Kei v Nagide [2022] PGNC 349; N9757 (11 July 2022)

N9757

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.983 OF 2014 (CC3)

BETWEEN:
McREI KEI
Plaintiff

AND:
FRANCIS NAGIDE
First Defendant

AND:
FOMES KARONA AS ACTING COMMANDER OF THE POLICE MOBILE SQUAD TEN (10) BASED IN MENDI, SHP
Second Defendant

AND:
TOAMI KULUNGA
AS POLICE COMMISSION FOR POLICE
Third Defendant

AND:
POLICE DEPARTMENT
AS POLICE COMMISSION FOR POLICE
Fourth Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Linge AJ
2022: 29^th June, 11^th July

PRACTICE AND PROCEDURE - application for default judgment – failure to file defence within 90 days-Claim for and Against the State Act-checklist or precondition to be satisfied - exercise of court discretion to enter default judgment.
The plaintiff, a taxi owner at the material time involved in a car accident with a car driven by the first defendant, a policeman who was on duty and driving a State hired vehicle. Plaintiff claims that the first defendant was negligent in his driving thereby hitting the plaintiff’s car on the side causing damage. He sought compensation from the defendants but to no avail resulting in him issuing this proceeding on the 20 August 2014 claiming damages. The defendants filed their notice of intention to defend and defence 3 days out of time and the plaintiff filed his reply and the pleading closed. Proceeding was listed for summary determination, removed from list and this motion brought for default judgment.

Held:

(1) The Court has adopted a checklist to consider in an application for default judgment.

(2) If one item in the checklist is not satisfied, the Court will refuse an application, unless there are special circumstances.

(3) As to whether the matter is or is not ripe for entry of default judgment, the issue is not just arithmetic but one of judicial discretion.

(4) Court refuses the application for default judgment.

Cases Cited:

National Executive Council v Williams [2005] PGSC 5, SC819
Lambu v Torato [2008] PGSC 34; SC953
Kunton v Junias and The State SCA No 158 of 2004, 28.09.06
Giru v Muta [2005] PGNC 83, N2877
Guatal v The State [1981] PNGLR 230
Loma Construction Ltd v State (2012) N4636

Counsel:

Mr. Don Wapu, for the plaintiff
Ms Ohuma, for the third and Fifth Defendants

RULING

11^th July, 2022

1. LINGE AJ: This is a ruling on the application by the plaintiff filed on the 14 June 2022 seeking default judgement against the first, second, third, fourth and fifth defendants. Plaintiff relies specifically on Order 12 Rules 25, 26 27, 28 and 32 of the National Court Rules. In the alternate, plaintiff seeks summary judgement pursuant to Order 12 Rule 38 of the National Court Rules.

Brief Facts

2. The first and second defendants were members of the Mobile Squad 10, Mendi of the Royal Papua New Guinea Constabulary (hereinafter “the MS 10”). On the 23 August 2012 between 6:30 am and 7:00 am, a Toyota Land Cruiser bearing Registration No. BCZ 567 hired by the MS 10 for use on duties whilst in Port Moresby during the political impasse of 2012 was involved in a motor vehicle accident with the plaintiff’s car, a Taxicab at Erima Bridge, Port Moresby.

3. The first defendant was the driver of the Toyota Land Cruiser and is alleged that at the material time of the accident was negligent in his driving thereby hitting the plaintiff’s car on the side causing damage.

4. The plaintiff sought compensation from the defendants on several occasions for his vehicle damage but to no avail. The failure to respond positively by the defendants resulted in the plaintiff issuing Section 5 Notice pursuant to the Claim By and Against the State Act 1996 on the 21 February 2013.

5. This proceeding instituted by the plaintiff on the 20 August 2014 is a claim for damages. Service of the Writ was effected on the defendants on different dates the latest being on the second defendant on the 9 September 2014. Fifth defendant filed a notice of intention to defend and defence on the 12 December 2014. Plaintiff filed his Reply on the 23 December 2014 and the pleading closed.

6. The plaintiff did not set the proceeding down for trial and was listed on the 19 October 2020 for summary determination due to no activity taken to prosecute the case since 23 December 2014. On hearing on 11 December 2020, Court gave Direction for plaintiff to:

(i) File and serve Notice to set down for trial; and
(ii) Apply to the Registry to have the matter listed for Directions hearing.

7. On the 17 May 2022 the proceeding was again listed for summary determination on the grounds of no activity since 10 December 2020 to progress matter to trial. This includes the failure by the plaintiff to comply with the Court’s Direction of 11 December 2020.

8. Following hearing on the 17 June 2022, Court removed proceeding from the summary determination list and set the matter for Direction Hearing on the 23 June 2022. This application, filed on the 14 June 2022 by the plaintiff seeks as its main order the entry of default judgment.

Evidence

9 The Plaintiff/Appellant relies on his affidavits filed on the 14 June 2022. None of the defendants filed any affidavit.

Submissions

For the plaintiff

10. Plaintiff submits that the Defendants failed to comply with Section 9 of the Claims By and Against the State Act 1996 which specifically sets out a accumulative time frame of 90 days in which to file a defence. The fifth defendant filed a defence on the 12 December 2014 which is 93 days after service upon the second defendant

11. He submits that on this basis the Court must strike out defence and to enter default judgment for the plaintiff. In the alternate plaintiff submits that summary judgment be entered for the plaintiff pursuant to Order 12 Rule 38 of the National Court Rules.

For the fifth defendant

12. State submits that the application by the plaintiff is misconstrued. The defendants have filed their defence and the proper basis is for an application to strike out a defence and not to file for default judgment.

13. Counsel for the State further submits that the Plaintiff had not satisfied all the requirements in an application seeking default judgment. She referred the Court to Giru v Muta [2005] PGNC 83, N2877. She further submits that there are other requirements contained in Order 4 Rule 49 (19) 3 of the Motions (Amended) Rules 2005.

14. In this case she submits, there is a defence on foot which has not been struck out. There is therefore no default and no proof of default. Ultimately there was no warning notice prior to filing of application for default judgment.

15. She further submits that pleading closed on the 23 December 2014. The plaintiff’s application is 8 years from close of pleadings and taking into account what transpired, the Court must refuse the application.

Consideration
16. It is trite law and practice that granting of default judgment is discretionary. There is plethora of caselaw in this jurisdiction on point. The Court has adopted a checklist to consider in an application for default judgment. If one item in the checklist is not satisfied, the Court will refuse an application, unless there are special circumstances, See Giru v Muta (supra)

17. The checklist items include:

1. Proper form – this must be in compliance with Division 4.5 (motions), Rules 40 and 44 and the Motions (Amendment) Rules 2005 in the National Court Rules. An affidavit in support must also be filed.

2. Service of notice of motion and affidavit - service of these must be effected at least 72 hours prior to hearing and proof of service filed.

3. Default – (i). default in filing or late filing of notice of intention to defend O12 r25 (a) (default), O4r9 (notice of intention to defend);

(ii). Or default in filing defence or been filed late )12 r25 (b) (default), O8r4 (a) (defence). 23 (1) (close of pleadings), O4r11(b) (i) (time for giving notice of intention to defend);

(iii) whether complied with requirement to verify defence or late or none at all. Order 12 r25 (c ) ( default), O8r24 (defence verification).

4. Warning – If defendant has not given notice to defend and file defence has the plaintiff been given warning as required by Practice Direction No.1 of 1987?
5. Proof of service of the Writ – O12 r34 (a) (proof of service of writ).
6. Proof of default – Has the plaintiff filed an affidavit proving the default upon which he relies? O12r34 (b) (proof of service of writ).
18. The answers to the above are:

1. Yes
2. Yes
3. Yes.
4. No.
5. Yes
6. No

19. The plaintiff has fulfilled three (3) preconditions. However, he failed to give a warning letter as required by Practice Direction No.1 of 1987 and no affidavit evidence of proof of default. The plaintiff had satisfied four (4) and failed two (2) preconditions on the checklist.

20. As to whether the matter is or is not ripe for entry of default judgment, the issue is not just arithmetic but one of judicial discretion. Thus, even if all the criterions are satisfied or even mostly as in this case, the applicant is not entitled as of right to default judgment.

21. The Supreme Court in National Executive Council v Williams [2005] PGSC 5, SC 819 held the Court still has a discretion to exercise, even to refuse to rule in favour of granting the default judgment where a defendant (at paragraph 9) “had defaulted in filing a defence, we say such a discretion must be exercised judicially. The trial Judge must be satisfied that there are convincing or cogent reasons not to exercise his discretion in favour of granting the default judgment”.

22. Courts have made numerous pronouncements pertaining to judicial discretion when deliberating on default judgments. I find the passage at paragraph 119 in Lambu v Torato [2008] PGSC 34; SC953 setting out a wide range of consideration as a useful guide to consider. The Supreme Court stated:

“It must be borne in mind that a judge hearing a motion for default judgment is not engaged in an administrative task. It is not just a matter of ticking boxes and checking that the formal requirements (eg that the defendant has not filed a defence) for entry of default judgment have been met. It is a matter of judicial discretion. If all formal requirements are satisfied, the decision whether to enter default judgment is still a matter for the discretion of the primary Judge under Order 12, Rule 32 (general) of the National Court Rules. The Supreme Court in Kunton v Junias and The State SCA No 158 of 2004, 28.09.06, explained that in deciding how to exercise that discretion a Judge hearing a motion for default judgment can take into account a wide range of considerations, including:

(1) whether the statement of claim raises serious allegations of fraud or deceit, in which case the interests of justice may require those allegations to be proved by evidence in a trial before judgment is given on the merits;

(2) the extent of the default by the defendant;

(3) whether the defendant appears to have a good defence;

(4) whether the statement of claim amounts to an abuse of process;

(5) whether the plaintiff has prosecuted his case diligently;

(6) whether the entry of judgment would prejudice the rights of co-defendants;

(7) whether the interests of justice would be served by the entry of default judgment;

(8) whether the pleadings are vague, ie whether the statement of claim discloses a reasonable cause of action.”

Conclusion

23. The plaintiff had not acted reasonably diligently in prosecuting his case. He did not set the proceeding down for trial as is the requirement by Order 10 Rule 4 of the National Court Rules after the pleading closed on the 23 December 2014.

24. The filing of defence on the 12 December 2014 by the State was 93 days or 3 days outside of the statutory limit of filing fixed by Section 9 of the Claims By and Against the State Act. The State is not constrained by the requirements of the National Court Rules to file its defence. Section 9 gives the court discretion to allow further time: Loma Construction Ltd v State (2012) N4636.

25. The plaintiff did not raise any issue about late filing or inadequacy of the defence and proceeded to file his Reply on the 23 December 2014. A reply is a pleading in reply or in response to the matters raised in the defence. It closes the pleadings and “enables the other party to know exactly the case he has to meet, to enable the court hearing the action to know the issues of fact and law between the parties...”: Guatal v The State [1981] PNGLR230 at 234 Miles J.

26 Apart from not setting the proceeding down for trial, the plaintiff did not undertake further activity on the file resulting in the listing of the proceeding for summary determination on the 19 October 2020. The listing was five (5) years and 10 months since the close of pleading and clearly manifest the lack of due diligence on the part of the plaintiff.

27. On hearing of summary determination on 11 December 2020 the plaintiff was directed to file and serve Notice to set down for trial, and to apply to the Registry to have the matter listed for Directions hearing. However, the plaintiff still did not undertake any steps to progress the matter and in particular to comply with the orders of 11 December 2020 resulting in the proceeding being listed for its second summary determination on 17 May 2022.

28. At the second summary determination hearing on the 17 June 2022 the Court removed the proceeding from the list and set the matter for Direction hearing on the 23 June 2022.
29. When the proceeding returned for direction, I note with concern that this application had already been filed on the 14 June 2022 by the plaintiff. The application circumvents the Court’s directions for hearing which would entail possible directions to progress the cause of action. It shows lack of attention to the due process of the court, is wanting and lacks decorum and amounts to an abuse of the court process.

30. Put in perspective, this application is filed about 7 years 7 months from close of pleading. He had not given a letter of warning to file for default judgment. He provided no evidence of default including no affidavit of recent court file search.

31. In the end, I must also consider whether the interests of justice would be served by the entry of default judgment in favour of the plaintiff. Alternatively, whether the entry of summary judgment would prejudice the rights of co-defendants.?

32. I will not make any finding on whether the pleadings are vague, or the statement of claim does not disclose a reasonable cause of action.

33. In the end based on all the above factors and consideration, and in the exercise of the court’s judicial discretion, I will not strike out the defence and refuse to enter default judgment.

34. I have considered it not necessary to deliberate on the alternate order being sought and thus make no ruling on summary judgment. The matter should proceed to trial.

Order

35. The order of the Court will be:

1 the plaintiff’s application for default judgment is refused; and
2 parties to bear own costs

Order Accordingly
_________________________________________________________________________
Don Wapu Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Second Defendants