Pacific Helicopters Pty Ltd v Department of National Disaster, Surveillance & Emergency Services [1998] PGNC 69; N1817 (24 July 1998)

Unreported National Court Decisions

N1817

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 346 OF 1995
BETWEEN
PACIFIC HELICOPTERS PTY LTD
PLAINTIFF
AND
DEPT. OF NATIONAL DISASTER, SURVEILLANCE & EMERGENCY SERVICES
FIRST DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT

Goroka

Sawong J
17 July 1998
24 July 1998

PRACTICE & PROCEDURE - Summary judgement - Evidence of facts on which claim is based - Admission - Sufficiency of - Contained in letters exchanged between parties - claim for moneys owing for helicopter hire services provided - Summary Judgement entered - National Court Rules O. 12 r. 38

PRACTICE & PROCEDURE - Default Judgement - Defendants default in filing defence - Judgement entered - National Court Rules.

Cases Cited

Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112

Chief Collector of Taxes v T. A. Field Pty Ltd [1975] PNGLR 144

Notice of Motion

This was an application on notice by a plaintiff seeking summary judgement and in the alternatefault ault judgement in respect of a claim for moneys owing for helicopter hire services.

Counsel

L. Manua, for the Plaintiff

No apnce for the Defendants

24 July 1998

SAWONG J: The Plainin this matter iser is seeking summary judgement, and in the alternative default judgement under O. 12, r. 38, r. 32, respectively of the National Court Rules.& The claim is for moneys owing for helicopter services prov provided to the defendants at t he request of the defendants. The sent of claim refers ters to and sets out certain invoices, the amounts and the dates on which those services were rendered to thendants.

O. 12 r. 38 is in the following terms:

“38. 160; Summadgemunt

(

(1) ; Where, on appiication by n by the plaintiff in relation to any claim for relief or any part of any claim for reof thintif>

160;&ـ there&#160 is evidenvidence of tcts octs on which tich the clhe claim oaim or parr part is based; and

(b) ـ &#therevis evidence given bven by the plaintiff or by some respoe ible person thon that, in the belief of the pegivin evidence, the dantndant has no defence to the claim or part, or no defence #16ce except as to the amou amount of any damages cl,

he Coay, by , by orderorder, direct the entry of such judgement for the plaintiff on that claim laim or part, as the nature of the case res.

(2) < & Without ing Sung Sub-rule rule (1), the Court may under that Sub-rule direct the entry of judgement for the plaintiff for damages to be assessed.

(3) ـ&#1n this this rule,rule, “damages” includes the value of goods.”

The principles involved in this particular rule is succinctly set out in the Supreme Court decisioni>Bruang v Credit Corp Corporatioration (PNG) Limited [1993] PNGLR 112. There the court said at 7: 117:

“...There are two elements involved in this rule:

(a) &##160;e ierevid evidence once of the facts on which the claipart is based; and

(b) ـ#160; thet the plainplaintiff or some responsible persons give evidence that inbeliere isefence.ence.

I

In this case, there is no issue in relation to the first elements.

As to the second element, the plaintiff must show in (the) absence of any defence or evidence from the defendant that, in his belief, the defendant has no defence. Iefence is filed or evidenvidence is given by the defendant --- the plaintiff must show that, upon the facts and/or the law, the dant has not defence. The plainwill not be entitentitled to summary judgement if ther there is a serious conflict on question of fact or law. Whether a case s go to trio trial on these issues will be determined on the facts of each case. However, the auties show thow that the summary jurisdiction should only be involved in a clear case: See Chollector of TaxesTaxes v T.ield Pty Ltd [1975] PNGLR 144”.

I would adopt and apply these principles tles to the present case.

Counsel fo plaintiff has submitted that on the uncontested evidence gnce given by the Managing Director of the plaintiff and by Mr Manua of counsel, both elements of this rule have been satisfied and that as such the court ought to direct entry of summary judgement against the defendants.

The evidence from Mr Smith, the Managing Director of the plaintiff is clear and unequivocal. He detailed evidence in h in his affidavit of the debt and his discussions with senior official of the defendants including the thputy Prime Minister, who acknowledge the outstanding debt, due and payable to the plaintiffntiff. Mr Smith finally deposed thahis belief the the defendants have no defence at all.

nua, counsel for tfor the plaintiff also deposed an afit.&#In his affidavit, he deposes to the fact that he held discussions with the Soliciolicitor Gtor General Mr J. Kawi, who acknowledge tht and admitted that the defe defendants have no defence at all to the plaintiff’s claim.

I am satisfied on the undisputed evidence given on behalf of the plaintiff that it is entitled to the benefit of the clear evidence on liability and quantum. I find that the plaintiff is entitled to summary judgement under O. 12 R. 38, in the sum of K1,539,626.47

In case, I am wrong on this, I am also satisfied that the defendants have defaulted in filing their defences. The evidence shows that after they filed their Notice of Intention to Defend, they have not filed their defence. According would also find find that laintiff is entitled to have j judgement entered against both defendants jointly and severaeverally.

In so far as the claim foerest is concern, I accept the ssions made oade on beon behalf of the plaintiff. I award intert the rthe rate of eight percent (8%) per annum from the date e the filing of Writ to the date of the payment of the judgement debt in full.

Costs shall follow the event.

Lawyers for the Plaintiff: Fiocco Posman & Kua

Lawyers for the Defendants: No appearance