National Court of Papua New Guinea

M Pokia for First Defendant

No appearance for the Second and Third Defendants

24 May 1996

INJIA J: This is an applic on motiomotion on notice by the Plaintiff seeking default judgement against the First Defendant only. This is the second of suti motion against the Firstndant. The Second and Third Defendants are medical doal doctors who were employed by the First Defendant at the material time a is alleged that they were negligent in performing their duir duties which resulted in injuries to the Plaintiff. The First Defendansought tght to be made vicariously liable for the torts allegedly committed by the Second and Third Defendants pursuant to S. 1 e Wrongs Act Ch 297.

On 25th March 1994, the Plaintiff applied for and the Court entt entered default judgement against the First Defendant. At that tim Second and Thid Third Defendants were not named as defendants in the proceedings. Subsequentlya result of quof queries raised by the Court as to the propriety of the default judgement being entered against the State as thenal defendant in respect to torts allegedly committed by the two doctors employed by the Sthe State at the Mount Hagen General Hospital, the Plaintiff, upon application, was granted leave to file and serve an amended writ which included the Second and Third Defendants. Except for the inon of thef the second and third defendants and other related consequential amendments to the Writ, the statement of claim endorsed on the writ remained essentially unaltered. On 6th March 199e amended nded writ was re-served on the first Defendant. The S and Third Defendantsdants were also served with the amended writ. Consequently whils Second and Third Defendants filed and served their respectspective Notice of Intention to Defend and Defence denying the claim, the Firstndant once again failed to file and serve its Notice of Intention to Defend and Defence.&#1e. Trst Defendant is thereforrefore in default of filing and serving these documents. This applicator entry of d of default judgement against the First Defendollows that default. The affidavit o Plaintiff&tiff&#iff’s lawyer filed in support of this motion proves the clue servicehe amended writ on the Firs First Defendant and default of the First Defendant. Pursuant to O. 12 r.nd of d of the National Court Rules, default judgement may be entered in these circumstances.

Counsel for the First Defendant Mr M Pokia submits that nottanding the default, this is not an appropriate case where here default judgement should be entered against the First Defendant because it would prejudice the rights of the First and Second Defendants to defend the claim. Hmits that the First DefenDefendant’s vicarous liability is based on a finding of the tort of professional negligence committed by the Second and Third Defts and since that issue is yet to be determined, it would nuld not be proper to enter default judgement against the First Defendant.

Even if Mr Pokia did not appear and raise these issues, I would still have raised them on my own initiative. Duringment, I also raised ised questions about the prejudice which the First Defendant could suffer if the Second and Third Defendants successful in defending the claim but then faced with a default judgement which has no baso basis in law for it to meet. I alssed the other prospecospect of the Second and Third Defendants defences being likely to be prejudiced if default judgement was ed against the First Defendant, which default judgement would impute negligent conduct on thon their part.

Order 12 r. 32 of the Rules gives the Court wide discretion to enter default judgement. Even when proof of dueice vice of process on a defendant and proof of the default is established by the Plaintiff/applicant, the Court still has a discretion to refuse to enter defaudgement in cases where for instance, the effect of the defa default judgement would prejudice the rights of other co-Defendants, or that the pleadings are so vague or do not disclose a reasonable course of action or that the default judgment cannot be sustained in law.

In this case, I am of the view that the entry of default judgement would seriously prejudice the defences of the First and Second Defendants. I am also of the view that a default judgement cannot be sustained in law against the First Defendant in this situation where the second and third Defendants, for whose torts the First Defendant is vicariously liable, haled their defences denying ying the Plaintiff’s claim and which issues is yet to be determined by this Court.

For these reasons, I dismiss the motion. This ruling has the effect of disposing of or setting aside the earlier default judgement against the First Defendant entered on 24th March 1994. Pursuantrder 12 r. 35, thi, this Court has wide powers to set asidefault judgement, with or wior without the application of the party against whom the default judgement is entered.

Costs shall the cause.

Lawyer fyer for the Plaintiff: Kopunye Lawyers

Lawyer for the First Defendant: Solicitor General

Lawyer for the Second and Third Defendant: John W Ball & Sons Solicitors’, Victoria, Australia