Tomba v Edipau [2022] PGNC 507; N10025 (15 November 2022)

N10025

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS(HR) NO. 04 OF 2021

BETWEEN:
SIMON TOMBA
Plaintiff

AND:
SENIOR CONSTABLE PAUL EDIPAU
First Defendant

AND:
DAVID MANNING, Commissioner for Police
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Goroka: Mugugia, AJ
2022: 10^th, 15^th November

PRACTICE AND PROCEDURE – Plaintiff’s application for default judgment – Defendants’ failure to file defence - National Court Rules, Order 12, Rules 25(a) and (b), 28, and 32(1) relied on by the Plaintiff – Whether default judgment should be entered against the Defendants - Relevant considerations – Exercise of discretion - Default judgment entered against the Defendants.

Case Cited:
Giru v. Muta (2005) N2877

Counsel:
K. Lafanama, for the Plaintiff
No appearance, for the Defendants

RULING

15^th November, 2022

1. MUGUGIA, AJ: The Plaintiff’s substantive claim against the Defendants is for wrongful arrest and detention, malicious prosecution and breach of his constitutional rights. He filed this proceedings on 26^th February 2021. The Writ of Summons was served on the First Defendant on 3^rd June 2022, and the Second and Third Defendants on 1^st April 2022. The Office of the Solicitor General filed a notice of intention to defend on behalf of all the named Defendants after the time required on 5^th October 2022. No defence was filed and the Plaintiff filed his default judgment application on 26^th October 2022.

2. Ms Lafanama filed an affidavit in Court on 9^th November 2022 confirming that she had advised Mr Uware of the Office of the Solicitor General of the hearing date of the default judgment application. Mr Uware advised Ms Lafanama that he would not be travelling to Goroka for the hearing as the Solicitor General had not approved his travel, and that Ms Lafanama can proceed with her client’s application if she was ready to proceed. I heard the default judgment application ex parte.

3. In his motion filed on 26^th October 2022, the Plaintiff seeks an order for entry of default judgment against the Defendants pursuant to Order 12, Rules 25(a) and (b), 28 and 32(1) of the National Court Rules.

4. In support of her client’s motion, Ms Lafanama relied on a number of affidavits. These three (3) supporting affidavits filed on 26^th October 2022 demonstrated the Defendants’ default:

(i) Affidavit in Support of Simon Tomba;

(ii) Affidavit of Karen Lafanama; and

(iii) Affidavit of Search of Karen Lafanama.
5. The issue arising from the Plaintiff’s motion for me to determine is whether default judgment should be entered against the Defendants with damages to be assessed.

6. The case law relied on by Ms Lafanama were Tzen Pacific Ltd. v. Puana (2011) N4528, Giru v. Muta (2005) N2877 and Bank South Pacific Ltd. v. Tingke (2012) N4901.

7. In Giru v. Muta (2005) N2877, Cannings J set out the checklist that the court should consider when dealing with an application for default judgment. The six pre-conditions to consider are:

1. Proper Form.

2. Service of notice of motion and affidavits.

3. Default.

4. Warning.

5. Proof of service of writ.

6. Proof of default.

8. In applying the items on the checklist to the present case, Ms Lafanama made these submissions:

• The Notice of Motion filed on 26^th October 2022 is in the correct form.
  
• These documents were served on the Defendants. The Affidavit of Service of Baro Wotane filed on 2^nd November 2022 confirms service.
  
• The First Defendant was served with the writ of summons on 3^rd June 2022 but failed to file his notice of intention to defend or defence within the required 44 days by 4^th August 2022, and is in default.
  
• The State is in clear default of filing a defence to the writ filed on 26^th February 2021. The documents were served on the Second and Third Defendants on 1^st April 2022, and they had 30 days to file a notice of intention to defend which the Office of the Solicitor General failed to file. The Defendants had a further 60 days to file their defence pursuant to Section 9(a)(i) of the Claims By and Against the State Act 1996. The Office of the Solicitor General thus had a total of 90 days after service of the writ. However, it failed to file the necessary documents by 5^th August 2021.
  
• The Plaintiff did not forewarn the First Defendant, given the difficulty of service of documents on the First Defendant. The State was forewarned in a letter dated 26^th July 2022 that time would lapse on 5^th August 2022. Despite the forewarning, nothing was filed until a notice of intention to defend was filed by the Office of the Solicitor General on 5^th October 2022 for all the named Defendants.
  
• The writ was served on the First Defendant on 3^rd June 2022, and the Second and Third Defendants on 1^st April 2022. The affidavits confirming service on the Defendants are Court documents No. 5 and No. 11.
  
• The Plaintiff filed three affidavits in support of the application showing default. They are Court documents No. 17, No. 15 and the Affidavit of Karen Lafanama filed on 26^th October 2022.
  
• All the 6 pre-conditions were successfully met by the Plaintiff. The Defendants are in clear default of filing the necessary documents.
  

9. I agree with Ms Lafanama that the case of Giru v. Muta (supra) sets out the six pre-conditions that should be considered in an application for default judgement. In this case, Cannings J held that if all the items on the checklist are satisfied, the matter is ripe for entry of default judgement. However, a plaintiff is not entitled to default judgement as of right. Entry of default judgement is a matter for the discretion of the court.

10. I take note of the items on the checklist, apply them in the present case, and make these findings:

(i) The Plaintiff’s notice of motion for default judgment filed on 26^th October 2022 is in the proper form.

(ii) The Plaintiff has done what is required under Order 4, Rule 44(1) of the National Court Rules. The affidavits relied on set out the evidence in support of the orders sought in the Plaintiff’s motion for default judgment.

(iii) The notice of motion and the supporting affidavits relied on by the Plaintiff at the hearing were served on the Defendants. The Plaintiff has done what is required under Order 4, Rules 38(1), 42, 43(2) and 44(1) of the National Court Rules.

(iv) The Plaintiff’s writ of summons was served on the First Defendant on 3^rd June 2022, and the Second and Third Defendants on 1^st April 2022. The evidence before the Court clearly show that the Defendants are in default.

(v) The Defendants filed a notice of intention to defend. They were forewarned. The Plaintiff’s motion for default judgment set for hearing on 10^th November 2022 was served on the Defendants. The Office of the Solicitor General was well aware of the Plaintiff’s intention to apply for default judgment.

(vi) Order 12, Rule 34 of the National Court Rules relates to the need for proper evidence to prove service. There is affidavit evidence filed on behalf of the plaintiff proving due service of the writ of summons, and proving the default of the Defendants on which the Plaintiff relies.

11. The basis on which the application was made is on account of the Defendants’ default under Order 12, Rule 25(a) and (b) which read:

“25. Default.

A defendant shall be in default for the purposes 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”

12. The Defendants have not filed a defence in compliance with Order 12, Rule 25(b). They have clearly defaulted. I am convinced that the Plaintiff has made out a case for default judgment to be entered against the Defendants for failure to file their defence.

13. The Plaintiff claims unliquidated damages, interest and costs in his Prayer for Relief in his Statement of Claim. In his motion, the Plaintiff seeks an order for default judgment against the Defendants with damages to be assessed. Under Order 12, Rule 28 of the National Court Rules, where the plaintiff's claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgement against that defendant for damages to be assessed and for costs.

14. Under Order 12, Rule 32(1) of the National Court Rules, 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 that defendant as the plaintiff appears to be entitled to on his writ of summons. Order 12, Rule 32 (General) gives the Court wide discretion to enter default judgment.

15. I am of the view that the Plaintiff’s statement of claim discloses a reasonable cause of action against the Defendants. The Plaintiff clearly pleaded his case against the Defendants, the alleged breaches and the relief claimed.

16. Entry of default judgment is a matter for the discretion of the court. The interests of justice lies in favour of granting the Plaintiff’s application for default judgment. I exercise my discretion in this case, and make an order for entry of default judgment against the Defendants with damages to be assessed.

17. I make these following orders:

1. Default judgment is entered against the Defendants with damages to be assessed.

2. The Defendants shall pay for the Plaintiff’s costs of this application.

3. Time for entry of these orders is abridged to the date and time of settlement of these

orders by the Registrar which shall take place forthwith.

The Court orders accordingly
__________________________________________________________
K. Lafanama: Lawyer for the Plaintiff