Lome v Kundi [2004] PGNC 13; N2776 (15 December 2004)

N2776

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No 903 of 2003

BETWEEN

GRACE LOME by next friend JACK LOME
Plaintiff

AND

ALLAN KUNDI,
Western Highlands Provincial Police commander
First Defendant

AND

JOSEPH KUPO,
Commissioner for Police
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

MT. HAGEN: LAY, J.
2004: 14th and 15th December

DEFAULT JUDGEMENT – application to set aside – application under O12 r35 - general principles – irregularity – requirements – regularly entered – defence on the merits – applicant’s onus to prove case – reliance on absence of documents from court file.

Counsels:
Mr Sino for the Applicant Defendants
Mr Gonol for the Respondent Plaintiff

Facts

The Defendants made application to set aside a judgement entered in default of a defence. The Defendants said the motion for judgement was not served and no warning was given that the application would be made, therefore the judgement was irregularly entered. Further it was submitted there was explanation of the Defendants delay and evidence of a defence on the merits. To establish that the motion for judgement was not served the Court could note the absence from the court file of an affidavit of service.

Held

The Applicants must positively prove their case by sworn evidence. The Court could not rely on the absence of an affidavit of service from the Court file to draw an inference that the motion for judgement was not served. To do so on an application to set aside a judgement was dangerously close to reviewing the actions of the judge who entered judgement, which is not part of the jurisdiction to set aside judgement.

There was no evidence that the motion for judgement had not been served, nor that there had been no warning of the intention to apply for judgement. The explanation for the Defendants delay did not explain the delay. The defence on the merits was merely a pleading not supported by sworn evidence.

Application refused.

PNG Cases Cited:
Christopher M Smith v Ruma Constructions Ltd SC695 (11/10/2002)
PNG National Stevedores Pty. Ltd and Bank of South Pacific Limited v The Honourable Andrew Baiang, PNG Harbours Board and The State (9/4/98) N1705
Bank of South Pacific Limited v Spencer [1983] PNGLR 239
Green & Co Pty Limited (In Liquidation) v Green [1976] PNGLR
The Government of Papua New Guinea & Davis v Barker [1977] PNGLR 386
North Solomons Provincial Government v Pacific Architecture Ltd SC422.[1992] PNGLR 145
Thomas Paraka v Mathew Kewa & The State N1987
Mapmakers Pty. Limited v Broken Hill Pty. Limited [1987] PNGLR 78
Nand Waige v MVIT [1995] PNGLR 202

Overseas Cases:
Wallingford v Directors of the Mutual Society (1880) 5 AC 685
Sharples v Northern Territory [1988] NTSC 20; (1988) 55 NTR 35

Other Authorities:
Practice Direction No 5 /97

LAY, J: This is an application by the Defendants to set aside a Default Judgement. The Writ was issued on 18th June 2003. The first Defendant was served on 30th July and the Second and Third Defendants on 31st July 2003. Notice of Intention to Defend was filed on 21st August and 15th September 2003. A Motion for Default judgement was filed 17th November 2003. The motion was heard and judgement entered for damages to be assessed on 2nd March 2004. This motion to set aside the judgement was filed 21st April 2004 and given a return date of 7th May 2004. However it appears from the endorsements on the Court file that the first time this matter came before the Court was on 12th November 2004. On that day and 19th November there was no appearance by the Defendants. On 26th November by consent the matter was adjourned to 10th December when it came before me. Mr Ovia of the Solicitor General’s Office appeared for Defendants & Mr. Gonol for the Plaintiff and the matter was further adjourned to 13th December for argument. On 13th December Mr Sino of Paraka Lawyers appeared for the Defendants and informed the Court he had just been instructed. He sought a 24 hour adjournment which was granted over the objection of Mr Gonol.

The Applicant Defendant relies on one affidavit and the Respondent Plaintiffs on four affidavits, which I have read.

The Applicants submit that the judgement should be set aside:

1. Because it was irregularly entered, the irregularity’s claimed being:
   
   1. No warning was given of the intention to move the Motion;
   2. The Motion was not served.
      
2. Because if not irregular:
   
   1. Application was made promptly;
   2. The Defendants delay has been explained and
   100. There is a Defence on the Merits.
   4. The Statement of Claim may not disclose a cause of action. It is a novel claim for damages alleged to arise out of the failure of the Police to arrest suspects in a rape.
      

The Respondent submitted that:

1. The Motion does not particularize irregularities, the Respondent is taken by surprise and I should not allow this point. If notice had been given appropriate evidence could have been filed.
   
2. As to setting aside the regularly entered judgement:
   
   1. It is conceded application was made promptly;
   2. The explanation of delay, being that the Solicitor General’s office was closed by the landlord, is no explanation because the closure occurred after the last day for filing a defence.
   100. There is no Defence on the Merits firstly because it has been sworn to by the lawyer and not the witnesses with knowledge of the events and secondly because the principle facts of the statement of claim are admitted in the defence.
        

The Law

The law on setting aside a judgement entered by default is well settled. The jurisdiction to do so is exercised under either O12 r8 or O12 r35. The principles are the same in either case. The jurisdiction does not include a power to review the entry of judgement by the judge before whom the application for judgement came[1].

If the judgement is irregularly entered in such a way that it is a nullity then the Defendant is entitled to have it set aside as of right. In all other cases, including those where there is an irregularity in entry of judgement not amounting to a nullity, the applicant Defendant must show:

1. the application is within a reasonable time of judgement becoming known to the defendant, and this applies equally to cases of irregularity[2];
2. an explanation as to why judgement was allowed to be entered by default;
3. a defence on the merits.[3]
   

Where the irregularity is fundamental and thus a nullity the Court must set aside the judgement. But where the irregularity is for example non compliance with a Rule of the Court, the Court has a wide discretion as to how to deal with it.[4] That the statement of claim does not disclose a good cause of action is not an irregularity of a kind upon which an application to set aside judgement can be founded.[5] Any motion to set aside a process of the Court on the basis of an irregularity must set out the particulars of irregularity on which the applicant relies.[6]

To show a defence on the merits a proposed draft defence is not sufficient.[7] The Applicant must "condescend upon particulars"[8], that is, not just plead but set out statements of material fact by affidavit evidence which supports the pleading and is sufficient to satisfy the Court that the Applicant has a prima facie defence and that it is reasonable that the Applicant should be allowed to raise that defence[9]. And that affidavit evidence must be sworn by persons with knowledge of the facts and not the lawyer for the applicant.[10] An affidavit sworn by a lawyer that there is a good defence is generally not sufficient.[11]

Where an appearance has been entered a motion for judgement must be served[12]. Before the motion for judgement is filed written notice of the intention to make application should be given to the Defendant’s address for service. If it is not it may be a ground for setting aside the judgement.[13]

Irregularity

The Respondent was correct to say that the irregularities alleged from the bar table were not particularized in the motion. Nor was there any sworn evidence either that the motion for judgement was not served or that prior notice was not given before filing of the motion. Mr. Sino invited me to look at the Court file and check if there was an affidavit of service of the motion. I think that would be a dangerous course. The onus is on the Applicants to positively prove their case by evidence. As the Supreme Court said in MVIT v Nand Waige[14]:

"There is always the overriding principle that the onus is on the plaintiff to prove their case"

For the judge to examine the Court file to discover absence of evidence on the prior application, such as the absence of an affidavit proving service of the motion for judgement, is getting very close to reviewing the entry of judgement, which is not part of the jurisdiction to set aside a default judgement. Secondly, the Court file is not safely conclusive evidence of what was before the judge who heard the application. There should be an affidavit of service on the file, but if I look and do not find one, perhaps it was lodged and not placed on the Court file and Counsel had to hand up a copy for the information of the Court, as has happened on several occasions in Mt Hagen during this circuit. Or perhaps the proof of service was received only on the eve of hearing and there was no time to file it but it was shown to the judge, as Mr Gonol claims.

I do not place any weight on Mr Sino’s or Mr Gonol’s assertions from the bar table. However, there is no doubt that the Defendants were aware of the pending application for judgement as it’s existence is acknowledged in a letter from the Solicitor General to the Plaintiff’s lawyers dated 19th December 2003 being annexure "D" to the affidavit of Rosemary Koimo sworn 20th April 2004. In that letter the Solicitor General also asks for 7 days to file a Defence. Had the Solicitor General’s office filed an application for an extension of time immediately, rather than waiting two months to see if a reply would be forthcoming to their letter, it is likely this current situation would not have arisen. I find that the Applicants cannot succeed on the irregularity ground because they did not particularize the irregularities in the in the motion and have taken the Respondent by surprise; and because they placed no sworn evidence before the Court of the matters on which they sought to rely.

Prompt Application

It is conceded the application to set aside the default judgement was promptly made and I so find.

Explanation for Delay in Defence

The explanation for the delay in filing the Applicants Defence is that in November 2003 the Third Defendant’s legal representative the Solicitor General in Mt Hagen was locked out of its office for the whole month. From the times mentioned above it can be seen that the 60 days for entry of a notice of intention to defend by the State and the 30 days for defence would have expired approximately 20th October 2003. The total explanation relating to the relevant time in the Applicants evidence is the statement "However I was unable to file a Defence within the required time." That really is no explanation at all. The later statement in Ms Koimo’s affidavit that "I was unable to file our Defence within the required time as our office was locked around mid November..." just completely overlooks the fact that the ‘required time’ had expired well before the office was locked. I find the Defendants have not offered an adequate explanation as to why the judgement was allowed to be entered.

Defence on the Merits

The Defence shown by the Applicants is a pleading annexed to Ms Koimo’s affidavit. The relevant part of the affidavit referring to the annexure reads "Based on the instructions on our file I have drafted a Draft Defence which I believe is a valid Defence." No statements of fact are sworn to, as Mr Sino properly conceded. There is only the lawyer’s affidavit, no affidavit from the First or Second Defendants or any other officer of the Police Force. There is less material here than in North Solomons Provincial Government v Pacific Architecture Pty. Limited[15] where the Supreme Court found the judge at first instance had properly exercised his discretion to refuse to set aside judgement. I find no defence on the merits as understood from the cases has been shown by the Applicants.

The application to set aside the default judgement is refused.

I thank counsel for their assistance, particularly Mr Sino who put forward a credible argument for his client despite very short notice and a rather inadequately prepared application from his client.

Lawyers:
For the Plaintiff : Paulus Dowa Lawyers
For the Defendants : Paul Paraka Lawyers

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^[1] Christoper Smith v Ruma Constructions Ltd (11/10/2002) SC695 Kapi DCJ, Los J and Kandakasi J
^[2] PNG National Stevedores Pty. Ltd and Bank of South Pacific Limited v The Honourable Andrew Baiang, PNG Harbours Board and The State (9/4/98) N1705 Kapi DCJ.
^[3] Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Limited SC505, Kapi DCJ Los and Salika JJ.

^[4] O1 r8 and see Bank of South Pacific Limited v Spencer [1983] PNGLR 239 McDermot J.
^[5] See note 2.
^[6] O1 r10
^[7] See note 3.
^[8] Wallingford v Directors of the Mutual Society (1880) 5 AC 685 at p 704, Lord Blackburn first referred to in this jurisdiction in Green & Co Pty Limited (In Liquidation) v Green [1976] PNGLR 73 O’Leary AJ.
^[9] The Government of Papua New Guinea & Davis v Barker [1977] PNGLR 386 per Frost CJ and Prentice DCJ
^[10] North Solomons Provincial Government v Pacific Architecture Ltd SC422.[1992] PNGLR 145 Amet Woods and Doherty JJ.
^[11] Sharples v Northern Territory [1988] NTSC 20; (1988) 55 NTR 35, Asche C.J.
^[12] Thomas Paraka v Mathew Kewa & The State N1987, Hinchliffe J.
^[13] Mapmakers Pty. Limited v Broken Hill Pty. Limited N588 Kidu CJ and Practice Direction No 5 /97.
^[14] [1995] PNGLR 202 Woods Jalina and Sakora JJ
^[15] Supra