Culligan v Onmga [2018] PGNC 313; N7424 (17 July 2018)

N7424

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1298 of 2017

BETWEEN
MALCOLM CULLIGAN
Plaintiff

AND
JOHN ONMGA as the Returning Officer responsible for 2013 LLG Elections for North Waghi
First Defendant

AND
ROSS PANDIHAU as the Election Manageress managing and supervising the First Defendant
Second Defendant

AND
TOKANA HASAVI as the Jiwaka Provincial Administration responsible for the 2013 LLG Elections for North Waghi
Third Defendant

AND
ANDREW TRAWEN as the Electoral Commissioner in control of the Electoral Commission
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Dingake J
2018: 5^th April, 7^th June, 17^th July

PRACTICE AND PROCEDURE – Default Judgment – Requirements set out – Application refused.

Cases Cited:

Urban Giru v Luke Muta, West Farm Resources Ltd and West New Britain Provincial Government (2005) N2877;
Kabil Worim and 101 Ors v Sergeant Koken and the State (1996) N1417; Anton Kaluni v Aiyale Warole and Whatolo Business Group Inc (2001) N2114;
Timothy Tima v Chief Inspector Thomas Korohan (2006) PGNC21 N3045.

Counsel:

Mr. Paul Mawa, for the Plaintiff
Mr. Wilfred Joseph, for the Defendants

7^th July,2018

1. DINGAKE J: This is a ruling with respect to the plaintiff’s application for default judgment in terms of Order 12 Rule 25(b) and Order 12 Rule 1 and Order 4 Rule 19(3) (a) and (b) and the first, second and fourth defendants application n for leave to file their Defence out of time in terms of Order 7 Rule 6, Order 1 Rule 15(1) and (2) and Order 12 Rule 1 of the National Court Rules.
2. The underlying cause of action relates to an alleged breach of contract.
3. It is common cause that on or about 13^th of June, 2013, the Electoral Commission and the plaintiff (owner of the motor vehicle) entered into an agreement of hire of a motor vehicle.
4. The hire of the motor vehicle, described as Toyota Land Cruiser was for 40 days commencing on the 3^rd of June, 2013.
5. It was an express term of the agreement that the Commission shall pay rental to the plaintiff at the rate of K800.00 each day.
6. The plaintiff alleges that the defendants have not paid the outstanding motor vehicle hire bill and the cost of a new vehicle following substantial damage of the vehicle on or about July, 2013, damages for mental distress and anguish.
7. The plaintiff claims inter-alia, special damages in the sum of K266,461.27; loss of income and earnings calculated at K1,106,400.00, and general damages to be assessed.
8. In the case of Urban Giru v Luke Muta, West Farm Resources Ltd and West New Britain Provincial Government (2005) N2877, Canning J summarised the minimum requirements a party seeking default judgment must satisfy. These are:
   • (i) Whether the Notice of Motion for Default Judgment is in proper form and supported by Affidavit?
     • (ii) Whether the Notice of Motion and Affidavit have been served pursuant to the National Court Rules?
     • (iii) Is the Defendant in default?
     • (iv) Has the Plaintiff given notice/warning of its intention to apply for default judgment?
     • (v) Has the Plaintiff filed an Affidavit confirming the service of the Writ of Summons?
     • (vi) Has the Plaintiff filed an Affidavit proving the default upon which it relies on? eg Affidavit of Search.
9. The applicant has complied with most of the requirements set out in the case of Urban Giru, above, save that the affidavit of search was conducted on the 28^th February, 2018, which is not in compliance with the rules.
10. It is a requirement of the law that before applying for judgment in default there should be an affidavit – showing the results of conduct of recent search of Court file (Kabil Worim and 101 Ors v Sergeant Koken and the State (1996) N1417; Anton Kaluni v Aiyale Warole and Whatolo Business Group Inc (2001) N2114.
11. It is a further requirement of the law that, if the motion is more than three weeks old, the lawyer must conduct a fresh search no more than three days before the motion is moved (Timothy Tima v Chief Inspector Thomas Korohan (2006) PGNC21, N3045).
12. In this case the extent of the defendants’ default – less than five (5) months, is not, in the circumstances of this case inordinate; and on the face of it the defendants appear to have a good defence as to whether it owes or is obligated to pay all the money claimed.
13. In the result for the reasons stated above, I am not inclined to grant the default judgment.
14. In turn to consider the application by the defendants to file their defence out of time. To succeed the applicants (defendants) must provide a reasonable explanation for the failure to file a defence within time and if there is a delay in bringing the application for leave to file the defence out of time, a reasonable explanation for the delay must be offered.
15. In addition to the above, the applicants (defendants) must demonstrate that there is a defence on the merits and that there will be no prejudice if leave is granted.
16. As indicated the delay of less than five (5) months is not in the circumstances of this case, inordinate. The claim is principally against the Electoral Commission of Papua New Guinea and some of its officers. The claims relate to the 2013 Local Level Government Elections. I am satisfied that the new Commissioner, Mr. Patilias Gamato, upon assuming office, did not waste time in attending to this claim and that obtaining necessary details from the individuals or structures that dealt with the matter may have taken time. I also accept as valid that part of the delay was due to staff involvement in the recently completed national elections.
17. On the face of the agreement, the vehicle was to be hired for forty (40) days at the rate of K800 per day, and the owner agreed to be responsible for damages to the vehicle caused by the driver or any other person.
18. On the face of it, the plaintiff claims from the defendants more than what the agreement contemplates. This may constitute a good defence to the claim.
19. On the evidence the application for leave to file a defence out of time was done soon after the Commissioner became aware of the claim in March, 2018.
20. There is nothing in the evidence before me that suggest that the plaintiff would be prejudiced if leave is granted to file the defence out of time.
21. In the premises the application to file the defence out of time ought to be granted.
22. In the result:
    • (a) Application for entry of default judgment against the defendants is refused.
    • (b) The application by the defendants to file the defence out of time is granted.
    • (c) The defendants shall file their defence within seven (7) calendar days from today, the 16^th of August, 2018.

___________________________________________________________
Mawa Lawyers : Lawyers for the Plaintiff
Kawat Lawyer : Lawyers for the Defendants