Nelson v Tampako [2019] PGNC 384; N8079 (18 October 2019)

N8079

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 693 OF 2017

BETWEEN:
MONFORD NELSON by his next friend
NELSON TIAENE
Plaintiff

AND:
BENJAMIN TAMPAKO
Teacher, Weitin Valley Primary School
First Defendant

AND:
NAOMIE EREMAS
Teacher, Weitin Valley Primary School
Second Defendant

AND:
PHILIP ROSS
Chairman of Board, Weitin Valley Primary School
Third Defendant

AND:
NEW IRELAND PROVINCIAL GOVERNMENT
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Kokopo: Susame, AJ
2019: 6^th September &18^th October

PRACTICE AND PROCEDURE – Notice of Motion for default judgment – Order 12 Rule 32 (1) National Court Rules - Whether there was default – Order 12 Rule 25(b) National Court Rules - Entry of default judgment is discretionary –Depended on wide range of considerations-

Cases Cited:

Tima v Korohan[2006]PGNC 21; N3045
Lambu v Torato [2008] PGSC 34; SC953
Urban Giru v Luke Muta (2005) N2877
Kitipa v Auli, Supply & Tenders Board of Western Highlands Provincial

Counsel:
Ms. J Marubu, for the Plaintiff
No appearance of Defendants

DECISION

18^th October, 2019

1. SUSAME AJ: By Notice of Motion filed on 26^th October 2018 pursuant to Order 12 Rule 32(1) of the National Court Rules plaintiff is seeking a default judgment against the first, second, third and fourth defendants.

2. Plaintiff relies on supporting affidavits of Ms. Jacqueline Marubu and Ms.ReslyneTiaene both sworn and filed on 26 October 2018.

Brief Facts

3. Plaintiff commenced proceedings by a writ of summons on 28 July 2017 seeking damages under the law of negligence.

4. Plaintiff is the father of the deceased 15 year old son, Monford Nelson. At the time of his death the son was a student at Weitin Valley Primary School, Konoagil Local level Government (LLG) Namatanai New Ireland Province.

5. The first and second defendants were teachers at the School. The second defendant was the Class Teacher. It is alleged that while the second defendant was out of the classroom the first defendant rushed in armed with a cane stick and started hitting the students. It so happened that he struck Monford’s head twice with a cane, wounding his head and left eye.
6. The Class Teacher returned to the classroom and saw the students with injuries and failed to assist them to the nearest aid post or hospital for medical treatment.

7. Monford suffered excruciating pain because of the injuries. He felt so weak and fell asleep at a haus wind. He lost consciousness and passed on later when he was transported to the village.

8. The fourth and the firth defendants are negligent in failing to provide proper medical facilities at the School and actions of the first and second defendants. Both are being named as defendants under the principle of vicarious liability for negligence of the first, second and third defendants.

Default judgment

9. Motion was moved by authority of Order 12 Rule 32(1) of the National Court Rules (NCR) which reads:

“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 judgment against the defendant as the plaintiff appears to be entitled to on his writ of summons.”

10. The basis on which the application was made is on account of defendants’ default under Order 12 Rule 25 (b) of the NCR which states:

“A defendant shall be in default for the purposes of this Division-

(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”

First issue: Whether a default has occurred?

11. Applicant seeking a default judgment is required to provide the following:

1. An affidavit of service
2. An affidavit of search
3. An affidavit in support (including a letter to the other party if a Notice of Intention to Defendant is filed)
4. A form of default judgment’
5. Notice of motion. ^[1]
   

12. Court is satisfied that writ of summons has been properly and duly served on all the defendants based on the various affidavits sworn and filed by individuals who were tasked to effect service.

13. Notice of intention to defend was filed by the fifth Defendant to defend the action against it on 20 August 2018 together with a notice of motion seeking leave of court to file defence out of time. Leave was granted by his Honour Anis J on 25 September 2018. Fifth defendant went onto to file its defence on 24 October 2018.

14. Examination of the court documents reveal rest of the defendants have not filed intention to defend the action nor have they filed their defence. Therefore, there cannot be any shadow of doubt theyare in default by operation of Order 12 Rule 25 (b).

15. On 26 October 2018 plaintiff filed this motion, two days after the fifth defendant filed its defence. When the motion came up for hearing on 3 September 2019 Ms. Takoboy of the fifth defendant entered no appearance.

16. Should the court dispense with its discretion to enter default judgment for the plaintiff in the circumstances?

Law

17. Entry of a default judgment is discretionary. It is not automatic. Discretion must be exercised judicially and on proper principles of law.^[2]

18. There are wide range of considerations court must be satisfied with, some of which have been judicially determined and serve as useful guide. Ms. Marubu has alluded to some of those considerations and these are: ^[3]

• The notice of motion shall be in the proper from with supporting affidavits
• The documents must have been properly served on the defendant (s)
  • Plaintiff must have forewarn the defendant(s) by correspondence of his intention seeking default judgment.
  • Statement of claim raises serious allegations of fraud or deceit, which interest of justice requires those allegations to be proved by evidence
  • The extent of default by the defendant(s)
  • The defendant(s) appear to have a good defence
  • Statement of claim is an abuse of process.
  • Pleadings are vague and statement of claim disclosures no reasonable cause of action
  • Plaintiff has prosecuted his case diligently
  • Entry of default judgment would prejudice the rights of co-defendants.
    

19. Applying the above considerations to the present case. I hold the following.

20. Firstly, the notice of motion is in proper form and is in order.

21. Secondly, copies of the motion have been properly served on the defendants except the fifth defendant. A forewarning letter had been sent to the defendants except the fifth defendant. Affidavits attesting to that have been filed by Junior Stanford, Simeon Saki sworn on 3 September 2019 and 6 September 2019 respectively. Except that copies of the forewarning correspondence have not been annexed to their affidavits as evidence.

22. Thirdly, the substantive action is under the law of negligence. Action arose out of alleged negligence of the first, second and third defendants which led to the demise of the plaintiff’s son. Fourth and the fifth defendants are being sued as employers under the principle of vicarious liability. The pleadings are crystal clear with no ambiguity and discloses a reasonable cause of action. Pleadings do not raise allegations of fraud or deceit.

23. However, I have taken note of the defence filed by the fifth defendant. State has denied it is vicariously liable. It has denied first and second defendants are employees of the fourth and the fifth defendants but the Teaching Services Commission which can be sued on its own as the employer.

24. There can only be one employer for the first, second and the third defendant. It is uncertain if it is the fourth defendant, fifth defendant or the Teaching Services Commission as alluded to in the defence filed by the fifth defendant. This is a vital issue to be properly determined. It would also be of plaintiff’s interest the matter is properly tried if someone is to be vicariously liable. Under these circumstances justice would not be achieved if default judgment is entered.

25. Accordingly, I order that:

1. Application is refused, matter is to be properly litigated.
2. Matter is returned to the registry for listing and directions in the month of November 2019.
3. Parties to bear their own cost of this application.
   

Marubu Lawyers: Lawyer for the Plaintiff
No Legal Representation for First, Second, Third &Fourth Defendants
Office of the Solicitor General: Lawyer for the Fifth Defendant

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^[1]Tima v Korohan[2006]PGNC 21; N3045; Davani J.
^[2]National Capital District Commission v Dademo [2013] PGSC 37
National Executive Counsel v Williams [2005] PGSC5).
^[3]Lambu v Torato [2008]PGSC 34; SC953, GavaraNanu J, Davani J, Cannings J,
Urban Giru v Luke Muta (2005) N2877, Kitipa v Auli, Supply & Tenders Board of Western Highlands Provincial
Government &ors (1998) N1773, Injia J, Kunkene v Rangsu & The State (1999) N1917, Kirriwom J