Worm and 101 Others v Koken and The Independent State of Papua New Guinea [1996] PGNC 179; [1996] PNGLR 58 (24 May 1996)

PNG Law Reports 1996

[1996] PNGLR 58 - Kabil Worm and 101 Others v Sergeant Koken and The Independent State of Papua New Guinea

[1996] PNGLR 58

N1417

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KABIL WORM AND 101 OTHERS

V

SERGEANT KOKEN;

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Injia J

24 May 1996

PRACTICE AND PROCEDURE - Claim against the State - Default judgment - Application to set aside - Grounds of - Irregular service and lack of proof of default - Claims by and against the State Act (Ch. 30), s 4), National Court Rules, O. 1 r.7-10, O.4 r.4(1)(a), 38(1), O.12 r.34-35.

Facts

The applicants applied to have the default judgment entered against them set aside. The default judgment was obtained on the basis of irregular service where the writ of summons was unsealed and sent by post to the Solicitor General and further that the respondents’ lawyer did not conduct search of the court files to ascertain whether the applicants’/defendants’ lawyers have filed a notice of intention to defend etc. (which they actually had done) and hence mislead the court.

Held

N1>1.       Pursuant to s 4 of the Claims by and Against the State Act Ch 30 (as amended), service of originating process on the State must be effected personally on the Solicitor General, Deputy Solicitor General, State Solicitor and the Secretary or Deputy Secretary of the Department of Attorney General; service by ordinary post is not permitted by the Act.

N1>2.       The filing of a notice of intention to defend by the Solicitor General following receipt of originating process served through ordinary post does not relieve the plaintiff of his statutory obligation imposed by s 4 of the Claims By and Against the State Act Ch 30.

N1>3.       Pursuant to National Court Rules O 8 r 34, a default judgment can only be ordered by the Court upon proof by the plaintiff, by affidavit, due service of the originating process and the default which the plaintiff relies on; the Court cannot be expected to take judicial notice of the absence of a notice of intention to defend or defence on the Court file as proof of the default.

Cases Cited

Green & Company Pty Limited v Green [1976] PNGLR 73.

Amberg v PNG Unreported National Court Judgment dated 31 March 1994.

Robert Laurie Company Pty Ltd v Century Group Pty Ltd & Anor Unreported Supreme Court Judgment dated 6 March 1996.

The Government of Papua New Guinea v Barker [1977] PNGLR 386.

Counsel

M Pokia, for the applicant.

S Norum, for the respondent.

24 May 1996

INJIA J: This is an application by the defendants pursuant to National Court Rules O 12 r 35 to set aside default judgment ordered by the Court on 28 November 1994. The application is made on the day fixed for the trial on assessment of damages. This is the second time this matter was fixed for trial. On the previous occasion which was on 4 October 1995, the trial ended up as a pre-trial matter because of certain unsatisfactory features of the affidavit materials filed by the plaintiff. As a result, the plaintiff has filed further supplementary affidavits and the matter has been mentioned several times in Court. At the civil call-over conducted in February 1996, the matter was fixed for trial on 12 March 1996. On all these previous occasions, the defendants’ lawyers, the Solicitor General, did not attend.

The Court has a discretion to set aside a default judgment previously ordered by the Court. The principles applicable to such applications are set out in Green & Company Pty Ltd v Green [1976] PNGLR 73 and The Government of Papua New Guinea v Barker [1977] PNGLR 386 which the Supreme Court recently applied in Robert Laurie Company Pty Ltd v Century Group Pty Ltd & Anor, Unreported Supreme Court Judgment dated 6 March 1996. The principles are:-

N2>1.       The applicant must explain the reason why the judgment was allowed to be entered.

N2>2.       The application to set aside judgment should be made promptly on the merits.

N2>3.       As a matter of practice an application to set aside a judgment by default regularly obtained should be granted only on an affidavit disclosing a defence on the merits.

The applicant relies on two grounds, first that the Writ was not personally served on the Solicitor General or his Deputy as required by s 4 of the Claims By and Against the State Act Ch 30 (as amended) and secondly, that the plaintiff failed to prove the default of the defendant which he relied on as required by National Court Rules O 12 r 34. In relation to the first ground, the plaintiff concedes that he posted, by ordinary post, an unsealed writ to the Solicitor General on 7 October 1995 followed by another letter containing the same writ on 28 October 1995. In relation to the second ground, the plaintiff’s counsel Mr Norum concedes that in his affidavit sworn on 28 November 1995, which he filed in support of the application for default judgment, he made no reference to conducting a search of the National Court file pertaining to this matter but he verbally told the judge hearing the application that no defence had been filed. In paragraph 5 of his affidavit, Mr Norum only said “.... to date I have received no reply nor any notice of intention to defend or Defence”. Had he searched the Court file, he would have discovered that on 24 October 1995, the Solicitor General filed a Notice of Intention to Defend on behalf of both Defendants.

I will deal with the first ground of objection. In Paul Marinda v The State, Unreported National Court Judgment N 1026 (1991), Woods, J. held that the s 4 of the Claims By and Against the State Act imposed a mandatory obligation on the plaintiff to strictly serve the originating process on the persons designated to receive service on behalf of the State. His Honour said that the plaintiff was required to serve the State “strictly in accordance with law”. In Amberg v The State, Unreported National Court Judgment dated 11 March 1994 which I heard in Mount Hagen, I followed His Honour’s decision and elaborated the law since His Honour’s decision. I said:-

“Service of process on the State is provided by Section 4 of the Claims By and Against the State Act Ch No. 30 (the “Act”). This section was amended by Act No. 2 of 1992 which came into force on 11 March 1992. Prior to the said amendment, all process in a suit required to be served on the State were required to be served on the Principal Legal Adviser and in the case of proceedings brought in the District Court, on the Principal Legal Adviser or a person appointed by the Minister to receive service.

The amendment now requires service of process required to be served on the State to be served on an officer appointed for the purpose by the Attorney-General by notice in the National Gazette. Pursuant to notice in National Gazette No. G58 dated 16 July 1992, the Attorney-General appointed the following officers within the Department of Attorney-General to receive service of proceedings against the State:

Secretary

Deputy Secretary

State Solicitor

Solicitor-General

Deputy Solicitor General

It is clear that the requirements for service of process on the State provided in Section 4 of the Act is specific and explicit. It is also a strict requirement which must be complied with. Failure to observe this strict requirement will invalidate the purported service of process.”

The method of service on the designated persons is not prescribed by s 4 of the said Act. It is implicit in s 4 that it must be served personally on the designated persons. Service by post or service at their office or their personal secretaries or any other officer in that office fall far short of the explicit requirement of s 4. It follows that the service of the writ by ordinary post in these proceedings was invalid in that it was served contrary to law.

The question then arises as to whether the notice of intention to defend filed on 24 October 1994 by the Solicitor General cures the invalid service of the writ. Counsel for the respondent refers me to O 7 r 7(2)(b) which allows a defendant to apply to set aside a writ issued or served irregularly either before filing a notice of intention to defend or within fourteen (14) days after filing such notice. He submits that the applicant’s failure to make such application precludes him from raising objection as to irregularity now.

In my view, the operation of O 7 r 7(2)(b) or any other rules of procedure in the National Court Rules as to service of process is subservient to the mandatory statutory provisions of s 4 of the Claims By and Against the State Act (as amended). The former is a matter of compliance with rules of procedure whereas the latter is a matter of compliance with provision of law. The distinction is clear from O 1 r 7 and 8 which provide that the Court has the discretion to dispense with compliance with any of the requirements of the National Court Rules before or after the occasion for compliance arises and non-compliance with the National Court Rules does not per se render the proceedings void. Under s 4 of the Claims By and Against the State Act, the Court is not given a discretion to dispense with the requirement for personal service. It follows that nothing done by the solicitor General or any of the other designated persons such as the filing of a notice of intention to defend following invalid service on the State would relieve the plaintiff of his statutory obligation under s 4 of the said Act.

I will now deal with the second ground relied on by the applicant. Order 12 r 34 provides that a default judgment “shall not be entered against a defendant....unless an affidavit is filed by or on behalf of the plaintiff proving due service of the writ of summons.....and an affidavit is filed by or on behalf of the plaintiff proving the default of the defendant on which the plaintiff relies”. I have already ruled that the Writ was not duly served on the defendants in accordance with law. As to proof of the defendant’s default, Mr S. Norum’s affidavit sworn on 28 November 1994 which was relied on in support of the application for default judgment only said that despite the postage of the writ on two occasions, he had not received any notice of intention to defend or defence from the Solicitor General.

Proof of default is established by a proper affidavit of search. Mr Norum did not give particulars of search, if any, of the Court file kept at the Registry. The affidavit of search should set out the date on which the Court file was searched and the discovery made as to the default of the defendant in filing the notice of intention to defend and/or defence within the time stipulated by the rules. The affidavit should also contain reference to the particular rule relied upon and details of the expiration of the time limit. Mr Norum submits that the default of the defendant can be ascertained by the Court from the Court file. However, that is for the plaintiff to establish. The court cannot be expected to take judicial notice of the absence of the notice of intention to defend, defence, etc. on the Court file and treat that as evidence of the default.

Mr Pokia for the applicant submits that not only was the default not proved by the applicant but also the application for default judgment was pre-mature. Assuming that the writ was effectively served on the date it was received by the Solicitor General, which was, on or about 25 October 1994 when the Notice of Intention to defend was filed, the thirty (30) days allowed by O 8 r 4(1)(a) would have expired on or about 25 November 1994. The defendants then had another 14 days to file a defence which date would have expired on 9 December 1994. The application for default judgment was filed on 28 November 1994 and moved ex-parte the next day. It was clearly prematurely made.

These are not the only procedural irregularities apparent in these proceedings. The others are:-

N2>1.       The writ which was served on the Solicitor General by post on 7 October 1994 was unsealed and did not bear the writ of summons number.

N2>2.       The notice of motion was not served on the Solicitor General which had filed a notice of intention to defend, as required by O 4 r 38(1). Nor did the plaintiff seek a dispensation of the requirement for service etc. under O 4 r 38(2). The rules required 3 clear days notice. The plaintiff filed the notice of motion on 28 November 1994 and moved it the next day.

N2>3.       The plaintiff changed the name of the first defendant “Sgt. Koken” to “John Waikon PPC” after default judgment was obtained without leave of the Court. This change first appeared on a notice of motion filed by the plaintiff on 15 May 1995. Since then, all documents filed by the plaintiff has made reference to “John Waikon PPC” until recently where in Mr Norum’s affidavit sworn on 11 March 1996, he names “Sgt. Koken” as the first defendant. There is no record of an application for leave to amend the writ to this effect being made and no record of such order being granted by the Court.

In paragraph 3 of the applicant’s notice of motion, the applicant seeks an order that John Waikon PPC who is named as a defendant be struck out. At the hearing of the applicant’s motion, Mr Norum submitted that para. 3 of the applicant’s motion was misconceived because the first defendant is Sgt. Koken. I inadvertedly agreed then but now after having closely examined the documents, I realise that I shouldn’t have so agreed with him. It appears that Mr Norum may have misled this court and I will be considering what action to take.

Mr Norum has made two further submissions on two relevant matters. His first submission is that there has been undue delay in making this application and therefore the Court should refuse the application. I agree that the applicant has come to this Court after some 15 months have gone by since the order for default judgment was made and that is undue delay. However, the seriousness of the procedural irregularities and the breach of s 4 of the Claims By and Against the State Act committed by the plaintiffs far outweighs the matter of delay, that in the exercise of my discretion, I am prepared to set aside the default judgment.

His second submission is that the applicant has not shown any defence on the merits. Mr Pokia’s affidavit does not address this issue nor in his submissions because he says the default judgment was irregularly entered. I do not agree with this submission. As a matter of good practice, the applicant should do well to establish, by affidavit, a prima facie defence on the merits. During the pre-trial sessions on this matter which I conducted with Mr Norum, I detected possible duplication of claims and material defects in some affidavits which were filed. Those material defects and possible duplication of claims and now the purported addition of John Waikon, PPC as the first defendant after the default judgment had been entered and without leave of the Court, all these things raise questions regarding the merits of the plaintiffs’ claim. I think it is only fair that the defendants should be given the opportunity to contest the merits of the plaintiffs’ claim.

I am also not very pleased with the performance of the Solicitor General in applying to set aside the default judgment on the day of the trial. He has also not shown why is it that he allowed the default judgment to be entered except to point out the material defects in the service and proof of default. Nevertheless, as I have already said the procedural defects and breach of law is such that in the exercise of my discretion, I should still set aside the default judgment.

For these reasons, I set aside the default judgment ordered on 29 November 1995. Now that the defendants have had knowledge of the writ and the amended writ it is not necessary for me to order further service of the writ. I grant the defendants 30 days to file a defence in response to the plaintiff’s writ (as amended) pursuant to order of the Court made on 26 May 1995). I order that John Waikon’s name as first defendant be removed from these proceeding.

Costs shall be in the cause.

Lawyer for the applicant: Solicitor General.

Lawyer for the respondent: S Norum Lawyers.