Kitipa v Auali [1998] PGNC 93; N1773 (25 September 1998)

Unreported National Court Decisions

N1773

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 371 OF 1997
BETWEEN:
BALA KITIPA
PLAINTIFF
AND
VINCENT AUALI
DEFENDANT-
AND
SUPPLY; TENDERS BOARD OF WEOF WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
SECOND DEFENDANT
AND
THE ENGINEERING MANAGEMENT PTY LTDENGINEERING DIVISION
THIRD DEFENDANT

Mount Hagen

Injia J
14 August 1998
25 September 1998

PRACTICE AND PROCEDURE - Default judgments - Discretionary - Due Service of Writ and default established - Claim alleges fraud and collusion at government level - Default judgment refused - National Court Rules O 12 4 32 & 34.

Cases Cited

Kante Mininga -v- The State & 2 Ors N1458 [1996]

Counsel

T. Bongere for the Plaintiff.

No appearance for the Defendants.

25 September 1998

INJIA J: This is an application under O 12 r 28 of the National Court Rules for default judgment against the First Defendant only. On the evidence before, I am satisfied that the Writ was duly served on the First Defendant. I am also satisfied that the First Defendant has failed to file a Notice of Intention to Defend the proceedings and Defence within the period stipulated by the rules. Is the plaintiff entitled to receive judgment by default in these circumstances alone? To answer this question, O 12 r 32 and O 12 r 34 are relevant. They provide:

32. General. (17/9)

1

(60 Whatever claims forerelie are made by a plaintiff, where a defendant is in default, the Court may, on aption e plaf, dithe eof sudgement against the defe defendant as the plaintiff appears to be o be entitentitled tled to on o on his whis writ of summons.

(2) ـ Notwithtwithstanding Sub-rule (1), the court shall not, under the Sub-rule, direct the entry of judgement for theession of land unless satisfied of the matters mentioned in Rule 30(2) and (4).

34.&>34. ټ Pof serv service ofce of writ

Judgement shall not be entered against a defendant under this Division unless:

(a) ـ andavit is fbled o or on behalf of the plaintiff piff provinroving due service of the writ of summons or notice of the writ on the deft; or

(b0; the plaintiff produces tht writ of summons eons endorsndorsed byed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf,

and an affidavit is filed by or on behalf of the plaintiff proving the default of the defendant on which the plaintiff relies.” (my underlining).

The entry of default judgment under O 12 r 32 is discretionary. Even when there is proof of due service of the Writ and default, O 12 r 34, gives the Court that discretion. In Kante Mininga -v- The State & 2 Ors N1458 (1996), I held the same view. I held the view that a default judgement may still not be entered in such situation where “the effect of the default judgment would prejudice the rights of other co-defendants, or that the pleadings are so vague or do not disclose a reasonable cause of action or that the default judgement cannot be sustained in law”. To these category of circumstances, I should add that where a claim in a Writ raises serious allegations of fraud or deceit on the part of the plaintiff, in certain cases, the interest of justice would require those allegations to be proved by evidence in a trial before judgment is given on the merits.

In the present matter, the plaintiff claims “general damages to be assessed for the use and print of his name” by the First Defendant in purchasing a toyota Landcruiser GX Station Wagon, then owned by the Third Defendant” through “tender Sale”. The plaintiff alleges the First Defendant, who was “a member of the WHP Provincial Cabinet, “colluded” with the member of the WHP Tender Board to under-value the vehicle to be purchased in the name of the plaintiff, then registered the vehicle in his name, all without his knowledge and consent. The Plaintiff claims he never benefited from the physical possession of the motor vehicle.

It is clear from the pleadings that the plaintiff has made serious allegations of fraud, collusion and corruption on the part of the plaintiff and other interested members of the Tenders Board at Government level. In the interest of justice, it is my view that these allegations be properly tried. To grant default judgment would prejudice any defence which the Second and Third Defendants might have as well any defences which the First Defendant with leave of the Court, might adduce at the trial. For these reasons, the application is dismissed.

Lawyer for the Plaintiff: BONGERE & CO. Lawyer