Apa v Pearson [2008] PGNC 86; N3380 (26 May 2008)

N3380

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 725 OF 2007

BETWEEN:

TONY KAGL APA
Plaintiff

AND:

MICHAEL PEARSON
CHAIRMAN OF TEACHING SERVICES COMMISSION
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Injia, DCJ
2008: 26th May

CIVIL – Practice and procedure - Default judgment- Proof of due service of Writ and default in filing Defence established- Grant of Default Judgment is discretionary- Proper grounds for exercise of discretion- Discretionary – Claim statute-barred - Action – saving provision not pleaded in Statement of Claim- National Court Rules, O 12 r 32; Limitations Act 1988, s 16(1); Teaching Service Act 1988, s 94.

Cases cited:
Kante Mininga v the Independent State of Papua New Guinea (1996) N1458
Bala Kitipa v Vincent Auali (1998) N1731
Anton Kaluni v Aiyale Warole (2001) N2114
Deecroft No. 51 Ltd v Neville Seeto (2004) N2561
Urban Giru v Luke Muta (2005) N2887
Timothy Tima v Inspector Thomas Karoha (2006) N3045
Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC801

Counsel:
Mr Ona, for the Plaintiff
Mr Tanuvasa, for the Defendant

26 May, 2008

1. INJIA, DCJ: This is an application by the plaintiff for default judgment made under O12 r32 of the National Court Rules, on the basis that the defendants failed to file their Defence. It is not disputed that the Writ was duly served on the defendants, that the Solicitor - General filed a Notice of Intention to Defend on behalf of the defendants within time but that he failed to file their Defence. It is also not disputed that the Solicitor - General was forewarned of this application and he did nothing to rectify the default.

2. In the circumstances the plaintiff would be normally entitled to the benefit of default judgment. However, the grant of default judgment under O12 r 32 is discretionary. In the course of the hearing of this application, I raised the issue of whether the claim was statute-barred, a consideration which is relevant to the exercise of that discretion. This follows on from my first decision in Kante Mininga v the Independent State of Papua New Guinea (1996) N1458 and my subsequent decision in Bala Kitipa v Vincent Auali (1998) N1731. The principles in those cases have been adopted and applied in various decisions including Anton Kaluni v Aiyale Warole (2001) N2114; Deecroft No. 51 Ltd v Neville Seeto (2004) N2561, Urban Giru v Luke Muta (2005) N2887, Timothy Tima v Inspector Thomas Karoha (2006) N3045 and Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC801. These cases affirm the principle that even when there is proof of due service of the Writ and the default relied upon, the Court may refuse to grant default judgment in a situation where the pleadings are so vague or do not disclose a reasonable cause of action; or that the default judgment cannot be sustained in law; or where the effect of the default judgment would prejudice the rights of other co-defendants; or where the pleadings in a Statement of Claim raise serious allegations of fraud or deceit on the part of the defendant and such that the interest of justice would require those allegations to be proved by evidence at the trial before judgment is given on the merits.

In the present case, the Statement of Claim pleads that the plaintiff is claiming loss of employment entitlements for the period from 9th March 1983 when he was dismissed from the Teaching Service, up to 1994 when he was reinstated to his position. He filed the Writ on 29th June 2007, some 24 years after he was dismissed and some 13 years after he was reinstated.

3. Mr Tanuvasa of counsel for the defendants submits that the cause of action arose or accrued at the time of his dismissal and the claim is clearly statute-barred by virtue of s 16 (1) of the Limitations Act 1988. This provision says an action for breach of contract must be brought within 6 years from the date of accrual of the cause of action.

4. Mr Ona of counsel for the plaintiff submits the action is saved by s 94 of the Teaching Service Act. He submits by virtue of this provision, upon his reinstatement, the plaintiff was deemed to have continued in service with the Teaching Service as if he had not been dismissed, that his absence was treated as leave without pay and that upon his reinstatement, he was entitled to receive the same entitlements which he received at the time of dismissal. Therefore, as long as his entitlements were not paid when they became due, the cause of action continued to accrue up to the time of commencement of proceedings.

5. I have read s 94 of the Teaching Service Act. Subsection (1) is important and it provides:

"94. Re-admission, etc., of certain convicted persons.

(1) This section applies where—

(a) a person has been dismissed from the Teaching Service or reduced to a position of a lower classification or to a lower salary under Section 93; and

(b) subsequently—

(i) the conviction is quashed; or

(ii) he receives a pardon; or

(iii) the conviction is otherwise nullified; or

(iv) he is released from prison as a result of an inquiry into the conviction." (emphasis by underlining is mine)

6. The plaintiff does not dispute that the District Court convicted him on a charge of stealing the sum of K200 belonging to Gagl Community School and was sentenced to six months imprisonment. He served his term. It was on the basis of this conviction that he was dismissed from the Teaching Service. Subsequently, his conviction and sentence was not quashed by a higher Court on appeal, he was not pardoned by an appropriate authority, his conviction was not otherwise nullified and that he was not released from prison as a result of any inquiry into his conviction. His subsequent reinstatement appears to be an administrative decision.

7. In the circumstances, I am of the view that s 94 is not applicable by virtue of s 94 (1). I am satisfied that none of the conditions prescribed by s 94(1) (b) for the application of the whole of s 94 exist in this case.

8. On the face of the pleadings, the action is clearly statute –barred. The six year period commenced to run from the date of his reinstatement when he was not paid his outstanding entitlements for the period pleaded. The six years commenced to run from 1994 and lapsed in 2000. The Writ was filed 7 years later. In any case, if the entitlements are due to him under s 94, that is not pleaded in the Statement of Claim. Even if s 94 were pleaded, it is not applicable to his case and so the action is without basis in law.

9. For these reasons, in the exercise of my discretion, I refuse to grant default judgment. I suggest to the defendants that they either apply to dismiss the action for disclosing no reasonable cause of action or on the basis of time bar. If not, the issue should be raised by the parties or even by the Court of its own motion, at the trial and fully re-argued and determined. Costs of the application shall be in the cause.

__________________________________
Lomai & Lomai Lawyers: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendants