John v John [1999] PGNC 100; N1938 (12 November 1999)

Unreported National Court Decisions

N1938

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 307 OF 1998
PAUL JOHN
PLAINTIFF
AND: GERD LINDHARDT
FIRST DEFENDANT
AND: SERVICOM PTY LIMITED
SECOND DEFENDANT

Lae

Sakora J
9 October 1998
12 November 1999

Counsel

S. Tedor for the Plaintiff

D. Poka for the Defendants

12 November 1999

SAKORA J: This is an application by way of Notice of Motion for the entry of Default Judgment against the defendants in the sum of K31,891.14. The plaintiff makes this application pursuant to Order 12, Rules 25, 26, 27 and 34 of the National Court Rules (NCR). These rules are under Division 3 of the Order, which makes provisions for the circumstances under which a Default Judgment can be entered, thus a summary disposal with orders in favour of the plaintiff, upon proven default by a defendant, without the necessity of going to trial.

The pertinent provision under Rule 25 is in the following terms:

25. Defau> endant shal shall be in default for the purposes of this Division.

(a) &#160...../p>

(b) &160; where r isirequto f le a le a defence and the time for him to file his defens expbut h not his defence; or

(c) ...; .......<....

R

Rulp>Rule 26 of Order 12 then sets out the procedure to be undertaken upon the default of the defendant.

It is the plaintiff’s contention that there has been a default on the part of the two defendants to comply with requirements of the NCR. In the first instance, it is contended, the defendants did not file their respective Defences within the required period following the service on them of the plaintiff’s Writ of Summons. Thus, he says, he is entitled to come to this Court to seek the summary relief he seeks pursuant to Rules 25 (b), 26 and 27.

In support of the application the plaintiff has filed before this Court the following documents that he relies on:

1. ـ Avfidaf t of Service of thof the Writ of Summons on the two defendants sworn 1^st June 1998 by Paul John, thentiff

20;҈ Affidavit of Debt sborn al Sialis Toka Tokalula lula TedorTedor, the, the lawyer for the plaintiff, on 2 September 1998.

3. ҈ Affidavit of Searchearch sworn by Sialis Tokalula Tedor said lawyer for the plaintiff, on 2 September 1998.

As well, the plaintiff relies upon the letter of “warning” to the lawyers for the two defendants by his lawyer dated 15 July 1998, which is annexed with the letter “A” to the affidavit of Guguna K Garo sworn 18 September 1998 on behalf of the defendants. It is also Annexure “A” to the Affidavit of Search of Sialis Tedor (supra). This letter, after confirming the service of the defendants’ Notice of Intention to Defend, noted that the time for filing their Defences had lapsed on 14 July 1998. It then warned, pursuant to Practice Direction 1/87 NCR, that a search of the Registry of the National Court at Lae would be conducted on 27 July 1998 to ascertain whether the Defences had been filed, and that, if not, the plaintiff would proceed to apply for Default Judgment under the NCR.

The plaintiff says that the two defendants had sufficient time within the NCR to file their Defences in compliance with Order 12

Rule 25, and that equally sufficient warning had been given them as to what would ensue if they did not take heed and undertaken necessary action on their own part to protect their interests before 27 July 1998. In fact the intended search did not take place until 25 August 1998 (para. 7, Affidavit of Search) (supra), thus according the defendants “extensions” by a further 41 days after the lapsing of the required (by NCR) period on 14 July 1998.

Furthermore, it is submitted for the plaintiff that additional opportunity for the defendants to file their Defences arose after 25 August 1998, when this Notice of Motion with the accompanying documents were filed on 7 September and duly served 14 September 1998. It was thus another ample opportunity that the defendants failed to avail of in the protection of their interests. It is not without consequence to note in this respect that this application of the plaintiff was heard eventually on 9 October 1998, some 26 days after the service of the Notice of Motion and the supporting affidavits.

And pursuant to Order 12, Rule 27, the plaintiff’s claim is a liquidated demand. Rule 27 is in the following language:

27. Liqed demand

1.&#16. ټ Where the plaintiffntiff’s claim for relief against a defendant in default is for a liquidated demand only, the plaintiff may entegmentnst tefendant for a sum not exng the sum claimed in the stae statementement of t of claimclaim on that demand and for costs.

2. ـ W6ere a claim for afor a liquidated demand includes interest at an unspecified rate, interest accruing after the date of filie stat of to tte of entry of judgment shall, for the purposes of judgment uent under nder this this DivisDivision be reckoned at the rate of 8% yearly.

Mr Poka of counsel for and on behalf of the two defendants opposes the application, arguing that it is not appropriate for the plaintiff to seek the relief that he does now, as the defendants had filed a Notice to Plead Facts pursuant to Order 8 Rule 13 (3) NCR, which remains unanswered. It is the contention of the defendants that the notice was filed on 30 June 1998, within the time required by the NCR for the filing of Defences.

Rule 13 (3) of Order 8 is in the following terms:

13. ټ Mclaims

(1) ټ ....................

(2) ...........( )&#16) efe dantnday wmthin the tihe time limited for filing hisnce, and son the plaf a n thatdefendant requ requires the plaintiff to plead the factsfacts on w on which hich he rehe relies lies in accordance with this Division other than this Rule.

The defendants have had filed on their behalf the affidavit of Guguna K Garo (supra) which they rely on here. That affidavit deposes to the filing and service of the Notice of Intention to Defend and a Notice to Plead Facts on the plaintiff’s lawyer in Lae. It also deposes to the correspondence between the lawyers in July and September 1998, and finally contends that the plaintiff is in default himself by not responding to the Notice to Plead Facts.

Thus, it is submitted, the defendants have been unable to plead properly or at all to the plaintiff’s Writ of Summons. They have been and are awaiting the plaintiff to furnish facts. Under these circumstances, they urge the Court to dismiss the Notice of Motion with costs.

In reply, learned counsel for the plaintiff relies upon paragraph (6) of the affidavit of Guguna Garo (supra) as reflecting the plaintiff’s position. It is instructive, therefore, to set out in full this paragraph hereunder:

6. ; W60have not received from from the Plaintiff any response to the Notice to Plead Facts and on 14 September 1998 we received th the a copthe Piff&#s Notice of Motion for judgment. I am aware that ouat our Chrr Christopistopher Cher Coady oady spoke to Mr Sialis Tedor on 14 September and in response to Mr Coady’s request for an answer to the Notice to Plead Facts Mr Sialis Tedor stated “We have pleaded enough facts.”

It is submitted by Mr Tedor that the concluding and cited part of paragraph (6) of Mr Garo’s affidavit is the very reason why the plaintiff has seen no need to respond to the Notice.

In this respect learned counsel contends that such a Notice under Order 8 Rule 13 (3) NCR is only necessary where there are insufficient facts, or that the facts are so vague as to leave the defendants “in the dark” as to what the claim is about and the basis of the claim. He says the plaintiff’s claim as set out in the Statement of Claim to the Writ of Summons is not vague, that sufficient facts are alleged there and particularised, and enumerated, so that the defendants would know exactly what is being claimed against them.

Pleadings represent a traditional common law technique of presenting “pleas” so that the main issues in a dispute can be defined and clarified and set out in writing before the judge comes to try these issues. I have dealt with the purpose of pleadings in an earlier decision wherein I acknowledged some helpful and authoritative sources: Ludger Luker Mond -v- Kerenga Ben Okoro & Ors. [1992] PNGLR 501, pages 506 - 508. I respectfully rely on those authorities here, and only emphasise briefly a few aspects.

It is only fair that a defendant should know as soon as possible the kind of case he has to meet, that is to be made against him - and only fair to the plaintiff to know the defence that will be put up.

The objects of pleadings may be summarised as mainly:

(a) & to requ require each party to state the basis of his case;

(b) &#16 compel each party to s to stake clearly thevant ial fon whe relies;

(c) to proa de a wr ttenitten tten reco record for the court;

(d) ҈&&#160save anme and and expd expense.ense.

The pleadings lay a basis for a subsequent plea of res judicata if the defendant is sued a second time on the satter. In this the pleadings also lay a basis for the judgmjudgment. To give a remedy the Court has regard to the facts proved, and the findings of law in relation to the proved facts: Bernard C. Cairns, Australia Civil Procedure, 2nd. ed., LBC (1985), 86.

Pleadings should be “as brief as the nature of the case will admit.” It should not involve the use of “harassing and specious tactics.” And the pleadings should contain material facts only, and not law. Legal points are to be argued orally before the judge at the trial. Pleadings should not contain the evidence of the facts alleged.

I have discussed what are “materials facts” under the Organic Law on National and Local Level Government Elections (pursuant to s 208) in Ludger Luker Mond v Kerenga Ben Okoro & Ors. (supra). Whilst those discussions were specifically in respect of allegations in an election petition, I would respectfully suggest that they are applicable to pleadings in civil actions, more particularly allegations in Statements of Claim and Defences.

Lord Justice Farwell said this in the English case of N.W. Salt Co Ltd v Electrolyte Alkali Co Ltd [1913] 3KB 422, 425:

Every pleading must contain a statement of the material facts on which the party pleading relies, and not the evidence by which they are to be proved.

All facts which tend to prove the fact in issue will be relevant at the trial, but they are not “material facts” for pleading purposes: The Supreme Court Practice 1993 (UK) (The White Book), Vol. 1, p. 289. Cited in this authoritative text (at p. 290) is what Lord Denman C.J. said in Williams v Wilcox ]1838] [1838] EngR 305; 8 A & E. 314, 331:

It is an elementary rule in pleading that, when a statement of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegation.

Also usefully cited there (ibid) is the general rule as stated by Lord Justice Cotton in another English case: Philipps v Philipps [1878] [1878] UKLawRpKQB 96; 4 QBD. 127, p. 139:

In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they have to meed when the case comes on for trial.

This will prevent “surprise at the trial”

And the word “material” was defined by Lord Justice Scott in Bruce v Odhams Press Ltd [1936] 3 All ER. 287, at p. 294 to mean:

... necessary for the purpose of formulating a complete cause of action, and if any one “material” statement is omitted, the statement of claim is bad.

The combined effect of the provisions of Rules 25, 26 and 27 of Order 12 NCR, where the defendant is in default by not filing his Defence within the specified time, in respect of a liquidated claim, is that the plaintiff will be entitled to take the necessary steps to obtain judgment in default. If the Defence filed does not demonstrate a real Defence to the allegations in the plaintiff’s claim, the plaintiff will be entitled to apply to the Court for the Defence to be struck out.

Order 8 Rule 27 is in the following terms:

27. ـ Emssmentsment, etc. etc.

(1) Where a pleading -

<&>(a) &#160closerealenabusecaf acof action or defence or other case appropriate to the nature of e of the pthe pleadings; or

(b) &ـ haendto cause prej prejudice, emssment or delay in the proceeroceedingsdings; or ; or

(c) ҈ is othe otherwise an abust of the proof thrt,

the Court may at any stage of the proc proceedineedings, on terms or otherwise, order that the whole or any part of the plgs beck ou>

(2

(2) ; ....<....

A sp>A somewhat similar power in the Court to deal summarily with a particular proceedings or a claim for relief in the proceedings is provided for under Order 12 Rule 40, which is the following terms:

40. &##160; Frivolity, ety, etc.

)p>(1) iereny aoceerings it appt appears to the Court that lation to the proceedings generally or in relation to any claim for relief in the proceedineedings -

(a) &&#no cofeactioaction is d is disc disclosedlosed; or<; or

(b) ټ the proe proceedings are frivolous or vexatious; or

(c)҈&ـ the proceedings are an abuse of the the proceprocess ofss of the Court,

the Court may order that the proceedings be stayed or ssed ally or in relatielation toon to any claim for relief in the proceedings.

(2) ـ&#1...............

The purpose of these provisions in the NCR is, firstly, to allow a defendant speedy method of having the issue(s) quicklermind improper or unmeritorious actions dismissed, and, and secd secondly, to prevent an obstinate defendant from unduly delaying the action. These provisions are also intended to discourage or deter the parties from indulging in what has been called the “Particulars Game”, under which each party seeks to open up the case of his opponent by requesting Further and Better Particulars or to Plead the Facts of his pleadings, so as to compel his opponent to reveal as much of his case as he possibly can.

These extensive summary powers under the NCR can be exercised also under what is called the inherent jurisdiction of the Court, consonant with its powers as a superior Court to control and supervise the judicial process of the Courts, and in particular to prevent the abuse of the process of the Court.

Now, in respect of the basis of the objection of the two defendants to the plaintiff’s application for entry of default judgment, I have perused and considered carefully the Statement of Claim. From this I agree with the plaintiff’s submission that sufficient facts had been pleaded in the originating process. The parties and their respective roles and relationships to or with each other have been sufficiently identified. The plaintiff’s cause of action has been described or demonstrated. That is to say as a Director of the second defendant he was entitled to certain monetary rewards which the two defendants denied him, resulting in their indebtedness to him. And the extend and nature of the entitlements and indebtedness have been particularised under paragraph (3) of the Statement of Claim.

The defendants’ default in respect of these entitlements is elaborated under paragraph (4). What else, except evidence to prove as substantiate these alleged facts, would the defendants need further? Order 8 Rule 8 NCR reads as follows:

8. &##160;; F60; Facts, cts, not evidence.

(1) & A pleading of a party shay shall contain only a statement in a summary form of the material facts on which he relies, but not the evidence by which those are provp>

(2)& Sub- Sub-rule rule (1) o(1) of thif this Rule has effect subject to this Division and to Division 2 of Order 4 (originating process) and to Division 2 of this Order (particulars)

Order 8 Rule 29 NCR is in the following terms:

29. General

(1) ҈& A partyparty pleadpleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.

(2) Rules 30 to 40 inclusive if this Order do not affect the generality of sub-rale (1) of this Rule.

It is the judgment of this Court that, contrary to the assertions of the two defendants, sufnt mal facve already been feen furnisurnished ihed in the Statement of Claim to enable them to plead as required. There is, therefore, no merit, in my opinion, in the defendants asserting that they have been and are unable to file their Defences without the facts being pleaded. The facts upon which the plaintiff relies for his claim have been pleaded in the Statement of Claim.

It is the judgment of this Court also that the two defendants have defaulted in their compliance with the requirements of the NCR. They have failed to file their Defences to the plaintiff’s claim as required. The plaintiff is, therefore, entitled to come to Court and seek the reliefs as he does under the NCR.

The Court, therefore, dismisses the objection of the defendants and grants the orders sought in the terms of the Notice of Motion. That is to say, the Court orders that:

1. ; DefaultmJudgbent be enterentered against the first and second defendants for the sum of K31,891.14.

2. ـ҈& Inte be aed on the principal sum of K31,891.14 at the rate oate of 8% f 8% per aper annum nnum or K7or K7.00 per day, commencing 30 March 1997o the date of settlement of these orders.

3. ;ټ The; The; The defe defendants pay the costs of these proceedings, as agreed, or if not agreed, to be taxed.

4. ـ҈ T60; The time time of entry of these orbe abd to ime of e of settlsettlementement which shall take place forthwith.

Lawyers for the plaintiff: Sialis Tedor & Associates