Anton v Motor Vehicles Insurance Ltd [2021] PGNC 422; N9194 (29 July 2021)

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CIVIL LAW – PRACTICE & PROCEDURE – Application for Default judgement – Application for default judgement filed earlier – Notice of Intention to Defend filed after application for default judgement filed – Notice of Motion seeking leave to file defence out of time filed after application for default judgement filed – same set of facts as in WS No. 683 of 2020 – Application for default judgement heard in absence of defendant despite notice given previously – default judgement entered against Defendant.

1. REI AJ: INTRODUCTION: This judgement involves exactly the same facts and the same application as in WS No. 685 of 2020 Fedinen Wap -v- MVIL in which I handed down a decision recently.

2. An Order for default judgement together with costs was made on the 28^th of May 2021 in that matter as well as five (5) other matters which involve the failure of the defendant MVIL to file a Notice of Intention to Defend (“NOID”) despite of notice given fore-warning it to do so under cover of a letter of the plaintiff(s) through Resolutions Lawyers dated 10^th October 2020.

3. In this application, it is noted that the plaintiff herein and 11 other plaintiffs filed a Writ of Summons and a Statement of Claim on the 18^th day of August 2020 which were served on the 14^th day of September 2020 onto the defendant MVIL at its office at Hohola NCD.

4. No notice of intention to defend this action was filed by the defendant MVIL until after the plaintiff filed its application by way of a Notice of Motion seeking an order that default judgement be entered as the defendant failed to file a NOID and/or a statement of defence within the required time frame under the National Court Rules (“NCR”).

5. The notice of motion of the Plaintiff was filed on the 6^th day of November 2020 whereas the defendant MVIL filed its notice of intention to defend on the 6^th day of December 2020 together with its notice of motion seeking leave to file a defence out of time.

6. The hearing of the (notices of motion) filed by the plaintiffs seeking an Order for default judgement was not heard within the requisite time frame of one (1) month or otherwise as provided under Order 4 Rule 29 of the NCR because logically the application seeking leave to file a defence out of time should be heard first so that if leave is granted to file a defence out of time, the applications for default judgement would become obsolete or futile.

7. Both applications came up for hearing on 22^nd May 2021 before me when Mr. B. Geita appeared to address the Court.

9. Although Mr. B. Geita submitted that his application in the matter be heard, I ruled that it should be adjourned to the July sittings of the National Court of Justice to allow the defendant to appear to address the Court as a NOID had been filed, albeit, at a very late stage of the proceedings.

11. During the call-over held on the 19^th of July 2021, Ms. Pint appeared for the MVIL and Mr. Geita appeared for the Plaintiff.

12. I noted that the same application was made in eleven (11) other matters the facts and the arguments for which were exactly the same.

13. Ms. Pint of Counsel for the defendant MVIL submitted that Mr. August of Smiley Lawyers will take over the carriage of this matter and the eleven (11) other related matters which are enumerated in the list below:

NO.	WS NO.	Plaintiff	Defendants	Date of filing of Writs
1	WS 687 OF 2020	EMELDA ANTON	MVIL	31^st August 2020
2	WS 684 OF 2020	ITOM SAMUEL	MVIL	31^st August 2020
3	WS 676 OF 2020	JAMELIN MICHAEL	MVIL	31^st August 2020
4	WS 682 OF 2020	JEFFERY YEFEI	MVIL	31^st August 2020
5	WS 681 OF 2020	JENNETH NOAH	MVIL	31^st August 2020
6	WS 674 OF 2020	LEO SAKEI	MVIL	31^st August 2020
7.	WS 673 OF 2020	LESMAS YAFI	MVIL	31^st August 2020
8.	WS 672 OF 2020	MANISA KAMO	MVIL	31^st August 2020
9.	WS 687 OF 2020	NOAH SITOOK	MVIL	31^st August 2020
10.	WS 671 OF 2020	SAWI FUÚ	MVIL	31^st August 2020
11.	WS 679 OF 2020	SERIEN SAMSON	MVIL	31^st August 2020
12.	WS 678 OF 2020	THOMAS FARO	MVIL	31^st August 2020

14. Mr. August was then present in Court. When asked whether he accepts instructions. He did say in open Court that he accepts instructions and would appear for the defendant MVIL.

15. This matter and the eleven (11) other related matters were adjourned to the 29^th of July 2021 for submissions. The arrangement then agreed to was that the application seeking leave to file a defence out of time be heard first so that if refused, the application of the plaintiff and the eleven (11) other plaintiffs seeking an order for default judgement can then be heard and determined.

16. When this matter and the 11 other related matters returned for hearing at 9:30 am on the 29^th of July 2021, Mr. August was not in attendance as such they were adjourned to 1:30 pm on the same date so that he attends to prosecute his clients Notices of Motion seeking leave to file defence out of time.

17. When Mr. August (still) did not appear at 1:30 pm, this matter as well as the eleven (11) other related matters were proceeded with and heard as the defendant had previously received proper notice. Mr. August at that time had not yet filed any notice(s) of change of lawyers. Ms. Pint was (also) not present.

18. The facts of this matter are same in every respect to the facts in the matter of WS No. 685 of 2020 being Fedinen Wap -v- MVIL.

19. The plaintiff in this matter and the eleven (11) other plaintiffs were all passengers in the vehicle registered ARC 111 travelling along the Sumomin/Imbinis Road on the 6^th day of April 2018 when it overturned resulting in nineteen (19) passengers sustaining personal injuries and seven (7) people died.

20. The plaintiff in WS No. 687 of 2018 Fedinen Wap -v- MVIL was also a passenger in that same vehicle.

21. The plaintiff in this matter and the eleven (11) other plaintiffs (also) gave instructions to Resolutions Lawyers per Bernard Geita Lawyer to issue proceedings against the MVIL.

22. The plaintiff in this matter and the other eleven (11) Plaintiffs filed writs of summons and statement of claim on the 31^st day of August 2020 and served them onto the defendant MVIL on 14^th September 2020 at its office at Hohola NCD.

23. The time to file a notice of intention to defend and a statement of claim lapsed on the 28^th day of September 2020 but the defendant took no steps to comply with the NCR.

24. The defendant MVIL therefore failed to file a notice of intention to defend and a statement of defence within time in this matter and the eleven (11) other similar matters.

25. While the plaintiff in WS No. 687 of 2018 Emelda Anton -v- MVIL and the eleven (11) other plaintiffs filed their notices of motion seeking an order for default judgement on the 20^th day of November 2020, the defendant MVIL filed its notice of motion seeking leave to file its defence out of time on the 6^th day of December 2020 which was AFTER the filing of the application for default judgement by the plaintiffs.

26. When the plaintiff in WS No. 687 of 2020 Emelda Anton -v- MVIL and the other eleven (11) plaintiffs noticed that the application by the defendant MVIL was filed after they filed their notices of motion seeking for an order for default judgement, they choose to have the notice of motion filed by the defendant MVIL heard first.

27. As proper notices were given of the hearing of both applications as proven by the fact that Ms. Pint, Lawyer from the MVIL had submitted on 19^th July 2021 and that Mr. August was then instructed to appear, the matters involving this plaintiff and the eleven (11) other plaintiffs were proceeded with and heard despite of the fact that neither Mr. August of Smiley Lawyers nor Ms. Pint of MVIL were present. Order 4 Rule 9 (3) (a) & (b) of the NCR sanctions this approach. It is in the following terms:

28. Mr. B. Geita of Resolution Lawyers presented his client’s application as well as the application filed by the defendant MVIL seeking leave to file defence out of time.

29. With respect to the application of the defendant MVIL, he submitted that by operation of Order 4 Rule 29 of the NCR, the defendant MVIL having failed to prosecute its application in this matter and the eleven (11) other matters within the time frame of one (1) month and there being no further explanations as to why this has not happened, the application be dismissed with costs.

30. That application was granted, Mr. Geita then sought to move his application that default judgement be entered in this matter and the eleven (11) other matters.

31. The manner of proceedings then adopted was that Mr. Geita moves the notice of motion filed in this mater WS No. 687 of 2020 Emelda Anton -v- MVIL and then proceeds to make the same application in the eleven (11) other matters.

NO.	WS NO.	Plaintiff	Defendants	Date of filing of Writs
1	WS 687 OF 2020	EMELDA ANTON	MVIL	31^st August 2020
2	WS 684 OF 2020	ITOM SAMUEL	MVIL	31^st August 2020
3	WS 676 OF 2020	JAMELIN MICHAEL	MVIL	31^st August 2020
4	WS 682 OF 2020	JEFFERY YEFEI	MVIL	31^st August 2020
5	WS 681 OF 2020	JENNETH NOAH	MVIL	31^st August 2020
6	WS 674 OF 2020	LEO SAKEI	MVIL	31^st August 2020
7.	WS 673 OF 2020	LESMAS YAFI	MVIL	31^st August 2020
8.	WS 672 OF 2020	MANISA KAMO	MVIL	31^st August 2020
9.	WS 687 OF 2020	NOAH SITOOK	MVIL	31^st August 2020
10.	WS 671 OF 2020	SAWI FUÚ	MVIL	31^st August 2020
11.	WS 679 OF 2020	SERIEN SAMSON	MVIL	31^st August 2020
12.	WS 678 OF 2020	THOMAS FARO	MVIL	31^st August 2020

33. As I indicated in the matter of WS No. 685 of 2020 Fedinen Wap -v- MVIL, these matters involve the same facts, date of accident, motor vehicle, road and driver.

34. Each case was presented individually and separately involving the same application seeking the same order, the affidavit of each plaintiff sworn by each plaintiff which were filed on the same date 31^st August 2020 and served on the same date 14^th September 2020 as well as the Affidavit of Search of Bernard Geita.

35. Mr. Geita argued that as the defendant MVIL failed to file its notice of intention to defend and statement of defence on time as well as failing to prosecute its notice of motion filed in December of 2018 seeking leave to file a defence out of time, default judgement be entered.

36. The Supreme Court of Justice made a decision in the case of ABC -v- XYX SC No. ______ in which it came up with a check list of the requirements to enter default judgement.

37. The Supreme Court of Justice then said that default judgement should be entered against a defendant who fails to take steps to file NOID and/or a defence within time or outside of time, leave having been granted, as long as the Court is satisfied that the plaintiff has established that he has a valid cause of action as against the defendant at law.

38. This case involves people travelling in a motor vehicle as passengers who were owed a duty of care by the person behind the wheels.

39. As a result of his negligent management and control of the vehicle, a number of people sustained serious personal injuries some of whom died.

40. Having been satisfied with these submissions, an order was granted in this matter that default judgement be entered against the defendant MVIL together with costs to the plaintiffs.

41. The same orders was granted in the matters noted in the list provided in paragraph 32 hereof as the plaintiffs in those suits or actions were involved in the same motor vehicle accident, filed and served Writ of Summons on the same dates, and filed affidavits in support on the same date together with their respective Notices of Motion seeking an order for default judgement.
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National Court of Papua New Guinea

Anton v Motor Vehicles Insurance Ltd [2021] PGNC 422; N9194 (29 July 2021)