Kunton v Junias [2006] PGSC 34; SC929 (28 September 2006)

SC929

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 158 0F 2004

BETWEEN

AGNES KUNTON
First Appellant

BETTY KUNTON
Second Appellant

KUNTON PON
Third Appellant

PAT KUNTON, PETER KUNTON & KONDA KUNTON,
ALL INFANTS BY THEIR NEXT FRIEND THO KUNTON
Fourth Appellant

AND

JOHN JUNIAS,
CORRECTIONAL OFFICER,
BAISU CORRECTIONAL INSTITUTION
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Los J, Jalina J, Cannings J
2006: 29 August, 28 September

APPEAL

PRACTICE AND PROCEDURE – default judgment – refusal to enter despite defendant being in default – discretion of primary Judge – whether public policy considerations are relevant in exercise of discretion – whether to enter default judgment.

STATE SERVICES – Correctional Service – death of detainee in the course of escape – alleged shooting by correctional officer – liability of correctional officers – liability of the State.

A remandee at a correctional institution attempted to escape and was shot dead, allegedly by a correctional officer. The plaintiffs, the dependants of the deceased, commenced a civil action against the correctional officer and his employer, the State. They served the writ on the second defendant, the State, but not on the first defendant, the correctional officer. The State neither gave notice of intention to defend the action nor filed a defence thus being in default of the National Court Rules. The plaintiffs filed a motion for default judgment against the State. The primary Judge refused the motion as a matter of discretion, on grounds that this was one of the first cases of its kind and public policy considerations had to be carefully taken into account before concluding that the State was liable. This was an appeal against the refusal to enter default judgment.

Held:

(1) Entry of default judgment is not a matter of right. There are certain preconditions that have to be satisfied but even when all are satisfied, the decision whether to enter default judgment is a matter for the discretion of the primary Judge.

(2) When exercising the discretion the range of relevant considerations is not closed. In the present case the primary Judge reasonably took into account that this was a novel case, perhaps the first of its kind, and public policy made it desirable that the issue of liability be argued in a trial.

(3) The plaintiff was also in default of the National Court Rules as the writ and other court documents were not served on the first defendant.

(4) The motion for default judgment was properly refused.

(5) However, the primary Judge erred by remitting the matter to the call-over list without granting the defendants time to file a defence, so orders in those terms were made by the Supreme Court.

(6) Costs were awarded to the appellants, to be taxed if not agreed.

Cases cited

Papua New Guinea Cases:
Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773
Beecroft No 51 Ltd trading as Ronnie's Hot Bread v Neville Seeto and Others (2004) N2561
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001
John Kunkene v Michael Rangsu and The State (1999) N1917
Kante Mininga v The State & Others (1996) N1458
Ombudsman Commission v Peter Yama (2004) SC747
Tiaga Bomson v Kerry Hart (2003) N2428
Urban Giru v Luke Muta and Others (2005) N2877

Overseas Cases:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

APPEAL
This was an appeal from a judgment of the National Court refusing a motion to enter default judgment.

Counsel
A Kongri, for the appellants
K Kawat, for the 2nd respondent

28 September, 2006

1. BY THE COURT: This is an appeal against a decision of Kandakasi J in the National Court in which his Honour refused a motion to enter default judgment. The appeal raises the issue of the power of a Judge of the National Court to refuse to enter default judgment when the party against whom judgment is sought is clearly in default.

BACKGROUND

2. The event that led to these proceedings was an attempted breakout at Baisu Jail, Western Highlands, on 7 September 2001. Two remandees attempted to escape and one of them, Win Kunton, of the Yamka Pepka tribe, Dobel village, WHP, was shot dead. His dependants say that one of the warders, John Junias, who pursued the deceased, shot him even though he had surrendered.

3. On 27 February 2004 the lawyers for the deceased’s dependants, Nonggorr & Associates, filed proceedings in the National Court, known as WS No 173 of 2004.

4. The plaintiffs are:

• Agnes Kunton – first plaintiff – a wife of the deceased;
  
• Betty Kunton – second plaintiff – another wife of the deceased;
  
• Kunton Pon – third plaintiff – the deceased’s father;
  
• Pat, Peter and Konda Kunton, infants, by their next friend Tho Kunton – fourth plaintiff – Tho is the deceased’s brother and Pat, Peter and Konda are the deceased’s children.
  

5. The defendants are:

• John Junias – first defendant – the correctional officer who allegedly shot the deceased;
  
• The State – second defendant – it is claimed to have ownership and control of Baisu Jail and to be the employer of the first defendant.
  

6. The statement of claim pleads that the first defendant:

• committed the tort of negligence, resulting in the death of the deceased;
  
• breached the deceased’s constitutional rights (the right to life, the right to freedom from inhuman treatment and the right to the full protection of the law); and
  
• acted harshly, oppressively and unlawfully contrary to Section 41 of the Constitution.
  

7. The statement of claim also pleads that the second defendant – the State – is vicariously liable for the conduct of the first defendant.

8. Remedies sought are:

• damages;
  
• a declaration that the deceased’s constitutional rights were breached; and
  
• compensation for breach of those rights under Section 58 of the Constitution.
  

9. Acting for the plaintiffs, Nonggorr Lawyers served the writ and statement of claim on the second defendant in accordance with the Claims By and Against the State Act but did not serve the first defendant. The second defendant failed to give notice of its intention to defend the claim and failed to file a defence.

10. In September 2004 Nonggorr Lawyers filed and served a notice of motion and supporting affidavits, seeking entry of default judgment. This was also served only on the second defendant.

11. The motion was moved ex parte before Kandakasi J at Waigani on 13 October 2004. Mr Kongri appeared for the plaintiffs. His Honour was satisfied that the motion was properly served and that other formal requirements for entry of default judgment were satisfied but expressed concern about the implications of making the State liable without a trial:

There is proof of compliance of Section 5 [of the Claims By and Against the State Act] requirements. So that forms the basis for ground of default judgment. However, that is not the end of the matter. Non-compliance of the Rules does not mean that judgment should automatically follow. There is discretion in the court whether to not grant such an application even if it is satisfied that the Rules or the application is perfect on the consideration of the relevant rules. I note this is one of the first cases I have come to deal with, if not the court, arising out of a prison escape. Prisoner is shot. Allegations of negligence or deliberate shooting. If it is to be resolved by default it might bring about a number of implications. Matter of public policy comes into consideration as well.

In those circumstances, I decline to exercise discretion in favour of default judgment. Instead I will order the plaintiff to go to proof of its case by now ordering that this matter be progressed to listing for trial and order costs of today’s application against the defendants.

THE APPEAL

12. Three grounds of appeal are relied on. It is claimed that the primary Judge erred by:

1. unreasonably exercising his discretion, given that he acknowledged that the appellants had done everything required by law to secure default judgment;
   
2. taking account of irrelevant considerations, by stating that this was the first case of its kind;
   
3. after refusing the application for default judgment – not ordering the State to file and serve a defence before the case was put on the callover list.
   

APPELLANTS’ SUBMISSIONS

13. Mr Kongri acknowledged that a Judge hearing a motion for default judgment has a discretion to exercise even when all preconditions to the entry of default judgment are satisfied. However, he argued that in the present case the primary Judge had exercised that discretion unreasonably as the State was flagrantly in default. Not only was there no notice of intention to defend or defence filed by the State but there was no appearance for the State when the motion was moved.

14. As to the primary Judge’s concern about this being the first time that the dependants of a detainee killed during the course of a prison escape were suing the State, Mr Kongri submitted that there was no evidence that, in fact, this was the first case of its kind; but even if it was there were alternative causes of action clearly pleaded in the statement of claim. Therefore the public policy considerations mentioned by the Judge were irrelevant.

15. On the third ground, Mr Kongri submitted that it was irregular for the primary Judge to set the matter down for trial without making it incumbent on the State to file a defence.

SECOND RESPONDENT’S SUBMISSIONS

16. Mr Kawat, for the second respondent, the State, submitted that the appellants’ submission overlooked the wide discretion available to a Judge hearing a motion for default judgment; It is not a matter of just satisfying the Judge that the formal requirements have been met. The plaintiff must also convince the Judge that in all the circumstances it is appropriate that the Judge’s discretion be exercised in favour of the entry of default judgment. Numerous authorities were cited in support of that proposition. Here, the matters highlighted by the primary Judge were all relevant and the Supreme Court should be reluctant to interfere with the exercise of discretion.

17. Mr Kawat submitted that the appellants were themselves in default of the National Court Rules as they never served any documents on the first respondent, the correctional officer, John Junias. Though they did not seek default judgment against him, his interests and also the State were prejudiced as he might have raised a defence unknown to the State.

18. We will now address the three grounds of appeal.

GROUNDS 1 AND 2 OF THE APPEAL

19. These grounds – unreasonable exercise of discretion and taking into account irrelevant considerations – are closely related and we deal with them together. They raise the issue of the nature and extent of the discretion available to a Judge hearing an application for default judgment.

Primary Judge’s discretion

20. Mr Kongri properly acknowledged that entry of default judgment is not a matter of right. There are certain preconditions that have to be satisfied but even when all are satisfied, the decision whether to enter default judgment is a matter for the discretion of the primary Judge under Order 12, Rule 32 (general) of the National Court Rules.

21. Cases on the subject show that in deciding now to exercise its discretion the court can take into account a wide range of considerations, including:

• 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 (Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773);
  
• the extent of the default by the defendant (John Kunkene v Michael Rangsu and The State (1999) N1917);
  
• whether the defendant appears to have a good defence (Kunkene);
  
• whether the statement of claim amounts to an abuse of process (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001);
  
• whether the pleadings are vague, ie whether the statement of claim discloses a reasonable cause of action (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001, Urban Giru v Luke Muta and Others (2005) N2877);
  
• whether the plaintiff has prosecuted his case diligently (Tiaga Bomson v Kerry Hart (2003) N2428);
  
• whether the entry of judgment would prejudice the rights of co-defendants (Kante Mininga v The State & Others (1996) N1458, Beecroft No 51 Ltd trading as Ronnie's Hot Bread v Neville Seeto and Others (2004) N2561);
  
• whether the interests of justice would be served by the entry of default judgment (Urban Giru v Luke Muta and Others (2005) N2877).
  

22. When exercising the discretion the range of relevant considerations is not closed.

Ground 1: unreasonableness

23. Though the argument was not expressly developed in these terms by Mr Kongri we consider that as soon as a Judge’s decision is argued to be ‘unreasonable’ the appellant bears the onus of showing unreasonableness based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

24. The ‘Wednesbury principles’, as they have come to be known, have been adopted and adapted by the courts in Papua New Guinea in a multitude of cases. For example in Ombudsman Commission v Peter Yama (2004) SC747 the Supreme Court explained the principles in these terms:

The Wednesbury principle of "unreasonableness" is described by Lord Green MR as a decision that is "so absurd that no sensible person could dream that it lay within the powers of the authority -- a decision that no reasonable body, could have come to." It is embodied in the principle of "irrationality" that we referred earlier. We prefer a simplified break-up of this principle into six categories by Doherty J in Kim Foon & Sons Pty Ltd v Minister for Finance and Planning (1996) N1464 as follows:

(a) it must be a real exercise of the discretion;

(b) the body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;

(c) it must ignore irrelevant considerations;

(d) it must not operate on the basis of bad faith or dishonesty;

(e) it must direct itself properly in law; and

(f) it must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

25. It is the sixth and last sub-principle that best sums up the classic Wednesbury test of unreasonableness. The Supreme Court in the exercise of its supervisory jurisdiction is required to ask:

• was the decision made by the National Court so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision?
  

26. If the answer is yes, the decision involves an error of law, the primary Judge will have exceeded his jurisdiction and the ground of appeal will be upheld. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of appeal will fail.

27. Applied to the present case, the question to ask is: Was the decision of the primary Judge to refuse to enter default judgment so unreasonable no reasonable Judge in the position of the primary Judge would have made that decision?

28. Having regard to all the circumstances of this case, we answer this question in the negative. The primary Judge was rightly concerned about the implications of the State being held liable to the dependants of a deceased detainee who had, arguably, by his own actions precipitated his death by engaging in the unlawful act of attempting to escape from lawful custody. Even if we were minded to disagree with the primary Judge’s exercise of discretion – and we do not here express a view on that – the appellant has to show that this was an absurd decision, so far outside the realms of reasonableness that no National Court Judge could have made it.

29. The appellant has fallen well short, so we dismiss the first ground of appeal.

Ground 2: irrelevant considerations

30. We consider that the primary Judge reasonably took into account that this was a novel case, perhaps the first of its kind, and public policy made it desirable that the issue of liability be argued in a trial. It is a relevant consideration for a Judge to consider whether the entry of judgment might set a precedent and what kind of precedent it would set. Clearly the primary Judge was concerned about the spectre of the relatives of a deceased detainee being able to make the State liable for the unlawful conduct of the deceased.

31. We therefore dismiss the second ground of appeal.

Other considerations

32. As pointed out by Mr Kawat, the appellants were in default of the National Court Rules as the writ and other court documents were never served on the first respondent, John Junias, the warder who allegedly shot the deceased. He has been left out of things from the beginning and has not even been given notice of this appeal. The risk of prejudice to him, and also to the second respondent, the State, has therefore been quite high. As long as a person remains a party to proceedings, he or she must be served with all court documents. This is the case even if the plaintiff seeks – as in the present case – a judgment or order only against some other party.

33. The appellants were in clear and continuing default of the National Court Rules, Order 6, Rule 2. That was another factor justifying the refusal to enter default judgment.

GROUND 3 OF THE APPEAL

34. We uphold this ground of appeal. Though the primary Judge properly refused to enter default judgment, we consider that his Honour erred by remitting the matter to the call-over list without granting the defendants time to file a defence. His Honour should have directed that the first defendant be served, and then allowed both defendants time to file defences. Orders in those terms will be made by this Court.

COSTS

35. Two of the three grounds of appeal have been dismissed but having regard to all the circumstances, we will exercise our discretion regarding costs in favour of the appellants. The second respondent, the State, was in clear default of the National Court Rules and the lax treatment it has given to this case – until defending this appeal – means that it is appropriate that it pay the appellants’ costs.

JUDGMENT

36. The Supreme Court will direct entry of judgment in the following terms:

1. the appeal is dismissed;
   
2. the appellants shall serve the originating process and all other documents in WS No 173 of 2004 on the first respondent with all due dispatch or remove the first respondent as a party to the proceedings;
   
3. the first respondent shall be permitted to file a notice of intention to defend and a defence within the times permitted by the National Court Rules;
   
4. the second respondent shall be permitted to file a notice of intention to defend and a defence within the times permitted to the first respondent, by the National Court Rules;
   
5. the second respondent shall pay the costs of these proceedings on a party-party basis to be taxed if not agreed.
   

Judgment accordingly.

Nonggorr & Associates: Lawyers for the appellants
Paul Paraka Lawyers: Lawyers for the respondents