Mininga v Independent State of Papua New Guinea [1996] PGNC 8; N1458 (24 May 1996)

Unreported National Court Decisions

N1458

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 129 OF 1993 (H)
BETWEEN
KANTE MININGA - PLAINTIFF
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA - FIRST DEFENDANT
AND
DOCTOR PONIFASIO - SECOND DEFENDANT
AND
DOCTOR SCOTTY MACLFISH - THIRD DEFENDANT

Mount Hagen

Injia J
24 May 1996

CIVIL - Practice and Procedure - Default Judgment - Entry of - Proof of due service and default established - Court’s discretion to refuse entry of default judgment notwithstanding proof of due service and default of defendant - Circumstances where discretion exercised - National Court Rules, O. 12 r. 32 and r. 35; Wrongs Act (Ch 297), S. 1.

Cases Cited:

No cases are cited in the judgment.

Counsel:

P Kopunye for the Plaintiff

M Pokia for First Defendant

No appearance for the Second and Third Defendants

24 May 1996

INJIA J: This is an application on motion on notice by the Plaintiff seeking default judgement against the First Defendant only. This is the second of such motion against the First Defendant. The Second and Third Defendants are medical doctors who were employed by the First Defendant at the material time and it is alleged that they were negligent in performing their duties which resulted in injuries to the Plaintiff. The First Defendant is sought to be made vicariously liable for the torts allegedly committed by the Second and Third Defendants pursuant to S. 1 of the Wrongs Act Ch 297.

On 25th March 1994, the Plaintiff applied for and the Court entered default judgement against the First Defendant. At that time the Second and Third Defendants were not named as defendants in the proceedings. Subsequently, as a result of queries raised by the Court as to the propriety of the default judgement being entered against the State as the nominal defendant in respect to torts allegedly committed by the two doctors employed by the State at the Mount Hagen General Hospital, the Plaintiff, upon application, was granted leave to file and serve an amended writ which included the Second and Third Defendants. Except for the inclusion of the second and third defendants and other related consequential amendments to the Writ, the statement of claim endorsed on the writ remained essentially unaltered. On 6th March 1996, the amended writ was re-served on the first Defendant. The Second and Third Defendants were also served with the amended writ. Consequently whilst the Second and Third Defendants filed and served their respective Notice of Intention to Defend and Defence denying the claim, the First Defendant once again failed to file and serve its Notice of Intention to Defend and Defence. The First Defendant is therefore in default of filing and serving these documents. This application for entry of default judgement against the First Defendant follows that default. The affidavit of the Plaintiff’s lawyer filed in support of this motion proves the clue service of the amended writ on the First Defendant and default of the First Defendant. Pursuant to O. 12 r. 32 and of the National Court Rules, default judgement may be entered in these circumstances.

Counsel for the First Defendant Mr M Pokia submits that notwithstanding the default, this is not an appropriate case where default judgement should be entered against the First Defendant because it would prejudice the rights of the First and Second Defendants to defend the claim. He submits that the First Defendant’s vicarous liability is based on a finding of the tort of professional negligence committed by the Second and Third Defendants and since that issue is yet to be determined, it would not be proper to enter default judgement against the First Defendant.

Even if Mr Pokia did not appear and raise these issues, I would still have raised them on my own initiative. During argument, I also raised questions about the prejudice which the First Defendant could suffer if the Second and Third Defendants were successful in defending the claim but then faced with a default judgement which has no basis in law for it to meet. I also raised the other prospect of the Second and Third Defendants defences being likely to be prejudiced if default judgement was entered against the First Defendant, which default judgement would impute negligent conduct on their part.

Order 12 r. 32 of the Rules gives the Court wide discretion to enter default judgement. Even when proof of due service of process on a defendant and proof of the default is established by the Plaintiff/applicant, the Court still has a discretion to refuse to enter default judgement in cases where for instance, the effect of the default judgement would prejudice the rights of other co-Defendants, or that the pleadings are so vague or do not disclose a reasonable course of action or that the default judgment cannot be sustained in law.

In this case, I am of the view that the entry of default judgement would seriously prejudice the defences of the First and Second Defendants. I am also of the view that a default judgement cannot be sustained in law against the First Defendant in this situation where the second and third Defendants, for whose torts the First Defendant is vicariously liable, have filed their defences denying the Plaintiff’s claim and which issues is yet to be determined by this Court.

For these reasons, I dismiss the motion. This ruling has the effect of disposing of or setting aside the earlier default judgement against the First Defendant entered on 24th March 1994. Pursuant to Order 12 r. 35, this Court has wide powers to set aside a default judgement, with or without the application of the party against whom the default judgement is entered.

Costs shall be in the cause.

Lawyer for the Plaintiff: Kopunye Lawyers

Lawyer for the First Defendant: Solicitor General

Lawyer for the Second and Third Defendant: John W Ball & Sons Solicitors’, Victoria, Australia