Albright Ltd v Mekeo Hinterland Holdings Ltd [2013] PGNC 367; N8435 (16 July 2013)

N8435

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 258 OF 2012

BETWEEN:
ALBRIGHT LIMITED
Plaintiff

AND:
MEKEO HINTERLAND
HOLDINGS LIMITED
First Defendant

AND:
LUCAS KEKENE, MINISTER FOR
LANDS & PHYSICAL PLANNING
Second Defendant

AND:
ROMILLY KILA-PAT, SECRETARY FOR
LANDS AND PHYSICAL PLANNING
Third Defendant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Defendant

Waigani: Hartshorn J
2013: 12^th & 16^th July

Whether this court has jurisdiction to set aside a default judgment that has been entered after an inter parties hearing

Cases Cited:
Papua New Guinea Cases

Lerro v. Stagg (2006) N3050
Wellcos Engineering Limited v. Yawari (2008) N3443
Rangip v. Loko (2009) N3714
Overseas Cases

Nicholson v. Nicholson [1974] 2 NSWLR 59

Counsel:

Ms. M. Wal and Ms. S. Oki, for the Plaintiff
Ms. J. Tindiwi-Paki and Ms. M. Kias, for the Second, Third and Fourth Defendants

Oral decision delivered on
12^th July 2013

1.HARTSHORN J: This matter came before the court for a hearing to assess damages. Default judgment was entered on 24^th October 2012. The second, third and fourth defendants (State defendants) have however, filed a notice of motion in which they seek to set aside the default judgment, to dismiss or strike out the proceeding and to be granted leave to file their defence out of time.

2.Counsel for the plaintiff has objected to the State defendants moving this motion as amongst others:

a) Leave has not been obtained by the State defendants to adjourn the hearing to assess damages pursuant to Order 10 Rule 9A 13(1) National Court Rules;

b) This court does not have the jurisdiction to set aside a default judgment that has been entered after an inter partes hearing.

3. I heard counsel on these issues and adjourned to 8:30am 16^th July 2013 to give my ruling, which I now do.

4. As to whether leave should have been obtained to adjourn the assessment of damages hearing, Order 10 Rule 9A 13(1) National Court Rules provides that:

“(1) A trial once fixed shall not be adjourned except by leave of the Court upon sufficient cause being shown.”

5. In this instance, the hearing of the assessment of damages was fixed for hearing on 17^th May 2013, and so leave of the Court to adjourn is required.

6. The State defendants have not sought leave to adjourn. They seek to move their motion. The nature of the motion, seeking to set aside judgment and to dismiss the proceeding, in my view necessitates that if it is to be heard, that it be heard before a hearing to assess damages. It would be a waste of the court’s time for it to assess damages and then later have judgment set aside and the proceeding dismissed.

7. The effect of filing and attempting to move the motion in such circumstances is to cause the adjournment of the assessment of damages hearing, as it is necessary to deal with this motion first. It is not therefore necessary to seek leave to adjourn under Order 10 Rule 9A 13(1), as the hearing will be adjourned in any event.

8. As to whether this Court has jurisdiction to set aside a default judgment that has been entered inter partes, the State defendants rely on Order 12 Rule 8(2)(a) and Order 12 Rule 35 National Court Rules. The wording of these Rules clearly permits this court to set aside a judgment or default judgment that has been entered under Division 3 of Order 12. There is no dispute, as I understand it, that judgment was entered under this Division 3 of Order 12.

9. Counsel for the plaintiff relies upon the case of Lerro v. Stagg (2006) N3050 for the proposition that this court does not have jurisdiction to set aside a default judgment entered inter partes.

10. I note from a perusal of that decision that Order 12 Rule 8(2)(a) is not discussed or considered and although Order 12 Rule 35 is mentioned, it is not specifically discussed or considered.

11. Further, the facts of Lerro v Stagg (supra) are able to be distinguished from the facts of this case, as this case does not concern a further extension of time by the Court to file a defence as occurred in Lerro v Stagg (supra).

12. I also mention that in Rangip v.Loko (2009) N3714, as to a final order, I said:

“...although the general rule is that a court ordinarily has no power to set aside a final order once it has been passed and entered, Order 12 Rule 8 National Court Rules and the New South Wales equivalent, Pt 40 r 9 from which our Rule is derived, deal with several exceptions to the general rule: Ritchie’s Supreme Court Procedure Vol.1 40.9.”

13. I then referred to the New South Wales Supreme Court Decision of Nicholson v. Nicholson[1974] 2 NSWLR 59, where Jenkyn J, after noting that the power to set aside or vary an order can be given to a court by a statutory provision or a validly made rule, considered Pt 40 r 9, which is the same as Order 12 Rule 8 and concluded at p.64 that its application is not limited to interlocutory orders but applies also to final orders.

14. Given this, I am satisfied that this Court does have jurisdiction to set aside a judgment entered by default.

15. As to hearing the other applications that seek to dismiss or strike out the proceeding, I refer to the case of Wellcos Engineering Limited v. Yawari (2008) N3443 in which I noted that an application to dismiss cannot be heard until after a judgment has been set aside.

16. Consequently, I will hear the application by the State defendants which seeks to set aside the default judgment. Whether, I hear the dismissal application will be dependent upon my decision on the setting aside application.
__________________________________________________________________
Wal & Associates Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants