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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 450 of 2005
BETWEEN:
TIMOTHY TIMA and JACK TIMA for and on behalf of themselves and TIMA, KALA, KALOBAN, SAMUEL, ISMAEL, WILLIAM, WAKI SIMEON, and JOP
families of YAKANANDA Village
Plaintiffs
AND:
CHIEF INSPECTOR THOMAS KOROHAN – P3368 (PPC Enga Province), INSPECTOR TIMOTHY POMOSO – P 4761 (PSC – Wabag), SERGEANT
MUIKEN KAKAS P8472 (PSC – Laiagam), INSPECTOR NEMBENAT FLEX – P4694 (Commander, M/S 14 – Laiagam)
First Defendants
AND:
SAM INGUBA, COMMISSIONER FOR POLICE
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Davani, .J
2006: 24 March, 3 April
PRACTICE AND PROCEDURE – Default judgment – strict compliance with rules of court et al – proper service – address for service – O. 12 r.24 and r.25 of National Court Rules ('NCR') – NCR 1/87 – NCR 5/97
PRACTICE AND PROCEDURE – Default judgment – proper procedure – recent affidavit of search – letter of forewarning – Rule 19 (3) (a) iii of Motions (Amendment) Rules 2005
WRIT OF SUMMONS – Personal service – Address for service – lack of address for service – writ irregular – O. 6 R. 2 of NCR
Cases cited:
Bella Kitipa v. Vincent Uali and 3 ors N1773;
Healey v Ballarat East Bowling Club [1961];
Kante Mininga v. the State and 2 ors N1458 of 1996;
Eriare Lanyat, Henry James Tamarua, Naiven Yato & 9 ors v George Wagulo and the State N1481;
Anton Kaluni v Aiyale Warole and Whatolo Business Group Inc. (2001) N2114;
Philip Wikai v Bopo Kumbati and Anglo Coffee Pty Ltd dated 11 June, 2001;
Kabil Worim and 101 others v Sergeant Koben and the State N1417;
Counsel:
P. Korowi, for the plaintiffs
D. Lambu, for the defendants
3 April, 2006
RULING
1. DAVANI .J: The plaintiff applies for default judgment moving on their Notice of Motion filed by Korowi Lawyers on 3 August, 2005. The Motion seeks that judgment be entered by default and for damages to be assessed. The application is made pursuant to O.12 r.25, 26 & 28 of the National Court Rules ('NCR').
2. The defendant also moves by motion filed by the Office of the Solicitor-General on 20 September, 2005 for leave to file its Defence out of time.
3. The both applications are opposed. I reserved my ruling to today.
Application
4. The application for default judgment is supported by several affidavits. They are;
5. The defendant in opposing the application, relies on the affidavit of the Acting Solicitor-General then, Francis Kuvi, sworn on 20 September, 2005.
6. The defendant also filed its Notice of Intention to Defend on 4 May, 2005.
Analysis of facts and the law
7. The Writ of Summons and Statement of Claim was filed by Korowi Lawyers for the plaintiff, on 1 September, 2005 ('Writ'). The Statement of Claim pleads that on 5 August, 2004, the defendants after a (police) raid upon their village, destroyed their homes and properties and also killed and injured some villagers. The plaintiff claims losses to the value of K4, 043,675.81 and other damages to be assessed.
8. Apart from the provisions of the NCR that the plaintiff relies on, there are practice directions which clearly set out the procedure for default judgment, namely Practice Direction NCR 1/87 and NCR 5/97.
9. First, I should point out that when an applicant applies for default judgment, he is saying that stipulated procedures have not been complied with. So he must strictly prove the non-compliance of these procedures or compliance with procedures before he can get judgment, notwithstanding the fact that in some situations, parties may have been negotiating or exchanging correspondence on either settlement or the filing of a Defence etc. I will discuss the relevance of this statement, later.
10. Order 12 Rules 24 and 25, state that where a defendant is required to file a Defence within the period specified and he has not done that, then the defendant shall be in default. Or where a defendant is required to verify his Defence and he fails to do that, then he shall be in default. In this case, the endorsement on the writ states;
"You are liable to suffer judgment or an Order against you unless the prescribed form of your intention to defend this claim is received in the registry with thirty (30) days after service of this Writ of Summons upon you and comply with the Rules of Court relating to your Defence.
You are required to verify your Defence."
11. Apart from the endorsement on the Writ, Practice Direction NCR 1/87 issued on 15 June, 1997 and Practice Direction NCR 5/97 issued on 17 September, 1999 are very specific on procedure in relation to default judgments.
12. Practice Direction NCR 1/87 reads;
"PRACTICE DIRECTION NC 1/87 (Issued 15th June, 1987)
DEFAULT JUDGMENT – OBLIGATION TO NOTIFY PERSON OR LAWYER FILING NOTICE OF INTENTION TO DEFEND
In N588 – Mapmakers Pty Limited v. Broken Hill Proprietary Company Limited, the Chief Justice has laid down the following principle to be followed when entering default judgments, namely that there must be a practice of forewarning lawyers of the opposite side (or the Defendant if in person) before entering judgment where there is a Notice of Intention to Defend filed.
In the event that this does not occur, then this failure may be a ground for setting aside the judgment."
13. Practice Direction 5/97 reads;
"(g) PRACTICE DIRECTION NC 5/97 (issued 17th September 1997)
DEFAULT JUDGMENT PROCEDURE
As of the date of this Practice Direction the practice of the Court for the entry of Default Judgment will be that on meeting the requirements of Order 12 Division 3 of the National Court Rules, the Registrar will give a date for a Motion to be heard.
Under the decision of Paraka v Madang Provincial Government N1596 (Doherty J, September 12, 1997) the Registrar of the National Court is deemed not to have had the power to enter a Default Judgment. Only a Judge of the National Court can direct the entry of a Default Judgment.
Those persons submitting a Default Judgment will be required to provide the following:
- An Affidavit of Service;
- An Affidavit of Search;
- An Affidavit in support (including a letter to the other party if a Notice of Intention to Defend is filed);
- A form of Default Judgment;
- A Notice of Motion
A date for hearing the Motion will be given by the Registrar at a date at least 3 days after the requirements of Order 12 Division 3 (and in respect of service on the State, the Claims By and Against the State Act 1996) are complied with.
Service of the Motion in accordance with Order 4 Division 5 – Motions of the National Court Rules will be required."
14. Has the plaintiff complied with stipulated, mandatory procedure in relation to obtaining default judgment? To do that, I will review the steps the plaintiffs' lawyer should have taken, to then be an eligible applicant for default judgment.
(A) Notice under s.5 of the Claims By and Against the State Act ('CBASA')
15. Because this is a claim against the State, the plaintiff must satisfy the court that he has given notice under s.5 of the CBASA. The plaintiffs plead at paragraph 16 of their Statement of Claim that they gave notice to the Attorney-General under cover of their letter dated 20 December, 2004. The Solicitor-General has acknowledged receipt of this letter which is confirmed in Francis Kuvi's affidavit sworn on 20 September, 2005. Mr Kuvi, the then acting Solicitor-General, deposed in his affidavit of par. 2 that his personal secretary received that letter on 5 January, 2005.
16. However there is an issue in relation to the number of plaintiffs who have given notice. Mr Lambu submits that each plaintiff must give notice of the claim under s.5 of the CBASA and that s.5 of the CBASA only states that Notice of Intention to make a claim must be given to the State. The relevant section, s.5, reads;
"5. NOTICE OF CLAIMS AGAINST THE STATE
...
(2) A notice under this section shall be given –
...
(c) within such further period as –
(i) the Principal Legal Adviser; or
(ii) the court before which the action is instituted,
on sufficient cause being shown, allows."
17. Mr Korowi submits that this provision does not state that each plaintiff must be served, especially in cases where there are numerous plaintiffs. And I accept Mr Korowi's submissions because it would not make sense in a case where there are numerous plaintiffs, for each one of them to give notice, when one letter giving notice about the action is sufficient to put the State on notice about the plaintiffs claims against it. But it is preferable in cases involving numerous plaintiffs, for the letter to state the number of people involved and to name them in the one letter. This is to enable the State to conduct its investigations into the alleged action and the number of people involved.
18. In this case, the letter giving Notice of Intention to make a claim reads;
"20th December 2004 By Hand
The Secretary for Justice & Attorney General
Office of the Attorney General
10th floor, Sir Buri Kidu Haus
P.O. Box 591
WAIGANI
National Capital District
Dear Sir,
Re: Claim against the Commissioner for Police and the State for assault upon lives & destruction caused to property by Messrs Jack & Timothy Tima: Yakananda Village – Wabag, Enga Province
We act for Messrs Jack & Timothy Tima and other relatives of Yakananda Village, Wabag, Enga Province.
On Thursday 5th August 2004, a raid was conducted by members of the police force without any lawful excuse, at our clients' Yakananda village located along the Okuk Highway, between Wabag town and Laiagam District, resulting in destruction of properties and loss of one life and injury to many people.
We have been instructed to file a suit against certain officers of the police force namely the Provincial Police Commander of Enga Province, Station Commanders of Laiagam and Wabag Police Stations and the Mobile Squad Commanders of Wabag (MS 09) and Laiagam (MS 14) for destruction caused to our clients' properties including permanent and semi-permanent buildings, trade-stores, bush material homes, house-hold items/fixtures, domestic animals for commercial and pets, cash crops and general vegetation. This unlawful police raid resulted in loss of one (1) life and injury and bodily harm to persons.
The incident attracted public attention and was published in the front pages of the Post Courier and National newspapers on Monday 10th August 2004. Upon complaint by our clients at the Public Complaint Division of the Police Headquarters, the Deputy Commissioner for Police (Operations), Mr. Gari Baki tasked an internal investigation into this incident and a report was presented to the Police Commissioner. We suggest you contact the Legal Division of the Police Department and obtain a copy of the report to appraise you with details of the facts and circumstances surrounding the incident. We will also provide you with details of the incident once we have compiled all witness statements.
However, for the purposes of Section 5 of the Claims By and Against the State Act 1996, we hereby give Notice on behalf of our client of their intention to make a claim against the State.
By letter dated 11th November 2004, to your office, our clients gave a simple notice of the claim. Both our clients and this letter are within the six (6) months period as required under the said Act. Since, this letter constitutes notice given as statutory pre-requisite [sic]; we will appreciate it if you could confirm receipt of this letter."
19. The A/Solicitor-General's response to the notice letter is dated 2 February, 2005 and states that the letter giving notice is 'void ab initio' because the policemen have not been named. Thereafter, I do not know what transpired in correspondence exchanged between Korowi Lawyers and the A/Solicitor-General but it is obvious based on the material before me, that the plaintiffs filed Writ of Summons (1.4.05) without first resolving the issue of whether their letter giving notice is good notice. In fact the A/Solicitor-General's letter of 2 February, 2005, speaks for itself, that it refused to accept that letter as good notice. Then the plaintiffs option would have been to ask for extension time either from the Principal Legal Adviser or the Court (s. 5 (3) (c) of CBASA).
20. This court finds that the plaintiffs filed the Writ of Summons and Statement of Claim without first making use of the avenue available to it under s. 5 (2) (c) of the CBASA i.e. to obtain an extension of time.
21. But the State appears now not to take issue with that, only insisting that the plaintiffs provide the names of policemen and their address as set out in their Notice of Motion.
(B) Service of Writ of Summons and Statement of Claim
22. As to service upon the first defendants, who are being sued in their personal capacities, there is no affidavit of service on the court file, deposing to service upon each one of them, but I note the affidavit of service of one Robert Kapi sworn on 28 April, 2005. The propriety of service is questionable and which I will discuss below.
23. As to service upon the second defendant, the affidavit of service of Jack Yenege sworn on 23 June, 2005, deposes that he served the Writ upon the second defendant's legal officer on 19 April, 2005. I consider that to be insufficient service because the second defendant is being sued personally and as such must be personally served. (see O. 6 r. 2 of NCR).
24. As to service upon the third defendant, I have sighted an affidavit of service sworn by Jeffery Korowa on 21 April 2005, which deposes to service of the Writ upon the Office of the Solicitor-General on 7 April, 2005.
25. On 4 May 2003, the Office of the Solicitor-General filed a Notice of Intention to Defend for and on behalf of the second and third defendants.
26. Again, reverting to issue raised earlier in relation to service upon the first defendants, I refer again to affidavit of service sworn by Robert Kapi. When Sergeant Muiken Kakas accepted service of the Writ, the affidavit does not state if he was doing so for and on behalf of the other named defendants. Order 6, Rule 2 of the NCR is clear, that subject to any Act and the NCR, that originating process shall be personally served on each defendant. Therefore, it is good practice and appropriate for counsel or his representative when serving one defendant who is named in a group as in this case, that the server must ensure to serve on the other named defendants as well. In this case, service was effected upon a named defendant and who is also the PPC's secretary. So the server must ascertain then whether the named defendant will accept service of the originating process, for and on behalf of the PPC, in his capacity as Secretary. But even then, this is not personal service. It is imperative that whatever eventuated between the server and the person who effected service, must be deposed in the servers affidavit of service to properly establish that proper service (or not) was effected.
27. In this case, Robert Kapi's affidavit only deposes to having personally delivered the Writ on one Sergeant Muiken Kakas on 27 April, 2005. I find that to be service upon Sergeant Kakas only. I also find that proper service has not been effected upon the other named first defendants being Chief Inspector Thomas Korohan, Inspector Timothy Pomoso and Inspector Nembenat Flex.
(C) Notice of Intention to Defend and Defence
28. The second and third defendants have filed Notice of Intention to Defend through the Office of the Solicitor-General.
29. Sergeant Muiken Kakas has not filed Notice of Intention to Defend. Because the other named first defendants were not properly served, they need not respond to the Writ.
30. Again, according to Practice Direction 1/87, the applicant for default judgment must issue a letter of forewarning to the defendant, in this case the second and third defendants before applying for default judgment. Did he do that?
31. It is good practice for an applicant for default judgment to put before the court attached to an affidavit, the letter of forewarning. In this case, no such affidavit is before me. The forewarning letter must be issued before the motion seeking default judgment is filed, not after. If a letter is served after the motion is filed, then that letter does not constitute notice or forewarning of the intended application for default judgment.
32. I find that no letter of forewarning was issued to the second and third defendants. Default judgment can be refused on that basis alone.
(D) Affidavit of search
33. The affidavit of search of Jeffery Kerowa sworn on 2 August, 2005, deposes to a search having been conducted on 2 August, 2005 and noting that a Notice of intention to Defend was filed for and on behalf of the second and third defendants. But a recent search must be conducted. In this case, a search may not have been conducted because the plaintiff probably assumes that because there is a pending application for leave to file Defence out of time, which the defendants would obviously have not filed a Defence. But the rules require that a recent search must be conducted. Rule 19(3) (a) iii of the Motions (Amendment) Rules 2005 states that if a motion for default judgment is outstanding for more than 3 weeks, that 3 days before the motion is moved, the lawyer must conduct a search and file a fresh affidavit of search. The rule reads;
"(3) Default judgment procedure
(i) An applicant for default judgment shall file the following documents;
- Notice of Motion
- An Affidavit of Service;
- An Affidavit of Search (of the court file) conducted just before filing the motion;
- An Affidavit in support (to also attach copy of the letter to the other party forewarning of the application, if a Notice of Intention to Defend has been filed).
- A draft order for default judgment.
(ii) Upon compliance with sub-rule (i) and the requirements of Order 12 Division 3 of the National Court Rules, the Registrar shall fix a return date on the Notice of Motion. The date must be three (3) clear days after the anticipated service of the Motion.
(iii) If the motion has been outstanding for two (2) weeks or more, then three (3) days before the motion is moved, the applicant or his/her lawyer must conduct a fresh search of the court file and file a fresh affidavit of search. (my emphasis).
(iv) The affidavit of service must strictly comply with Order 12 Rule 34 of the National Court Rules, i.e.;
- - the affidavit must prove due service of the writ, i.e. it must depose to date and time of service and on whom the writ was served;
- - A copy of the writ must be attached to the affidavit of service."
34. No such search (in accordance with the above rules) was conducted. I have referred to the importance of the requirement to conduct a proper recent search of the court file before making applications for default judgment, in several cases. Two (2) of these cases are Anton Kaluni v Aiyale Warole and Whatolo Business Group Inc. (2001) N2114 dated 13 June, 2001 and Philip Wikai v Bopo Kumbati and Anglo Coffee Pty Ltd dated 11 June, 2001. In Philip Wikai (supra), I relied on Kabil Worim and 101 others v Sergeant Koben and the State N1417 where Injia .J (as he then was) held that;
"Proof of service is established by a proper affidavit of search ...the affidavit of search should set out the date on which the court file was searched and the discovery made as to the default by the defendant in filing the defence within the time stipulated by the rules. The affidavit should also contain references to the particular rule relied upon the details of the expiration of the time limit."
35. Jeffrey Kerowa's affidavit does not depose to any of those requirements. I find that a proper recent search was not conducted and an affidavit of search was not filed to then enable the hearing of the application for default judgment. In fact, it can or will form the basis of the refusal of the application. Which also raises another administrative issue, which is that, Registry clerks or the Deputy Registrar, should not accept for filing, applications that do not comply with rules of court or practice directions, which would in effect assist in eliminating applications being made that are not in the proper form.
Filing of Defence out of time
36. On review of the file, I note that the Office of the Solicitor-General has maintained dialogue with Korowi Lawyers, since it received the letter giving notice of the claim. To Mr Kuvi's affidavit sworn on 20 September, 2005, are attached copies of these letters. They are;
"You could also ask each and everyone of them as to whether they have been personally served a sealed copy of the writ by Mr Timothy Tima or his lawyers. If so, tell them to state the time, date and location and by whom the service was effected. They could proceed to file their Notice of Intention to Defend and Defence with 30 days of service of the Writ on them or if anyone of them wish our office to file Notice of Intention to Defend and Defence, then that person can send his instruction to me by or before the 21st June 2005."
37. Mr Kuvi also attached to that letter a copy of the draft Defence for the second and third defendants.
38. Clearly, the defendants are well out of time to file their Defence, to be filed on or before 7 July, 2005. But I have material before me which shows that the defendants lawyer had a draft Defence by September, 2005, but could not file because they were waiting on instructions. The principles in relation to filing Defence out of time, being delay and the draft Defence being meritorious are that as to delay, the defendants immediately sought instruction but did not file because their clients did not respond. As to draft Defence, I consider the defendants do have a good defence.
39. Which then takes me to the necessity for the plaintiff to state the defendants correct address on the Writ. In this case, the first defendants are four (4) individuals, "lumped" together. Is that good pleading? I consider that not to be so. I am sure their actions, for which the plaintiff now wishes to hold the second and third defendant liable, are separate and distinct. They should be named as separate defendants, for the third defendant especially, to then be held vicariously liable for their actions. As it is, the Statement of Claim is generalizing as to their actions in the alleged raid e.g. par.5 of the Statement of Claims states "...the first defendants...whilst in the course of discharging their duties...resulting in death of one person...injuries to several persons and mass destruction to the plaintiffs properties..."
40. Paragraph. 6 states "...they fired several rounds of gunshots..." The issue that will arise obviously is as to who did what on that day.
41. I note their address of service on the summons to be "Wabag Police Station", but even the plaintiffs representatives could not locate them there to effect service upon them.
42. It is law that a failure to state an address is an irregularity and the process stands as valid unless the court sets it aside. (see Healey v Ballarat East Bowling Club [1961] VicRp 32; [1961] VR 206). In this case, although there is an address on the writ, several of the named first defendants did not receive the writs at the stated address.
43. But, again as to the issue of the naming of policemen, on the Writ of Summons, there have been cases where the State has been held to be vicariously liable for the destruction of property by unidentified policemen committed in the course of stopping the warring clansmen. In those instances, the policemen were not named. (see Eriare Lanyat (WS 76/93), Henry James Tamarua (WS 106/93) Naiven Yato & 9 ors v George Wagulo and the State (WS 107/93) N1481 dated 24.10.96 per Injia .J)
44. But for purposes of an application for default judgment, I find that the defendants with the exception of the third defendant, were not properly served because the address for service was obviously incorrect. And because the policemen could not be located, their lawyers could not obtain the instructions they needed.
Default judgment
45. The court has a very wide discretion to enter default judgment. As Injia .J said in Kante Mininga v. the State and 2 ors N1458 of 1996;
"O. 12 R. 32 of the NCR gives the court a wide discretion to enter default judgment. Even when proof of due service of process on a defendant and proof of the default is established by the plaintiff/applicant the court still has a discretion to refuse to enter default judgment..."
46. Again in Bella Kitipa v. Vincent Uali and 3 ors N1773, Injia .J categorized the situations where application for default judgment can be refused.
These were;
47. In this case, if the court were to enter default judgment against Sergeant Kakas only, it would definitely affect the rights of the other co-first defendants.
Conclusion
48. I find that the plaintiffs lawyer has not complied with proper process in relation to service of the Writ upon the named defendants, with the exception of the third defendant. The writs must be re-served on the first and second defendants. The third defendant need not be re-served.
49. The plaintiffs lawyer should also seriously consider amending the Writ to name the first defendants as separate defendants or not to name them at all. I leave that for him to consider because that application is not before me and I have not heard submissions on that aspect.
50. These are the courts formal orders;
________________________________________________________________
Korowi Lawyers: Lawyer for the plaintiffs
Office of Solicitor General: Lawyer for the defendants
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