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Fraser v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 25; N1089 (6 July 1992)

Unreported National Court Decisions

N1089

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 257 OF 1992
DONALD NORMAN FRASER
PLAINTIFF
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT

Waigani

Brown J
1 July 1992
6 July 1992

PRACTICE AND PROCEDURE - Application to set aside judgment “by default” - Judgment irregularly entered - Onus of proof - Not a question of discretion - Absence of evidentary material - National Court Rules O 12 r.34; O 6 r.3; O 12 r.24-26.

In proceedings the plaintiff purported to serve the originating process on the Trust by leaving it with a named person at the offices of the Trust, alleging that she was “authorised to accept service”.

On the hearing of a notice of motion, seeking to set aside an interlocutory judgment which the plaintiff conceded in his grounds was regularly entered, Counsel for the plaintiff raised an oral argument of irregularily on the face of the record. He argued that the affidavit of service, failed to show any sufficient service of the orginating process.

Held

(1) That O 12 r.34 relates to the need for proper evidence to prove service.

(2) Personal service on a Statutory Corporation must be strictly proved if interlocutory judgment is to follow.

(3) The Registrar, when entering interlocutory judgment pursuant to O 12 rr.24-26 is exercising a judicial function capable of review by a Judge.

(4) There being no proper evidence of service, the judgment should be set aside ex debito justitiae, apart from any consideration of a defence on the merits.

Cases Cited

Green & Co (Receiver Appointed) v. Green (1976) P.N.G.L.R. 73.

George Page Pty Ltd v. Malipen Bus Balakau (1982) P.N.G.L.R. 140.

Counsel

Mr P. Fairclough, for the plaintiff

Mr C. Hartshorn, for the defendant

BROWN J: This is a claim for unliquidated damages for injuries suffered by the plaintiff as a result of negligence of the driver of a motor vehicle. Consequently in default of defence the plaintiff is entitled to interlocutory judgment limited to liability against the defendant, damages to be assessed. In fact “default judgment” was entered by the Registrar on the 10 June 1992. (O 12 r.28 of the National Court Rules refers).

The defendant by notice of motion seeks to set aside that default judgment and be given leave to file and serve a defence within a specified period. That notice relied on facts seeking to explain the failure to lodge a defence and seeking to show a valid defence. I find I need not consider those matters, for during the initial stages of the hearing of the motion the defendant raised the argument that the default judgment had been irregularly obtained.

The Court in circumstances of this nature has power to correct errors and I proceeded to hear argument on that point. The entry by the Registrar of interlocutory judgment is not merely an administrative act but is imbuded with a judicial function. The Court may review the exercise of that function.

The defendant points to the Affidavit of Service of the originating process as defective and consequently the default judgment based as it is on the fact of service should not be allowed to stand. It is void and of no effect, not merely voidable.

The Affidavit of Service was by one John Simage. He deposed to the fact that he is a clerk in the employ of Messrs Henao Priestly Lawyers for the plaintiff. He further deposed:

“2. THAT on the 22nd day of April 1992 at 2.10 p.m. I served a sealed copy of the Writ of Summons 257 of 1992, a true copy of which is annexed hereto and marked with the letter “A” at the Head Offices of the Defendant on the 4th Floor, Cutherbertson House, Cutherbertson Street, Port Moresby by handing the aforesaid Writ to one Mary Mataneopa a person over the age of 18 years and authorised to accept service of same”.

It is clear from the Affidavit of Service that there is no assertion that the defendant Trust has been served, rather one Mary Mataneopa. There is an assertion that she is authorised to accept service, but there is no evidence and consequently no weight should be given to such an assertion when the result has such a serious effect on a defendant. That is the only evidence of service on the defendant Trust.

Mr Hartshorn for the defendant submitted that the procedure regarding the entry of interlocutory judgment is regulated by National Court Rules O.12 r.24-26.

Rule 34 provides “judgment shall not be entered against the defendant under this division unless:

(a) an affidavit is filed by or on behalf of the plaintiff proving due service of the Writ of Summons or notice of the writ on the defendant; or

(b) ... and

(c) an affidavit is filed by or on behalf of the plaintiff proving the default of the defendant upon which the plaintiff relies”.

It is clear that the plaintiff purports to rely on the affidavit of service of John Simage, material parts of which have been set out above.

Mr Hartshorn goes on to say that the affidavit of service does not satisfy the requirements of r.34(a) in that it inter alia does not prove service of the Writ. “Service” is provided for by O 6 r.3:

“3. Personal Service: how effected

(1) Personal service of a document may be effected by leaving a copy of the document with the person to be served, or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.

(2) Personal service of a document on a Corporation may be affected by serving a document in accordance with the last preceding sub-rule on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasure or other similar officer of the Corporation.

(3) The last preceding sub-rule applies in addition to any provisions for service on a Corporation made by or under any Act.”

Section 3 of the Motor Vehicles (Third Party Insurance) Act (the “Act”) states:

“3 Establishment of the Trust

(1) A body by name of the Motor Vehicles Insurance (PNG) Trust is hereby established.

(2) The Trust:

(a) is a corporation; and

(b) has perpertual seccession.

The defendant is a Statutory Corporation. Mr Hartshorn says upon a reading of s 3 of the Act bearing in mind National Court Rules O 6 r.3(1)(2) & (3) in this case, service on the Trust since the Act is silent, must be in accordance with those rules. Mr Hartshorn asserted that the judgment has clearly not been regularly entered, an essential pre-requisite. In support, Mr Hartshorn quotes para 559 Vol 23 of Halsbury’s Laws of England (4th Ed):

“Where a judgment in default of appearance or defence has been entered before the proper time or where there has been no service or no sufficient service or it has been entered for a greater amount than is due or there has been a breach of good faith it will be set aside ex debito justitiae, apart from any considerations as to whether there is a good defence on the merits and the plaintiff is usually ordered to pay their costs occasion by the judgment or order”.

Mr Hartshorn alo relied on Green & Company Pty Ltd (Receiver Appointed) v. Green (1976) PNGLR; 73 and George Page Pty Ltd v. Malipen Bus Balakau (1982) PNGLR; 140. Those cases touch on the need to distinguish been judgments irregularly entered, as in this case, and those regularly entered when other considerations apply. both O’Leary J (Greens case) and Greville Smith (George Pages Pty Ltd’s case) accepted the entitlement in the defendant, where judgment is irregularly entered, to have it set aside ex debito justitiae.

Mr Hartshorn points to the Affidavit of Service as being defective in that while it purports to rely on personal service, there is no evidence he says to prove that Mary Mataneopa was an officer of the defendant, or that in fact she was authorised. There is no evidence that she was authorised to except service on behalf of the Trust. A statement which amounts to no more than an opinion of the deponent, should, he says, be struck out of the affidavit.

Section 4 of the Act provides:

“4. Constitution of the Trust

(1) The Trust shall consist of:

(a) Four directors appointed by the Minister, by notice in National Gazette, after receiving a recommendation from a licenced insurers jointly; and

(b) The Departmental Head of his nominee; and

(c) The Commissioner; and

(d) The Secretary for Justice or his nominee.

These are persons who Mr Hartshorn says, would constitute the “other similar officers of the Corporation” referred to in O 6 r.3(2). In the circumstances the defendant says, the judgment should be set aside.

Mr Fairclough for the plaintiff says that the defendant has not raised any irregularity in its notice of motion. I should say straight away that a Judge may correct an error on the face of the record. Since the plaintiff seeks to proceed in default of appearance of the defendant, there is a strict obligation on the the Registrar to satisfy himself before granting interlocutory judgment, that rules of Court permitting interlocutory judgment, have been strictly complied with. Those rules,of course,include the necessity to strictly prove service. Whilst the motion does not touch on the irregularity, the defendant is not precluded from raising the issue. The “default judgment” may be flawed, where on the face of the record, it appears the rules have not been sufficiently complied with. I consequently do not accept the plaintiff’s assertion that the defendant must first raise the irregularity in its motion before it may be heard, it should be set aside ex debito justitiae.

The affidavit of service Mr Fairclough says is prima facie proof of proper service. Thereupon the onus shifts to the defendant to establish to the contrary. In my view, the onus does not shift. The plaintiff in its Affidavit of Service must strictly prove service in accordance with the rules and the law. An assertion as can be seen from the Affidavit of Service is not evidence of the fact of service. Whilst he asserts that Mary Mataneopa is “authorised to accept service” no authorisation has been shown. The deponent has recounted no conversation in the first person to confirm her employment, her status, whether she was able to accept service for instance on the Trusts behalf or whether the process server gave notice of the nature of the document which he sought to serve on her. She may well have been a stranger in the waiting room at the time. We have no idea. It must be remembered that service must be strictly proved and the rules of evidence apply. The commonly accepted method of service is for the process server to re-count the conversation with the person personally served.

He should introduce himself and recount the nature of his business, to serve the Trust with a Writ of Summons, before asking who the person sought to be served, on the Trust’s behalf, is, her position with the Trust and whether she is able to accept service on the Trusts behalf. Her authority should be produced.

All this should be recounted in the first person in the affidavit. On the evidence of the conversation re-counted in the first person, the requirements of O 6 r.3(2) may have been satisfied.

Mr Fairclough further went on to assert that if the Court found service not strictly in accordance with the rules, there was a discretion in the Court to find sufficient service for it had been the practice of the defenant to concede service in these circumstances in prior actions of this nature. I know nothing of the practice but it is a practice which cannot avail the Trust when the point is taken for “service” is provided for in the National Court Rules or the Act under which the Trust operates. The argument of Mr Fairclough to that extent then must fail. I accept the argument of Mr Hartshorn. It follows that the default judgment of the 10 June 1992 has been entered irregularly and is accordingly defective. The judgment is set aside. The defendant is let in to defend. A defence shall be filed within 14 days. The plaintiff shall pay the defendant’s costs of the motion.

Lawyers for the plaintiff: Henao Cunningham Priestly

Lawyers for the defendant: Gadens Ridgeways