Cletus v Patiliu [2006] PGNC 51; N3056 (12 April 2006)

N3056

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS.NO 583 of 2005

BETWEEN:

ALOIS CLETUS.
First Plaintiff/ Respondent

AND:

A.H. ENTERPRISES LIMITED.
Second Plaintiff/Respondent

AND:

CONSTABLE JACK PATILIU,
CONSTABLE PAUL TIRINGAU, CONSTABLE FIDELIS WARLIU & CONSTABLE ROCKY MATIUNGA
First Defendant/ Applicants

AND:

SAM INGUBA, QPM
Commissioner of Police
Second Defendant/Applicant

AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA.
Third Defendant/Applicant

KOKOPO: LENALIA; J.
2006: 31st March, 12th April

PRACTICE & PROCEDURE – Application for Default Judgment – Failure to file
Defence within time limited by the Rules – Defence on the merits - Application refused – Order 12 Division 3.

PRACTICE & PROCEDURE – Application for leave to file Defence out of time –
Defence on the merits – Principles of – Proposed defence – Evidence – Disclosure of Defence on the merits – Application for leave to file defence out of time granted.

Cases cited:
Green v Green [1976] PNGLR 73
Government of Papua New Guinea & Davies v Baker [1977] PNGLR 386
Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145
William Duma v Yehiura Hriehwazi (2004) N2526

Counsels:
O. Kivu for the Respondent
T. Potoura for the Applicants

April 12th 2006

LENALIA; J. The Plaintiffs commenced proceedings in 2005 against the three Defendants for damages for wrongful arrest, false imprisonment, malicious prosecution, damages for assault and grievous bodily harm and exemplary damages. The writ was filed on 7th of June 2005 and served on various dates on the defendants. Sergeant John Rusiat of Kokopo Police Station served the process on the first four defendants on 18th 20th & 21st of June in 2005. The second and third defendants were served with the process on 10th of August last year.

When the first plaintiff conducted a file search on 11th of October 2005, he found out that no Notices of Intention to Defend and no Defences had been filed. He gave instructions to his lawyer on record saying no intentions to defend and no defences had been filed. Then on 17th of February 2006, the lawyers on record in this case, Kawi Lawyers fifed a Notice of Motion on which they sought the following orders:

1. Default Judgment to be entered against all the defendants pursuant to O.12 r.25 (b) of the National Court Rules.
2. That the matter be set down for trial without delay.
3. Costs in favour of the plaintiffs.
   

On 28th of March 2006, Defendants/Applicants filed a Cross-Motion on which they sought orders for leave to be granted to file their Defences out of time pursuant to O.7 r.(6) (2) of the National Court Rules. The two motions were argued together on 31st March 2006 and the following ruling relates to both applications.

For the plaintiff, Mr. Kivu of Kivu and Associate Lawyers Town Agents for Kawi Lawyers argued that the three defendants had defaulted and thus default judgment should be entered. He further argued that, the explanations given by the defendants particularly the first four defendants cannot be accepted as they sat on the case and in their haste to file intention to defend and defences was merely an act to counteract notices for entry of default judgment and thus the court should not accept such reasons. The second reason given why the court should not accept the defendants’ application to extend time to file defences out of time is that the proposed defences do not contain any credible defence.

Mr. Potoura filed a well-researched written submission. In his submission, he argued that, the court should consider if the defendants had intentionally or deliberately or out of negligence had failed to file the documents within the time limited by the Rules.

LAW.

The law applicable at this stage of these proceedings is not as though default judgment hand been entered against the three defendants as was in the cases of Green & Company Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73 or as was in the case of William Duma v Yehiura Hriehwazi (2004) N2526 or that of Curtain Brothers (Queensland) Pty Ltd Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285 or even as was in the case of Leo Duque v Avia Andrew Paru [1997] PNGLR 379 and many more cases which deal with considerations and law which must be considered in relation to setting aside a default judgment. In the application for the defendants, I believe that it is a discretionary matter for the court to decide if it can exercise its powers to extend the time for the defendants to file their defences out of time.

The power of this court to extend time to file a defence out of time comes from O.7 r.6 (2) which reads:

"(2). Where a defendant gives a notice after the time limited for doing so, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had given a notice of intention to defend within that time".

There are other general provisions such as O.1 rr.7 and 15 (1) (2) & (3) of the National Court Rules which give this court discretionary power to dispense with compliance with the requirement of the Rules either before or after the occasion for compliance arises. Order 1 r.7 reads:

"7. Relief from Rules.

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises".

In addition to the above proviso, Rule 15 (1) (2) of O.1 states:

"15. Extension and abridgment.

(1) The Court may, on terms, by border extend or abridge any time fixed by the Rules or by any judgment or order.
(2) The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for extension is made before the time is made.
(3) The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension."

It is abundantly clear from the Rules that I have referred to that in this kind of application as the one before me, the court had discretion to grant leave to extend time to file the defence out of time. I have read the affidavits of the first defendants and I do appreciate the difficulty they were faced with where each one of them say that when they were served with the writ, they contacted the Legal Division of the Police Department in Konedobu for that section to file intention to defend as well as to file formal defences but it took time for the legal division to prepare documents.

The file shows that, the notice of intention to defend was lodged on 19th of September 2005. (Refer to letter from Mr. F. Kuvi, the then Acting Solicitor General dated 22nd September 2005, see also a letter dated 22nd September 2005 Senior Sergeant V Makis, Task Force O.I.C. Kokopo Police station).

The way I see it, it is not the case where it can be said that the defendants’ default was intentional in the way they acted.

I heard arguments from both counsels on the two motions. I will express my dissent from the decision by the trial judge in the case of William Duma v Yehiura Hriehwazi (supra) where the court there said that in absence of authority to the contrary, the principles applicable to an application to set aside a default judgment with appropriate modification should apply to an application for leave to file and serve a defence out of time.

In case of two applications like the two before me where there is one seeking orders for default judgment and one to extend time to file defences out of time, unless there is a clear case of a matter being a liquidated claim without any cross-claim, an application to extend time is a discretionary consideration for the court.

The application by the defendants is not an application to set aside a judgment entered by default. It is an application to extend the time to file the defence out of time. The parties have the right to come to court to litigate and let the court on the hearing proper alone decide and determine if there is evidence against the defendants. This court will not act as a committal court to decide if there is evidence on the merits so I could grant the application by the defendants.

In cases where default judgments had been entered, the law is clear that a defendant who has defaulted by not complying with the filing of intention to defend and defence, must disclose a defence on the merits. This means that, the applicant must produce to the court evidence by affidavit to show that he or she has a prima facie defence setting out a defence on the merits: Provincial Government of North Solomons Province v Pacific Architecture Pty Ltd [1992] PNGLR 145, see also Green v Green [1976] PNGLR 73.

In the application before me, I am of the strong view that, this is a discretionary matter which the court will consider on the strength of the evidence showing the reasons why the defendants have defaulted.

If a defendant gives a reasonable explanation as in these proceeding why it took their department sometime to file intentions to defend and defences to defend the claim then there is no reasons why leave should be granted to them to extend time to file documents as required by the rules.

As I said last week in the case of Micheal Pundari v Niolam Security Limited (WS.NO.1106 of 2005, decision of 7th April 2006) that, in a case where a default judgment had been entered and an application to set aside is made in due time and where there is defence on the merits, it becomes a matter of course that the parties must be heard as the Constitution in s.37 guarantees full protection of the law to all citizens and non-citizens alike.

Even if there were no specific provisions in the Rules giving this court discretionary powers to file a notice to defend or a defence such as Order 1 r.7, 15 (1) (2) (30) or O.7 r.6 (2) of the National Court Rules, this court would have the power under s.155 (4) of the Constitution to do justice in the circumstances in a particular case.

Having said what I have stated, I have considered counsels submissions in relation to both Notices of Motions. I have read all evidence in affidavit form filed in favour of both applications, due to the nature of the two plaintiffs’ claim, the court in its discretionary powers refuse the application for default judgment and order that, leave is granted to the defendants to file their defences out of time. The Court orders costs to be in the cause.

______________________________________

Lawyer for Applicants : Paul Paraka Lawyers.
Lawyer for Respondents : Kawi Lawyers.