Barlow Industries Pty Ltd v Imani [1983] PGNC 22; [1983] PNGLR 125; N414 (3 May 1983)

N414

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BARLOW INDUSTRIES PTY LTD

V

UVAU IMANI

Waigani
Woods AJ

29 April 1983
3 May 1983

PRACTICE AND PROCEDURE - National Court - Setting aside judgment irregularity obtained - "Irregularity" - Waiver of irregularity - What constitutes - National Court Rules, O. 93, r. 17.

Order 93, r. 17, of the National Court Rules provides:

"Non-compliance with any of these Rules, or with any Rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge so directs; but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge may think fit."

Held:

(1) Where the proceeding adopted is that prescribed by the practice of the court, and the error is mainly in the manner of making it or in the use of words used to make it, such error is an irregularity, which may be waived by the laches or the subsequent acts of the other party in the proceedings:

Gregory v. Murphy [1905] VicLawRp 88; [1906] V.L.R. 71 at 75, and Macfoy v. United Africa Co. Ltd. [1961] 3 All E.R. 1169 at 1173, adopted and applied.

(2) Where a defendant has withdrawn an application to strike out proceedings and allowed judgment to go by default, he has waived the irregularity and the judgment should be deemed to be regularly entered.

Notice of Motion

This was a notice of motion pursuant to the National Court Rules, O. 31, r. 15, seeking to set aside a judgment entered by default on the ground that it was irregularly entered.

Counsel

S. J Sandow, for the applicant/defendant.
B. W. Larkin, for the respondent/plaintiff.

3 May 1983

WOODS AJ: The applicant being the defendant in W.S. No. 66 of 1983 is seeking to have the judgment signed on 31 March 1983 in this matter set aside. The application is made according to a notice of motion pursuant to the National Court Rules, O. 32, r. 15, but it is meant to be pursuant to O. 31, r. 15 "Setting aside Judgment by Default".

The ground for the application is that the judgment was irregularly obtained.

The defendant contends that the writ of summons was issued and proceeded to judgment as a specially endorsed writ when in fact it was not a summons limited to a claim for a liquidated amount. The statement of claim to the writ referred to the responsibility of the defendant as surety for goods sold and delivered to an amount of K12,933.21, but concludes with the words "And the plaintiff claims damages plus costs plus interests ...". Why the plaintiff added these words instead of just concluding by claiming the amount specified is not known. The claiming of "damages" is confusing.

The writ was issued as a specially endorsed writ on 4 February 1983. It is quite clear that a specially endorsed writ can only be issued for what is referred to as a liquidated amount. At this stage, I will refer to O. 93 r. 17:

EFFECT OF NON-COMPLIANCE:

"17. Non-compliance with any of these Rules, or with any Rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge so directs; but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge may think fit."

It is clear from the application of this rule that an irregularity or confused wording does not render the proceedings void but rather it is an irregularity. I adopt the words of Madden C.J, in Gregory v. Murphy [1905] VicLawRp 88; [1906] V.L.R. 71 at 75:

"Where the proceeding adopted is that prescribed by the practice of the Court, and the error is merely in the manner of taking it, such error is an irregularity, and may be waived by the laches or subsequent acts of the opposite party; but where the proceedings itself is altogether unwarranted, and different from that which, if any, ought to have been taken, then the proceeding in general is a nullity and can’t be waived by any act of the party against whom it is taken".

And the words of Lord Denning in Macfoy v. United Africa Co. Ltd, [1961] 3 All E.R. 1169 at 1173:

"It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it ... One test which is often useful is to suppose that the other side waived the flaw in the proceedings or took some fresh step after knowledge of it. Could he afterwards in justice complain of the flaw?"

This writ had the appearance of a writ for a liquidated amount but with the confusion of the use of the general word damages.

If the proceedings had continued straight from there to the signing of judgment by default, the rule, that if the judgment is irregular, it will, in the discretion of the court be set aside ex debito justitiae, as required in the interests of justice, may operate in favour of the defendant. However, the rule is a bit more than the above. It includes "unless the defendant has waived the irregularity". How can the defendant waive the irregularity. As Madden C.J, (supra) said, "by the laches or subsequent acts of the opposite party" or as Lord Denning says (supra), "by taking some fresh steps after knowledge of it".

I return to the course of events following the issue of the writ.

On 25 February, the defendant filed a notice of motion under O. 93, r. 17, claiming that the plaintiffs claim was inappropriate for a specially endorsed writ and therefore should be struck out. Upon such an application, it would be at the discretion of the court to either strike out the writ or to regularize the writ. However, the motion was apparently never argued but it came before the motion judge on two separate occasions. The first time according to the judge’s notes on the file "S/O by consent in order that settlement be made", and on the second time on 11 March, the application was withdrawn.

The defendant took no further action and in due course on 31 March the plaintiff signed judgment for the liquidated amount referred to in the writ. This was well outside the time allowed for the filing of a defence.

Should I now, in the interest of justice, exercise my discretion to set aside the judgment. The defendant has relied solely on the irregularity of the proceedings and has not suggested he has a defence. However, in his submission, he made no reference to the qualification to the rule that if the judgment be entered irregularly, it will be set aside unless the defendant has waived the irregularity. This qualification is quite clearly expressed by the authorities and, in view of the intervening action by the defendant, he was bound to refer to this qualification in his primary submissions.

The plaintiff in his submissions did not refer to this qualification but suggested that the filing and withdrawal of the notice of motion of 25 February was a determination of the question of the irregularity and the matter was res judicata and the defendant was now estopped from raising that irregularity. Following these submissions before me, the defendant sought to make further submissions in reply. But I indicated I knew of no procedure allowing him as of right to reply in such proceedings especially as the matter on which he sought to reply was quite clearly, on the authorities and on his previous actions, matters which he should have considered in his primary submissions. The defendant had deliberately seen fit to ignore these matters.

Whilst I do not agree with the plaintiff that the withdrawal of the motion by the defendant was necessarily a determination of the question of the same weight as a judgment or decision on the merits, I do follow the words of Madden C.J and Lord Denning and find that the defendant has by his actions waived the irregularity.

I find the judgment was regularly entered and there have been no grounds presented to this court such that in the interests of justice it should exercise its discretion and set aside the judgment.

The motion is struck out with costs.

Motion struck out with costs.

___________________________________

Lawyer for the applicant/defendant: Young & Williams.
Lawyer for the respondent/plaintiff: Beresford Love, Francis & Co.