Mai v Southern Highlands Provincial Government [2004] PGNC 222; N2558 (10 June 2004)

N2558
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

WS 787 of 2003

BETWEEN:

EMMANUEL MAI
trading as Mai Lawyers
Plaintiff

AND:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Defendant

Waigani: Davani, .J
2004: 19 May
10 June

PRACTICE AND PROCEDURE – application to set aside summary judgment - distinction between summary judgment and default judgment – when to move application for summary judgment and default judgment – irregularly entered judgment – summary judgment set aside.

PRACTICE AND PROCEDURE – service of process on a Provincial Government – non-compliance with mandatory requirements as to service – service irregular; S. 7 of Claims By and Against State Act; S. 7 of Organic Law on Provincial and Local Level Government.

PROVINCIAL AND PROCEDURE – service of notice under s. 5 of Claims By and Against State Act – personal service mandatory – non-compliance, notice deemed not to have been served – filed proceedings incompetent and irregular.
S. 5 (3) of Claims By and Against State Act.

Cases and authorities cited in judgment:
Telikom PNG Limited v Thomas Tulin, SC748 dated 2.6.04
Christopher M. Smith v Ruma Constructions N1982 per Sakora .J
Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd SC 505 dated 16th August, 1996
Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764

Claims By and Against the State Act of 1996
Organic Law on Provincial and Local Level Governments
Odgers on High Court Pleading and Practice

Counsel:

E. Mai for the Plaintiff/Respondent

D. Tambili for the Defendant/Applicant

RULING

(application to set aside ex-parte summary judgment)

10th June 2004

Davani .J: I have before me Notice of Motion filed by Korowi Lawyers on 19th June, 2003 for and on behalf of the defendant/applicant (‘applicant’) seeking orders that the ex parte order of 24th September, 2003 obtained by the plaintiff be set aside and that leave be granted to the defendant to file its Defence out of time, such application made pursuant to O. 12 R. 8 (3) of the National Court Rules (‘NCR’). This rule states;

"8. Setting aside or varying judgment or order

...

(3) The Court may, on terms, set aside or very an order –

• (a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order;

..."

The plaintiff opposes the application.

In support of the Notice of Motion is the affidavit of Philemon Was Korowi sworn on 20th February, 2004.

The substantive action and the application

The Writ of Summons and Statement of Claim was filed by Mai Lawyers, the plaintiff on 19th June, 2003. On the same day, they also filed Notice of Motion seeking orders that summary judgment be entered for the plaintiff in the sum of K28,500.00 being Mai Lawyers’ taxed costs. The substantive action also sought payment of taxed costs for the sum of K28,500.00. As pleaded in the Statement of Claim, the costs were taxed and certified by the Assistant Registrar of the National Court, Waigani on 8th April, 2003. These costs arise out of a range of legal services provided by the plaintiff to the Defendant pursuant to instructions he received during the period 28th October, 1998 to 16th August, 2000.

The application for summary judgment was made ex parte. The application was supported by the affidavit of Mr Emmanuel Mai sworn on 19th June, 2003. In his affidavit, he deposed that the defendant did not have a Defence on the merits and requested that the court enter summary judgment for the amount of K28,500.00, which orders the court granted.

The applicant seeks to set aside those orders for summary judgment. The applicant raises the following arguments in support of its application;

1. That the applicant was not served with the Writ of Summons and Statement of Claim and the Notice of Motion in support of the application for summary judgment. That if the plaintiff did not wish or could not serve on the defendants for one reason or another, that he should firstly have obtained an order for dispensation of service or for substituted service.
   
2. That the Writ of Summons and Statement of Claim, the Notice of Motion and supporting affidavits were moved ex-parte when the plaintiff had about 3 months from when the documents were filed, within which to serve documents and that there was no urgency in relation to the hearing of both the motion and the substantive matter together.
   
3. That the order for summary judgment was most improper because the defendant had not yet filed a Defence on which the court could make its assessment as to whether or not to make orders for summary judgment.
   
4. The plaintiff had not given notice to make a claim against the defendant as required under s. 5 of the Claims By and Against the State Act.
   
5. That the defendant has a good Defence on the merits which if given the opportunity, would have been filed.
   

I will consider together all arguments raised by the defendant, although not in the order set out above.

1. Service of notice under s. 5 of the Claims By and Against the State Act (‘Claims Act’).
   

As stated above, the summons is in relation to payment of certified taxed costs. Prior to the issue of the summons, on 17th June, 2003 the plaintiff gave notice to the State pursuant to s. 5 of the Claims By and Against the State Act of 1996 (‘Claims Act’). This notice letter dated 17th June, 2003 informed the acting Solicitor General Mr Kumura that the plaintiff intended making a claim against the Southern Highlands Provincial Government for payment of outstanding legal fees. Copy of this letter is attached to Mr Mai’s affidavit sworn on 19th June, 2003 and Mr Mai deposes to this at paragraph 10 of that affidavit. S. 5 (3) of the Claims Act is very specific as to the manner of service of the s. 5 notice, more particularly s. 5(3) which states in no uncertain terms that notice should be given by personal service on the Attorney-General, the Solicitor-General or their respective personal secretaries. However, the manner of service of the letter giving notice is not deposed to in Mr Mai’s affidavit nor any other affidavit material filed by the plaintiff and held in the court file. I note only the postal address on Mai Lawyers letter to the defendant and assume that the letter may have been posted. This is not proper service under ss. 5(3) of the Claims Act.

On that basis alone, this claim is incompetent and without basis for lack of proper service of the s. 5 notice. However because the applicant has raised other arguments, I will deal with them.

ii. Service of Summons

Furthermore, the plaintiff did not serve the Writ of Summons and Statement of Claim upon the defendant as is the normal mandatory requirement. The only time he can be exempted from serving upon the defendant personally is if there is an order for substituted service or that service upon the defendant was dispensed with by order of the Court. However in this case, the plaintiff had not taken out either orders for dispensation of service or substituted service. And he still did not serve both the Summons and the Notice of Motion for summary judgment upon the defendant.

In relation to service of a Writ of Summons and Statement of Claim upon a Provincial Government, I note on the court file, the affidavit of one Philip Kende sworn on 29th August, 2003 which deposes to his personal service upon Hami Yawari MP Governor of Southern Highlands Provincial Government of the "Writ of Summons, Notice of Motion and an affidavit" on 6th August, 2003. Is that proper service on a Provincial Government? The Supreme Court case SCR 1 of 1998, held that the term "the State" in relation to claims arising under the Claims Act of 1996 also included "Provincial Governments" which therefore means that service must be effected in accordance with s. 7 of the Claims Act. S. 7 is specific that where the State, in this case the Southern Highlands Provincial Government, is a party to a suit, process shall be served on either the Attorney-General, the Solicitor-General or their respective personal secretaries. Additionally, s. 7 of the Organic Law on Provincial and Local Level Governments, the provision on service of process, states that any notice, summons, writ or other process required to be served on a Provincial Government may be served on an officer designated by the Provincial Government or the Local Level Government for that purpose. Mr Mai for the plaintiff does not show in any of his affidavit material that Mr Hami Yawari, Governor of the Southern Highlands Provincial Government is an officer designated by that Government to accept service of the Writ of Summons and Statement of Claim.

Mr Mai did not comply with mandatory requirements in relation to service. Therefore, I find that service of the Writ of Summons and Statement of Claim is irregular.

iii. Application for summary judgment

His Honour the motions judge dealt with the application for summary judgment as though it were an application for default judgment. With respect, that I find is clearly wrong. The established position at law is that principles relating to default judgment are not the same as those relating to applications for summary judgment. In saying that I refer to Telikom PNG Limited v Thomas Tulin, SC 748 dated 2.6.04, where the Supreme Court bench comprising Injia DCJ, Sakora and Batari .JJ discussed the distinction between a summary judgment and a default judgment.

A default judgment is obtained when there is a default in the filing of Notice of Intention to Defend or Defence within the period prescribed in the NCR. It is not a judgment on the merits. A summary judgment is filed and moved after the plaintiff has reviewed the defendants filed Defence. After review of the Defence, he files an application for summary judgment which is supported by an affidavit of the plaintiff or someone with knowledge of the facts, in this case, a responsible person, that he believes there is no Defence to the whole or part of the plaintiff’s claim. (see O. 12 R. 38 of the NCR; pg. 16 of Odgers on High Court Pleading and Practice). The Defendant must then show by affidavit or otherwise or satisfy the court that he has some genuine triable or arguable defence or issue to raise at trial (see Christopher M. Smith v Ruma Constructions N1982 per Sakora .J). But in this case, the Defence was not before the motions judge when the application for summary judgment was moved. In fact, the Defence was not filed because the plaintiff had not properly served the Writ upon the Defendant.

In Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd SC505 dated 16th August, 1996, the Supreme Court bench confirmed the trial courts decision that judgment obtained was irregular because the Writ was not properly served. The principle of irregularly entered judgments is well established in this jurisdiction and at common law. This was discussed in the Leo Hannet (supra) case. The Supreme Court Bench comprising Kapi DCJ as he then was, Los and Salika .JJ discussed the difference between a "regularly" and "irregularly" entered judgment. The established principle at law is that when a judgment is irregularly entered and if it was irregularly entered by not complying with the rules of court as in this case, then according to O. 12 R. 8 (3) (a) of the NCR, the order may be set aside ex debito justitae (as required in the interests of Justice.) (see Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764). Because the motions court entered a summary judgment, the principles relating to the setting aside of a regularly entered default judgment are not applicable, i.e an affidavit showing a defence on the merits, a reasonable explanation as to why judgment was allowed to go by default and the promptness in making the application to set aside. The applicant need not satisfy these three requirement. However, because summary judgment was entered before a Defence was filed, I find that to be most irregular and that the ex-parte order of 24th September 2003 should be set aside as of right.

Court’s formal orders

I order that;

1. The ex-parte order of 21 September 2003 is set aside;

2. The whole proceedings be dismissed for there being no cause of action against the State.

_______________________________________________________________

Lawyer for the Plaintiff/Respondent : Mai Lawyers

Lawyer for the Defendant/Applicant : Korowi Lawyers