With due respect my brother magistrate may have been misled by the heading on the summons.

N1>[4]      For now I wish to discuss the law as it is in regard to default judgment irregularly entered. In fact a great deal of cases have discussed instances of default judgment regularly entered. In this jurisdiction the law is settled on the issue of when judgment obtained regularly can be set aside since the decision in Green & Co Pty Ltd v Green [1976] PNGLR 73. The applicant who seeks to have an order set aside has a tremendous responsibility to convince the court before it can set aside an order regularly entered.

N1>[5]      But what is the law in relation to a judgment irregularly entered. The case of Green & Co Pty Ltd v Green (supra) may also give a hint. At p 75 O'Leary AJ says that before considering these preconditions to setting aside a default judgment:

"The first question to be considered is whether or not the judgment was regularly entered. If it was irregularly entered then the defendant is entitled to have it set aside ex debito justitiate and without terms." (emphasis mine)

N1>[6]      In effect this statement means that if a default judgment was found to be irregularly entered then that alone is sufficient to have the order set aside with no regard to other principles. If, however, the order is found to have been regularly entered then the application must pass the other tests set down in Green & Co Pty Ltd v Green (supra).

N1>[7]      The question of irregularity is quite vague. I have not come across set principles as to what may amount to irregularity. However, certain cases have discussed very briefly the question. In Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764 Fry LJ gave examples of cases involving irregularity. In the first instance the court must make an assessment on the irregularity and ascertain whether the irregularity itself was made by mere non-compliance with a rule or, whether the irregularity was made independently of any rules so that the complainant/respondent had no right to obtain any judgment in the first place.

N1>[8]      My understanding of irregularity in the first instance is as stated in Wong v Haus Bilas Corporation [1988-89] PNGLR 42 where there was a non-compliance of a rule. In this case the plaintiff who had the option of serving the defendant company pursuant to O6 r3(2) of the National Court Rules and the Companies Act (Ch146), choose the latter yet the National Court found that the judgment was entered upon a mistaken belief that s394 of the Act (supra) was fully complied with is irregular despite the fact that the service is sufficient under O6 r3(2) of the National Court Rules.

N1>[9]      The Court's view is that the plaintiff's decision to serve the writ pursuant to the Companies Act (supra) by serving an employee of the defendant company as oppose to the requirement under s394 of the Act (supra) by leaving or posting to the registered office and for the Registrar of the National Court to enter a default judgment upon a mistaken belief that s394 of the Act (supra) was fully complied with is irregular despite the fact that the service is sufficient under O6 r3(2) of the National Court Rules.

N1>[10]    The court in this instance found that the plaintiff did in fact served the writ but not in accordance with the spirit of the service provision under the Companies Act (supra). The irregularity was one consisting only of a non-compliance of s394 of the Act. In any case the court found that Mr Douglas Wong the Managing Director of the defendant company never received the writ at all.

N1>[11]    The second aspect of irregularity is stated in Anlaby v Praetorius (supra) that where the irregular entry of judgment was found to be made independently of any rules; the plaintiff has no right to obtain any judgment at all. This means that where the irregularity is so grave: that it touches the substances of the writ or summons and on the face of it the plaintiff in law is not entitled to have a judgment in his favour then it is only fair that the order be set aside.

N1>[12]    In this case before me the default summons is in fact an ordinary summons with a misleading heading. The format is of an ordinary summons-no fore warning of the failure in filing a notice of intention to defend. With due respect the summons should have been struck out. On the face of it the summons is misleading and may have caused my brother magistrate to mistakenly entered a default judgment on an ordinary summons which I belief was done in good faith.

N1>[13]    I also wish to discuss briefly the other important requirements for an applicant to adhere to in his endeavour to set aside a default judgment. The law is settled in Green & Co Pty Ltd v Green (supra) and in various other authorities that an applicant to have a default judgment regularly entered set aside must show the following:

N2>(a)      a reasonable explanation why default judgment was entered; and

N2>(b)      he acted within reasonable time to file an application to set aside the defendant judgment; and

N2>(c)      has a defence on the merits.

N1>[14]    The applicant's affidavit before me is not convincing, however, I do not wish to discuss that but briefly in applying these principles of law to the applicant's reasoning I find that his lateness is not a good excuse. There is no evidence of the applicant living away from the town area. On the other hand, the applicant may have a defence in the sense that due to the arrangement between himself and the respondent he had altered his position and may suffer loses should the applicant recover in full from him. In any case the justice of the case requires that the order of 27 August 1998 be set aside.

N1>[15]    Orders Accordingly.