SC1091 

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA N0. 43 0F 2009

Between:

LINA KEWAKALI
Appellant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Davani, Kariko & Sawong JJ
2011: 28 February, 11 March
 
APPEAL – appeal against dismissal of application for default judgement – exercise of discretion whether or not to grant application – considerations in exercising discretion – delay and inaction may amount to abuse of process - tortfeasors must be named as parties - court may make orders necessary to progress proceedings. 

Facts:

The Appellant filed a suit in the National Court claiming damages for deprivation of her liberty and personal injuries caused by policemen were named in the Statement of Claim but were not included as defendants. This appeal is against a decision of the National Court refusing an application by the Appellant for default judgement. 

Held:

(1)	The law is well-settled that an appellate court should be slow to interfere with the exercise of a discretionary power by the lower court unless the appellate Court is satisfied that the court below:

(a)	acted upon a wrong principle, or

(b)	gave weight to extraneous or irrelevant matters or

(c)	failed to take into account relevant considerations, or

(d)	made a mistake as to the facts, 

and even where there is no identifiable error, the appellate court can infer such an error if the resulting judgment is "unreasonable or plainly unjust". Bean v Bean [1980] PNGLR 307; Curtain Brothers (PNG) Ltd v UPNG (2005) SC78; and Telikom PNG Limited v ICCC (2008) SC 906 followed. 

(2)	Entry of default judgement is not a matter of right even where the preconditions are satisfied, as the decision whether or not to order default judgement remains a discretionary matter for the court. Agnes Kunton & Ors v John Junias & Ors (2006) SC929; Lambu v Torato (2008) SC953 followed. 

(3)	The inordinate delay in filing application for default judgement and the filing of duplicate writs may amount to an abuse of process justifying the refusal to enter default judgement. Tiaga Bomson v Kerry Hart (2003) N2428 considered and applied.

(4)	Where vicarious liability is claimed, the plaintiff must name the servant or agent or alleged tortfeasor as defendant and must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant. Kuk Kuli v. The State (2004) N2592; Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492 considered.

(5)	If a plaintiff's cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute. Sear v. Lawson (1881) 16 ch. D. 121; Read v. Brown (1988) 22 Q.B.D 128 applied.

(6)	The court has inherent powers to take firm control of the proceedings to ensure that the business of the court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case, and this includes making necessary orders to progress a case. Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 applied.

(7)	There being no errors by the trial judge, the appeal is dismissed.

Cases cited:
Papua New Guinea cases

Bean v Bean [1980] PNGLR 307
The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR5
Kante Mininga v The State (1996) N1458
Abel Tomba v. The Independent State of Papua New Guinea (1997) SC518
Bala Kitpa v. Vincent Auali (1998) N1773
Anton Kaluni v. Aiyale Warole (2001) N2114
Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085
Tiaga Bomson v Kerry Hart (2003) N2428
Mali Pyali v Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492 
Puk Num v The Independent State of Papua New Guinea (Unreported Judgment of Salika, J delivered on 12th September 2003).
Kuk Kuli v The State (2004) N259
Beecroft No. 51 Ltd v. Neville Seeto (2004) N2561
Urban Giru v. Luke Muta (2005) N2899
Curtain Brothers (PNG) Ltd v UPNG (2005) SC78
Agnes Kunton & Ors v John Junias & Ors (2006) SC929
Telikom PNG Limited v ICCC (2008) SC906 
Lambu v Torato (2008) SC953

Overseas cases

Read v. Brown (1988) 22 Q.B.D. 128
Sear v. Lawson (1881) 16 ch. D. 12

Counsel:

Mr J Talopa, for the appellant
Mrs R Gelu, for the respondent

DECISION

11 March, 2011

1.	BY THE COURT: This appeal is against a decision of the National Court refusing an application by the Appellant for default judgement in the proceeding WS 1524 of 2006 ("WS 1524").

Background 

2.	The Appellant filed WS 1524 on 19 October 2006 claiming damages against the Respondent for deprivation of her liberty and personal injuries she suffered as a result of the wrongful imprisonment and rape committed upon her on 23 January 2001 and 24 February 2001 (which apparently should read 24 January 2001) at Baiyer River, Western Highlands Province. 

3.	These acts were alleged to have been perpetrated by two auxiliary policemen then based at the Baiyer River District Rural Police Station.

4.	The Appellant further alleged that the two policemen were acting in the normal course of their duties and the Respondent is therefore vicariously liable for the wrongs committed by the policemen as servants and agents of the State by virtue of the Wrongs (Miscellaneous Provisions) Act.

5.	Although, the Respondent was properly served the Writ of Summons, no Notice of Intention to Defend or a Defence was filed by the State.

6.	This proceeding was still pending when the Appellant filed another suit WS 755 of 2007 on 5 May 2007 for the same matter which named the same parties, and contained the same statement of claim and relief sought ("WS 755"). 

7.	In response to being served WS 755, the Respondent filed a Notice of Intention to Defend on 9 July 2007 and a Defence on 24 July 2007 which included a defence that the claim by the Appellant was statute-barred. 

8.	By letter dated 23 October 2008, the Appellant advised the State that it had wrongly filed WS 755 when WS 1524 was still pending. The Appellant also informed the State that it intended to withdraw WS 755 and forewarned that she would consider seeking default judgement if a Notice of Intention to Defend and a Defence in respect of WS 1524 were not filed.

9.	On 4 March 2009, leave was granted for WS 755 to be withdrawn. 

10.	By letter of 17 March 2009, the Appellant advised of the withdrawal of WS 755 and again forewarned of her intention to apply for default judgement in WS 1524. 

11.	The State failed to file the documents and the Appellant filed her application for default judgement on 31 March 2009. 

12.	This application came on for hearing before His Honour Gavara-Nanu J on 15 April 2009 and was declined by His Honour, who also ordered that the State file its defence within 14 days. In coming to the orders, His Honour held:

"There appears to be an abuse of process in these proceedings. Also the statement of claim does reveal that there are other parties who should be named in the proceedings and have not been named." 

13.	It is this decision that gives rise to the present appeal.

Grounds of appeal

14.	The grounds of appeal set out in the Notice of Appeal are:

Ground 4.1 
The trial judge erred in law and in fact in refusing the application for default judgment. Factually, there was overwhelming evidence of default by the Defendant/Respondent, despite numerous adequate forewarnings required by law. In the circumstances, the trial judge was required by law to exercise discretion in favour of the Plaintiff/Appellant by entering judgment in her favour. In refusing to do so, the appellants the trial judge erred both in law and in fact.

Ground 4.2 
The trial judge in the exercise of discretion erred in law and in fact in refusing the application for default judgment, by taking into account the consideration that the policemen responsible were not individually named as parties/co-defendant to the proceedings.

Ground 4.3
The trial judge in the exercise of discretion erred in law and in fact in, making orders granting leave to the Defendant to file its Defence out of time, when there was no formal application before the judge, either oral or in writing, supported by affidavit evidence seeking such orders, and granting such orders the trial judge denied the Plaintiff procedural fairness and natural justice.

15.	The grounds of appeal may be summarised as follows:

(a)	That the trial judge erred in dismissing the application for default judgement as the respondent had defaulted in filing its defence and the appellant had met the necessary requirements to be granted default judgement. 

(b)	That the trial judge erred in dismissing the application for default judgement on the basis that the alleged policemen tortfeasors were not named as defendants.

(c)	That the trial judge erred in granting leave to the respondent to file its defence when:

(i)	There was no application before him for such leave; 
 
(ii)	There was no evidence explaining the failure to file the Defence; and 

(iii)	Counsels were not given the opportunity to address on the issue. 

Appeals against exercise of discretion - Principles

16.	It is clear that the orders of His Honour Gavara-Nanu J were made in the exercise of the court's discretion. 

17.	The law is well-settled that an appellate court should be slow to interfere with the exercise of a discretionary power by the lower court unless the appellate Court is satisfied that the court below:

(a)	acted upon a wrong principle, or

(b)	gave weight to extraneous or irrelevant matters or

(c)	failed to give take into account relevant considerations, or

(d)	made a mistake as to the facts, 

and even where there is no identifiable error, the appellate court can infer such an error if the resulting judgment is "unreasonable or plainly unjust". Leading case authorities establishing these principles include Bean v Bean [1980] PNGLR 307; Curtain Brothers (PNG) Ltd v UPNG (2005) SC78; and Telikom PNG Limited v ICCC (2008) SC 906. 

Abuse of Process 

18.	The first of the two reasons by trial judge for refusing the Appellant's application is that he considered the proceeding to be an abuse of process. 

19.	The Appellant has argued that his Honour erred in reaching this conclusion. She submitted that while duplicate writs were filed, the second of these was filed in error. In presenting his submissions, counsel for the Appellant repeatedly described the second writ as "duplicitous" which means "deceitful" but we take it that he meant "duplicate" meaning "same". The situation with the duplicated proceedings was corrected when WS 755 was withdrawn and only one action was left pending, WS 1524. The Sate had yet to file a Notice of Intention to Defend and a Defence in respect of WS 1524. She then followed proper practice of forewarning the Respondent and she did this twice. When the State still failed to file the required documents, she moved for default judgement. She argued that His Honour erred by not giving weight or sufficient weight to these factors, and the Appellant had properly satisfied the preconditions meriting the grant of default judgement.

20.	But entry of default judgement is not a matter of right even where the preconditions are satisfied, as the decision whether or not to order default judgement remains a discretionary matter for the court. See Agnes Kunton & Ors v John Junias & Ors (2006) SC929; Lambu v Torato (2008) SC953. 

21.	His Honour confirmed with counsels the background of the proceedings, particularly the fact and circumstances concerning the duplicated writs, before handing down his decision. He no doubt addressed his mind to the background before making his ruling. From this background we note that:

(a)	The duplicated action was filed 7 months after the first writ. The only explanation for this duplication is that it was done erroneously through an oversight. This explanation is difficult to accept as the same law firm filed both proceedings. It is not a case where the Appellant engaged a second lawyer who was unaware of the first proceedings. The excuse does not say much for the firm concerning administration of clients' files.

(b)	Be that as it may, the Appellant ought to have taken steps for default judgement much earlier. WS 1524 was filed on 19 October 2006. When the Respondent failed to file its Notice of Intention and Defence in December 2006, the Appellant should have then considered default judgement proceedings. As it happened, the application for default judgement was filed some 2 years 3 months later.
 
(c)	During that time, the duplicate proceeding WS 755 was filed. The State filed its Defence to this writ (including a claim that the action was statute-barred) which we view would have clearly succeeded. The cause of action arose on 24 January 2001 and WS 755 was filed 5 May 2007 which was outside the 6 year time limitation allowed by the Frauds & Limitations Act 1998.

(d)	About 15 months after the Defence was filed, the Appellant then realised its error concerning the duplicated proceedings and took steps starting October 2008 to withdraw WS 755 and seek default judgement on WS1524. By then it was nearly 2 years since WS 1524 was filed and about 17 months since WS 755 was filed. 

22.	The Appellant must carry much of the blame for the jumbled and sluggish manner her claim progressed in the National Court. Where a plaintiff has not prosecuted his case diligently, the court may refuse entry of default judgement notwithstanding the preconditions having been met for default judgement; see Tiaga Bomson v Kerry Hart (2003) N2428. In that case which involved inactivity on the part of the plaintiff for 15 months from the time of filing a writ to filing of its application for default judgement, His Honour Kirriwom J had this to say: 

"I find that the plaintiff has delayed unduly to prosecute his motion and also to bring this case to finality and in equity, he does not come with clean hands and I am not inclined to grant him the relief he seeks. ........

The manner in which the parties have been dillydallying around with this case is a gross abuse of the legal process. The integrity of the Court system rests on the users of the court who come to it with genuine grievances." 

23.	In applications for default judgment, the applicant is saying that the defendant has not complied with the Rules of Court and that therefore, the plaintiff is, as of right, entitled to default judgment. A Court hearing an application for default judgment, should not just 'tick the boxes' so to speak but must also review the Statement of Claim to see if the action is one where default judgment can be entered. O.12 R.32 of the National Court Rules gives the Court a wide discretion to enter or not to enter, default judgment. Even when proof of due service or process on a defendant or proof of the default is established by the plaintiff/applicant, the Court still has a discretion to refuse to enter default judgment in cases where, for instance, the effect of the default judgment would affect the rights of other co-defendants or do not disclose a reasonable cause of action or that the default judgment cannot be sustained in law. (Kante Mininga v. the State (1996) N1458; Anton Kaluni v. Aiyale Warole (2001) N2114; Beecroft No. 51 Ltd v. Neville Seeto (2004) N2561; Urban Giru v. Luke Muta (2005) N2899). In this case, the Trial Judge obviously saw the inadequacies in the Statement of Claim and ordered as he did. In Bala Kitpa v. Vincent Auali (1998) N1773 another category was added that where a claim in a Writ raises serious allegations of fraud or deceit on the part of the plaintiff, in certain cases, the interest of justice would require those allegations to be proved by evidence in trial before judgment is given on the merits.

24.	We find that the Appellant too did not come to Court "with clean hands" when she sought default judgement. There was inordinate delay in prosecuting her claim. We are also of the opinion that the pace and manner in which the Appellant pursued her case, particularly the filing of the duplicate suit and its subsequent withdrawal, to be "dillydallying" amounting to an abuse of process. We therefore see no error in the trial judge finding an abuse of process.

25.	Accordingly we dismiss the first ground of appeal.

Naming principal tortfeasor as a party

26.	The next ground of appeal raises issues of pleadings, and involves an appreciation of who should or should not be named as a party to a proceeding. It does not raise any evidentiary matters. In our view the issue of pleadings, the adequacy or inadequacy thereof, should not be confused with evidentiary matters in proof of the allegations pleaded in an originating process. To do so would lead to confusion and may blur the issue to be dealt with. Accordingly, our comments are restricted only to the adequacy or otherwise of the pleadings in general and in particular to this case. 

27.	Under this ground of appeal, it is submitted for the Appellant that the learned trial judge erred in law and in fact in the exercise of his discretion in refusing to grant default judgment, when he took into consideration that the policeman responsible for the unlawful conduct were not named as parties to the proceeding. 

28.	The Appellant submitted the policemen were properly identified in the statement of claim and therefore the proceeding was not defective in law by reason of not naming the agents and servants as co-defendants. For this proposition, the appellant relies on several National Court decisions: Kuk Kuli v. The State (2004) N2592; Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492; Puk Num v. The Independent State of Papua New Guinea (Unreported Judgment of Salika, J (as he then was) delivered on 12th September 2003).

29.	The Respondent submitted that in order for the State to be vicariously liable, the principal tortfeasors must be named as parties to the proceedings. It was submitted that merely naming the principal tortfeasors in the statement of claim is not sufficient. 

30.	A brief perusal of the cover page of the WS 1524 shows that only the State is named as a party. The auxiliary policemen who were alleged to have committed rape upon the Plaintiff are not joined as parties. Neither is the Commissioner of Police or the officer allegedly in charge of the Auxiliary Policemen. However, they are named in paragraph 3 of the Statement of Claim. 

31.	The State is named as a party based on vicarious liability, that is, it is alleged that the State is vicariously liable for the unlawful conduct of the auxiliary policeman. 

32.	At common law, there was no right of action against the crown (State). Thus there was no right of action in tort against the Crown (State) and there was therefore no means of making the Crown liable in tort. But this came to an end in 1947. Crown immunity in tort was brought to an end with the passing of the Crown Proceeding Act 1947. See Clerk & Lindsell on Tort 17th Edition p. 142. Section 2(1) of that Act is expressed in similar terms as the provisions of the Wrongs (Miscellaneous Provisions) Act, Chapter 297 ("the Wrongs Act"). 

33.	Section 1 of the Wrongs Act reads:

"1. General liability of the State in tort.

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a)	in respect of torts committed by its servants and agents; and

(b)	in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process."

34.	There have been a number of decisions in the National Court which say that it is not necessary to state the names of the servants and/or agents of the State who committed the wrong as a party and that it is sufficient to name the State only. These cases were relied upon by the Appellant as noted earlier.

35.	In Kuk Kuli v. The Independent State of Papua New Guinea (supra), the Plaintiff issued proceedings against the State only, for damages arising out of alleged destruction of properties in a village during a police raid. An application was made by the State to have the proceeding dismissed for not disclosing a cause of action, and secondly for not having any of the policemen allegedly involved named as co-defendants. The State argued therefore that it was not liable pursuant to Section 1(2) of the Wrongs Act. In regard to the second issue, the learned trial Judge after briefly discussing the issue of vicarious liability and the provisions of Wrongs Act, held that it is not necessary to join or name the servant or agent of the State as a co-defendant so long as the pleadings establish that: 

(a)	a tort was committed; 

(b)	the tort was committed by a person who is a servant or agent of the State; and

(c)	the tort was committed by the servant or agent in the course of his employment.

He also reached his conclusion on the basis that the Wrongs Act does not require the servant or agent of State to be named as a co-defendant, and also for the reason that State was in a better position to pay the compensation.

36.	Those decisions have also stated that so long as the names of the tortfeasors are pleaded in the statement of claim that is sufficient to establish a cause of action against the nominal defendant (the State).

37.	In Mali Pyali v. Chief Inspector Leo Kabilo and the Independent State of Papua New Guinea (supra), another case involving a police raid, the Plaintiffs filed proceedings against both the commander of the policemen who conducted the raid and the State. The proceedings did not name each of the policeman involved in the raid, as co-defendants. In that case, the court also held that it is not necessary to name the individual policemen as parties so long as vicarious liability is properly pleaded and supported by evidence. 

38.	The major difference between the proceedings in Kuli's case and Pyali's case is that in Pyali's case, the commander of the principal tortfeasors was joined as a party (the first defendant) so as to connect him and the State as the second defendant. The statement of claim also pleaded the nexus between the First Defendant and the Second Defendant. So the decision in Pyali's case was correct not because the individual policemen involved in the raid were not named but because the nexus with the State was established by naming the commander as a party.

39.	In the text Australian Civil Procedure by Bernard C Cairns, 3rd edition, the learned author states at p. 236;

"pleadings raise causes of action and defences only between the correct parties. In naming the wrong defendant the plaintiff fails to plead a cause of action."

And at p. 237 of the same text, it reads;

"As a generality, the principle as to naming of parties is that all parties who are necessary and proper for the resolution of the dispute must be before the Court. The jurdicature principle is that all matters of dispute shall be resolved and for that to be achieved, the Court must have before it all the disputing parties……"

40.	In addition, we view the provisions of s. 1(2) of the Wrongs Act provides by necessary inference that a servant or agent of the State who has been alleged to have committed the wrong, must be named as a party or a co-defendant. In our view, if a plaintiff does not name the alleged principal tortfeasor there is a no nexus or connection so there will not be a cause of action against the nominal defendant (the State). Thus, it is our opinion that to do justice to all parties, the Plaintiff must name the servant or agent of the State or the alleged tortfeasor and must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant. This is because to succeed in having the State held liable for the tort of a policeman, the Court has to be satisfied that:

(a)	The policeman as a servant or agent of the State, committed the tort during the course and within the scope of his employment (s.1(1)(a) Wrongs Act);

(b)	The policeman as an officer of the State, committed the tort while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law (s.1(4) Wrongs Act; The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR 5); David Wari Kofewei (supra) and Abel Tomba v. The Independent State of Papua New Guinea (1997) SC 518 did not say that vicarious liability automatically follows against the State as soon as the wrong doer is found as an employee of the State. That is only one-half of the consideration. They must have been found to have been acting within the scope of their employment. 

41.	Furthermore, if a plaintiff's cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute ( (Sear v. Lawson (1881) 16 ch. D. 121; Read v. Brown (1988) 22 Q.B.D 128) which also includes the specific pleading of the statute and the provision of that statute.

42.	In saying so, we do not for the moment suggest that, for instance, if there is a police raid that all the policemen involved should be named. On the contrary it would be sufficient to name at least one or two of the policemen involved as co-defendants or follow what was done in Pyali's case, that is, name the immediate commander, so as to bring into play the principles of vicarious liability between the principal tortfeasor and the nominal defendant. 

43.	Even where the plaintiff is unable to identify the principle tortfeasor, for example if such a raid occurred in the dark and middle of the night, it would still be necessary to establish the nexus by naming the commander as in Pyali's case. The plaintiff may need to investigate to satisfy himself which station, unit or division the policemen came from to identify the commander of the station, unit or division and name him as a defendant. Otherwise a pleading claiming unlawful conduct by policemen not named as parties to the proceedings, could well be struck out as general and vague. 

44.	In the present case, the principal tortfeasor is not named as party. The Plaintiff has only pleaded the names of the principal tortfeasor in the body of the Statement of Claim. That is not sufficient. 

45.	Accordingly, we find no identifiable or unidentifiable errors on the part of the learned trial judge in exercising his discretion. We would therefore dismiss this ground of appeal.

Order to file Defence 

46.	The Appellant has further argued that His Honour the trial judge also erred in law in ordering the State to file its Defence within 14 days after rejecting the motion for default judgement.

47.	This submission was that the order was wrong because there was no formal application for leave to file defence out of time and no evidence to justify leave being granted. The Appellant also submitted that counsel should have been called to address on the issue.

48.	Having dismissed the application for default judgement, the status of the case was that the Writ of Summons was the only pleading on file. The next step to progress the case was for the filing of the Notice of Intention to Defend and the Defence. The time period allowed by the National Court Rules to file these documents of course had long since lapsed. The State could next file an application for leave to file out of time but that would of course involve further delay. In refusing the motion for default judgement, it can be reasonably inferred that His Honour also did not consider the default by the State as sufficiently serious to warrant default judgement. It is noted that the State in fact properly filed a defence, albeit in relation to WS 755. So it is not a case where the respondent had not taken any action at all.

49.	It is trite law that the National Court has inherent jurisdiction to control and supervise its proceedings and deal with them in an orderly fashion while being fair to the parties to ensure the case progresses without undue delay. Injia J (as he then was) observed in Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 that:

"The court has wide powers to control the conduct of proceedings before it, subject of course to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the court to take firm control of the proceedings to ensure that the business of the court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case."

50.	Bearing in mind the background of "dillydallying", the order to file a Defence was a proper exercise of discretion by the trial judge using the inherent powers of the court to advance the case. The situation did not warrant address by counsel. There was sufficient material before the court to decide and make appropriate orders to progress the matter.

Conclusion

51.	The appellant has failed to demonstrate or convince us that the trial judge acted on a wrong principle of law or that he gave weight to extraneous or irrelevant considerations or failed to take into account relevant considerations or made a mistake as to the facts or that the judgment is unreasonable or plainly unjust. (See Bean v. Bean (supra); Curtain Brothers (PNG) Ltd v. UPNG; Telikom (PNG) Limited v. ICCC (supra). 

52.	We will dismiss this appeal in its entirety. 

Orders

53.	Given all the foregoing reasons, we disallow the appeal and order as follows:

(a)	The appeal is dismissed.

(b)	The Appellant shall pay the Respondent's costs of this appeal, to be taxed if not agreed.

________________________________________________________________

Harvey Nii Lawyers: Lawyer for the Appellant
Solicitor- General's Office: Lawyer for the Respondent