Kirke v Davis [1981] PGNC 35; N326 (18 September 1981)

Unreported National Court Decisions

N326

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. 669 OF 1981
BETWEEN: CRAIG PETER WHARTON KIRKE TRADING AS CRAIG KIRKE & WRIGHT
PLAINTIFF
AND: JOSEPH DAVIS
DEFENDANT

Waigani

Kapi J
11 September 1981
18 September 1981

ORDER 18 OF RULES OF COURT - application for summary judgment - that application for judgment should be made before defence filed - failure to do so is not fatal - must show reasons for delay.

Cases Referred To

McLardy v. Slateum [1890] UKLawRpKQB 34; (1890) 24 Q.B.D. 504

Purcell v. Thomas (1904) Q.W.N. 33

KAPI J: This was plication for sumr summary judgment by the plaintiff under Order 18 of the Rules of Court. The plaintiff issued a writ of summoncially endorsed for an amount of K1,214.75 for professional services as solicitor for the dthe dependant. The writ was issued on 14th July, 1981. The defendant entered an appearance on 10th August. He subsequently delivered his defence on 17th August, 1981.

The plaintiff brought this application for summary judgment on 30th August, 1981, some two weeks later. The application was supported by the affidavit of Mr Craig Kirke.

The defendant appeared, by counsel. He gave evidence and was cross-examined. The main ground of his objection to the judgment was that he has a good defence and he is entitled to defend. The defendant denies the very basis of the plaintiff’s cause of action. He denies that Craig Kirke & Wright did any legal work for him personally.

The legal work which was alleged to have been done for the defendant was in relation to an action taken out by Rainbow Holdings Pty. Limited against Talair. The action was taken out by the liquidator of the abovenamed company. It is alleged that Mr Davis personally instructed Craig Kirke & Wright to continue this action in March 1979. The defendant denies this.

Having disputed the basis of the action, I cannot give summary judgment readily. This would entitle the defendant to defend the action. I do not think it is proper for me at this stage to consider whether or not the defendant is a witness of truth in relation to his denial of the basis of the cause of action. To proceed to do this would be to dispose of the action in a summary manner. This procedure is provided for under Order 18, Rule 7 of the Rules. The parties did not ask me to proceed in this manner.

It appears that the denial by the defendant is on the basis that the work was not done for him personally. He appears to have agreed that he had some connection with Craig Kirke & Wright in relation to the action in question, but he said this was done in the name of the company. It appears from the evidence that Rainbow Holdings Pty. Limited went into liquidation in 1976, but according to the defendant the company was discharged from liquidation in June 1978. Counsel for the plaintiff did not contest this.

While this is not clear in my mind, the defendant may well have briefed Craig Kirke & Wright on behalf of the company, and an action should be brought against the company. This aspect was not clearly and precisely presented and I have not relied on it by itself as the sole basis of dismissing this application. However, putting together everything I have discussed so far, I would dismiss the application.

There is also another reason why I would dismiss the application. The summary procedure to obtain judgment was intended to be made before defence is delivered. Appearance by the defendant was entered on 10th August, and the defence was delivered on 17th August, 1981. The plaintiff had ample time to make this application before this defence was delivered. The plaintiff made the application some two weeks after the defence was delivered. The law is now settled that an application for summary judgment made after the defence is deliverd is of itself not fatal, however the onus is on the plaintiff to justify the reason for the delay. See McLardy v. SlateumN326.html#_edn647" title="">[dcxlvii]¹ and Purce ThomasN326.html#_edn648" title="">[dcxlviii]². The delay by the plaintiff in this case has not been satisfactorily explained and I woherefore dismiss the applicpplication.

Costs in the cause.

Solicitor for the plaintiff: Craig Kirke & Wright

Counsel: C.J. Coady

Solicitor for the defendant: Peter Sam

Counsel: P.S. Sam

<47">N326.html#_ednref647" title="">[dcxlvii]^{[1890] UKLawRpKQB 34; (1890) 24 Q.B.D. 504}

N326.html#_ednref648" title="">[dcxlviii] ^{(1904) Q.W.N. 33}