Kara v Public Curator of Papua and New Guinea [2017] PGNC 385; N7161 (11 August 2017)

N7161

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 69 OF 2009

BETWEEN
KONZE KARA as Administrator of the estate
of KIBIKANG YAKKA KARA, Deceased
Plaintiff

AND
PUBLIC CURATOR OF PAPUA AND NEW GUINEA
First Defendant

AND
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn J.
2016: 7^th September
2017: 11^th August

Cases cited:

Public Curator of Papua New Guinea v. Kara (2014) SC1420
William Mel v. Coleman Pakalia and Ors (2005) SC790

Counsel:

Mr. J. Brooks, for the Plaintiff

Mr. R. Saulep, for the First and Second Defendants

11^th August, 2017

1. HARTSHORN J: The parties made submissions on the next step to be taken in the proceeding, whether it be an assessment of damages as against the second defendant, the State, by virtue of the judgment entered against it on 24^th May 2013, or whether it be a trial to determine the liability of the first defendant, the Public Curator.
   
2. Counsel for both defendants, initially submitted that there should be a trial as to the Public Curator’s liability as it had been submitted by the plaintiff that the Public Curator was not part of the State, that this court had also found that the Public Curator was not part of the State and the Supreme Court had agreed on that point.
   
3. Counsel for the defendants however retracted those submissions as the Supreme Court had in fact upheld part of an appeal from a decision of this court and had found that the Public Curator is deemed to be the “State” within the meaning of the Claims By and Against the State Act (Claims Act): Public Curator of Papua New Guinea v. Kara (2014) SC1420 at [40]. Counsel for the defendants then submitted that s. 36 Public Curator Act requires the establishment of an act or omission by the Public Curator that has caused a person to sustain an injury that would give rise to an entitlement to a remedy. It is necessary therefore that there be a trial to establish the Public Curator’s liability, it was submitted.
   
4. Counsel for the plaintiff submitted that the judgment of 24^th May 2013 has resolved all questions of liability in respect of the matters pleaded in the amended statement of claim. This is because the amended statement of claim pleads amongst others that the State is liable pursuant to s. 36 Public Curator Act for any act or omission by the Public Curator, that the Public Curator negligently administered the estate of the deceased, and that the estate sustained economic loss and damages.
   
5. Pursuant to Order 10 Rule 17(2) National Court Rules, were judgment is entered against any party for damages to be assessed, as is the case here, and proceedings are carried on against any other party, the trial for assessment of damages under the judgment shall, unless the court otherwise orders, be held together with any of the trial in the proceedings.
   
6. Order 10 Rule 21 however, permits the court to determine an assessment of damages payable by the State separately from a trial as to the Public Curator’s liability. It is submitted that this should occur here as the disposal of the assessment of damages payable by the State will substantially dispose of the whole of the proceedings and will render unnecessary any further trial in the proceeding against the Public Curator, as envisaged by Order 10 Rule 24 National Court Rules.

Consideration

7. The amended statement of claim filed 3^rd April 2009 does plead that the State is liable pursuant to s. 36 Public Curator Act, which concerns acts or omissions of the Public Curator, that the Public Curator was so negligent that the estate incurred losses and that in consequence of the negligence, the estate has and continues to sustain economic loss and damages.
8. In regard to the effect of a default judgment, the Supreme Court in William Mel v. Coleman Pakalia and Ors (2005) SC790 elaborated on the principle that a default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim by stating:

“...... once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven.”

9. In this instance, as stated, the plaintiff has pleaded amongst others, that the Public Curator negligently administered the estate and has set out in detail the particulars of the negligence.
10. Given the extent of the pleading in the amended statement of claim, I am satisfied that the judgment of 24^th May 2013 has resolved amongst others the question of the State being liable for the Public Curator’s actions or inactions, that the Public Curator was negligent as set out in the amended statement of claim and that the estate sustained economic loss and damages. As the State is so liable, there are no issues of whether the Public Curator was negligent or as to an apportionment of liability between the Public Curator and the State.
11. After considering the provisions of Order 10 Rules 17, 21 and 24 National Court Rules, I am satisfied that an assessment of damages conducted in respect of the State will substantially dispose of the whole of the proceedings, rendering unnecessary any further trial in the proceeding as to the Public Curator.

Orders

12. The Orders of the Court are:

1. That pursuant to Order 10 Rule 21 National Court Rules, the assessment of damages as against the second defendant pursuant to the judgment of 24^th May 2013 shall occur separately and before any further trial in the proceeding as to the first defendant;
2. The costs of and incidental to this hearing are reserved;

100. Time is abridged.

_____________________________________________________________
Ashurst: Lawyers for the Plaintiff
Saulep Lawyers: Lawyers for the First and Second Defendants