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Paraka v Madang Provincial Government [1997] PGNC 109; N1596 (12 September 1997)

Unreported National Court Decisions

N1596

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1129 OF 1995
BETWEEN:
PAUL PARAKA - Plaintiff
And:
MADANG PROVINCIAL GOVERNMENT - Defendant
WS 1130 OF 1995
BETWEEN:
PAUL PARAKA - Plaintiff
And:
MADANG PROVINCIAL GOVERNMENT - Defendant

Waigani

Doherty J
30 July 1997
12 September 1997

Counsel:

Mr Kawi for the Applicant/Defendant

Mr Baniyamai for the Plaintiff/Respondent

12 September 1997

DOHERTY J: The applicants apply on a notice of motion originally returnable on the 27th November 1996 seeking to have default judgment in the two matters set aside, a garnishee order nisi granted by the Registrar set aside, the defence filed by the defendant on the 19th March 1996 reinstated or that leave be given to amend the defence or leave be given to file a verified defence. The motion was adjourned several times as Counsel indicated there was a possibility of settlement and liberty was given to apply.

There was another related case which was settled, these two did not and the matter came before the Court on the 30th July 1997 for full argument.

It is necessary to understand the background facts. The plaintiff issued a writ of summons against the defendant on the 29th November 1995 claiming damages of K30,000 and K20,000 respectively for invoices rendered to the defendant. The statements of claim said in their respective paragraph 3:

Of WS 1129/95:

“On instructions of members of the Opposition in the then Madang Provincial Government on about January 1995, the Plaintiff acted on behalf of the Opposition members of the Madang Provincial Government in legal proceedings in the National Court of Justice in challenging the decision of the newly elected Speaker of the Provincial Assembly who after being elected, and then going through snap resignation in proceedings OS No 5 of 1995 Between Andrew Ariako v Mahuyu Singoa, Jerry Manyir and Madang Provincial Assembly.” [sic]

Of WS 1130/95:

“On the instructions of the members of the Opposition in the then Madang Provincial Government on about January 1995, the Plaintiff acted on behalf of the Opposition members of the Madang Provincial Government in legal proceedings in the National Court of Justice in challenging the formation of the Gubag/Bain executive Government in the Madang Provincial Assembly after the Provincial elections in December 1994 in OS No 25 of 1995 Between Andrew Ariako v Mathew Gubag and Madang Provincial Assembly and Others.” [sic]

Both writs claimed interest costs and other orders. The wording of this claim is sufficient to set mental alarm bells ringing and poses the obvious questions, how could the Madang Provincial Government - a corporate body - be made liable for a contract between a plaintiff and other people particularly in a challenge to itself? The writ does not clearly state what the cause of action is based upon or how the defendant could be liable other than to make a bold statement that the members of the Opposition through Mr Andrew Ariako had the authority to bind the Madang Provincial Government. The writ recites the defendant is a provincial government established under the Organic Law on Provincial and Local Level Government 1995 however it would appear that when the account for services was rendered that Act was not yet in force. In any event Provincial Government legislation and the current and repealed Organic Law make provision for Provincial Governments, such as the defendant, forming contracts and there is no recital of compliance with those legislative provisions.

Both writs required that the defence be verified.

The writs were served and a notice of intention to defend was filed on 2nd February 1996. Defences were filed on the 18th March 1996 denying the claim and stating that the members of the Opposition did not have any authority or power to bind the then Madang Provincial Government and therefore there was no liability.

There was no verification clause or affidavit verifying the defence filed in either case and on the 24th September 1996 the plaintiff made an ex parte application to the Registrar of the National Court for default judgment to be entered in the amount claimed in each of the writs together with interest and costs under O.12 Div. 3 of the National Court Rules. In an accompanying affidavit he averred to a letter sent on 15th March 1996 to the Solicitor General saying “this is to advise that if by Tuesday, 19th March 1996 no defence is filed in compliance with the rules of the National Court of Justice, we have instructions to enter judgment against your client”. There was a further affidavit stating that a search of the registry on the 24th September 1996 show there was no affidavit verifying the defence filed in either case. Default judgments for K30,000.00 and K20,000.00 respectively together with costs of K180.00 were ordered on the 25th September 1996 and entered on the same day, despite the fact there was no application for abridged entry and no indication of any power vested in the Deputy Registrar to waive rules as to time for entry.

On the 30th September further applications were filed for a garnishee and a supporting affidavit annexed various letters demanding payment in all judgments against the defendants. It is to be noted that all of these letters are directed towards the defendant and there is no note to the Solicitors who were on record. A garnishee order nisi was entered on the 2nd of October garnishing the bank account of the defendant. The decree nisi became contested.

On the 8th November 1996 the defendants filed proceedings seeking to:

(1) set aside the default judgment;

(2) set aside the garnishee order nisi;

(3) reinstate the defence;

(4) grant leave to file an amended claim.

The matter came on before motion Court on several occasions but was deferred as I have noted while the parties were negotiating.

An amended notice of motion was filed seeking further rulings or orders - (1) that the default judgement was irregularly entered as the Deputy Registrar of the National Court did not have the power to enter default judgements and the Deputy Registrar of the National Court did not have the power to enter a garnishee order nisi.

At the hearing before me Mr Damem, who had filed an affidavit in support of the motion, was cross examined as to the reasons for failure to file and verify the defences. He made it clear that the causes of action evolved around events in the Madang provincial elections and the formation of the government. Original instructions in this matter were taken by a lawyer who was subsequently transferred and it was not noted that the verification had not been filed.

There were questions concerning the dates and times of filing of the application to set aside. I am satisfied that the defendants took action when they became aware of the default judgment and the letter in March which I have quoted above says nothing about certification nor puts them on notice that a defence may be entered if no verification is filed. On this ground alone it would appear that there has not been due notice given of likely entry of judgement, a practice recommended the Mapmakers Pty Ltd v. Broken Hill Pty Company [1987] PNGLR 78 case and now followed. There was also argument concerning application of the judgment in Pato v. Enga Provincial Government, Unreported, N1340 but the thrust of the argument before me was that the Deputy Registrar had no power to set aside the defence and enter default judgement and hence the judgements entered were irregular.

The provisions for entering a default judgment are in O.12 Div. 3. The provisions are headed “default judgment” and there are provisions of O.12 Rs. 25, 26, 27, 28, 29, 30 and 31 for the entering of the default judgments in various situations. Each of the rules use the expression “the plaintiff may enter judgment against that defendant...” or “...against the defendant in default...” (R.26) or with appropriate insertions. Clearly a plaintiff is not a Court nor an officer of the Court and the question arises how a plaintiff may enter a judgment. This is provided for in O.12 R.32:

“Whatever claims for relief are made by a plaintiff, where a defendant is in default, the Court may, on application by the plaintiff, direct the entry of such judgment against that defendant as the plaintiff appears to be entitled to on his writ of summons.”

Mr Kawi emphasises that O.12 R.32 provides that the Court may on the application of the plaintiff enter the judgment, it does not say that the Registrar or an officer of the Court may enter judgment. He points to the definition of Court in O.1 Rule 5 to mean the National Court of Justice and to include a judge or two or more judges. He submits that that definition expressly excludes both the Registrar and the Deputy Registrar and any other clerk of the Court and contends they have no power to enter default judgments vested by O.12 Div. 3. He further points to O.2 R.12 which permits a judge to direct a Registrar to do any proceeding or any act relating to his duties in office but suggests that these are administrative duties and do not include a power to perform functions that are vested only in the Court.

The definition of Court was considered by Justice Sevua in an unreported judgment Brown Binoka & Ors v The State where he held, at page 7:

“I can find no provision in the rules which empowers the Registrar or Assistant Registrar to waive compliance with any requirements of the Rules. O.1 R.7 refers to “the Court”. O.1 R.6 defines “the Court” as a National Court of Justice of Papua New Guinea and includes a judge ...” ‘Court’ in the same provision means a judge or an acting judge of the National Court”. The definitions do not include the Registrar or Assistant Registrar. I hold that the Registrar or Assistant Registrar is neither a judge nor the Court therefore has no power to dispense with compliance with any requirements of the rules.”

That judgment does not specifically deal with O.12 however the principles on the interpretation of the word “the Court” would equally apply as the same term and the same definition are used throughout the rules. I concur with that ruling.

I have asked the Counsel if there is any delegation of the powers vested by O.12 to the Registrar his deputy or assistants. Neither Counsel has been able to refer me to any such delegation and the only reference I can find myself is to Practice Direction NCR 10/85 which deals with default judgments and the provisions for interest being entered on default judgments. This follows from the judgement Post & Telecommunication Corporation v Takoa Pastoral Company Pty Ltd [1985] PNGLR 44. That dealt with interest on a judgment and the provisions of O.12 R.27. It does not deal with the powers of the Registrar and does not call in to question nor rule upon, the powers of the Registrar to enter default judgment.

In reply Mr Baniyamai said he relied on O.12 R.25(c) of the Rules (the provision relating to default if a verified defence has not been filed in accordance with the rules) and points to precedents such as Mapmakers Pty Ltd v Broken Hill Proprietary Company [1987] PNGLR 78 and Barker v The Independent State of Papua New Guinea [1976] PNGLR 340 and rules relating to matters that have to be proved or shown before a regularly entered default judgment can be set aside. On the question whether a judgment entered by the Registrar was regularly or irregularly entered, Mr Baniyamai said that was a common practice and that was the way it had been done whilst he had been Assistant Registrar. It was his last comment that has prompted me to research the history of the provisions vesting power in the Registrar to enter default judgments in certain circumstances.

The previous rules were adopted from the rules of the Supreme Court of Queensland prior to 1983 and include Order XV “Default of Appearance” and Order XV, Rule 2 the procedure to be adopted if there is a default of appearance to a writ. At R.3, the procedure for a writ specially endorsed for a liquidated demand when the defendant fails to appear, provided “the plaintiff may enter final judgment against such defendant or defendants for any sum not exceeding the sum endorsed on the writ...” At Order XV Rule 4, where there were several defendants, “the plaintiff may enter final judgment...as by the last preceding rule...”

The procedure under the old rules for entering judgment Order XV Rule 1 enables a plaintiff, before further proceeding with the action against the defendant, to apply to a Court or to a Judge for an order, the rules following also refer to an application to a Court or to a Judge. Order XV does not have a provision for application to the Registrar.

The powers of the Registrar come not from Order XV, but from Order LXV. Order LXV Rule 1 permits determination of certain matters by a Judge in Chambers. These include at O.LXV Rule 1(11) “Applications for orders or directions as to any matter which by these Rules is made subject to the order or direction of a Judge.” I consider that the applications provided for under Order XV would be such a matter or order. Order LXV Rule 1(A) then vests in the Registrar a power to “transact all such business and exercise all such authorities and jurisdiction in respect of the same as...as may be transacted or exercised by a Judge in Chambers in respect of the following proceedings and matters when the same are unopposed...” The list that follows after this does not appear to include default judgment specifically.

The present rules of Court are based on the Rules of New South Wales Supreme Court and the Supreme Court of England. O.12 Rs 25-32 use the New South Wales precedent. They are very similarly worded to the equivalent provisions in the New South Wales Rules O.17 R.1(2), R.9. Those Rules, provide that “a plaintiff may enter judgment against that defendant...” and at O.17 R.9 of the New South Wales Rule provides that “the Court may on the application of the plaintiff direct entry of such judgment against that defendant...” The New South Wales Rules make similar provisions to our O.12 Div 3 and those powers are also vested in the Court. However Order 60 of the New South Wales Rules allow for the appointment of a master and vest in a master jurisdiction set out at O.60 R.1(A). These are specified in various schedules and Acts stated in O.60 R.1(A) (1) - (7). The Master’s power must be judicially exercised - O.60 R.3 provides:

A master shall, on the disposal of any matter before him, give such judgment or make such order as the nature of the case requires, except where, by the rules or by any judgment or order, he is required to state his determination in a certificate or in some other manner.

Our present rules also looked to some of the Rules of the English Supreme Court as precedents. The powers in the English Courts to enter summary judgment are provided for in O.14 and may be exercised by a Judge in Chambers.

O.32 R.10(1)(h) vests in a master any powers that they be exercised by a Judge in Chambers. O.32 in Vol. 1 of the 1991 Supreme Court Practice (The White Book) sets out fully the powers in Para 14/1/1. It notes that a Registrar has the same jurisdiction in entering summary judgment as a master in chambers. It refers to O.32 R.23 which in turn vests some powers held by a master in a Registrar in a District Registry. The powers of a master in the English Judicial System, comparable to those of a Judge in Chambers are set out in O.32 R.11 and basically are stated as “The Masters of the Queen’s Bench Division shall have power to transact all such business and exercise all such authority and jurisdiction as under the Act and these rules may be transacted by a Judge in Chambers except...”

The notes to O.32 Rule 11 in the White Book give the history of the powers of the Master. The jurisdiction of the Judges in Chambers was conferred on the Masters of the Common Law Courts by the Judges Chambers Despatch of Business Act 1867, which empowered the Judges to make rules empowering those Masters “to do any such thing and to transact any such business and to exercise any such authority and jurisdiction in respect of the same as by virtue of any statute or custom or by the rules and practice of the said Courts or any of them...” (I quote here from the notes to O.32 R.11-13 of the 1991 Edition). I do not intend to quote at length from the English Supreme Court Practice as they are not entirely relevant to the matter before me and are very detailed; I do so only to show that the powers vested in Masters and Registrars under that system are vested by virtue an Act of Parliament and by the Rules. Similarly the New South Wales Rules and our National Court Rules prior to 1983 delegated powers to Registrars by written rules.

It is notable that our 1983 National Court Rules did not adopt the type of rule I have quoted above specifically vesting jurisdiction and powers in the Registrar, his Deputy and Assistants.

I therefore accept Mr Kawi’s submission that there was no jurisdiction vested in the Registrar or the Deputy Registrar to enter default judgment. I can only presume that the practice prior to 1983 carried on when the 1983 Rules were brought in and the absence of specific delegation was overlooked. O.1 R.3 repealed all Rules of the National Court other than Rules created by Legislation dealing with specific areas of jurisdiction with the commencement of the Rules. There was no provision in the National Court Act vesting special jurisdiction in the Registrar that I have been referred to or can find. Ss. 10 and 11 of the National Court Act Ch. 38 provided for the adoption of the Rules in 1975. These sections were replaced by National Court Act No. 9 of 1987 and the amended Ss. 8 and 9 empower the judges to make Rules of Court (S.8). The practice must be in accordance with law or the Rules or as directed by the Court. O.2 of the National Court Rules setting out special powers and duties of the Registrar do not make any reference to O.12.

I therefore uphold the submission of Mr Kawi and find that the power to enter judgments in default of certain procedures under O.12 are implemented by virtue of O.12 R.32 and must be made by a Court, there is no delegation of the power or function to the Registrar. As such I find that the judgment entered by the Registrar was irregularly entered and set it aside.

I have already remarked on the wording of the statement of claim that makes it apparent that there might be an issue between the parties and therefore permit the defendant to verify his defence to have the issues brought properly before the Court. Whilst there is procedures for the entering of default judgments these must be judicially applied and not be used where it is clear from the pleadings that there must be some question about the plaintiff’s cause of action. I repeat what I have said on previous occasions. This is a Court of Justice upholding justice not entering judgements only for technical defects. The Court must not allow itself to be used to enter judgments on technical defects when the merits might well be in issue. The amended defence is to be filed within seven (7) days, costs are in the cause.

Lawyers for the Plaintiff: Paraka Lawyers

Lawyers for the Defendants: Solicitor General