Kurum v Opa (No 1) [2002] PGDC 7; DC139 (6 September 2002)

DC139

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO 4O9 OF 2001

BETWEEN

BEPI KURUM
Complainant

AND

MOLSON OPA
First Defendant

STEVEN ROT
Second Defendant

BITA OLE
Third Defendant

MICHEAL WAI
Fourth Defendant

NOEL SMITH
Fifth Defendant

MARTIN EMSELIE
Sixth Defendant

WR CARPENTERS & CO. ESTATES LTD
Seventh Defendant

(No. 1)

Mt Hagen: R Appa
2002: 12 June, 12 July, 6 September

CIVIL LAW - Notice of Motion to set aside judgment entered by Default - Appearance of some defendants to admit liability against co-defendants at trial - Was the judgment by default irregularly entered? Requirement to be met to set aside judgment.

Cases Cited
Joseph Tonova vs. Electricity of PNG [1987] PNGLR 81, distinguished.
Green v Green [1976] PNGLR 73, followed
Barber v The Government of PNG [1976] PNGLR 340
George Page Pty v Malipu Bus Balakau [1982] PNGLR 140, followed.

Counsel
The Complainant, In Person
The Defendants, Mr. K. Peri

6th September 2002

RULING

R. APPA, Principal Magistrate: This is an application by way of Notice of Motion to set aside an ex parte judgment dated 14th February 2002. Warner Shand lawyers have filed the Motion and raised two grounds. One was that they have reasonable explanation for allowing the judgment by default and secondly that there was an arguable defence on merit of the case. Mr. Peri of Warner Shand Lawyers acted for the 7th defendant, WR Carpenters & Co. Estate and relied on his affidavit. The complainant is an illiterate village woman but somehow sought legal aid and filed her affidavit and submission to support her claim.

I have considered their arguments for and against setting aside the judgment entered by default and have formed the view that the judgment was entered regularly in that the case was fixed for ex parte hearing on 14th February 2002 and notices were issued to all the parties. The ex parte hearing was fixed when none of the defendants turned up on 28/11/01 and 30/01/02 respectively. On 14th February 2002 defendants first, second and third did turn up in court and admitted that complainant was in fact injured while she was picking tea for the seventh defendant but the latter failed to give notice of injury to the Registrar of Workers Compensation office in time for compensation, she was therefore prejudiced in her claim. Section 84 (2) of the Workers Compensation Act and the authority in Joseph Tonova v Electricity of PNG [1087] PNGLR 81 do not apply in the present case because complainant was not paid any compensation or awards under the act. The presiding Magistrate in the substantive hearing (Mr. Pupaka) had fully covered the issues in his judgment.

In the alternative, I found that the requirements set out in Green v Green [1976] PNGLR 73; Barker v The Government of PNG [1976] 340; George Page Pty v Malipu Bus Balakau [1982] PNGLR 140 were not satisfactorily covered in the defence application to set aside the judgment concerned. No reasonable explanation given for allowing the judgment to go by default and no facts to show defence on the merits.

I make the following orders:

1. The judgment of 14th February 2002 entered against the 7th defendant is confirmed.
2. The Notice of Motion to set aside the judgment of 14th February 2002 is refused.
3. The 7th defendant pay complainant's incidental cost (PMV Fares and preparing of court documents).
4. Time abridged.
   

In Person: The Complainant
Warner Shand Lawyers: The Defendant