Pinoko and Yapanawe for and on behalf of Manki Clan v Independent State of Papua New Guinea [1997] PGNC 17; N1520 (26 February 1997)

Unreported National Court Decisions

N1520

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 120 OF 1996
BETWEEN
BROWN PINOKO & SUENE YAPANAWE FOR AND ON BEHALF OF MANKI CLAN - PLAINTIFFS
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - DEFENDANT

Lae

Sevua J
17 December 1996
26 February 1997

PRACTICE & PROCEDURE - Claim against the State - Default Judgment - Application to set aside - Grounds - Non-compliance with s.4 Claims by and Against the State (Ch 30) - Irregular Service - Entry of Judgment irregular.

PRACTICE & PROCEDURE - Default Judgment - Notice of Motion - Affidavit - Non compliance with Order 4 Rules 37 & 38 - Whether Assistant Registrar has power to waive requirements of Rules.

Held

(1) As the plaintiffs did not comply with the strict and mandatory requirement of service on the State pursuant to s.4 of Claims by and Against the State, judgment in default was obtained irregularly.

(2) As a matter of principle, a judgment obtained irregularly should be set aside (Bank of South Pacific Ltd v Spencer adopted).

(3) The Registrar or Assistant Registrar is neither a Judge nor the Court, therefore has no power to dispense with compliance with any requirements of the Rules.

(4) In the exercise of the Court’s discretion, default judgment should be set aside.

Cases Cited

Paul Marinda v The State N1026

Kabil Worm & 101 Others v Sergeant Koken and The State N1417

Bank of South Pacific Ltd v Spencer [1985] PNGLR 239

Green & Co Pty Ltd v Green [1976] PNGLR 73

Counsel

P Mogish (Mrs) for Applicant/Defendant

S Tedor for Respondent/Plaintiffs

26 February 1997

SEVUA J: This is an application by the defendant seeking the following orders:

1. That default judgment entered on 11th April, 1996 be set aside.

2. That the plaintiffs provide more and better particulars of the defendant’s instrumentality responsible for holding money in trust.

3. That the plaintiffs provide names and particulars of the number of plaintiffs they represent.

4. That the period of filing a defence be extended for another 14 days from the date of receipt of the plaintiffs’ names and particulars.

5. ...

The application is supported by two affidavits sworn by Pauline Mogish, counsel for the defendant.

The following events occurred in chronological order:

Writ of Summons filed 2nd February, 1996.

Service on defendant 23rd February, 1996.

Notice of intention to defend filed 22nd March, 1996.

Affidavit of Search filed 22nd March, 1996.

Affidavit of Sialis Tedor filed 22nd March, 1996.

Affidavit of Debt filed 11th April, 1996.

Affidavit of Search filed 11th April, 1996.

Judgment entered 11th April, 1996.

Certificate of Judgment filed 29th July, 1996.

Notice of Motion filed 9th October, 1996.

Affidavit of Pauline Mogish filed 9th October, 1996.

Affidavit of Sialis Tedor filed 13th November, 1996.

Affidavit of Pauline Mogish filed 17th December, 1996.

The defendant’s application is two fold: firstly, to set aside default judgment, and secondly to obtain better particulars under Order 8 Rule 36(3) of the National Court Rules.

On the outset, let me say that from the evidence before me, both parties have breached provisions of the Rules. In my view, the failure to file a defence within the time required, was due to lack of particulars in the statement of claim apart from the usual delay experienced in the Solicitor General’s office. Mrs Mogish submitted that she had problems with obtaining proper instructions for that reason. Whilst there are references to a transfer of land in the statement of claim which could suggest that Lands Department might be involved, there are no particulars whether that department or Finance Department or some other departments are involved. If it is the Department of Finance, perhaps, the Secretary should have been joined as a defendant. There is nothing in the pleadings alluding to this aspect and I consider that a general pleading like this does not assist the defendant at all. In my view, the plaintiffs cannot hide behind the cloak of uncertainty in pleadings to obtain a judgment in default of defence, claiming breach of the Rules by the defendant in not filing a defence, when the plaintiffs’ statement of claim lacked particulars. In any event, the defendant should have applied for particulars soon after realising lack of same when it was served with the writ. The State’s failure to properly defend claims involving millions of kina seems to be an endless epidemic and employed lawyers of the State including the Solicitor General and Attorney General must realise that at the end of the day, it is the taxpayers who foot the State’s bill in these proceedings.

Whilst I consider that the defendant had failed to file a defence within the required time, this failure can be attributed to the plaintiffs’ lack of clarity in their pleadings, so the defendant, in my view, cannot be totally blamed. I consider that there are more serious breaches or failure by the plaintiffs’ and their lawyer that affect the entry of default judgment and this raises the question whether judgment was obtained regularly or irregularly.

Firstly, I consider that the whole proceedings raises the issue of whether the writ was properly served on the defendant. It is fundamental to any process of legal suits that proper service is effected. The plaintiffs’ affidavit of service sworn by Mea Weho states that service was effected upon the defendant by leaving the writ of summons with one “Lucy Sihrong, a person duly authorised by the defendant to accept service on its behalf”.

Section 3(a) of the Claims by and Against the State (Amendment) Act 1992, which is an amendment to s.4 of the Claims by and Against the State Act, Ch 30, provides that service on the State be effected 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 16th July, 1992; the Attorney General appointed the following officers within his Department to accept service on behalf of the State:

1. Secretary,

2. Deputy Secretary,

3. State Solicitor,

4. Solicitor General, and

5. Deputy Solicitor General

Section 4 of the principal act imposes a mandatory obligation so that only those officers appointed by the Attorney General accept service on behalf of the State. Woods, J in Paul Marinda v The State N1026 20th December 1991 when discussing this issue and the lack of proper service in that case, said:

“the plaintiff has not served the State strictly in accordance with the law.”

I am not aware who Lucy Sihrong is, but I believe she is the secretary to the Attorney General. She is not one of the officers gazetted by the Attorney General, therefore she cannot accept service on behalf of the State. I agree with Woods, J that s.4 of the Claims by and Against the State is mandatory. The use of the word “shall”, makes this requirement mandatory.

In the present case, Lucy Sihrong is not one of the officers appointed to accept service on behalf of the State, therefore it follows that service of the writ on her is not proper service, and consequently, contrary to law and invalid.

The consequence of this non-compliance with the mandatory legal requirement of service on the State is that default judgment was entered irregularly and the defendant may have it set aside. Justice Injia subsequently followed that case in Kabil Worm & 101 Others v Sergeant Koken and The State N1417 24th May, 1996, and I quote what he says on p5:

“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 couplied with. Failure to observe this strict requirement will invalidate the purported service of process.”

I agree with Injia, J who further says:

“it is implicit in s.4 that it must be served personally on the designated persons. Service by post or service at their office on their personal secretaries or any other officer in that office fall short of the explicit requirement of s.4.”

The default judgment should be set aside on this ground alone, however, there is one other matter I wish to advert to for the benefit of the plaintiffs’ lawyer and lawyers generally.

When asked if the default judgment was obtained following an application by way of notice of motion, Mr Tedor replied that the Assistant Registrar had directed that it was not necessary to file a notice of motion. I am aware that under Order 1 Rule 7, Judges have discretionary powers to dispense with compliance with any of the requirements of the Rules. I am unable to find any provision under the Rules that gives the same power to the Registrar or Assistant Registrar. The Assistant Registrar therefore had no power under the Rules to issue that direction . In any event, the plaintiffs’ lawyer ought to have known the mandatory requirement for filing and service of a notice of motion. His failure was a direct breach of the Rules.

Order 4 Rule 37 explicitly states:

“an interlocutory or other application...in relation to proceedings commenced by writ of summons ...shall be made by motions.”

Rule 38(1) provides:

“subject to sub-rule (2) a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice...” (my emphasis).

Whilst I note that sub-rule (1) is subject to sub-rule (2), the plaintiffs have not shown that any of the considerations in sub-rule (2) apply. In my view, the filing and service of a notice of motion is a condition precedent to the procuration of an order where the order sought relates to proceedings commenced by writ of summons. Therefore, in my view, the plaintiffs and their lawyer failed to comply with the mandatory requirement to file and serve a notice of motion and I consider that this non-compliance or failure also renders the entry of default judgment irregular.

I can find no provision in the Rules which empower the Registrar or Assistant Registrar to waive compliance with any requirements of the Rules. Order 1 Rule 7 refers to ‘the Court’. Order 1 Rule 6 defines ‘the Court’ as “the National Court of Justice of Papua New Guinea and includes a Judge...” ‘Court’ in the same provision means, “a Judge or Acting Judge of the National Court.”

The definitions do not include the Registrar or Assistant Registrar. I hold that the Registrar or Assistant Registrar is neither a Judge nor the Court therefore has no power to dispense with compliance with any requirements of the Rules. Consequently, he has no power to direct a lawyer to dispense with compliance with a requirement of the Rules.

In my view, it is inappropriate and a bad practice to make an oral application for default judgment supported by affidavits. The rules require that a notice of motion be filed and served and that requirement is mandatory. A party making an oral application of that nature, might as well, not file any affidavit in support of that oral application at all.

Furthermore, it is noted that matters contained in Order 12 Rule 37 are not stated in any of the plaintiffs’ supporting affidavits. Lawyers represent their clients in litigation and it is their duty to ensure they know the law and the National Court Rules. The National Court is not a teaching service to educate lawyers on matters of practice and procedures or the requirements under the Rules.

Despite what I have adverted to earlier in the judgment, it appears that the defendant, by filing a notice of intention to defend, has acknowledged service and submitted to the Court’s jurisdiction. Therefore, its application to set aside default judgment would need to be considered on the principles of what Green & Co Pty Ltd v Green [1976] PNGLR 73 and other related cases on application to set aside default judgment have enunciated, and which, I do not intend to discuss.

Suffice it to say, the Court has a discretionary power to exercise in this type of application and in the present application, I consider that this discretion should be exercised in favour of the applicant. Even though this application was filed some six months after default judgment was entered, I consider that the draft defence provided by the defendant shows a defence on the merits. The reason for allowing judgment to be entered by default, in my view, is such that my discretion should also be exercised in favour of the defendant, although I do not consider lack of finance as a convincing reason.

Furthermore, I consider that notice given by the plaintiff was insufficient. Evidence before me shows that the plaintiffs’ notice was received by the defendant on the same date default judgment was obtained, ie, 10th April, 1996, and this is clearly insufficient notice.

I consider that the statement of claim lacks particulars. One such aspect is the assessment of interest at 50%. There are no particulars as to how 50% was reached. In view of the fact that the principle claim is only K10,696.67, which is approximately 4.5% of the total interest rate assessed at K240,675.67, it is only fair that particulars of how the plaintiffs have claimed 50% interest are provided. In any event, this claim relates to an alleged transaction which occurred more than forty five years ago and the State has numerous agencies or institutions that the plaintiffs’ cannot expect that records, if any, dating back to 1951 could be easily located.

I will therefore grant the defendant’s application and I make the following orders:

1. Default judgment entered on 11th April, 1996 is set aside.

2. Plaintiffs provide to the defendant, full and better particulars of their claim within 14 days of this order.

3. Defendant files its defence within 14 days after service of particulars.

4. Costs of this application be costs in the cause.

Lawyer for Applicant/Defendant: Solicitor General

Lawyer for Respondent/Plaintiff: Sialis Tedor & Associates