Wafi v Siau [2016] PGNC 52; N6227 (17 March 2016)

N6227

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1235 OF 2014

BETWEEN:

THAIDUS WAFI
Plaintiff

AND

AUGUSTUS SIAU - PROJECT MANAGER
First Defendant

AND

SHORNCLIFFE LIMITED
Second Defendant

Kundiawa: Liosi AJ
2016: 17th March

PRACTICE AND PROCEDURE – Application for Default Judgment pursuant to Order 25 and 27 of National Court Rules – Need to plead concise reference to Courts Jurisdiction emphasised –Pleadings need to be clear and not vague particularly in Liquidated claims.

Held:
1. Applicant must plead concise reference to Court's Jurisdiction.
2. Failure to comply with requirements of Order 4 Rule 49 (19) (3) renders the motion incompetent if one of the requirements is not complied with.

3. Even if there is default the court may still refuse default Judgment if pleadings are so vague and do not disclose a reasonable cause of action.

Cases Cited:

Giru v. Muta (2005) N2877
Kitipa v. Auali N1773
Map makers v. BHP [1987] PNGLR 78

Counsel:
Mr. M. Yawip, for Applicant /Plaintiff
Mr. P. Numu, for Respondent/Defendant

17th March, 2016

1. LIOSI AJ: This is an application for default Judgment by the applicant pursuant to order 25 and 27 of the National Court Rules.
   

Facts:

2. The Writ of Summons was served on the first Defendant and second Defendant on 4th March 2015.
   

3. The defendant filed its Notice of Intention to Defend on 17th March 2015.

4. The Plaintiff applicant says Notice forewarning the defendant of the &#16lication was made on fion first May 2015.

5. Plaintiff then conducted a file search on 29th June 2015 and ascertained no defence had been filed.

6. Based on the default it now applies for Default Judgment.

7. The Respondent objected on the basis that Rule 19 (3) of the motion Amendment Rules have not been complied with in that.

(a) The affidavit in support does not attach the forewarning letter.
(b) There is no affidavit of search.

8. Therefore the Notice of Motion is incompetent and must be dismissed.

The Law

9. The Law is clearly settled in application for Default Judgment.

10. The Requirements on procedure for Default Judgment are set out in Motion Amendment Rules 2005 Particularly Rule 19 (3) (a) (i) which states that:

" An application for Default Judgment shall file the following documents:

(1) Notice of Motion
(2) An Affidavit of Service;
(3) An affidavit of Search (of the court file) conducted just before filing

the motion;

(4) An Affidavit in support (to also attach copy of the letter to the

other party forewarning of the application, if a Notice of Intention

to defend has been filed).

(5) A draft order for Default Judgment"

3. In this case the Notice of Intention to Defend had been filed therefore; there must be a letter of forewarning to the Respondents. Although the Affidavit in Support states letter of forewarning was given to the Applicant, it was never annexed to the affidavit.

4. There is an affidavit of Search filed as is required by Rule 19 (3) (a). However, Rule (19) (3) (a) (iii) further states that if a motion has been outstanding for two weeks or more than three days before the motion is moved, the applicant or his lawyer must conduct a fresh search of the court file and file a fresh affidavit of search, this wasn't done.

5. Apart from procedures laid down under otion Amendment Rules, other casve laid down chec chec checklist and preconditions on an application for Default Judgment. In Giru v. Muta (2005) N 2877, the case laid down six preconditions on an application for Default Judgment. They are;

Proper form, Service of Notice of Motion and Affidavits, Default, Warning, Proof of Service of Writ, proof of Default.

6. In the case of Kunton and Ors v. Junias and Ors (2006) SC 929, the court there held that there was wide and not closed range of considerations which the court can take into account in deciding whether it should enter Default Judgment. This includes whether the Pleadings are vague ie; whether the statement of Claim discloses a reasonable course of action and whether the interest of Justice would be secured by entry of Default Judgment.

7. The court notes that the claim herein is for damages for Defamation of Character. The plaintiff has claimed a liquidated amount. The plaintiff has further claimed damages under various heads of damages. They include damages for unlawful detention and unlawful imprisonment and exemplary damages. The Court Views this claim would need to be properly assessed given the Nature of the Claim and the insufficiency of pleadings filed in the Statement of Claim.
   

8. In the circumstances the application for Default Judgment is refused.

Ruling and Orders Accordingly,

_______________________________________________
Public Solicitor: Lawyers for the Applicant
Avross and Co. Lawyers : Lawyers for the Respondent