N3271

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1780 OF 2005

DAVID ANDE & 8 OTHERS
Plaintiffs

AND

NELSON PANO, PAUL PANI & LUS PAGAWA
First Defendants

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail AJ
2008: 8 & 15 February

INTERLOCUTORY RULING

PRACTICE AND PROCEDURE - default judgment - application - further application to extend time to file defence outside fourteen (14) days - Court Order - leave to file defence within fourteen (14) days - failure by Defendants to file defence within fourteen (14) days - defence filed outside fourteen (14) days – more than three (3) months after leave to file defence -further application for default judgment - whether Plaintiffs entitled to default judgment - National Court’s jurisdiction - National Court Rules,- Order 12, rules 25, 26 & 27, time limitation for State to file defence – sixty (60) days – Section 9 (a) (i) of Claims By and Against the State Act 1996 – failure to comply with time limit set by Court Order – distinguished from default within the meaning of the National Court Rules - no discretion to refuse application for default judgment - default judgment granted.

Cases cited
Bata Kitipa –v- Vincent Auali & 2 Others (1998) N1773
Motor Vehicle Insurance (PNG) Limited -v- Sossie Joe (2007) SC862

Counsel:
Mr P Kopunye, for the Plaintiffs.
No Appearance for the Defendants.

15 February, 2008

1. MAKAIL AJ: INTRODUCTION: This is an application by the Plaintiffs by Notice of Motion filed on 10 August 2008 made pursuant to Order 12, rules 25, 26 & 27 of the National Court Rules seeking default judgment to be entered against the Defendants on the basis that the Defendants failed to file their Defence within the fourteen (14) days granted by the Court on 20 April 2007 plus costs.

2. Prior to the hearing, Mr Kopunye of counsel for the Plaintiffs informed the Court that he had given notice to the Solicitor General lawyers of the Mt. Hagen office of the impending application and produced a copy of the letter of such notice dated 8 February 2008 to the Court. I noted that there was no appearance for the Defendants. Having been satisfied that notice had been given to the Defendants’ lawyers, I granted leave to the Plaintiff to move the application ex parte.

EVIDENCE

3. In support of the Application, the Plaintiffs rely on the following Affidavits:-

1)	Affidavit of Peter Kopunye sworn on 9 August 2007 and filed on 10 August 2007.

2)	Affidavit of Service of Mathilda Konge sworn on 6 December and filed on 7 December 2005; and

3)	Affidavit of Service of David Ande sworn on 18 May 2006 and filed 5 June 2006. 

BRIEF BACKGROUND

4. On 10 November 2005, the Plaintiffs filed a Writ of Summons seeking general and exemplary damages and costs against the Defendants arising from an alleged police raid and destruction of properties and livestock at Aku village in the Kagua District of the Southern Highlands Province on 2 February 2001. The Writ of Summons was served on the Solicitor General’s office on 29 November 2005. The Plaintiffs also served the Writ of Summons on two of the First Defendants on 15 and 16 February, 2006.
 
5. Subsequent to the service of the Writ of Summons, the Defendants failed to file and serve their Notice of Intention to Defend and Defence within the time stipulation under Order 4, rule 11 (b)(i) of the National Court Rules and section 9 (1) (a) of the Claims By & Against the State Act 1996. Upon noting that they were in default on 17 August 2006, the Defendants through the Solicitor General’s office filed a Notice of Motion to seek leave of the Court to file their Notice of Intention to Defend and Defence out of time. On 20 April 2007, the National Court heard the application and granted leave to the Defendants to file their Notice of Intention to Defend and Defence within fourteen (14) days.

6. It is important to note that leave was granted to the Defendants to file their Notice of Intention to Defend and Defence after one (1) year and four (4) months after the Writ of Summons was served on the Solicitor General’s office on 29 November 2005 and as for the two of the First Defendants after one (1) year and two (2) months since the service of the Writ of Summons on the two of the First Defendants on 16 February 2006. The matter of significance in making this point is that, the Defendants had been in default of their Notice of Intention to Defend and Defence within the meaning of Order 4, rule 11 (b)(i) and Order 12 rule 25 of the National Court Rules for a very long time.

7. It is also important to note that the filing of the Defendants’ Notice of Motion on 17 August 2006 was prompted by the first application of the Plaintiffs by Notice of Motion filed on 12 August 2006 for default judgment.

8. The fourteen (14) days expired on 4 May 2007 but still the Defendants failed to file their Notice of Intention to Defend and Defence within the fourteen (14) days. The Solicitor General filed a Notice of Intention to Defend on behalf of all the Defendants on 8 May 2007. Their Defence was filed on 15 August 2007, more than three (3) months after the fourteen (14) days granted by the Court.

9. As a result of the Defendants’ default, on 10 August 2007, the Plaintiffs filed another Notice of Motion to seek default judgment against the Defendants. 

ISSUE

10. The pertinent issue is whether default judgment should be entered against the Defendants notwithstanding the Defendants’ Defence being filed outside the fourteen (14) days as ordered by the Court.

THE LAW

11. The Court’s jurisdiction to enter default judgment is found under Order 12 rules 25, 26 and 27 of the National Court Rules in cases where the Plaintiff is applying for default judgment with damages to be assessed. In the present case, the Plaintiffs are applying for default judgment to be entered with damages to be assessed.

Order 12 rule 25 of the National Court Rules states as follows:

"(1)	A Defendant shall be in default for the purposes of this division:

(a)	where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b)	where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or

(c)	Where he is required under Order 8 rule 24 to verify his defence and the time for him to verify his defence in accordance with that rule (has expired but he has not verified his defence".

Order 12 rule 28 of the National Court Rules states as follows:

"Where the plaintiff’s claim for relief against the Defendant in default is for unliquidated damages only, the plaintiff may enter judgment against the defendant for damages to be assessed and for costs".

PLAINTIFFS’ SUBMISSIONS

12. Mr Kopunye of counsel for the Plaintiffs submitted that as the Court had granted leave to the Defendants to file their defence within fourteen (14) days on 20 April 2007 and as the Defendants had failed to file their defence within the fourteen (14) days, the Defendants are in default. He contended that the Defendants defence filed on 15 August 2007 is filed outside of the fourteen (14) days as ordered by the Court and should be stuck out. He further submitted that the Defendants filing of their Defence on 15 August 2007 does not correct their default of the Court Order of 20 April 2007. For these reasons, he submitted that the Court should enter default judgment against the Defendants with damages to be assessed.

RULING

13. I find that on 20 April 2007, the National Court granted leave to the Defendants to file their Notice of Intention to Defend and Defence within fourteen (14) days from the date of the Order. The fourteen (14) days expired on 4 May 2007. 

14. I also find that on 6 August 2007, the Plaintiffs’ lawyers conducted a search of the Court file at the Mount Hagen National Court Registry to ascertain whether the Defendants filed their Defence in compliance with the Court Order of 20 April 2007. I further find that the Defendants failed to file their Defence by or before 4 May 2007. As a result of the Defendants’ default, on 10 August 2007 the Plaintiffs filed a further Notice of Motion to seek default judgment against the Defendants.
 
15. I find that the present application can be distinguished on the facts from the Supreme Court Judgment of Motor Vehicle Insurance (PNG) Limited -v-Sossie Joe(2007) SC863. In the Supreme Court Judgment of MVIL -v- Sossie Joe’s case (supra), the Supreme Court comprising their Honours Injia DCJ, Manuhu and Hartshorn JJ heard an appeal by the Motor Vehicle Insurance Limited (herein the MVIL) from the National Court’s decision which held that the MVIL required leave to file its Defence out of time.

16. In the MVIL -v- Sossie Joe’s case (supra), the Respondent sued the MVIL in the National Court for damages for personal injury. The MVIL filed its Notice of Intention to Defend after the thirty (30) days time limit under Order 4 Rule 11 (b)(i) of the National Court Rules. 

17. Its attempt to file its defence within fourteen (14) days thereafter was refused by the National Court Registry on the basis that it had failed to file its Notice of Intention to Defend within time, thus it could not file its defence without leave of the Court. MVIL applied to the National Court for the National Court Registry to accept the filing of its Defence without leave. The National Court held that MVIL did require leave and granted leave to MVIL to file its defence. 

18. The issue in the appeal was whether MVIL having filed its Notice of Intention to Defend out of time, is entitled to file its Defence without leave of the Court within fourteen (14) days of the expiry of the prescribed time limit.

19. The Supreme Court held that a Defendant can file his defence anytime within the total period of forty four (44) days, regardless of whether he has filed a Notice of Intention to Defend within time. If the Defendant attempts to file his Defence more than forty four (44) days after the Writ of Summons is served upon him, he requires leave of the Court, regardless of whether he has filed a Notice of Intention to Defend within time. Please note, the forty four (44) days does not apply to the State because the total time limit for the State is ninety (90) days under Order 4, rule 11 (i)(a) of the National Court Rules and section 9 (a)(i) of the Claims By and Against the State Act 1996.

20. Further, the Supreme Court held that the late filing of a Notice of Intention to Defend does not of itself extend the time for filing a Defence. A Defendant must seek leave of the Court to extend time to file his Defence. The leave of the Court is not required if he files his Defence within the total time prescribed for filing a Notice of Intention to Defend and Defence.

21. In this case, I find that the Defendants had done the correct thing by filing an application to seek leave of the Court to file their Notice of Intention to Defend and Defence out of time. This is because, their time to file the Notice of Intention to Defend expired on 31 December 2005 and Defence expired on 1 March 2006 if we compute time of service of the Writ of Summons from 29 November 2005 at the Solicitor General’s office. As noted, on 20 April 2007, the National Court granted leave to the Defendants to file their Notice of Intention to Defend and Defence within fourteen (14) days because it was clear the Defendants fell outside the total ninety (90) days under the combine effect of Order 4, rule 11 (b)(i) of the National Court Rules and section 9 (a)(i) of the Claims By & Against the State Act 1996 to file their Notice of Intention to Defend and Defence. Even after the Court granted leave to the Defendants to file their Defence within the fourteen (14) days, they failed to do so. They filed their Defence on 15 August 2007, more than three (3) months after the fourteen (14) days had expired on 4 May 2007. This is one of the factual aspect that is different to the factual circumstances in MVIL -v- Sossie Joe’s case (supra).

22. However, I consider that the principles discussed in the MVIL -v- Sossie Joe’s case (supra) are applicable to the extent that a Defendant be it the State or otherwise who has failed to file a Defence within the time stipulation requires leave of the Court to do so.

23. The question is, can the Court enter default judgment against the Defendants not withstanding the fact that the Defendants had filed their Defence outside the fourteen (14) days as granted by the court? In other words does the Court have any discretion to refuse an application for default judgment notwithstanding the Defendants’ failure to comply with an earlier Court Order granting leave to the Defendants to file their Notice of Intention to Defend and Defence within fourteen (14) days?

24. I am of the view that the Court does not have any discretion to refuse the Plaintiffs’ application for Default Judgment. I am of the view that the Plaintiffs are entitled to default judgment notwithstanding the fact the Defendants had filed their Defence late. This is because first, the Defendants have been given leave to file their Defence within fourteen (14) days by an Order of the Court of 20 April 2007. Their right to file their Defence within the sixty (60) days after the time to file their Notice of Intention to Defend of thirty (30) days expired under section 9 (a)(i) of the Claims By and Against the State Act 1996 had long since expired on 1 March 2006. Hence, they were in default. The only way the Defendants could have their Defence filed outside of the total ninety (90) days was to obtain leave of the Court. They had done so on 20 April 2007. The Court Order of 20 April 2007 was specific with the time limit for the Defendants to file their Defence and that was, for the Defendants to file their Defence within fourteen (14) days. (Emphasis is mine).

25. As they have not filed their Defence within fourteen (14) days, they have defaulted for the second time. I am of the opinion that they are not entitled to file their Defence outside the fourteen (14) days without a further leave of the Court. As they have defaulted for the second time, the only way they could file their Defence outside the further fourteen (14) days is to seek a further leave to do so. In other words, to seek further extension of time from the Court to file their Defence. I find that they have not done so in this case. Instead, they have gone ahead and filed their Defence on 15 August 2007, more than three (3) months after the fourteen (14) days which the Court had granted had expired.

26. I am of the view that this Court is bound to give effect to the Court Order of 20 April 2007. That is, I am obliged by the Court Order of 20 April 2007 to find that the Defendants were clearly in default for the second time. This time, they failed to comply with a Court Order; an Order which they had earlier asked the Court to grant.
Secondly, the Defendants have not sought a further leave of the Court to extend time to file their Defence. As they had not sought further leave, I find that there is no discretion for the Court to refuse the Plaintiff’s application for default judgment. The Defendants had been given the second opportunity to file their Defence within fourteen (14) days but they failed to do so. They have not appeared and opposed the application nor have they filed any Affidavit to explain the delay in failing to file their Defence within the fourteen (14) days. 

27. There is one last matter worth mentioning here. I cannot help but wonder in astonishment that the Defendants had annexed as Annexure "C" a draft Defence to the Affidavit in Support of Rosemary Koimo sworn on 14 August 2007 and filed on 17 August 2007 to support their application for leave to file their Notice of Intention to Defend and Defence within fourteen (14) days. This draft Defence was placed before the Court at the hearing on 20 April 2007. When leave was granted, they could have simply printed out copies of the draft Defence, sign them and had them filed within the fourteen (14) days. They did not do so. I find this a very appalling conduct by the lawyers of the Solicitor General’s office.

28. Nevertheless, I have reached the conclusion that there is no discretion for this Court to refuse the Plaintiffs’ application for default judgment. I distinguished the National Court Judgment of His Honour Injia J. (as he than was) in Bala Kitip -v- Vincent Auali & Ors (1981) N1773 from the present case for the following reasons:

1.	In the Bala Kitipa’s case (supra), only the First Defendant failed to file his Notice of Intention to Defend and Defence despite being duly served with the Writ of Summons. In this case, all Defendants failed to file Notice of Intention to Defend and Defence.

2.	The entry of default judgment made under Order 12, rule 32 is discretionary, even though there is proof of service of the Writ of Summons and default. Order 12, rule 34 of the National Court Rules gives that discretion. Hence, the Court is concerned with a default of a Court order; and

3.	A default judgment may still not be entered where the effect of the default judgment would prejudice the rights of other co-defendants where they have filed their Defence. Here, none of the Defendants have filed their Defence within time as per the Court Order of 20 April 2007.

29. As I stated earlier, I am of the view that the Defendants in the present case had failed to comply with a Court Order which had fixed a time limit for them to file their Defence. They had not defaulted within the meaning of the Order 4, rule 11 (b)(i) and Order 12 rules 25, 26 and 28 of the National Court Rules. If that was the case, than this Court would have a discretion to refuse the application for default judgment pursuant to the Court’s power under Order 12, rules 32 and 34 of the National Court Rules. Here, they had failed to comply with a Court Order, so I must now give effect to it.

30. For these reasons, I uphold the Plaintiffs’ application for default judgment. 

ORDERS

The Orders of the Court I make are as follows:

1.	The Defendants’ Defence filed on 15 August 2007 is struck out.

2.	Default Judgment is entered against the Defendants with damages to be assessed.

3.	The matter is referred to the Assistant Registrar to list on the Civil Call Over list for allocation of a trial date for assessment of damages.

4	The Defendants pay the Plaintiffs’ costs of the Application.

_______________________________

Kopunye Lawyers: Lawyers for the Plaintiffs
Acting Solicitor General: Lawyers for the Defendants