Pangu v Korr [2015] PGNC 168; N6069 (22 September 2015)

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PROCEDURE – Principles for awarding default judgement clear but 13 years delay in applying to set aside defective Judgement establishes equitable bar of laches to such an application.

PLEADING – Absence of credible evidence of value of goods claimed as loss means lack of sufficient proof - Where a cause of action depends on statute, a plaintiff must plead all the facts necessary to establish the claim.

Coecon v The Nation Fisheries Authority and The State [2002] PNGLR 6
Jacob Simbuaken v Navel Egari (2009) N3824
Lina Kawakali v The Independent State of Papua New Guinea (2011) SC1091
Lome v Kundi (2004) N2776
Ludger Mond v Jeffery Nape (2003) N2318
Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370
Papua New Guinea Banking Cooperation v Tole (2002) SC 694

1. POOLE J: Background: On the 26th of November 2001 the Plaintiff filed a Writ and Statement of Claim seeking damages as a result of the First Defendant and others unlawfully depriving him of his motor vehicle, converting it to their own use, stealing goods from it, wrongfully arresting and maliciously prosecuting him in the District Court, and for loss of income arising from being deprived of the use of his vehicle. The Statement of Claim was served on the State and on a policeman not named as a party and an Affidavit of service was filed. This, of course, was not the personal service of originating process required by the rules. On the 21st of March 2002, Mr Gonnol, the lawyer then with carriage of the matter for the Plaintiff, searched the Registry file and, because no Notice of Intention to Defend or Defense had been filed, moved the Court for Default Judgment on the 17th of September 2002 without filing further material. This application was granted.

2. It is trite to note that pleadings are not evidence and, without evidence to verify, to the required standard of proof, the facts which the Plaintiff set out in a Statement of Claim, a Court has no proof before it. (see Lome v Kundi (N2076)). Even where the chronology of the pleadings show a default of compliance with the rules, if a Default Judgment cannot be justified in law, the default of the Defendant to enter a Defense stands in the way of the Court exercising a decision to grant a default Judgement.

3. As the Supreme Court said in Lina Kawakali v The Independent State of Papua New Guinea (SC1091):

"In applications for Default Judgement, the Applicant is saying that the Defendant has not complied with the rules of Court and that therefore, the Plaintiff is, as of right, entitled to Default Judgement. A Court hearing an application for Default Judgement, should not just "tick the boxes" so to speak but must also Review the Statement of claim to see if the action is one where Judgment can be entered. Order 12 Rule 32 of the National Court Rules gives a Court a wide discretion to enter or not to enter, Default Judgement. Even when proof of due service of process on a Defendant or proof of the default is established by the Plaintiff/Applicant, the Court still has a discretion to refuse to enter the Default Judgement in cases where, for instance, the fact of the Default Judgement would affect the Rights of other co-defendants or does not disclose a reasonable cause of action or that the Default Judgement cannot be sustained in law."

4. Although there is a complete absence of pleadings or of relevant evidence from or on behalf of any defendant, the principals upon which an assessment of damages should proceed after entry of Default Judgement are clear and set out, for example, by the Supreme Court in Papua New Guinea Banking Cooperation v Tole (SC 694) and, in the National Court, in Coecon v The National Fisheries Authority and The State (N2182). Those principals are:

Default Judgement resolves all questions of liability which are pleaded in the Statement of Claim;

A matter not pleaded, but raised at trail inter – parties, is one upon which a defendant can contest liability at the trail;

Although the default may establish liability as such, a Plaintiff still has to prove damages by means of credible evidence to satisfy the Court on the balance of probabilities;

Evidence may only be admitted in proof of such facts as have been pleaded in the Statement of Claim.

5. No defendant has taken any action to apply to set aside the Default Judgement. It has been allowed to stand for almost 13 years. In all equity, such an extensive delay must establish a bar against any application now.

6. The Plaintiff, in addition to the Statement of Claim, has filed an Affidavit (on the 18th of November 2004,):

1. The Plaintiff is about 40 years of age, a businessman, resides at East Taraka, Lae, Morbe Province. He originally comes from Tambul, in the Western Highlands Province. He engages in PMV operations, trucking, kai bar & property.

2. The Plaintiff at all material times, is and was the registered owner of a motor vehicle, a Toyato Hilux, Dual Cabin, white in colour, Registration No. LAJ 484 (hereinafter "the motor vehicle")

3. The First Defendant is a policeman attached to the Minz Police Station in the Western Highlands Province.

4. The Second Defendant is the Western Highlands Provincial Police Commander. He is responsible for all police actions throughout the Western Highlands Province. He is sued in his official capacity as the Provincial Police Commander.

5. The Third Defendant is the Police Commissioner of Papua New Guinea. He is responsible for all police actions or in actions throughout Papua New Guinea.

7. On the 17th March 2001, the Plaintiff was travelling along the Okuk Highway towards Lae from Mt Hagen in his motor vehicle, described in paragraph 2 above.

8. On the said 17th March 2001, at Kurumul, near Kudjip in the Western Highlands, an unspecified number of policemen, under the command and control of Sergeant Mark Korr, without good cause or reasonable excuse impounded the motor vehicle, together with the cargo on board. In addition, the Defendant demanded and took possession of the motor vehicle's registration and insurance papers, and the Plaintiff's driving license.

9. The First Defendant unlawfully and without reasonable excuse demanded and received K100.00 in cash from the Plaintiff, without issuing any official receipt.

10. The First Defendant then told the Plaintiff to go away and come back after one week.

11. The First Defendant, then with the company of an unspecified number of policemen used the motor vehicle, particulars of which are as follows:

a) On 17th March 2001 the First Defendant was seen driving the Plaintiff's motor vehicle towards Simbu at Waghi Bridge. The First Defendant has a load of door frames.

b) On the 18th March 2001, the First Defendant was seen driving the Plaintiff's motor vehicle towards Mt Hagen at Minz road junction.

c) On or about 20th March 2001, the First Defendant in the Company of an unspecified number of policemen used the Plaintiff's motor in a police raid at the Warakar area of Banz.

d) On or about 22nd March 2001, the First Defendant drove or caused to be driven the plaintiff's motor vehicle to Jimmi District believed to for Police duties. These extensive usage of the Plaintiff's motor vehicle was never authorized by law or the Plaintiffs and were in fact unlawful.

12. Further, the Plaintiff's motor vehicle, had cargo and property which were stolen or displaced by the First Defendant and his policemen and never returned when the vehicle was retrieved.

	Cargo & Property	Value of Cargo
a)	2 x bags of potatoe at K500.00	1,000.00
b)	2x empty 44 gallon drums at K100.00	200.00
c)	An empty litre drum at K150.00	150.00
d)	1x tool box with assorted tool kits valued @ K800.00	800.00
e)	1x jack	180.00
f)	1 x wheel spanner	82.00
g)	1 x jack handle	63.00
	*Sub Total K*	*2,478.00*

13. During the said period; The First Defendant in the company of an unspecified number of policemen unlawfully used the Plaintiff's vehicle, the following damages were done and accessories removed.

a) Left hand side quarter glass was removed or smashed. A replacement was valued at K200.00

b) The car radio and speakers were removed. The replacement was valued at K700.00.

14. From 18th to 19th March 2001, the Plaintiff expanded more than K5,000.00 in transportation and associated costs to regain possession of the motor vehicle.

15. The Plaintiff says the First Defendant's unlawful actions in impounding the motor vehicle, has caused the Plaintiff inconvenience, loss of property, damage to the vehicle and additional costs in trying to regain possession.

16. In the alternative, the Plaintiff says, that losses and damages suffered were as a direct result of the negligence in the discharge of the Defendants police duties.

17. Further, the Plaintiff uses the vehicle for business and family use. As a result of the unlawful confiscation, the Plaintiff suffered loss.

a) Although difficult to estimate the exact value, it is safe to say, the Plaintiff suffered K200.00 per day in the use of his vehicle for business purposes. For the eleven days detained, a loss is estimated at K2,200.00.

b) The Plaintiff further lost the use and enjoyment of his vehicle for private, family and domestic use. He has been deprived of that. Although difficult to calculate the exact value, it is safe to say a loss of K100.00 per day is reasonable. This totals to a loss of K1,100.00 for the eleven days.

c) The Plaintiff, further was deprived of the loss of precious time of eleven days to engage in meaningful business. Although difficult to estimate the exact value, it is safe to say K300.00 per day, totaling to a sum of K3,300.00.

18. The Plaintiff as a further result of the unlawful actions of the policemen, agents & employees of the Second, Third & Fourth Defendants, suffered the following to his person.

19. On the said 17th March 2001, the First Defendant as agents and/or employees of the Second, Third & Fourth Defendants detained the Plaintiff for more than six hours against his will. The actions of the First Defendant in execution of his duties as a policeman amounts to false imprisonment.

20. Further, the First Defendant and other policemen based at Minz maliciously and without reasonable cause laid an information, charged and brought the Plaintiff to the Minz District Court charging him under Section 16 of the Summary offences Act, allegedly accusing him of being in possession of stolen property.

21. The Plaintiff made a couple of Court appearances in the Minz District Court, in answer to the information laid. The District Court heard the case and dismissed it, findings that there was an abuse of process and Constitutional breach on the part of police in the process of detention, and subsequently ordered for the immediate release of the motor vehicle.

22. In consequence, of the matters aforesaid, the Plaintiff was injured, in his reputation, and was put to considerable trouble, inconvenience, anxiety and expense and have suffered loss and damages.

23. The actions of the policemen, were unlawful and so, the Plaintiff is entitled to damages pursuant to the claims By and Against the State Act, Wrongs, Miscellaneous Provisions Act and the PNG Constitution.

e) Damages for disappointment, frustration; anxiety, loss of reputation and mental distress.

8. The Defendants have filed no relevant material whatsoever. There is no Notice of Intention to Defend or Defense; although the file contains numerous affidavits of search, procedural motions and notices of ceasing to act or of appearance.

9. It seems that, yet again, the Solicitor General's office is content to allow Default Judgments to be entered against the State because lawyers are unable or unwilling to try to defend or to settle such claims. In effect, they abandon any defense which their client, the State, could raise. Such conduct by a lawyer in private practice would raise serious questions of professional negligence and even professional misconduct.

2 bags of potato at K500.00	K1,000.00
2 empty 44 gallon drums at K100.00	K200.00
An empty?liter drum at K150.00	K150.00
1 toolbox for the assorted tools at K800.00	K800.00
1 jack at K180.00	K180.00
wheel spanner at K82.00	K82.00
1 jack handle at K63.00	K63.00
TOTAL	K2,478.00

11. The Plaintiff also claims that he was detained against his will and prosecuted maliciously and, in paragraph 23 of his Statement of Claim, claims to be "entitled to damages pursuant to the Claims By and Against the State Act, Wrongs (Miscellaneous Previsions) Act and the PNG Constitution.

Evidence

12. The only evidence relevant to the pleading of the Statement of Claim is the Plaintiff's Affidavit filed on the 7th October 2005. This Affidavit relates to the history of his having acquired his motor vehicle and the events of the 17th of March 2001 when he was in contact with the First Defendant, Sergeant Mark Korr, and was thereby deprived of his vehicle, robbed of money and, later detained and prosecuted (he says maliciously). His affidavit contains hearsay material relating to the use of his vehicle when it was in the custody of the Police and he complains of suffering "damages physically, mentally and also my character and reputation".

13. In relation to each of the heads of claim of damages the Plaintiff has set out matters in the Statement of Claim and in his Affidavit as to the amount claimed. But there is nothing by way of credible independent evidence to establish the validity of that claim.

14. As this Court has frequently said before, the Common Law position is that a Plaintiff in an action for damages must prove the damages. That proof must be by admittable evidence and must satisfy the court, on the balance of probabilities, that the amount claimed is based in facts not on a wistful conjecture.

15. In Ludger Mond v Jeffery Nape (N2318) His Honor Kandakasi J observed that pleading of particulars was necessary "because without the pleading, no evidence can be led. After all, pleadings drive the evidence." By the same token, it is evidence which gives life to pleadings, for without evidence they are no more than an unsubstantiated statement of fact; further such evidence has to be credible.

16. If a Plaintiff claims that he has lost goods to a certain value he must be able to give some credibility to the claim by either producing a receipt for its purchase, or an opinion from someone with expertise to place a value on that particular item; it is not enough just to say "I have lost something and it was worth so much kina."

17. Insofar as the Plaintiff claims the value of cargo and property stolen by the defendants from his Motor Vehicle, there is no evidence by way of receipts or valuation to substantiate the value claimed and it would be improper for the Court to speculate, for example, on the condition or quality or value of the goods. I find, that the claim must fail.

18. Insofar as the Plaintiff claims K900.00 for replacement of the left hand side quarter glass and a car radio and speakers, there is again no independent evidence and that claim must fail. There are no receipts in evidence or expert opinion of value.

19. Likewise, there are no receipts or independent evidence which is capable of verifying a claim of "more than K5,000.00 in transportation and associated cost". The Plaintiff does not give any particulars of what the "transportation and associated costs" could be. The Plaintiff claims he "uses the vehicle for business and family use."

20. Annexed to his affidavit is an application for registration which specifies that the use of the vehicle for 3rd part insurance classification is "private". There is, indeed, no evidence of what use the vehicle was to his business or how such use would be valued – for example in carrying goods.

21. This failure to properly plead the claim and particulars and to provide evidence to support those particulars of valuations and loss is a serious defect. The Court has frequently said (see, for example, Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370) that such a claim cannot succeed. A Court cannot be asked simply to speculate on whatever the evidence may be of value and to agree to give a Plaintiff any sum he or she asks for without further verifying evidence.

22. Finally, there are two further issues to be addressed. The first is the Plaintiff is pleading a case based on vicarious liability. In paragraph 19 of his Statement of Claim he states "on the said 17th of March 2001, the First Defendant as agents and or employees of Second, Third and Fourth Defends detained the Plaintiff more than 6 hours....." He pleads that the Second Defendant is "responsible for all police actions throughout the Western Highlands Province" and the Third Defendant "is responsible for all Police actions or inactions throughout Papua New Guinea." There is no proper pleading of agency and certainly no pleading of the statutory basis of that agency by a specific pleading of section 1 (1) of the Wrongs (Miscellaneous Provisions) Act as required by the law (see Jacob Simbuaken v Neville Egari (N3824) and, so far as the Common Law is concerned, the Courts of Papua New Guinea have frequently referred to Sear v Lawson (1881) Ch. 16 D. 121 and Read v Brown [1888] UKLawRpKQB 186; (1888) 22 QBD 128 and followed them as authority for the proposition that, if a Plaintiff's cause of action depends on a statute, the Plaintiff must plead all and facts necessary to bring him or her within that statute. This has not been done.
23. The Statement of Claim contains a passing reference to the Constitution by claiming, in paragraph 23, that "the actions of the Policeman were unlawful and so, the Plaintiff is entitle to damages pursuant to the PNG Constitution." In addition to the matters to which I have just referred, such a bald statement cannot be sufficient. He does not specify what provision or provisions of the Constitution the Plaintiff calls in aid in seeking damages and the only evidence which could be interpreted as referring to breach of Constitutional Rights occurs in the emotional conclusion to his affidavit where he says "these are scars I will carry with me for the rest of my life when I think of these episodes I had to go through. I wonder whether the Police are given the right to abuse the system and disrupt an innocent man's routines".

23. In summary there is no or no sufficient evidence before the Court to support the Plaintiff's claim for damages. The action is dismissed.

24. In view of the conduct of this action by the Parties they will each bear their own costs.

1. The Plaintiff's action is dismissed.
2. The Parties are to bear their own costs.

________________________________________________________________
Danny Gonnol Lawyers: Lawyers for the Plaintiffs
J.W. Bamin: Lawyers for the Defendant

National Court of Papua New Guinea

Pangu v Korr [2015] PGNC 168; N6069 (22 September 2015)