Nanagia v Sailas [2013] PGNC 254; N5457 (1 November 2013)

N5457

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 786 OF 2007

BETWEEN

EMMANUEL NANAGIA
Plaintiff

AND

MR. ISSAC SAILAS CHIEF FIRE OFFICER
PAPUA NEW GUINEA FIRE SERVICES
First Defendant

AND

THE DEPARTMENT OF PROVINCIAL AND LOCAL
LEVEL GOVERNMENT AFFAIRS
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Kokopo: Oli, AJ
2013: 18th October & 1st November

CIVIL PRACTICE & PROCDURE- Application to set aside Default judgment entered Ex parte – Considered the Requisite Ingredients for – Application not made within reasonable time – Considered exceptional considerations on both parties – Justice of the case is so compelling in granting the application – Prejudice & injustice will prevail if application is refused -Miscellaneous Issue - Instantaneous clinical judicial pronouncement procedural slip in granting motion in Court – Adjourned and reconvene the Court after 53 minutes – Announce in open Court verbal grant of the motion is vacated and reserved ruling on the motion on the return date – s. 155 (4) of the Constitution.

CIVIL PRACTICE & PROCDURE - Application to set aside Default Judgment entered Ex parte – Judgment upon liquidated demands in breach of s. 12 (3) of Claims By & Against the State – Breach s. 5 Notice under Claims By & Against the State mandatory – Judgment sum K2mil unliquidated claim over unpaid entitlements and general damages – Contravenes s. 12 (3) Claims By & Against the State – Exercise of power under O. 12 r. 8 (2) (a) and r. 35 of NCR – Application granted - Matter to go on trial proper.

Case Cited:
Papua New Guinea Cases

Mapmakers Pty Ltd v Broken Hill Pty Co Ltd [1987] PGNC 46; [1987] PNGLR 78.

Overseas Cases
Bayview Quarries Pty. Ltd. v. Castley Development Pty. Ltd.[1963] VicRp 64; , [1963] V.R. 445 at p. 446;
Evans v. Bartlam, [1937] A.C. 473 applied.
Gamble v. Killingsworth, [1970] VicRp 22; [1970] V.R. 161 at p. 168;
Grimshaw v. Dunbar, [1953] 1 Q.B. 408 at p. 415 referred to.
Wallingford v. The Directors & c. of the Mutual Society (1880), 5 App. Cas. 685 at p. 704 applied.
Rosing v. Ben Shemesh, [1960] VicRp 28; [1960] V.R. 173 referred to.

Counsel:

Mr. Joikere Kusip, for the Plaintiff
Mr. Austin Edo, for the Defendants

RULING

1st November, 2013

1. OLI, AJ: INTRODUCTION: The defendants' Counsel file a second Notice of Motion on 9th October 2013 pursuant to Order 12 Rules 8 (2) (a) and 35 of the National Court Rules, Section 12 (3) of the Claims By And Against The State 1996 and Section 155 (4) of the Constitution to set aside the Default Judgment granted to the plaintiff on 19th August 2008 and Certificate of Judgment filed on 27th May 2013. I start off by saying that this is the second notice of motion because having gone through the file itself it became evident that the first Notice of Motion to set aside the Default Judgment obtained by the Plaintiff on 19th August 2008 was filed by acting Solicitor General Mr. Neville Devete on 11th May 2012. This motion has been outstanding to this date but Mr. Edo believes that this motion has been withdrawn, though there is no record on court file, hence this second Notice of Motion of 9th October 2013 by defendants to set aside the same Default Judgment the plaintiff obtained on 19th August 2008.

2. The history of the case reveal that this is the second Motion filed and it is listed for Call Over on 18th October 2013 at 9.30 am for defendants' counsel to move the motion on foot. However, there was another matter WS. 494 of 2013 where both Counsels were involved but plaintiff's counsel Mr. Kusip was not present but defendants' Counsel Mr. Edo was in attendance and sought adjournment to next call over on 1st November 2013. My Associate advises in that matter that the plaintiff's Counsel Mr. Kusip was in Kavieng on duty travel. The Associate called this case and the Court asked Counsel Edo whether he should stand this matter over too, to next call over like the other matter. But the defendants' Counsel Mr. Edo informed the Court that he will not seek adjournment on this matter but would like to move the motion now on foot. Counsel Edo informed the Court that the plaintiff's Counsel was served with the Notice of Motion and proof of service is attached in the file and the plaintiff's Counsel by his own accord has defaulted by not attending here today. The Counsel for the defendants was prepared and stands ready to move the motion ex-parte. The court granted the application and the defendants' counsel addressed the court in support of the motion on foot. I heard the counsel speak to his affidavit and highlighted the legal reasons why the Default Judgment should be set aside. The counsel advanced number of legal defences and foremost: Firstly; the Court Order is not in compliance with section 12 (3) of Claims By and Against the State Act, Secondly; the plaintiff's claim does not disclose a cause of action at law and, Thirdly; the action should be brought under Judicial Review proceedings to determine whether suspension from duty and demotion from Rank 12 to Rank 7 as claimed by the plaintiff were unlawful. Finally; the Plaintiff's final entitlement figure ordered by the court as K2.mil is irregular based on unliquidated damages calculated from plaintiff's alleged accrued fortnightly salary employment entitlements since the date the plaintiff was suspended. Since, there was no appearance by the plaintiff's counsel, I did not have the opportunity to hear the other side of the legal rebuttal argument from the plaintiff's counsel nor I had the benefit to have a thorough appraisal of the case historical background on file. I heard the Defendants' Counsel's legal arguments and having a quick clinical reflection on the face value was so persuasive in support of the motion to set aside the Default Judgment and made an instantaneous verbal ruling in favour of the defendants and grants the Motion in favour of the defendants and adjourned the matter to be returnable on 1st November 2013 for mention.

3. The Court adjourn at about 10.37am and I retired to my chambers but having a second thought about the matter that I made the ruling instantaneously on the quick clinical reflection on the persuasive face value of the legal arguments in support of the motion and grant the motion to set aside the Default Judgment. I did not realize that I made an unconscious unfortunate judicial procedural slip on my verbal ruling to make an instantaneous clinical judicial pronouncement on the motion without having the benefit to hear rebuttal legal arguments from the plaintiff's counsel nor had the benefit to appreciate full judicial historical background of the case and documents in the file. I instructed my Associate to recall the defendants' Counsel and retrieve the Court file from the registry and reconvene the Court again without further delay. It was about 11.30am that my Associate called the Court into order and the Court resumed, some 53 minutes later, with the defendants' Counsel Mr. Austin Edo in attendance and I explained why I recalled him and reconvened the Court. I explained in the open court to the defendants' counsel Mr. Edo that after adjournment when I retired to my chamber I realized that I had made an instant unconscious judicial pronouncement procedural slip that I made the verbal ruling without my spending some real quality time on the case file to really appreciate the full judicial historical development or background of the case. I therefore reconvened the Court averting to my inherent power under s, 155 (4) of the Constitution to announce in open Court again that I now move to vacate my earlier verbal ruling on granting the motion and announce that I reserved my ruling on the same motion to set aside the Default Judgment obtained on 19th August 2008 by plaintiff on the return date on 1st November 2013 at 9.30 am. This is the ruling I said I will give. This I do so now.

BACKGROUND TO PLAINTIFFS' CLAIM

4. The plaintiff filed a Writ of Summons (WS. NO: 786 of 2007) on 12th July 2007 against the defendants for damages as a result of unlawful suspension and demotion from the rank as a Inspector grade 12 to grade 7 as a Fire Officer.

5. The plaintiff claims that he was promoted to the rank of Inspector, FS1098, on the 16th January 2001. That on 16th January 2002, the Plaintiff was officially advised by Mr. Robert Waninara to lay him off from official duties, so that he (Robert Waninara) could carry out investigation on the Plaintiff for misconduct in office. The Plaintiff claims that there was no investigation carried out against him therefore no investigation report was compiled and filed against him.

6. The Plaintiff further claims that there was no basis to lay him off as Mr. Robert Waninara the acting DCFO (Ops) who authorized the Plaintiff to sell the office fax machine to pay for Kavieng Office expenditure, and that the purchaser of the item Mrs. Catherine Palanga did confirm the sale with the said Robert Waninara the acting DCFO (Ops), who is related to him as his sister in-law, before she bought the said fax machine.

7. The Plaintiff claims that the charge which was laid some 2 years and 3 months later from the date of his suspension has the following legal and administrative defects.

1. That the charge does not disclose an offence in law, i.e. Mr. Robert Waninara authorized the sale of the fax machine on the 2nd April 2003 and not "during the year 2001" as stated in the official charge that the Plaintiff was demoted from Grade 12 to Grade 7 for.
   
2. Because the charge is defective in law, and the sale of the fax machine, was authorized by Mr. Robert Waninara himself, as the Plaintiff claims and corroborated by Mrs. Catherine Palanga, the Plaintiff claims that his suspension and his subsequent demotion from Grade 12 to grade 7 was unlawful and there was no evidence to support the change as it is.
   
3. The Plaintiff was not allowed to answer the charge, a denial of Natural Justice.
   

PARTICULARS OF CLAIM

8. The plaintiff claims that by his unlawful suspension and demotion he had suffered the following:

1. The unlawful loss of his substantive position Grade 12.
   
2. The lost of his salary on Grade 12 and all his entitlements, since 3rd April 2004 and still continuing to date.
   
3. He had suffered shame and humiliation and continues to do so.
   
4. His family had suffered financial hardship and continues to do so.
   

The Plaintiff Claims:-

1. Re-instatement to the Plaintiff's substantive position of Grade 12 forthwith.
   
2. Claims total of K103, 313.00 as loss salary in Grade 12 substantive position plus entitlements which is still continuing.
   
3. General and unspecified damages in the sum of KK1, 798, 000.00 being for, lost of job, unlawful suspension, demotion, hardship and suffering which is still continuing.
   

AND the Plaintiff claims against the Defendants for:-

1. Loss of Salary K 107,313.30
   
2. General Damages K1,892,686.70

K2,000,000.00

3. Interest of 8% Judgment Pursuant to the Judicial Proceedings (Interests or Debts) Damages Act, and
   
4. Cost to be taxed if not agreed.
   

BRIEF CHRONOLODICAL EVENTS

9. The brief judicial chronological events in respect to this matter since the filing of the matter on 16th July 2007 are as follows:

9.1 On 15th October 2007 the Plaintiff affect service on the 3rd defendants the State by Mr. Hoko Asi and Affidavit of Service filed on 4th March 2008.

9.2 On 8th November 2007 Notice of Intention to Defend signed by Mr. Neville Devete Acting Solicitor General of Attorney General and filed on 13th February 2008.

9.3 On 28th May 2008 Plaintiffs' Counsel did conduct a file search and file a affidavit of service on 17th June 2008 and seek to obtain a Default judgment against the defendants' for failure to file Notice of Intention to Defend the action .
9.4 On 17th June 2008 Plaintiffs Counsel files Notice of Motion to seek Default Judgment against the defendants.

9.5 On 19th August 2008 Plaintiffs' Counsel - Miskus Maraleu Lawyer did obtained a Default Judgment Court Order was issued by his Honour then Paliau AJ at Kavieng National Court but use Kokopo National Court Seal though has the cover style of [In the National Court of Justice at Kavieng Papua New Guinea]

9.6 On 12th May 2011 Plaintiffs' file affidavit in support of the action.

9.7 On 11th May 2012 Notice of Motion filed by Defendants' Counsel Mr. Neville Devete Solicitor General & Lawyer for the Defendants to set aside the Default Judgment obtained on 19th August 2008.

9.8 On 14th February 2012 Notice of Change of Lawyers was filed by Plaintiff to advise that Plaintiff has change lawyers to Kusip & Associate Lawyers from Miskus Maraleu Lawyers.

9.10 On 14th February 2012 Plaintiffs' Counsel filed a Notice of Motion to seek the Court to order that the Proceedings WS NO: 786 OF 2007 between the Plaintiff Emmanuel Nanagia against the Defendants be transferred to Kokopo National Court for further determination.

9.11 On 15th February 2012 the Ipang, AJ (as he then was) granted the Motion and ordered that the proceedings WS NO: 786 OF 2007 between the Plaintiff Emmanuel Nanagia against the Defendants are transferred to Kokopo National Court for further determination.

9.12 Court Order by AJ Ipang issued on 15th February 2012 directing the Court file on this matter be transferred from Kavieng Registry to Kokopo Registry without further delay.

9.13 On 3rd April 2012 the above Court files were up lifted from Kavieng National Court Registry and send to Kokopo National Court Registry as per the Court Order of 15th February 2012 by National Court Sitting in Kavieng.

9.14 On 16th April 2012 Particulars of Defence filed by Solicitor General Mr. Neville Devete.

9.15 On 4th October 2013 Defendants' Counsel Mr. Austin Edo filed together with his Affidavit in support of the motion the same Particularized Defence filed by Solicitor General on behalf of the defendants'.

9.16 On 4th October 2013 Defendants' Counsel Mr. Austin Edo sworn and filed Affidavit in support of the Notice of Motion filed on 9th October 2013.

9.17 Defendants' filed second Notice of Motion on 9th October 2013 to set aside Default Judgment obtained on 19th August 2008.

MOTION BY DEFENDANTS' TO SET ASIDE EX PARTE DEFAULT JUDGMENT

10. The Notice of Motion filed by the defendants on 18th October 2013 to set aside the Ex parte Default Judgment dated 19th August 2008 and seeks to move the Court for the following orders:
    
    • 10.1 That pursuant to Order 12 Rule 8 (2) (a) and r. 35 of the National Court Rules,

Section 12 (3) of the Claims By and Against the State Act 1996 and Section 155 (4) of the Constitution, the Default Judgment granted to the Plaintiffs on 19th August 2008 and the Certificate of Judgment filed on 27th May 2013 be set aside; and

10.2 Pursuant to Order 7 Rule 6 (2) of the National Court Rules, the Defendants' be granted leave to file their defence out of time; alternatively.

The proceeding be dismissed for being frivolous and an abuse of process pursuant to Order 12 (40) (b) & (c) of the National Court Rules.

11. Pursuant to Section 5 of the Claims By and Against the State Act 1996, the proceedings be dismissed for lack of notice; and
    
    12. Costs.
        

LAW

11. The law and principles that governs the application to set aside Default Judgment under Order 12 r. 8 (a) and r.35 is well established in this jurisdiction in the leading case of Green – v - Green [1976] PNGLR 73 where his Honour O'Leary AJ held that:

(A). On an application to set aside a judgment by default regularly entered, the principal matter that must be shown by the applicant is that he has a defence on the merits. Gamble v. Killingsworth, [1970] VicRp 22; [1970] V.R. 161 at p. 168; Bayview Quarries Pty. Ltd. v. Castley Development Pty. Ltd., [1963] VicRp 64; [1963] V.R. 445 at p. 446, and Evans v. Bartlam, [1937] A.C. 473 applied.

(B). Such a defence should be sufficiently particularized as to enable the Court to be satisfied that it is reasonable that the particular defence should be raised. Wallingford v. The Directors & c. of the Mutual Society (1880), 5 App. Cas. 685 at p. 704 applied.

(C). In addition the applicant should explain his default in allowing the judgment to be entered. Evans v. Bartlam, [1937] A.C. 473 referred to.

(D). The application should be made as soon as possible after the judgment comes to the knowledge of the defendant. Rosing v. Ben Shemesh, [1960] VicRp 28; [1960] V.R. 173 referred to.

(E). And any prejudice or injustice to the other party or rights of third parties to intervene must be taken into account. Grimshaw v. Dunbar, [1953] 1 Q.B. 408 at p. 415 referred to.

12. In this case the defendants must as a matter of principal show the following requisite ingredients in this application to set aside the default judgment regularly entered and I will address each requisite ingredients as follows:

(A) That the applicants must have a defence on the merits of the case.

On an application to set aside a judgment by default regularly entered, the principal matter that must be shown by the applicant is that he has a defence on the merits. Gamble v Killingsworth [1970] VicRp 22; [1970] V.R. 161 at p. 168.

13. The Writ of Summons (WS. NO: 786 of 2007) by the Plaintiff was filed on 16th July 2007 and was duly served on the 3rd Defendants on 15th October 2007. This is evident by the affidavit of service by deponent Mr. Hoko Asi filed on 4th March 2008. The acting Solicitor General Neville Devete on behalf of the 3rd defendants upon receipt of the Court proceedings file a Notice of Intention to defend the action on 13th February 2008 without filing any particularized statement of defence nor neither any affidavit in support of the defence. The history of the case reveals that the Default Judgment was issued by His Honour Paliau, AJ (as then was) on 19th August 2008 at Kavieng National Court, and this was an Ex parte Default Judgment. I note that the Solicitor General did file the first Motion on 11th May 2012 to set aside the default judgment of 19th August 2008 upon being made aware of the existence of the said Ex parte Default Judgment against the defendants. This motion apparently did not get traction at all to be moved by the defendants' counsel till the recent motion filed on 13th October 2013 to set aside the same default judgment. This has taken defendants well over five (5) years one (1) month and twenty four (24) days to pursue the application to set aside the Ex parte Default Judgment to this date. In the meantime the plaintiff has changed Counsel to Kusip & Associates Lawyers who filed the motion on 3rd April 2012 before the National Court at Kavieng to transfer this matter from Kavieng to Kokopo National Court Registry due to infrequent National Court circuit sittings at Kavieng. The motion was granted by His Honour Ipang AJ (as he then was) during that National Court circuit in Kavieng. The defendants filed particularized defence on the merit of the case on 16th April 2012, however, with no supporting affidavit by 1st defendant except a letter dated 14th April 2009, to acting Solicitor In Charge NGI Region Mr. Florian Cherake to defend the Default Judgment Order by the National Court and advised that the Officer Mr. Robert Waninara, who was involved in charging and demotion of the Plaintiff Mr. Emmanuel Nanagia have been directed to provide their written statements and he will ensure their on forwarding upon receipt, which he did. However, there are no affidavits from 1st defendants or the witness Mr. Robert Waninara for their involvement in handling and pressing appropriate disciplinary charges against the plaintiff. Whilst there is admission by plaintiff that he did sell the office fax machine for K500.00 to a relative of the1st defendant to offset office expenses it was instructed to do so by the 1st defendant. The plaintiff was accused of; not only spending the money from the sale of the fax machine to buying stationeries but was also engaged in making outside deals for the replacement and purchasing of Fire Service Station, Fire Extinguisher cylinders with no proper authorization and approval from the Fire Service Station Officer In Charge – Kavieng or from the first defendants. However, the defendants' particularized defence based on law in respect to non compliance with the Claims By and Against the State Act and un-liquidated damages irregularly entered are very strong legal argument that favors the defendants to provide an arguable and prima facie case during a trial proper. I do find that the defendants do have a defence on the merit of the case that the first limb favors the application.
    

(B) Such a defence should be sufficiently particularized as to enable the Court to be satisfied that it is reasonable that the particular defence should be raised.

14. The defendants' Counsel advanced a number of legal defences based on law to set aside or vary the judgment or order under Order 12 Rule 8 (2) (a) of the National Court Rules and it reads:
    

O 12 r 8 (2) (a). The Court may, on terms, set aside or vary a judgment-

(a) Where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); and,

Order 12 Rules 35. Setting aside judgment reads:-

"The Court may, on such terms as it thinks just, set aside or vary a judgment entered in pursuance of this Division".

15. The plaintiff has already obtained a Default judgment against the defendants because the first and second defendants through the Office of the Solicitor General failed to defend the action. However, National Court Rules provides that if the Court finds that there is a meritous defence, defendants can advance a particularized reasonable defence on the merit of the case for Court to exercise its power under Order 12 r 8 (2) (a) and r 35 of the National Court Rules. I refer to the number of relevant cases from overseas for their persuasive value on this limb on an application to set aside a judgment by default, entered regularly, the principal matter that must be shown by the applicant is that he has a defence on the merits. In fact, it has been said that it is an "almost inflexible rule" that the court will not accede to the application unless the applicant does show such a defence: see Gamble v. Killingsworth. Obviously, on any such application, a court would be bound to consider "whether any useful purpose is served by acceding to the application. Plainly no useful purpose is served if it appears that if the judgment was set aside and the action allowed to go to trial, there would be no possible defence": see Bayview Quarries Pty. Ltd. v. Castley Development Pty. Ltd., per Sholl J. It is sufficient, however, for the applicant to show a prima facie defence on his affidavit: Evans v. Bartlamper Lord Atkin. The onus is on the defendants to advance defence on the merits of the case and the defendants have shown a prima facie defence on their affidavit. I am satisfied in this case that there is an arguable case for the defendants on the merit of the case to be advanced during the substantive hearing of the case as per the articulated defendants' particularized defence on file to defend the action.
16. The defendants also rely on two other legislations in this motion as alternative source of relief under Section 12 (3) of the Claims By and Against the State Act 1996 and Section 155 (4) of the Constitution given the nature and the circumstances of the case in this case. The Claims By and Against the State Act 1996 where section 12 (3) reads:

Section 12 (3) Judgment Against the State.

(1)..........

(2)........

(3) Where in a claim against the State the State is in default within the meaning of the National Court Rules, then notwithstanding that a plaintiff's claim for relief is for a liquidated demand, judgment shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgment shall be entered for damages to be assessed and, where appropriate, for costs.

17. The above provision clearly states and provides that where State is included as a nominal defendants in a case and, if in the event that State agencies has defaulted within the meaning of the National Court Rules that the plaintiffs claim for a relief is for a liquidated demand, judgment shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgment shall be entered for damages to be assessed and, where appropriate, for cost. In this case the plaintiffs' secure a default judgment on liquidated demand and given the nature of the plaintiffs claim for both unliquidated accrued unpaid salaries and general damages without any proper evidence that both entitlements were properly assessed and certified by persons who have the authority to do so raises so much to be desired of. The default judgment may result in an unjust enrichment and amount to abuse of process. With this consideration in mind as evident by lack of credible documents in support of the plaintiffs' claim the judicial pendulum swings in favour of the defendants' application.

18. The defendants plead in the same motion an alternative source of relief to invoke inherent power of the National Court to cure the remedy or relief in the absence of other law or Act. The Court may exercise its power under s. 155 (4) of the Constitution and it reads:

s. 155 (4).

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

19. The s. 155 (4) of the Constitution, in my view, is the last resort if no legislation or law fails to assist in the circumstances of a case and that more harm will be done to a party, then courts intervention by using its inherent power under s. 155 (4) of the Constitution is necessary to do justice in the circumstances of that particular case. I am satisfied that National Court Rules and Claim By and Against the State Act is sufficient to address the defendants' application to set aside the default Judgment in this case. Therefore, the utility of s. 155 (4) of the Constitution is inappropriate in the circumstances of this case.

20. However, in view of all of the disciplinary allegations put together against the plaintiff with other legal breaches of non compliance with provisions under Claims By and Against the State Act and claim does not disclose a valid claim in law may culminate into a credible defence on the merit of the case to advance a arguable and reasonable particularized defence to the Court and may prove a prima facie case with the available information on file. The second limb favors the defendants' motion.

(C) That the applicants must explain why default judgment was allowed.

21. Whilst there is sufficient, however, for the defendants to show a prima facie defence on their affidavit: Evans v. Bartlam per Lord Atkin. But the defendants must do more than that. The defendants must also explain as well the default in allowing the judgment to be entered against them, (Evans v. Bartlam) and the application must be made as soon as possible after the judgment comes to the knowledge of the defendant: Rosing v. Ben Shemesh.
22. The defendants in this case offer no satisfactory explanation, in my view, as to why the Default Judgment was allowed to be entered when the Notice of motion to seek Default Judgment was filed on 17th June 2008 and served on the defendants supposedly but there is no affidavit of service as evidenced in the file to prove otherwise. There is no forewarning notice given to the defendants by the plaintiff that they are contemplating to file a Notice of Motion to seek Default Judgment in view of no Notice of Intention to defend filed by the defendants: see case on Mapmakers Pty Ltd v Broken Hill Pty Co Ltd [1987] PGNC 46; [1987] PNGLR 78; N588 (12 May 1987) where His Honour late Kidu, CJ (as he then was) held that the forewarning is a prudent practice and it should be practiced as mandatory requirement to give notice to the other party of applicants intention to seek a Default Judgment.

23. On 11th May 2012 the first Notice of Motion filed by Defendants' Counsel Neville Devete, Solicitor General & Lawyer for the Defendants sought to set aside the Default Judgment obtained on 19th August 2008. This is probably the first time the defendants became aware of the Default Judgment and from my rough mathematical calculations reveal that the motion to set aside was filed some four (4) years eight (8) months & eleven (11) days later.

24. The Counsel for defendants Mr. Austin Edo, who take carriage of the matter now reiterated in his affidavit in support of the recent application to set aside the Ex parte Default Judgment of 19th August 2008 offer some explanation to this predicament. The Counsel submits that the lawyers from the Solicitor General's Office were not able to attend to National Court sittings in Kavieng because the Solicitor General's Office was plagued by shortage of ongoing manpower due to resignation by lawyers who were in search of greener pastures.

25. The other factor that affects the attendance by lawyers from Solicitor General's Office was due to infrequent National Court sittings in Kavieng that affect the allocation of lawyers to attend to State cases at such short notice was quite impossible, given the acute shortage of manpower strength on hand. These are some of the contributing factors that result in the Default judgment being entered with State not being represented by Solicitor General's office lawyers. I am of the view that these are manageable issues and excuses such as this and situations refer to above and not responding to such cases after four (4) years is most unacceptable and this third limb favors the plaintiff.

(D) That the application must be made as soon as possible after the judgment comes to the knowledge of the defendants.

26. In Bailey v. Marinoff8, Sir Garfield Barwick expressed the principle in these words:

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed."

27. In our jurisdiction the Court is given power to set aside or vary judgments under Order 12 Rule 35 of the National Court Rules where it provides that:

"The Court may, on such terms as it thinks just, set aside or vary a judgment entered in pursuance of this Division".

28. In this case the Plaintiff secured the Default Judgment on 19th August 2008 and the defendants filed their first motion to set aside the Default Judgment on 11th May 2012, it took (4) years, (8) months & (11) days to challenge it by way of motion to set aside the default judgment. However, that motion was not moved and Counsel submits that the motion may have been withdrawn. No explanation is given why it was withdrawn. But with the second motion by the defendants again was filed and moved on 13th October 2013 which is (5) years, (1) month & (24) days. The unprecedented period of delay by the defendants to set aside the default judgment is most unacceptable in normal circumstances, but the reasons for delay advanced by Counsel for the defendants revolves around manpower shortage at Kokopo Solicitor General's Office and infrequent National Court sittings in Kavieng. The earliest the defendants were able to file this motion the second time on 11th May 2013, really challenge this Court and is faced with the task to consider the motion on the merit of the defendants' case on the merit of the defence articulated and advanced. However, the defendants' inaction to file the motion to set aside the default judgment within reasonable period after it was made known to them some four (4) years ago is most unacceptable and therefore the fourth limb favors the plaintiff.

(E) That any prejudice or injustice to the other party or rights of third parties to intervene must be taken into account.

29. It has been said that delay in moving to have a judgment set aside is not in itself important, unless it results in some prejudice to the other party or it enables rights of third parties to intervene: see Grimshaw v. Dunbar, per Jenkins L.J. Very often delay can be compensated for by the imposition of appropriate terms as to costs or otherwise. But there are cases where the delay is such that of itself, it must work a prejudice to the other party and where it would be an injustice to him to allow the case to be re-opened.

30. In this case the important considerations I see that the Court must take into account in view of the fifth limb; is to assessed any prejudicial or injustice it may have caused to the plaintiff so that the Court as the third party to intervene to do justice by taking into account those considerations in its deliberations. And that is to consider whether the prejudice to the other party and where it would be an injustice to him to allow the case to be re-opened. I am at this stage is burdened by that enormous task to take into account and address my mind to those considerations as I see them on behalf of both plaintiff and defendants respectively. I now turn to the plaintiff's considerations that support his objection to the motion by the defendants. I take into account the following considerations that favors the Plaintiff as highlighted are as follows:

1. That the plaintiffs' has been waiting whilst on suspension to this date is very prejudicial and has cause both unnecessary human pain and suffering and did have psychological human trauma to this date.
   
2. That plaintiff securing Default Judgment of K2mil against the defendants since 19th August 2008 and has waited patiently till this year 2013. But get further frustrated when efforts to have it enforced is face with another second motion to set aside the default judgment.
   
3. That it has taken the defendants' well over five (5) years to take positive action to file application to set aside the default judgment. This period of delay is unacceptable as no amount of reasonable apology will recompense the plaintiffs suffering since then to this date and that suffering is still continuing.
   
4. That taking into account the fact that since the plaintiff obtain the Default judgment on 19th August 2008 to and including 27th May 2013; the date plaintiff obtained Certificate of Judgment from the Kokopo National Court Registry to enforce the Default Judgment, the defendants have shown no interest to challenge the Default Judgment, though they were made aware of it on 11th May 2012.
   
5. That the charge does not disclose an offence in law, i.e. Mr. Robert Waninara authorized the sale of the fax machine on the 2nd April 2003 and not "during the year 2001" as stated in the official charge and Plaintiff maintain his innocent to the charge but was demoted from Grade 12 to Grade 7 without any proper conviction was recorded against him.
   
6. That because the charge is defective in law, and his suspension and his subsequent demotion from Grade 12 to grade 7 was unlawful punishment because he is still presumed innocent until proven guilty through due disciplinary process of law.
   
7. That the Plaintiff was not allowed to answer the charge, a denial of principles of natural justice at its best.
   

31. The above are some of the outstanding features of the plaintiff's legal and equitable considerations, I view them as relevant in objecting to the motion on foot by the defendants. All of these considerations put together do go to support the prejudicial and injustice it has already caused and will cause to the plaintiff if Court was to allow the case to be re-opened.

32. Whilst on the other hand I also address my mind to some of the outstanding legal and or equitable considerations that favour the defendants in particular the 3rd defendant, the State as the nominal defendants in this matter. These are some of the considerations that feature prominently in the defendants favour and they are as follows:

1. That K2mil Default Judgment obtained by plaintiff on 19th August 2008 as unliquidated damages in favour of the plaintiff over his unpaid entitlements and general damages has not been put through a thorough accounting assessment process through the Court of law.
   
2. That K2mil Default Judgment entered as liquidated demand is contrary to Section 12 (3) of the Claims By and Against the State Act 1996.
   
3. That plaintiff has failed to comply with Section 5 notice to the State under Claims By and Against the State Act 1996. The Originating Summons (OS NO. 786 OF 2007) being served on the State as the 3rd defendant does not substitute the mandatory section 5 notice as prerequisite legal requirement by plaintiff to give notice to the State within six months from the date the allege wrongs were committed by 1st and 2nd defendants.
   
4. That the plaintiff has intentionally left out Mr. Robert Waninara as a potential defendant as he was the one of the key person who play the major role as the Investigation Officer in investigating the disciplinary complaints and laying disciplinary charges against the plaintiff.
   

33. Having addressed the above list of considerations from both sides, I now address my mind to consider justice of the case and the interest of both plaintiff and the defendants' legal or equitable considerations as referred to above. I am compelled by the justice of the case as revealed through the hearing of this motion that there are obvious legal breaches and non compliance of requisite legal requirements from both parties. They are in particular for the plaintiff; (1) non compliance with s. 5 Compulsory Notice to the State under Claims By & Against the State, (2) Default Judgment entered in liquidated damages is in breach of s. 12 (3) of Claims By & Against the State. These are two obvious legal defects that the plaintiff is required under the law to rectify this legal requirements before the matter proceed any further with his action.

34. For the defendants, their failure to file application to set aside the default judgment after unreasonable and most unacceptable period of not less than four (5) years does hold against them greatly. These are the obvious major legal defects, in my view, though there are few minor concerns as well, but these ones are the main thrust of each party's case in this case. These issues begin to surface as the justice of the case unfolds in this motion. I remind myself of the fact that it does not take two wrongs to make one right. In law non compliance nor breach of the law is no excuse, hence non compliance will remain non compliance in law and so as the breach of the law will remain breach of the law. The only cure to this is to comply with the rule of law. The main issue that I am faced with in this motion after having addressed and highlighted the real considerations on both sides is to determine how to balance the two competing legal interest between the parties and the prejudicial and injustice it may have caused to the parties to this date. I remind myself of the possible consequences the ruling on the motion might have on both parties if the motion was refused. This will mean that the plaintiff's long wait for the judgment to be settled will be on the orison. It may be a short relieve as option for review is open to the defendants after proper legal advice. However, in the alternative, if the motion is granted the parties will have the second chance of opportunity to correct the legal defects highlighted in this motion.

35. The adverse prejudicial effect and injustice it may have caused and will have on the plaintiff, in my view, will be very minimum. I say this because the plaintiff has demonstrated that he could wait and withstand the pressure over five (5) years period of unsatisfied judgment to this date. I commend him for the vigor and patient he has lived with despite the wrong and unkindness, if any, was dished out to him by his former employer to land him to where he is today, and he is simply doing the right thing in his quench to seek justice in this action. I am mindful of the fact that though, however, unfair it may seem to the plaintiff to grant the application, I am also mindful of the fact that the defendants, in particular 3rd defendant the State, has the legitimate right to defend itself in the proceedings. By default of the 1st & 2nd defendants that resulted in the default judgment of K2million. The State as the nominal 3rd defendant is made to bear the unfair and unjust enrichment judgment in favour of the judgment creditor by default, outweigh the prejudicial and injustice effect it will have or may have caused to the plaintiff. The justice of the case requires that a fair and proper trial will justify a judgment in favour of the plaintiff or lack thereof according to the rule of law.

36. The State in this case is the innocent nominal 3rd defendant who has never contributed to the wrongs allegedly committed by its agent employee and agent as first and second defendants against the plaintiff. The Court therefore allows the application to set aside the default judgment. The granting of the motion will allow the plaintiff to comply with s. 5 Notice to State under Claims By & Against the State Act. If the court finds during the trial proper that the 1st and 2nd defendants were liable then it can enter judgment with damages to be assessed as it seems fit against the defendants including the 3rd defendant as well. It is only then that on the principle of vicarious liability based on Master and Servant relationship under law of contract that proper assessment of quantum of damages in favour of the plaintiff pursuant to s. 12 (3) of Claims By & Against the State Act can be made against the defendants including the State as 3rd nominal defendant.

37. I therefore grant the motion by the defendants under Order 12 Rules 8 (2) (a) and 35 of the National Court Rules to set aside the default judgment obtained on 19th August 2008 by the plaintiff against the defendants forthwith.

ORDER

38. The Court accordingly makes the following Orders:

1. That the motion by the defendants is hereby granted to set aside the default judgment obtained by the plaintiff on 19th August 2008 against the defendants.
   
2. That the Defendants are required to file particularized defence, if not already filed before the next return date.
   
3. The plaintiff is hereby granted leave to comply with Section. 5 Notice to the State under Claims By & Against the State Act.
   
4. Cost is in the cause.
   
5. The matter returnable on the next Call-over on 14th November 2013 at 9.30 am for parties to advice on a trial date.
   

_______________________________________________________
Kusip & Associate Lawyers: Lawyer for the Plaintiff
State Solicitor's Office: Lawyer for the Defendants