N7984
PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1658 OF 2015

BETWEEN
ESTHER IMATANA
Plaintiff

AND
DAVID MANAYAU
First Defendant

AND
MILNE BAY PROVINCIAL HEALTH AUTHORITY
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Alotau:  Toliken, J.
2019:   23rd August

PRACTICE AND PROCEDURE - Default judgment – Requirement for – Whether satisfied – Plaintiff satisfies requirements for default judgment – National Court Rules, Order 12 Rules 25, 28, 32, 
	
VICARIOUS LIABILITY – Statutory Authority – Provincial Health Authorities Act 2007 - Whether State vicariously liable for torts committed by provincial health authorities and their boards and employees – Section 4 of Provincial Health Authorities Act binds the State – State vicariously liable – Default judgment entered –  Damages to be assessed.   

 Cases Cited:

Bank of South Pacific Ltd v Tingke (2014) SC 1355
Bala Kitipa v Vincent Auali & Ors (1998) N1773
Eliakim Laki & 167 Ors v Alaluku (2000) N2001
John Kunkene v Michael Rangsu & The State (1999) N1917
Kante Mininga v The State & Ors (1996) N1458
Kante Mininga v The State  & Ors (1996) N1458; Beecroft No. 51 Ltd trading as Ronnie’s Hot Bread v Neville Seeto & Ors (2004) N2561
Keimali v Akema (2010) SC 1061	
Kimisopa v Paraka (2009) SC 1325	
National Capital District Capital v Dademo (2013) SC 1260
National Executive Council v Williams (2005) SC 819
Pokia v Yallon (2014) SC 1336	
Ronnie’s Hot Bread v Neville Seeto & Ors (2004) N2561
Tiaga Bomson v Kerry Hart (2003) N2428
Yamanka Multi-Services Ltd v National District Commission (2010) 3904
Yer, Secretary, Department of Finance v Yama (2009) SC 996

Counsel:

T Ilaisa, for the Plaintiff
Nil appearance by the Defendants

 RULING ON MOTION 

23rd August, 2019

1.    TOLIKEN J: This is a motion for default judgment pursuant to Order 12 Rules 25 and 28 of the National Court Rules (the Rules) filed on 05th January 2017. 

2.    I heard the motion on 12th April 2017 and on 23rd October 2017 I ruled that the motion could not proceed as the Plaintiff had not by then served the Notice of Motion on the Defendants.  I adjourned the matter for hearing to 08th November 2017. The matter did not proceed on that date and has been left in abeyance since then. The Motion has since been served on the Defendants and the Plaintiff had moved the Court for a substantive ruling on her Motion. This is my ruling.

BACKGROUND

3.  The Plaintiff filed her Writ of Summons against the Defendants on 18th November 2015. The First Defendant is an employee of the Second Defendant, a body corporate established under the Provincial Health Authorities Act 2007 (PHAA) and therefore can sue and be sued in its own name (Section 9 (2)( c)). The Third Defendant is the State. 

4. The First Defendant was personally served a copy of the writ on 10th December 2015. The writ was served on 16th December 2015 on the Solicitors General (for the Third Defendant) by delivery of a copy of the writ on one Betty Makis, the Executive Secretary to the Solicitor General.

5.  On 15th April 2016, the Plaintiff filed an Amended Statement of Claim without leave of the Court. 

6.  On 12th May 2016, the Plaintiff served a copy of her Amended Statement of Claim on the First Defendant.

7. On 16th May 2016, the Third defendant was served with the Amended Statement of Claim by one Nao Airi of the Public Solicitors Office, Boroko, NCD, by delivering same with Betty Makis, Senior Executive Assistant, of the Office of the Solicitor, who accordingly acknowledged receipt.

8.  On 23rd May 2016, the Third Defendant filed a Notice of intention to Defend, apparently in response to the Amended Statement of Claim. 

9.  On 10th August 2016, the Second Defendant was served the writ through the “Hospital CEO” by one Lornah Bellamy of the Public Solicitor’s office, Alotau, pursuant Section 52 of the Public Health Authorities Act 2007.  

10.  The First and Second Defendants did not file either a Notice of Intention to Defend for a Defence for that matter. 

11.  On 05th January 2017, the Plaintiff by Motion applied for Default judgment.

12.  On 02nd April 2017 by letter to the Solicitor General, Mr. Ilaisa of Counsel for the Plaintiff forewarned the defendants of the Plaintiff’s intention to apply for default judgment.

On 12th April 2017 the Plaintiff moved his Motion for default judgment. The Court reserved its ruling. 

13.  On 23rd October 2017 I ruled that the motion could not proceed as the Plaintiff had not by then served the Notice of Motion on the Defendants.

THE LAW

14.  Order 12 Rule 25 which provides for the power of the court to enter default judgment reads:

25.	Default (17/2)
	A defendant shall be in default for the purpose of this division –
(a)	Where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or
(b)	 Where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or
(c)	Where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence. 

15.  Order 12 Rule 28 provides:

28.	Unliquidated damages (17/5)

Where the plaintiff’s claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgment against the defendant for damages to be assessed and for costs.  

16.  And Order 12 Rule 32 also relevantly provides:

32.     General. (17/9)
(1)      Whatever claims for relief are made by a plaintiff, where a defendant is in default, the Court may, on application by the plaintiff, direct the entry of such judgement against the defendant as the plaintiff appears to be entitled to on his writ of summons.
(2)      Notwithstanding Sub-rule (1), the court shall not, under the Sub-rule, direct the entry of judgement for the possession of land unless satisfied of the matters mentioned in Rule 30(2) and (4).

17.  For the Plaintiff to be granted default judgment he must satisfy the following requirements:

1.	Whether the Motion for default judgment is in the proper form and is supported by affidavit, as required by Division 4.5 (motions) of the National Court Rules, in particular Rules 40 (contents of motion) and 44 (affidavits) and 49(8). (See Pokia v Yallon (2014) SC 1336; Giru v Muta (2005) N2877)

2.	Whether the Notice of Motion raises serious questions or allegations of fraud or deceit, which may require, in the interest of justice to be proved by evidence at trial prior to judgment on the merits. (Bala Kitipa v Vincent Auali & Ors (1998) N1773)

3.	The extent of the default by the defendants. (John Kunkene v Michael Rangsu & The State (1999) N1917)

4.	Whether the Defendants appear to have a good defence (Kunkene v Rangsu & The State (supra))

5.	Whether the claim amounts to an abuse of process. (Eliakim Laki & 167 Ors v Alaluku (2000) N2001)

6.	Whether the pleadings disclose a reasonable cause of action. (Eliakim Laki & 167 Ors v Alaluku (supra.); Giru v Muta (supra.))

7.	Whether the Plaintiff has prosecuted his case diligently. (Tiaga Bomson v Kerry Hart (2003) N2428)

8.	Whether the entry of judgment will prejudice the rights of co-defendants. (Kante Mininga v The State  & Ors (1996) N1458; Beecroft No. 51 Ltd trading as Ronnie’s Hot Bread v Neville Seeto & Ors(2004)N2561.

9.	Whether the interest of justice will be served if default judgment were to be granted. (Giru v Muta (supra.))

10.	 Whether the plaintiff had forewarned the defendant of his intention to apply for default judgment. (Giru v Muta (supra.))

18.  The power to enter default judgment remains discretionary and the Court can refuse grant if any of the above considerations are found to be present. However, it is trite that where a trial judge is required to exercise discretion, he must do so judicially, that is on proper principles of law. (National Capital District Capital v Dademo (2013) SC 1260; Keimali v Akema (2010) SC 1061; Yer, Secretary, Department of Finance v Yama (2009) SC 996; Kimisopa v Paraka (2009) SC 1325) This principle applies equally to the exercise of discretion in respect of motions for default judgment. (Bank of South Pacific Ltd v Tingke (2014) SC 1355; National Executive Council v Williams (2005) SC 819)   

DELIBERATIONS

19.   So, is this a case that is appropriate for default judgment? In other words does it satisfy the requirements stated above?

20.  I find that the motion is in proper form and is supported by an Affidavit in Support by the Plaintiff.

21.  The claim does not involve any allegation of fraud or deceit which would be required to be properly tried thus placing it outside the ambit of the procedure for entry of default judgment. 

22.  The default by the Defendants is a grave one. As we have seen the Plaintiff filed her Writ of Summons on 18th November 2015. The First Defendant was personally served a copy of the writ on 10th December 2015. The Third Defendant was served through the Office of the Solicitor General on 16th December 2016. It appears that Second Defendant was not served.

23.  On 15th April 2016, the Plaintiff filed an Amended Statement of Claim without leave of the Court. It was within her rights under Order 8 Rule 51 to amend her Statement of Claim without leave as up to that time pleadings had not yet closed. 

24.   On 12th May 2016, the Plaintiff served a copy of her Amended Statement of Claim on the First Defendant. The Third Defendant was served the Amended Statement of Claim on 16th May 2016 and accordingly filed it Notice of Intention to Defend on 23rd May 2016. The Second was served on 10th August 2016.

25.   Apart from the Third Defendant, the First and Second Defendants did not file any Notice of Intention to Defend. The Third Defendant did, but did not file its defence. The Second and the Third defendants are required by the Claims By and Against the State Act 1996 (s 9 (a)(i)) to file their defence within 60 days after the time prescribed in the Writ for them to give notice of intention to defend which is 30 days from the date of service of the Writ. They have not filed any defence and it must therefore be deemed that they have no good defence to this claim.

26.   Had the defendants filed a defence to the original Statement of claim, any failure in filing a defence to the Amended Statement of Claim would not be held against them, because the Rules do not require an amended defence to be filed. An existing defence is effective and any new claims in the Amended Statement of Claim are taken to be denied. (Yamanka Multi-Services Ltd v National District Commission (2010) 3904, per Hartshorn J) 

27.  The defendants were forewarned by letter dated 2nd April 2017 that the Plaintiff intended to file for default judgment so it would appear that the requirement for forewarning has been met. It is to be noted, however, from the background facts that the Plaintiff had in fact filed for default judgment before her lawyer issued a forewarning to the defendants. The notice of forewarning in this case is therefore irregular and is a sham. It is clearly craftily intended to satisfy the requirement for a forewarning after the fact and should in the normal circumstances be disregarded as an attempt to mislead the Court. Be that as it may, had the defendants’ default not been so grave the motion would be denied, but as it is, the defendants have absolutely shown no interest in defending themselves against this suit. I will therefore overlook this slip in the interest of justice as I do not think that any prejudice will be done to them given their lack of interest in the matter.

28.   But does the claim disclose a reasonable cause of action? A quick perusal of the Statement of Claim shows that the Plaintiff is claiming damages in negligence arising from the alleged negligent driving of the First Defendant. At the relevant time, the First Defendant was employed by the Second Defendant and was acting in the course of his duty.  The Plaintiff therefore has a reasonable cause of action. However, can the State be vicariously liable for the torts of the First Defendant or the Second Defendant?

29.  The State may try to remove itself or ask that it be absolved from the torts of the First and Second Defendants by arguing that the Second Defendant is an instrumentality of the Milne Bay Provincial Government, which, by virtue of Section 6 (b) of the Organic Law of Provincial and Local Level Governments has the capacity to sue and be sued for the actions of its employees and instrumentalities.

30.  That argument can be quickly put to rest. Section 9 of the PHAA does provide that each provincial health authority is a body corporate with perpetual succession imbued with all characteristics of a legal entity, including the capacity to sue and be sued. Section 9 of the Act relevantly provides –

9. ESTABLISHMENT OF PROVINCIAL HEALTH AUTHORITIES.

(1) There are established by this section such provincial health authorities as are specified from time to time in Schedule 1.
(2) Each provincial health authority, by operation of this Act –
(a) is a body corporate with perpetual succession; and
(b) shall have an official seal; and
(c) may sue and be sued in its corporate name; and
(d) is capable of purchasing, taking, holding, selling, leasing, taking on lease, exchanging and disposing of real and personal property; and(e) is capable of doing and suffering all acts and things which bodies corporate may by law do or suffer.
(3) All courts, judges and persons acting judicially shall take judicial notice of the seal of a provincial health authority affixed to a document and shall presume that it was duly affixed.

31.   Notwithstanding that, Section 4 of the Act provides in very clear terms that “The Act binds the State.” Clearly then the State cannot be absolved from the torts of a provincial health authority established under the PHAA or the torts committed in the course of its operations by a member of the board, officer, employee or agent of a provincial health authority. And since the Act binds the State, it cannot, in my view be said that a provincial health authority established under the PHAA, such as the Second Defendant, is an instrumentality of the provincial government, notwithstanding that the Act establishes a collaborative partnership between Provincial Governments and the National Government through Governors and the National Minister responsible for health matters, for the improvement and provision of health services in the province. (ss 1, 7 of PHAA).

A final consideration is whether it is in the interest of justice to grant default judgment. I do not see any reason why it can be said that injustice will be done in the event that I grant the Plaintiff’s motion.  

32.   In conclusion, the Plaintiff has satisfied the requirement for grant of default judgment. There is supporting evidence that the First Defendant had caused substantial damage to the Plaintiff’s motor vehicle through negligent driving. He was the driver of the offending vehicle which was owned by the Second Defendant. At the relevant time he was an employee of the Second Defendant and committed this tort in course of his employment. The Second and Third Defendants are vicariously liable  for the actions of the First Defendants by virtue of Section 4 of the PHAA and Section (1)(4) of Wrongs (Miscellaneous Provisions) Act .  

33.   I therefore enter default judgment against the defendants with damages to be assessed. 

Ordered accordingly

____________________________________________________
Public Solicitor:  Lawyers for the Plaintiff		
State Solicitor:    Lawyer for the Defendants