Imig v Tuka [2013] PGNC 294; N5243 (30 May 2013)

N5243

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1793 OF 2006

BETWEEN

DAVID IMIG, DAVID YAPATI & TUMU ANDAKE FOR AND ON BEHALF OF THEMSELVES AND 48 OTHERS
Plaintiffs

AND

JOHN TUKA
First Defendant

AND

KIMBE URBAN LOCAL LEVEL GOVERNMENT
Second Defendant

AND

IDON KULUNGO
Third Defendant

AND

MARK KALKAL
Fourth Defendant

AND

CHRIS SMITH
Fifth Defendant

AND

STEVEN BUNDA
Sixth Defendant

AND

THE PROVINCIAL POLICE COMMANDER – WEST NEW BRITAIN PROVINCE
Seventh Defendant

AND

THE COMMANDER – ISLAND REGION
Eight Defendant

AND

THE COMMISSIONER OF POLICE
Ninth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendant

Waigani: Davani, J
2013: 29th, 30th May

DEFAULT JUDGMENT – entry of – 10 defendants named – default judgment entered, only against four defendants

PRACTICE AND PROCEDURE – assessment of damages – only against four defendants – claim based on vicarious liability by the State – alleged tortfeasors have not had judgment entered against them – cannot proceed to assessment.

PRACTICE AND PROCEDURE – proper exercise of discretion – application to set aside default judgment to be filed

FACTS

There are ten defendants named in these proceedings. When default judgment was entered on 17th August, 2010, it was only against the sixth to the tenth defendants. The last named four defendants are the Police Commanders, Police Commissioner and the Independent State of Papua New Guinea. The first six defendants are persons allegedly employed by the State and who allegedly perpetrated the wrongs complained of by the plaintiffs, which was a raid allegedly conducted on their settlement at which they resided, allegedly by the first to the fifth defendants and other unidentified persons, where the plaintiffs properties were allegedly destroyed.

ISSUE

- Whether the Court can entertain an application to dismiss the proceedings for lack of Notice under S. 5 of the Claims by and against the State Act, prior to the hearing of the assessment of damages.

- Whether the Court can proceed to assessing damages when default judgment entered was only against the last four named defendants.

Held

1. Where the State alleges S. 5 Notice under the Claims by and Against the State Act has not issued and this is raised very late in the proceedings, the Court can revisit this very important procedural step in any litigation, by issuing directions to the named defendant/s concerned, to file an application to dismiss, then enquire as to how and why this issue was not raised earlier in the proceedings and then determine whether s. 5 Notice had issued or not.
   
2. Where default judgment has been entered against the alleged tortfeasors employer and servants and agents and where the alleged tortfeasors have not had default judgment entered against them, the Court should not proceed to assessment of damages but must give leave to the Defendants to file application to set aside default judgment entered against the alleged tort feasors employers and servants and agents.
   
3. The seventh to the tenth defendants have leave to file application to set aside the default judgment entered against them.
   

Counsel:

Mr J. Kolo, for the Plaintiffs
Mrs R. Gelu, for the seventh to the tenth Defendants
No appearance for and on behalf of the first to the sixth Defendants

RULING

30th May, 2013

1. DAVANI .J; This matter was set down for a 2 day hearing on assessment of damages, done by my directions of 18th April, 2012. Also in these directions, I ordered that transcripts of hearing of 11th August, 2010 and 17th August, 2010 be put before this Court to assist me in determining the issue of whether s. 5 Notice under the Claims By and Against the State Act ('CBASA') had been considered by the Judge who granted the default judgment. This arose as an issue because Mrs Gelu for the State pointed out that the trial Judge had not looked at this important procedural requirement under the law.
   
2. Noting that S. 5 Notice is a condition precedent in any claims against the State (see Paul Tohian, Minister for Police and the State v. Tau Liu (1998) SC 566) I issued further directions at a later direction hearing that the motion to be filed by the State will be heard before the hearing on the assessment of damages.
   
3. On 30th May, 2013, when the hearing commenced, Mrs Gelu promptly moved her application to dismiss. However, I noted on perusing the transcripts of 17th August, 2010, which was the trial Judge's Ruling on the default judgment application, that pg 3 was missing. That was a reflection on the both counsels' inability to properly assist the Court. I say this based also on what was revealed to me by counsel for the State which was that default judgment obtained on 17th August, 2012 is only against the seventh, eight, ninth, and tenth Defendants. This fact was not made known to me by either counsel. In fact, all throughout I have been led to believe that default judgment was entered against all the defendants. This act by the Court on 17th August, 2010, means that the general understanding by the plaintiffs and the Court more particularly, that the matter will proceed to hearing for assessment of damages against all defendants, is no longer the same. As I pointed out to counsel in Court and which I will discuss further below, the claim by the plaintiffs arises under the Wrongs (Miscellaneous Provisions) Act Chapter 297 ('Wrongs Act') that the first to the sixth defendants, are servants and agents of the State and by their allegedly negligent actions, makes the seventh to tenth defendants, vicariously liable for the actions of the first to the sixth defendants. The issue now is whether the matter can still proceed to assessment of damages, when the alleged tortfeasors, being the first to the sixth defendants, have not had judgment entered against them meaning liability against them is still to be determined.
   
4. Another procedural and technical anomaly is the fact that Mr Kolo has yet to inform the Court whether he or his clients have taken any steps toward applying for letters of Administration over the Estate of the late David Imig, who is named as a plaintiff in this proceedings. Both Mr Kolo and Mrs Gelu have not assisted the Court in ensuring that at least the Public Curator is informed of the present proceedings and the late David Imig's status in these proceedings, properly determined. Obviously, it means that any claims by the late David Imig cannot be dealt with by this Court because it is his estate that has to claim, not him. Mr Kolo must take the appropriate steps towards dealing with this.
   
5. In relation to the lack of S. 5 Notice, I note that on perusing the transcripts of proceedings of 11th August, 2010 and 17th August, 2010, that Mr Kolo did make submissions on the lack of S. 5 Notice, that S. 5 Notice was served upon the Office of the Solicitor-General, however, the learned trial Judge did not consider or take that into account in his reasons on the grant of default judgment.
   
6. Also, Mr Tanuvasa, the State's lawyer, did not address the S. 5 Notice at that time.
   
7. Should the Court consider the submissions on the lack of S. 5 Notice, now put to me by Mrs Gelu?
   
8. Although the applicable situations are many and varied, where the lack of S.5 Notice is raised, there are several common scenarios and which are;
   

1. Upon application by the State, made at a very early stage of the proceedings.

2. Where application to dismiss is filed very late in the proceedings either several years after proceedings had been filed or just before trial or on the eve of trial. The Court will be properly exercising its discretion, if it were to revisit this very important procedural step in any litigation against the State, and enquire as to how and why this issue was not raised earlier and then determine whether S.5 Notice had issued or not. And of course, a very handy resource material to assist the Court would be the Court transcripts of hearing conducted before the earlier Court where the issue of S. 5 Notice would have been raised.

9. In this case, the plaintiff's lawyer submitted that the S.5 Notice had issued. He did that on the hearing of the application for default judgment on 11th August, 2010. The State was represented by a lawyer who, according to the transcripts before me, did not take issue with the issue of that notice. Notwithstanding what the State is now saying about the S.5 Notice, in my view, those submissions should have been made by the State on 11th August, 2010. The fact that the State did not take issue on 11th August, 2010 and the fact that the trial Judge did not address it in his reasons of 17th August, 2010, means that it was not an issue. The State cannot come now and have a second bite at the cherry, so to speak, and reagitate issues that should have been raised when it had the opportunity to do so.
   
10. Therefore, based on that reasoning, I will dismiss the application.
    
11. However, there are still very important procedural flaws, in my view, that still exist.
    
12. Firstly, the grant of default judgment. Default judgment was entered only against the seventh to the ninth defendants. This in fact creates a very difficult situation, not just for the Court but for all parties. I say this because the first to the sixth defendants, who are alleged to be the tortfeasors, meaning they allegedly committed the wrongs complained of by the plaintiff, still have not had the issue of liability for the alleged wrongs, determined by the Court. The Court is now about to embark on an assessment of damages exercise, alleged to have been caused by the first to sixth defendants who have not had judgment entered against them. The issue of their liability has yet to be determined. The question I ask and which I raised yesterday in Court is this, what is the Court going to assess? Obviously, nothing. The seventh to the ninth defendants are only the alleged employers. They did not commit the alleged wrongs. They are named in their capacities as the employers. The State is named as the entity which the Royal Papua New Guinea Constabulary ('RPNGC') is an arm of. The plaintiff's claim is one alleging vicarious liability by the State because of the actions of the State's servants and agents. Clearly, this Court cannot proceed to assessment of damages faced with this procedural irregularity because this will be a futile exercise.
    
13. What can the Court do under these circumstances?
    
14. The State has not filed an application to set aside the default judgment. It does not have a good reason for not doing so. In fact when I asked Mrs Gelu why this was not done, she said it was due to an 'over sight'. Putting that aside, this Court will not be doing any favours to the plaintiff if it were to proceed to assessment of damages because there is nothing to assess.
    
15. The Court and the plaintiff are faced with the dilemma that if the matter were to proceed to hearing, the Court will most likely dismiss the claim, because of the following reasons;
    

i. Liability against the first to the sixth defendants has yet to be determined;

ii. Because liability against the first to the sixth defendants has yet to be determined that the default judgment entered against the seventh to the tenth defendants is of no use.

16. It means that I can either hear an application to set aside default judgment or proceed to issue directions on the way forward. In my view, I think it is proper that I hear an application to set aside the default judgment, for the State to demonstrate whether it has a good defence, amongst others.
    
17. In relation to the late David Imig, if the plaintiffs' lawyer does not rectify this anomaly in relation to his Estate, that the Court can dismiss the claim filed by him.
    
18. I will issue the following orders;
    

1. The trial dates allocated of 29th and 30th May 2013, are vacated;

2. The seventh to the tenth defendants have leave to file and serve an application to set aside default judgment ordered on 17th August, 2010;

3. The seventh to tenth defendants must file and serve affidavit/s in support of the application, deposed to by the defendants duly authorized representative or representatives;

4. To that affidavit/s must also be attached a draft Defence;

5. Such an application and supporting affidavits referred to in paragraphs 2 and 3 hereof, must be filed and served within a month from today, on or before 30th June, 2013;

6. The plaintiff must also have filed and served an application in relation to the late David Imig's estate, to be done on or before 30th June, 2013;

7. The motion to set aside be set down for hearing on 17th July, 2013 at 11:00am; and

8. The matter will return to this Court on 2nd July, 2013 at 9:30am for the Court to ascertain that these directions have been complied with.

_____________________________---___________________________________
Kolo & Associates Lawyers: Lawyer for the Plaintiff
Office of the Solicitor-General: Lawyer for the seventh to the tenth Defendants