Onga v Independent State of Papua New Guinea [2008] PGNC 236; N3705 (20 August 2008)

N3705

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 13 OF 1993

BETWEEN:

FRANK ONGA
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mt Hagen: David, J
2008: 20 August

PRACTICE AND PROCEDURE – Amended Statement of Claim not served upon Defendant – breach of O.8 r.58 National Court Rules does not render proceedings void – O.1 r.8 National Court Rules applied.

PRACTICE AND PROCEDURE – Amended Statement of Claim not served upon Defendant – breach of O.8 r.58 National Court Rules - default judgment entered irregularly - application to set aside default judgment entered irregularly must be made within a reasonable time – O.1 r. 9 National Court Rules applied.

PNG cases cited:

Green & Co. Pty Ltd v. Green [1976] PNGLR 73
The Government of PNG & Davis v. Barker [1977] PNGLR 386
George Page Pty Ltd v. Balakau [1982] PNGLR 140
Mapmakers Pty Limited v. Broken Hill Pty Co. Ltd [1987] PNGLR 78
Paul Marinda v. The State (1991) N1026
Leo Hannet v. ANZ Banking Group (PNG) Ltd (1996) SC505
Sengi Laki & Ors v. The Commissioner of Police (1996) N1432
Leo Duque v. Avia Andrew Paru [1997] PNGLR 378
Brown Pinoko v. The State (1997) N1520
Thomas Paraka & Ors v. Mathew Kawa & The State (2000) N1987

Overseas cases cited:

Sneade v. Wotherton [1904] 1KB 295
Eshelby v. Federated European Bank Ltd [1932] 1 KB 254
Warner v. Sampson [1959] 1 QB 297
Mitchell v. Harris Engineering Co. Ltd [1967] 2 QB 703

Counsel:

P. Mawa, for the Plaintiff
K. Sino, for the Defendant

RULING ON MOTION

20 August, 2008

1. DAVID, J: INTRODUCTION: By an Amended Notice of Motion filed on 10 October 2003, the Defendant sought the following principal orders:-

1. That the default judgment of 22 June 1999 be set aside as being irregularly entered pursuant to O.8 r.58 of the National Court Rules.

2. The proceedings are void for want of service of the Amended Statement of Claim within a reasonable time after the amendments.

3. Alternatively, the proceedings be dismissed for the deceased Plaintiff lacking locus standi in this action.

4. Alternatively, the proceedings be dismissed for want of prosecution under O.10 rr.4 and 5 and O.4 r.36 of the National Court Rules.
   
5. Alternatively, the proceedings be dismissed for non disclosure of a cause of action pursuant to s.1 (2) of the Wrongs (Miscellaneous Provisions) Act, Chapter 297.
   

2. The Defendant only pursued the reliefs sought in paragraphs 1 and 2 of the Amended Notice of Motion.

3. The Defendant relied on the Affidavit of Kumoro Sino sworn and filed on 18 September 2003 and also the Supplementary Affidavit of Kumoro Sino sworn on 9 October 2003 and filed on 10 October 2003. The Plaintiff did not file any Affidavit in rebuttal.

4. The application was moved on the day the matter was scheduled for trial for assessment of damages.

BACKGROUND

5. The Plaintiff, by his Writ of Summons and Statement of Claim filed on 16 February 1993, claims against the Defendant loss and damage suffered or incurred by himself including exemplary damages and loss of profit as a result of alleged illegal actions of some policemen. The Defendant is sued in its vicarious capacity. The Plaintiff alleges that:-

• at the material time he was operating a tavern business called Kumbugl Tavern at his village namely, Keta in the Western Highlands Province;
  
• on 8 September 1991, policemen, whilst acting in the course of their employment with the Defendant and acting within the scope of their authority, conducted a raid of his village without legal or any justification at all;
  
• during the raid, the policemen destroyed and/or misappropriated property belonging to him valued at K20,338.90.
  

6. The Writ of Summons and Statement of Claim was served upon the Defendant on 9 March 1994.

7. On 9 June 1994, the Plaintiff filed his Amended Statement of Claim pursuant to O.8 r.51 of the National Court Rules amending the date of the alleged raid from "8 December 1991" to "8 September 1991".

8. The Court actually entered judgment by default in favour of the Plaintiff and for damages to be assessed on 22 May 1999 and not on 22 June 1999 as is pleaded in the Amended Notice of Motion.

9. The Plaintiff died at about the time default judgment was entered and the Court file indicates that on 15 December 2003, it was ordered that the Plaintiff’s father Onga Rokpa be substituted as the plaintiff in lieu of his late son.

THE ISSUES

10. The major issues are:-

1. Has the Defendant made out a case to set aside the default judgment?
   

2. Are the proceedings void for want of service of the Amended Statement of Claim?

11. I will discuss the issues in the reverse order.

ANALYSIS OF THE ISSUES, LAW AND EVIDENCE

Are the proceedings void for want of service of the Amended Statement of Claim?

Defendant’s submissions:

12. Mr. Sino of counsel for the Defendant deposes in his Supplementary Affidavit that on 29 September 2003, he conducted a search of the Court file at the Registry which revealed, amongst other things, that there was no document filed indicating service of the Amended Statement of Claim upon the Defendant. He submitted that the proceedings are therefore void and should be struck out because:-

1. the Amended Statement of Claim was not served on the Defendant on the date the document was filed contrary to O.8 r.58 of the National Court Rules;
   
2. the Amended Statement of Claim was not served on the Defendant within 2 years taking O.4 r.13 of the National Court Rules as a guide.
   

Plaintiff’s submissions:

13. Mr. Mawa of counsel for the Plaintiff basically submitted that; the Solicitor General who had the carriage of the matter on behalf of the Defendant prior to briefing out to Paraka Lawyers should have filed an Affidavit deposing to not receiving the Amended Statement of Claim; and this was an argument that should have been raised at the time the application for default judgment was moved.

Remarks on submissions of counsel:

14. The Plaintiff has not provided any evidence to show that the Amended Statement of Claim was served upon the Defendant either on the day it was filed or anytime after that. Instead, the only evidence before the Court, which I accept, is that the Amended Statement of Claim was not served upon the Defendant at all.

15. Clearly the Plaintiff in not serving the Amended Statement of Claim on the day it was filed was contrary to O.8 r.58 of the National Court Rules. I set out below the relevant rule.

"58. Service after amendment (20/9)

Where a document has been served and is afterwards amended, the party making the amendment shall, on the day on which the amendment is made, serve on the parties on whom the document was served—

(a) if the amendment is made under Rule 56—the notice mentioned in Rule 56(1); or

(b) if the amendment is made under Rule 57—the fresh document."

16. An amendment to a writ or pleading takes effect not from the date when the amendment is made, but from the date of the original document which it amends: Sneade v. Wotherton [1904] 1KB 295; Eshelby v. Federated European Bank Ltd [1932] 1 KB 254, Warner v. Sampson [1959] 1 QB 297 and Mitchell v. Harris Engineering Co. Ltd [1967] 2 QB 703. In Warner, Hodson, LJ said:-

"Once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried."

17. So the argument advanced by the Defendant that because the Amended Statement of Claim was not served within 2 years thus rendering the proceedings void is misconceived.

18. According to O.1 r. 8 of the National Court Rules, non-compliance with the National Court rules will not render the proceedings void, but the effect of non-compliance is that the proceedings may be set aside, either wholly or in part, as irregular: see also Sengi Laki & Ors v. The Commissioner of Police (1996) N1432. I set out O.1 r.8 below.

"8. Non-compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit."

19. Are the proceedings void for want of service of the Amended Statement of Claim? The answer is no.

Has the Defendant made out a case to set aside the default judgment?

Defendant’s submissions:

20. Mr. Sino submitted that the default judgment was irregularly entered for reasons adverted to already and therefore should be set aside.

21. He submitted that the law was settled in that Courts have set aside judgments irregularly entered as of right. He cited as authorities supporting that legal proposition the cases of Mapmakers Pty Limited v. Broken Hill Pty Co. Ltd [1987] PNGLR 78, Thomas Paraka & Ors v. Mathew Kawa & The State (2000) N1987, Paul Marinda v. The State (1991) N1026 and Brown Pinoko v. The State (1997) N1520.

Plaintiff’s submissions:

22. Mr. Mawa submitted that; this was a clear case of the Defendant doing nothing or was not interested in defending the proceedings which resulted in the entry of default judgment and that attitude continued even after being served with the order in 1999; the Defendant was making this application at the eleventh hour after the matter was set down for trial and therefore an abuse of the process of the Court; and there was an inordinate delay in making the application which was prejudicial to the Plaintiff.

23. Mr. Mawa agreed that judgments entered irregularly are set aside as of right, but contended that the Defendant has to establish that the default judgment was entered irregularly.

Remarks on submissions of counsel

24. The principles for setting aside a default judgment are now well settled. Other case authorities on point apart from those cited by Mr. Kumoro are Green & Co. Pty Ltd v. Green [1976] PNGLR73, The Government of PNG & Davis v. Barker [1977] PNGLR 386, George Page Pty Ltd v. Balakau [1982] PNGLR 140, Leo Duque v. Avia Andrew Paru (1997) PNGLR 378 and Leo Hannet v. ANZ Banking Group (PNG) Ltd (1996) SC505. The jurisdiction to do so is exercised under either O.12 r.8 or O.12 r.35 of the National Court Rules. The principles are the same in each case. The Defendant does not rely on any of those rules.

25. It is trite law that if a judgment is irregularly entered, then the defendant is entitled to set it aside as a matter of right (ex debito justitiae). In all other cases and to be successful, it is incumbent upon the applicant to show and satisfy the following principles:-

1. The application is made within a reasonable time of judgment becoming known to the applicant;
   
2. An explanation as to why judgment was allowed to be entered by default;
   
3. A defence on the merits disclosed by an Affidavit.
   

26. In the present case, I am satisfied that the default judgment was entered irregularly because the Amended Statement of Claim was not served upon the Defendant contrary to O.8 r.58 of the National Court Rules.

27. However, even if the default judgment were entered irregularly, for the Defendant to succeed in its application, it must substantiate by Affidavit evidence that; (1) it is made within a reasonable time; or (2) it has not taken any fresh step with knowledge of the irregularity as is specified under O.1 r.9 of the National Court Rules. I set out the rule below.

"9. Application to set aside for irregularity.

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity."

28. In Leo Hannet, the Supreme Court held that a default judgment entered against one of the appellants was irregular because the writ was not served in accordance with O.6 r.3 of the National Court Rules. However, the Supreme Court dismissed the appeal because the particular appellant took fresh steps towards negotiating settlement of the judgment debt with the knowledge of the irregularity which was not allowed under O1.r.9 of the National Court Rules.

29. In the present case, there is no explanation by Affidavit evidence why the Defendant protracted in making this application. The default judgment was entered on 22 May 1999. This application was filed on 10 October 2003, more than 4 years and 4 months after the entry of the default judgment. Clearly, there has been a long and inordinate delay in making this application and I accept Mr. Mawa’s submission on this aspect.

CONCLUSION

30. Whilst the default judgment was entered irregularly because the Amended Statement of Claim was not served in accordance with O.8 r.58 of the National Court Rules, the Court will refuse the application because the Defendant’s application has not been filed within a reasonable time as is required under O.1 r.9 of the National Court Rules.

ORDER

31. These are the formal orders of the Court:-

1. The Defendant’s application is dismissed.

2. The Defendant shall meet the Plaintiff’s costs of this application.

3. The time for the entry of this order is abridged.

____________________________________
Mawa Lawyers: Lawyers for the Plaintiff
Paul Paraka Lawyers: Lawyers for the Defendant