Tununto v Eastern Highlands Provincial Government [1999] PGNC 33; N1897 (7 May 1999)

Unreported National Court Decisions

N1897

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 134 OF 1998
BETWEEN: JOHN TUNUNTO
- PLAINTIFF -
AND: EASTERN HIGHLANDS PROVINCIAL GOVERNMENT
- DEFENDANT -

Goroka

Kirriwom J
23 April 1999
7 May 1999

Cases Cited

Kumul Builders Pty Ltd v Post and Telecommunications Corporation [1991] PNGLR 299

Counsel

Mr J. Bray for the Plaintiff

Mr N. Teninge for the Defendant

RULING

7 May 1999

KIRRIWOM J: The applicant applies for summary judgement pursuant to Order 12 r. 38. The significance of r. 38 are the two requisites that the applicant must satisfy the court, namely,

(i) ـ t6ere is evidence once of the facts on which the applicant’s claim is based; and

(ii) ҈&e idencedencen byPl byPlaintiff or by some responsible person that, in the belief oief of thaf that pert person gson giving the evidence, the defendant hasefencthe claim or part, or no defence except as to theo the amou amount of damages claimed.

This is a rare kind of case in that summary judgement is sought with respect to the plaintiff’s calculated sum of entitlements owing to him for breach of contract which the defendant has not disputed. The plaintiff sued the defendant by Writ of Summons dated 16th February 1998 for damages for wrongful termination under an employment contract. On 17th July 1998 judgement in default was entered for the plaintiff on an ex parte application by counsel for the plaintiff as the defendant had not filed its defence. I note from the Court’s ruling that the defendant’s counsel was aware of the application but failed to appear or cause an appearance so the judgement in default was allowed ex parte with damages to be assessed.

I note that no application was made to set aside this default judgement and thereafter there was a period of six to seven months of inactivity until 22nd of January 1999 when the applicant filed an affidavit in support of the assessment of damages. There is uncontested evidence before me that the calculation of the plaintiff’s claim as set out in his affidavit are based on documents obtained from the defendant. From that time on there were numerous requests by letters from the plaintiff’s lawyers to the defendant’s lawyers to respond or comment on the plaintiff’s calculations of damages failed to draw any response. I have read the Affidavit of Mark Anthony Pryke sworn 8th April 1999 and I am satisfied that all efforts were exhausted to have the defendant respond to the plaintiff’s claim particularly with respect to the amount of K56,891.13 comprising the principal sum owing after deducting K14,694.00 as monies received by way of termination pay from the gross total of K71,585.13 and interest on K56,891.13 as at 01.01.99.

Even on the hearing on this application the defendant did not file any affidavit refuting those matters raised by the plaintiff in his own affidavit sworn 8th January 1999 nor the affidavit of Mark Anthony Pryke sworn 8th April 1999. Counsel for the defendant neither denied nor conceded the plaintiff’s claim nor did he present any cogent and convincing argument as to why I should not grant the order sought. With respect to the requisites for summary judgement in r. 38 I am satisfied that the defendant is liable to the plaintiff by virtue of the default judgement and the amount of money claimed under the contract is what he was entitled to and which the defendant does not challenge. Without any other evidence contradicting what the plaintiff has placed before the Court, I accept that evidence as truly reflecting what the defendant owes the plaintiff. I must therefore accept the evidence of Mark Anthony Pryke that the defendant really does not have any defence at all. Given all those circumstances explained since this matter has been on foot, I doubt very much that the defendant really has anything to advance in its defence. Counsel has not advanced any factual or legal issues that may give rise to any salient point of law that could ultimately determine the final outcome of this case. This was what was held in Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299 and I agree with Mr Bray that there is no point of law to consider that will finally settle the matter between the parties. Consequently I grant the orders sought in the notice of motion vis-a-vis:

1. & S60; Summary Judgement be entered for the plaintiff in the sum of K56,891.13 plus interest in the sum of K5,150.00 or thereabouts.

ـ҈&&#160e for entry of thes these orders be abridged to the time of s of settleettlement ment by thby the registrar which shall take place forthwith.

3. &##160;; C60; Costs ists in favour of the plaintiff, if not agreed, to be taxed.

Lawyer for the Plaintiff: Pryke & Co.

Lawyer for the Defendant: Nosohuno Teninge