N377
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PROVEX PTY. LTD.

V

SIROMBA HOTELS PTY. LTD.

Waigani
Bredmeyer J

30 April 1982

PRACTICE AND PROCEDURE - "Pleadings" - What constitutes - Specially endorsed writ of summons - Entry of appearance - Delivery of during vacation - Direction not required - National Court Rules O. 90 rr. 3, 4.

A writ of summons whether specially endorsed or not, is not a "pleading" for the purpose of the National Court Rules, O. 90 r. 3, and may be issued and served within the long vacation without a prior direction from the court.

Murray v. Stephenson (1887) 19 Q.B.D. 60 followed.
Hartley Computer Pty. Ltd. v. Niugini Computer Services Pty. Ltd. [1982] P.N.G.L.R. 23 not followed.
An entry of appearance is not a pleading and must be filed within the prescribed period even during the long vacation.

Cases Cited:

Hartley Computer Pty. Ltd. v. Niugini Computer Services Pty. Ltd. [1982] P.N.G.L.R. 23.
Green and Company Pty. Ltd. v. Green [1976] P.N.G.L.R. 73.
Murray v. Stephenson (1887) 19 Q.B.D. 60.
The Government of P.N.G. and Davis v. Barker [1977] P.N.G.L.R. 386.

Notice of Motion

This was an application to set aside a judgment entered in default of appearance.

Counsel:

G. Kassman, for the plaintiff;
J. Everingham, for the defendant.
Cur. adv. vult.

30 April 1982

BREDMEYER J: This is an application under The National Court Rules, O. 31 r. 15 to set aside a default judgment. The plaintiff issued a specially endorsed writ of summons on 21st December, 1981. It was served on 22nd December. An affidavit of service was filed. The writ of summons commanded the defendant to enter an appearance within twenty-one days failing which judgment might be entered in its absence. No appearance was filed on the due date and a judgment in default of appearance was entered on 3rd February, 1982. On 21st April, 1982, the defendant filed a notice of motion to set aside this judgment and filed an affidavit of Mr. Michael Wilson, solicitor for the defendant, in support.

Order 90 rr. 3 and 4 read as follows:

Rule 3. No delivery of pleadings in vacation.

Pleadings shall not be delivered or amended in vacation unless directed by a court or a judge.

Rule 4. Vacation not to be reckoned in time for delivery etc. of pleadings.

The time of the vacations shall not be reckoned in the computation of the times appointed or allowed by the Rules for filing, amending or delivering any pleading, unless so directed by the court or a judge.

I consider that these rules do not apply to the writ of summons and the appearance and that the judgment was regularly entered.

I now turn to apply the principles established by Green and Company Pty. Ltd. v. Green [1976] P.N.G.L.R. 73 and The Government of P.N.G. and Davis v. Barker [1977] P.N.G.L.R. 386.

The affidavit of Mr. Wilson is wrong in stating he filed an appearance. He did not file an appearance. His affidavit satisfies me that prima facie the defendant has a defence on the merits but does not satisfy me as to the reasons for the delay of two and a half months between the entry of judgment and filing the notice of motion to set aside the judgment. I dismiss the application and award costs to the plaintiff.

Since delivering the above oral judgment I have read the reasons of Pratt J. on the identical point in Hartley Computer Pty. Ltd. v. Niugini Computer Services Pty. Ltd. [1982] P.N.G.L.R. 23, which was not cited to me. As I have come to the opposite conclusion to my brother Pratt on the meaning of O. 90 rr. 3 and 4, I desire to elaborate my view for the assistance of the defendant who may wish to appeal against my decision, and for the benefit of other counsel who will no doubt argue the same point on other occasions.

I consider that a writ of summons whether specially endorsed or not is not a pleading within the meaning of these rules and hence it may be issued and served within the long vacation. I consider that an entry of appearance is not a pleading and that it too must be filed within the prescribed time whether that time falls within the court vacation or not. That is the interpretation given in England to the similar English rule O. 18 r. 5. The note on that rule in the Supreme Court Practice (4th ed., 1979) reads:

"Moreover, the Rule applies only to ‘pleadings’ (see definition, Jud. Act, 1925, s. 225), so that it does not apply to an affidavit or notice of appeal (Re Beldam’s Patent, [1911] 1 Ch. 60, 63); nor does it apply to a statement of claim indorsed on the writ of summons for although such a statement of claim is itself a pleading (Anlaby v. Praetorius (1888) 20 Q.B.D. 764), yet a writ of summons is not within the definition of a pleading (Murray v. Stephenson (1887), 19 Q.B.D. 60), nor does it apply to an originating summons, see Lewis v. Packer, [1960] 1 W.L.R. 452; [1960] 1 All E.R. 720, nor to a preliminary act, nor in matrimonial causes (Matrimonial Causes Rules 1973, r. 25)."

That note refers to the definition of "pleading" in s. 225 of the Judicature Act 1925 (Eng.) which reads:

" ‘Pleading’ includes any petition or summons, and also includes the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of reply of the plaintiff to any counter-claim of a defendant."

The case cited, Murray v. Stephenson (1887) 19 Q.B.D. 60, strongly supports that note. The learned judges there thought it "extraordinary" that a specially endorsed writ could not be served in the long vacation and considered that the definition in s. 100 of the Judicature Act 1873 that a "pleading shall include any petition or summons" did not apply to a writ of summons. It was evidently the well-established practice in England before 1887 for writs of summons to be served in the long vacation and it has been the practice ever since, at least until 1979 when my researches stopped. I am content to follow that long-standing English interpretation and practice and consider that a specially endorsed writ of summons is not a pleading within the meaning of our O. 90 r. 3 and hence may be issued and delivered to the defendant in the long vacation without requiring a prior direction from the court or a judge. I am also firmly of the view that an entry of appearance is not a pleading—I am ad idem with Pratt J. on this—and that it must be filed within the prescribed time during the long vacation.
Application dismissed with costs.

____________________________

Solicitor for the plaintiff: Gadens.
Solicitor for the defendant: Warner Shand Wilson and Associates.