Air Niugini Ltd v Unagi [2007] PGSC 37; SC901 (30 November 2007)

SC901

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 26 of 2006

BETWEEN

AIR NIUGINI LTD
Appellant

AND

AGNES PURI UNAGI
Respondent

Waigani: Kapi CJ, Jalina & Lay JJ.

2007: 2 November
30 November

CIVIL – appeal - judgment in default of defence - default contested - evidence equivocal - warning letter practice direction not complied with - appeal allowed.

Facts

The appellant appeals from default judgment given in favour of the respondent in circumstances where the defence of the appellant was not on the National Court file. The appellant gave evidence that the defence had been filed within time and a sealed copy placed in the post to the respondent one day after the time limited for filing the appellant's defence. The respondent did not give written forewarning of her intention to make the application for default judgment, contrary to the practice direction to that effect.

Held

1. The presumption raised that a defence has not been filed, by evidence that a defence is not on the court file, is displaced by evidence that the defence was filed.

2. Entry of default judgment is a matter in the discretion of the judge. Failure by the respondent to comply with the practice direction tipped the scales in favour of the appellant;

3. The absence of the appellant's defence from the Court file did not prejudice the respondent's rights in a manner justifying depriving the appellant of a right to trial.

Cases Cited

Kaite Mininga v State (1996) N1458
John Kunkene v Michael Rangsu & The State (1999) N1917
Eliakim Laki v Maurice Alaluka v & The State (2000) N2001
POSF v Silas Imanakuan (2000) SC677

References
National Court Rules

Counsel
J. Munnull, For The Appellant
Respondent in person

30 November, 2007

1. BY THE COURT: The respondent, a former employee of the appellant, was terminated from her employment and sued the appellant in the National Court for wrongful dismissal. Judgment was entered against the appellant for damages to be assessed, on the respondent’s application for judgment, in default of the appellant filing a defence.
   
2. The trial judge had before him on behalf of the respondent an affidavit swearing that a search of the file had been made on the 24 October 2005 and that no defence was on the file. Further, that she had never received a copy of the defence.
   
3. In the first instance, on behalf of the appellant there was an affidavit annexing its notice of intention to defend and defence, both sealed with the seal of the National Court. Subsequently, when it had become apparent that the respondent's allegation was that the appellant had not filed its defence and that the defence was still not on the court file, a further affidavit was filed deposing that the defence had been filed on 20 October 2005 and sealed copies obtained from the Registry on that day. There was also sworn evidence that on 25 October a sealed copy of the defence was forwarded by post to the respondent and one to the appellant by the appellant's lawyers. There was also an affidavit from an officer of the appellant confirming receipt of the sealed copy of the defence on 25 October 2005.
   
4. It is not in dispute that the time for the appellant to file its defence expired on 24 October 2005. It is conceded by the respondent that no warning letter was given to the lawyers for the appellant before filing her application for judgment.
   
5. The appellant submits that there was evidence that it had done everything that it could in filing its defence. The fact that the defence was not placed on the court file is nothing to do with the appellant. The respondent submits, as the judge below held, that the onus was on the appellant to obtain evidence from the clerks in the Registry to confirm that the defence was filed on 20 October 2005. A defence was not filed because it was not on the file.
   
6. The National Court Rules provide that "documents may be received or filed by any clerk in the Registry to whom such duties are assigned", (Order 1 rule 10) the date of filing shall be written by the Registrar on every document filed (Order 1 rule 19). A defendant shall file and serve upon the plaintiff his defence 14 days after expiry of the time for giving notice of intention to defend (Order 8 rule 4).
   
7. To commence, we note that because the defence is not required to be personally served, it can be served by post. However, service is deemed to take effect when the document would be received in the ordinary course of post (National Court Rules Order 6 rule 4). Although neither party has touched on the matter, the appellant was in default of Order 8 rule 4 because the rule requires both filing and service within the time stipulated. On its own evidence the appellant did not place the defence in the post to the respondent until the day after the time limited for delivery of its defence had expired. However, such a default is not a default for the purposes of Order 12 rule 24, which provides for entry of judgment in default. That default is limited to a default in filing.
   
8. The second point we wish to make is that we have taken a different view of the evidence to that of the judge below. His Honour took the view, that as there was no date endorsed by the Registrar on the document produced as the sealed defence, it was for the appellant to show by evidence from the clerks in the Registry why this was so and that the defence was filed on the 20 October 2005.
   
9. The view we take of the evidence, with the greatest respect to the trial judge, is that an affidavit of search which says that a document is not on the court file, is prima facie evidence sufficient to raise the presumption that the document was not filed. However once evidence was filed to the effect that a defence was filed, the affidavit of search simply became evidence that the defence was not on the court file, not evidence that the document was not filed. "To file" means to file in the office of the Registrar. All the party filing can do is pass the document over the counter to one of the Registrar's clerks. When it is handed back to him bearing the seal of the court the party filing the document has done all he can. Dating, numbering and placing the document on the relevant court file are all functions of the Registrar's office. There cannot be any onus on a party filing a document to show why the Registrar's office has not carried out its functions.
   
10. Whether or not to enter judgment when there is a default on the part of the defendant is always a discretionary matter: Kaite Mininga v State (1996) N1458 (Injia J. as he then was), John Kunkene v Michael Rangsu & The State (1999) N1917 (Kirriwom J.), Eliakim Laki v Maurice Alaluka v & The State (2000) N 2001 (Sevua J.). A discretion given to the court must be always exercised judicially on proper principles. In POSF v Silas Imanakuan (2000) SC 677 (Amet CJ, Gavara-Nanu J. and Kandakasi J.) the court gave the following explanation of the approach to be taken in exercise of this discretion:
    

"It is now settled law that, the Rules of the Court are not an end in themselves but a means to an end in all matters going before the Courts. They are only a code of practice and there is no doubt where justice so requires, strict adherence to the rules can be dispensed with in the circumstances of a particular case. For more discussion: see Anthony John Polling v Motor Vehicle Insurance (PNG) Trust and Others [1986] PNGLR 228 at 230 and The South Pacific Post Pty Ltd v Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38 at 46. It should be borne in mind that the Rules are designed to guide and assist the Courts and the parties to reach a fair, orderly and expeditious resolution of matters before the Courts. The application was thus intended to be flexible."

11. The principles for applying the Rules flexibly in a judicial way were set out in the headnote to Pollings Case, in the following way, with which we agree:
    
    1. on application to dispense with strict compliance with the Rules regard should be had, inter alia to the interests of justice and the impact of non compliance on the parties with relevance to whether in reality the other party is in as good a position as if the rules had been complied with, or whether the party has been disadvantaged in regard to its rights in the matter;
       
    2. application should be made within a reasonable time.
       
12. While, because the respondent is acting for herself, she was unaware of the long-standing practice direction that an application for judgment in default of a defence should be preceded by a warning letter, the fact is that the practice direction existed and for a good reason (see Practice Direction No. 1/1987 and for its origins Mapmakers Pty Ltd v Broken Hill Proprietary Co Ltd [1987] PNGLR 78). It has now been reduced into a rule of Court. Had the respondent written the required letter we would expect the problem would have immediately come to light and would have been rectified. The respondent would have received a copy of the defence which she unfortunately did not receive in consequence of the appellant's lawyer’s letter of 25 October 2005. Thus if the respondent had followed the practice direction she would have been rapidly placed in the same position as she would have been if the defence had been placed on the file when it was filed.
    
13. The evidence was equivocal at best, and in our view amounted to evidence that the defence was filed within time, against evidence that the defence was not on the relevant court file, and there was no positive evidence that the defence was not filed. The fact that the practice direction was not complied with should have, in our view, tipped the scales in favour of refusing the application for default judgment. We believe this is particularly so considering that the rules are designed to achieve a fair trial for all of the parties, and not to deprive one of the parties to a trial, to the advantage of the other, when the evidence pointed to the fault lying with the Registry as much as with any other party.
    
14. The absence of the defence from the court file did not prejudice the respondent's rights permanently or on a manner justifying depriving the appellant of a trial.
    
15. For these reasons we consider that the appeal should be allowed, the judgment of the National Court of 3 March 2006 quashed, and the appellant's defence dated 20 October 2005 treated as having been filed on that day. We so order. The respondent shall pay the appellant's costs of the appeal.
    

_______________________________

Bradshaw Lawyers: Lawyers for the Appellant
Respondent in Person