Marinda v The State [1991] PGNC 29; N1026 (20 December 1991)

Unreported National Court Decisions

N1026

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 424 OF 1991
PAUL MARINDA
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Woods J
13 December 1991
20 December 1991

PRACTICE - Suit against State - Default Judgement requires strict compliance - Effect of non-compliance with Claims By and Against The State Act ch.30 - Default Judgement discretionary not mandatory - Writ of Summons not served properly - Default Judgement refused.

Counsel:

D. Poka for the Plaintiff

20 December 1991

WOODS J: The Plaintiff has issued a Writ of Summons against the State claiming damages for false arrest and assault by members of the Police acting in the cause of thuties. The Writ was served on the State by service on an officer in the employ of the StateState Solicitor’s Office. Service of process on the State is provided for under The Claims By and Against The State Act Ch 30 sec.4 which reads; Service of process where State is a Party.

Where the State is a party to a suit, all process in the suit required to be served on it shall be served

a) &##160;; O60; On the the Principal Legal Adviser or

b) &ـ I60; In resp respect of a suit brought in a District Court on

1) &##160; The Principal LegalLegal Adviser or

ThereTherefore according to that act the servicthe Piff oOfficer in the Department of Justice is not proper service on the State.

The State hate has faas failed iled to file a Notice of Intention to Defend and Defence to the Writ and the Plaintiff is therefore seeking judgement by default on liability for damages to be assessed.

Judgement by default is a rather draconian procedure being as it is in the absence of the other party. In effect it arises because of the failure of the other party to show any interest in the proceedings. However it presupposes that everything has been done properly thus that the other party has been served properly with the proceedings and has been given proper notice.

If a default judgement has been entered irregularly, namely not strictly in accordance with the rules of court, a Defendant may have it set aside as of right. Further, default procedure is permissive only it is not mandatory. It short cuts the need to go to a proper trial.

In the case before me now I am asked to give a judgement by default so I must assume and be satisfied that the plaintiff has proceeded strictly in accordance with the rules or the law. But he hasn’t. He has not served the State strictly in accordance with the law. Now I realise that there are difficulties in finding a senior member of the Government just to serve a summons. That may be so but if there are service difficulties perhaps the plaintiff should have sought for substituted service. However the Plaintiff is not out in the cold here. He still needs to go to trial on the assessment of damages and this Court will presumably be satisfied that he has done what is reasonable by concluding pleadings and giving notice for trial for a proper hearing and if the State still fails to turn up at the time of the hearing yet the Court will continue with a full hearing.

So I find no prejudice to the Plaintiff if I exercise my discretion not to grant a Default judgement but say instead conclude your pleadings, get a date for trial and come to trial. It could be a dangerous precedent to start disregarding the strict law on service in a situation where the strict rules of Court are expected to be followed and where there is no real long term prejudice to the Plaintiff.

I dismiss the application.

Lawyer for the Plaintiff: P. Kopunye