N11153
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 462 OF 2022
BETWEEN
PETER UNIU
Plaintiff

AND
THE HON DR KIM SUWAMARU, AS MINISTER FOR TECHNICAL SERVICES, AUTONOMOUS BOUGAINVILLE GOVERNMENT (ABG)
First Defendant

AND
AUTONOMOUS BOUGAINVILLE GOVERNMENT
Second Defendant

BUKA (decision delivered in waigani): COATES J
7 FEBRUARY 2025

DEFAMATION – Default judgment sought by plaintiff – Notice of Intention to defend filed late – Nothing further filed -– No explanation as to how plaintiff was prejudiced - Defendants seek leave to file Defence out of time – Tardy management of Autonomous Bougainville Government’s legal office – Default judgement is a discretionary decision – Defendants raise triable grounds – leave granted to file Defence out of time. 

Counsel

Mr T. Tamusio for the plaintiff
Ms G. Habitein for the defendants

DECISION
1.	COATES J: FACTS: This is an application for default judgment with a cross-application to file a defence out of time.
2.	By Writ of Summons, the plaintiff claims that he was defamed by the first defendant minister and that the second defendant is also liable.

3.	The matter has some complexity because the second defendant is said to be liable by operation of legislation.

4.	The Writ was filed on 24 October 2022.

EVENTS

5.	The plaintiff claims he was instructed to establish a team in the ministry office responsible for technical services at Buka in or about October 2020.

6.	He said he was then instructed to lead and supervise data collection referred to as the Bougainville Energy Sector Data Collection Survey.

7.	He said he was instructed to oversee and supervise the central and south Bougainville regions and the whole survey was to cost K200,000.00. 

8.	In performing his role, the plaintiff stated he engaged service providers.

9.	Not known to him, while performing in this leadership role the plaintiff allegedly replaced him with another person, Mr John Sania, in about August 2021.

10.	While employed, he applied for and received the appointment as Siwai District Coordinator at around the same time, his new appointment being from 15 August 2021.

11.	How the alleged appointment of a Mr Sania and the plaintiff’s new appointment coincide is unclear at this stage of the proceeding.

12.	In his Statement of Claim, the plaintiff said that he was then suspended, but the reasons were not made known to him and on or about November 2021 he heard rumours that he had stolen K200,000.00 which had been allocated for the Bougainville Energy Sector Data Collection Survey.

13.	He said on or about 24 January 2022, in the presence of a Mr Paul Potunga, the committee members of the first defendant, Mr Steven Kasai and Mr Simon Soiri Kauma, falsely stated that he would be arrested by police on 27 January 2022 for stealing the K200,000.00 earmarked for the survey.

14.	He said these words were about his conduct, and they were false and malicious and harmed his occupation.

15.	He said rumours about him stealing K200,000.00 spread like wildfire in October, November and December of 2021.

16.	He also stated that Mr Steven Kasai asked the first defendant why the survey had not been completed and the first defendant replied, “You ask your District Coordinator, emi mekim wanem na emi no kamap”. The court will require an expert’s interpretation of that Tok Pisin, however, it appears to mean “You ask your District Coordinator, what did he do for it not happen”. 

17.	He said he was the District Coordinator, and the words meant that he had misappropriated or stolen K200,000.00.

18.	 He said that on 27 January 2022 at 6:30 am, two police officers arrived at his house and then took him to the police station where statements were put to him about the alleged theft. 

19.	He denied the allegations.

NOTICE OF INTENTION TO DEFEND

20.	A Notice of Intention to Defend was filed on 24 November 2022. 

21.	No further court process has been filed by the defendants.

DISCUSSION

22.	Now before the court there are two notices of motion, one filed by the plaintiff on 9 August 2023, seeking summary judgment and the other filed by the defendants in December 2024, seven days before the matter was to be mentioned, seeking leave to file a defence out of time. 

23.	Brief oral submissions were made as to a judgment in default.

24.	The plaintiff relies on order 12 rule 25 (B) of the National Court Rules where a defence has not been filed within time. 

25.	I was referred to the usual considerations, that default judgment may be given at the discretion of the judge, whether a statement of claim raises a serious allegations of fraud or deceit, the extent of any default, whether the defendant has a good defence, whether the Statement of Claim is an abuse of process, whether the plaintiff is prosecuting the case diligently, whether the entry of judgment will prejudice the rights of co-defendants, whether the interests of justice will be served by entry of a default judgment, whether the pleadings are vague and obviously, any other consideration which is relevant to the claim. 

26.	There was no great effort to put any of these considerations into context for this case.

27.	Counsel for the defendants met these arguments with the Notice of Motion seeking leave to file a defence out of time.

28.	Counsel was clear that the defence was well overdue – by about two years and one month.

29.	Her submission was that there were inherent powers under section 155(4) of the Constitution, the section which allows the court pursuant to its inherent power to make orders as necessary to do justice in the circumstances, to allow the defence to be filed out of time. 

30.	She then reiterated the accepted process of the court determining whether there was a valid explanation for the delay, whether the proposed defence had merits, whether the granting of leave would prejudice the plaintiff and whether the interests of justice favour the granting of leave. 

31.	Importantly she pointed to the power as being discretionary and that such discretion must be exercised judicially in accordance with the principles of law and fairness. 

32.	Council referred to various cases and these were not challenged as to the principals involved.

33.	Counsel’s case was that the Autonomous Bougainville Government’s Department of Justice and Legal Services was short staffed at relevant times, although she framed the issue as one of being “systemically challenged”. 

34.	She said in 2022, two legal officers with the department left the office, another was due to be transferred, and three lawyers were left in the department. 

35.	She named one of those lawyers, Micah Francis Forukave, who swore an affidavit, stating he became responsible for all litigation as the other two lawyers provided legal services for other purposes. 

36.	Mr Forukave said in his affidavit that he was also the only litigation lawyer and was appointed to the Public Trustee office as well, with 214 files to manage.

37.	He then said he was appointed to the Bougainville Constitutional Planning Commission as well and in March 2024 it was instructed to assist with the Bougainville Boundary Review Commission’s work.

38.	Having heard these explanations, it is clear that the professional conditions which existed within the legal office was either one of being so unorganised that there was no proper court diary kept, or deliberate decisions were taken to attend to other work at the expense of litigation which inevitably governments find themselves in.

39.	The plaintiff should not suffer because of that type of disorganisation.

40.	However, that does not mean that the defence should not be allowed.

41.	It is important that the court look closely at the proposed defence and to that end the defendants state no reasonable cause of action is disclosed, that the action is an abuse of process, that it is frivolous and vexatious, is a nullity and an abuse of process for lack of notice required by section 6 of the Claims By and Against the Autonomous Bougainville Government Act 2006.

42.	The defendants then deny the alleged facts amount to defamation and such would be accompanied by a defence that they did not authorise any defamation of the plaintiff by its employees.

43.	Even when there has been intransigence and sometimes even when parties appear to be slow to comply with the rules of court, the justice system is just that, a system of justice to determine disputes and there are factors between litigants which the court just cannot be aware off until a matter reaches trial stage. 

44.	At this stage it is difficult to see or understand just how the second defendant is involved, even though the plaintiff is relying on s1(1)(a) of the Wrongs (Miscellaneous Provisions) Act Chapter 297 for actions and omissions committed in tort by agents and/or servants of the State.

45.	That will be a question of law as it is applied to the facts of this case. 

46.	Although dilatory, the defendants did file their Notice of Intention to Defend.

47.	By that Act, the defendants had not ignored the gravity of the claim.

48.	There was no evidence of continued steps taken by the plaintiff to have the defendants file their defence with notice that this application would be made, and such material may have gone in the plaintiff’s favour to determine how he would be prejudiced by the continued refusal to file such.

49.	That he did not give evidence as to why such would prejudice him, I hold that he was not prejudiced by the short delay in filing the Notice of Intention to Defend and does not produce evidence of further prejudice, despite the tardy management of the government legal office.

50.	The rules allow for an affidavit of evidence to be sworn before or after the commencement of proceedings (O11 r21), which places the onus on the plaintiff to ensure that there is enough material before a court when the court is called upon to exercise a discretion such as in this case of giving judgment in default.

51.	That the defendants had filed a Notice of Intention to Defend with only a short delay after the due date should have been a signal that merely coming to court with basic material may not be enough to have the court exercise the discretion - keeping in mind that the discretion is exercised judicially, that is, by applying the law to the facts affecting rights.

52.	The law is as stated by counsel for the defendants and not challenged by counsel for the plaintiff, that this is a discretionary decision and there is no automatic right to have judgment by default because of missteps by a party.

53.	Because there is no affidavit in support of the statement of claim, I do not have the plaintiff’s version of events as to the statements said to be defamatory, or how he knows these words were stated and importantly, how such has affected him.

54.	There is only one reference to the first defendant and in isolation they may be ambiguous on interpretation – which is obviously a matter for the trial judge.

55.	I am persuaded then that although there has been tardy management of the defence, that there is at least an arguable case which the proposed defence refers to, that the late filing of the Notice of Intention to Defend is not said to prejudice the plaintiff and because there is lack of any sworn evidence to consider from the plaintiff, I will exercise the discretion to allow the filing of the defence out of time.

56.	I will state that should the defendants fail to follow directions now, a further application of a similar type by the plaintiff may well be successful.

ORDERS
1.	The defendants are given leave to file their Defences out of time.
2.	Such Defences will be filed within 14 days from the date that this judgment is published to them.
3.	The plaintiff will file and serve any application for further orders within 28 days.
4.	If no such application is made, the plaintiff will file and serve all affidavits he intends to rely on within 28 days from the expiry of the time stated in Order No.3 above.
5.	The Defence will file and serve any reply within 28 days from the expiry of the date mentioned in Order No.4 above.
6.	The matter will be mentioned on 31 March, or on another date as directed by the Court Registry at Buka.

Judgement accordingly 
________________________________________________________________
Lawyers for plaintiff: Tamusio & Associates Lawyers
Lawyers for the defendants: Autonomous Bougainville Government Legal Division