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Kandaso v Akap [2000] PGNC 41; N1993 (28 September 2000)

N1993

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1420 OF 1999

POKOWAN KANDASO
Plaintiff

-v-

KANDASO AKAP

First Defendant

AND

SAKARIAS AKAP

Second Defendant

AND

WAKI WAIKALI

Third Defendant

AND

JOHSTA PTY LTD

Fourth Defendant

Wabag : Jalina, J.
2000 : 18th and 28th September

PRACTICE AND PROCEDURE – Default Judgment – Failure by Defendants to file Defence – Service on Second Defendant only - Other Defendants not served - Service of Originating Process on all Defendants mandatory - Application dismissed against Defendants not served - National Court Rules O12, r25 (b) and O6, r3.

PRACTICE AND PROCEDURE – Default Judgment – Failure by Defendants to file Defence – Service on Second Defendant only – Originating Process served on Second Defendant with separate application and supporting documents – Need for Originating Process to be served separately from other applications – Conduct of Plaintiff irregular and abuse of process – Application against Second Defendant dismissed - National Court Rules O12, r25 (b).

Counsel:

P. Potane for Plaintiff/Applicant

K. Sino for Defendants/ Respondents

28th September, 2000

JALINA, J: This is an application by the Plaintiff seeking default judgment and other orders including order for costs for failure by the Defendants to file their defence.

The application is made pursuant to O12, r25 (b) of the National Court Rules:

"25. Default (17/2)

A Defendant shall be in default for the purposes of this division –

(a) ............................................................................

(b) Where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence or

(c) ..........................................................................."

The Plaintiff instituted legal proceedings by Writ of Summons on 17th December, 1999. An Affidavit of Service filed by the Plaintiff on 7th April, 2000 shows that one Constable Gesi Riusard of Wabag Police Station served on Sakarias Akap the Second Defendant at the Teddy’s kai bar on 24th March, 2000 at about 11:00 am the following documents:

(a) Court Order dated 20th March, 2000;

(b) Originating Summons No. 101 of 2000;
(c) Notice of Motion;

(d) Affidavit in support by Pokowan;

(e) Writ of Summons No. 1420 of 1999.

An affidavit of Pato Potane filed herein on 6th June, 2000 which was relied upon by the Plaintiff/Applicant in support of this application shows that the Defendants were served with the Writ of Summons on 24th March, 2000.

The Defendants through their lawyer filed a Notice of Intention to Defend the OS 101 of 2000 on 3rd April, 2000 but did not file any Notice of Intention to Defend the Writ of Summons No. 1420 of 1999. But it should be noted that Constable Gesi Riusard served the Writ of Summons and other documents referred to above only on the Second Defendant Sakarias Akap.

On 17th May, 2000 Mr. Potane the Plaintiff’s lawyer wrote to the Defendants’ lawyers informing them that he had instructions from the Plaintiff to apply for default judgment if the Defendants did not comply with the Court Order as well as file their defence. That letter was sent by facsimile to the Defendants’ lawyers. On the same day ie 17th May, 2000 presumably upon receiving the Plaintiff’s lawyer’s letter informing them of the Plaintiff’s intention to apply for default judgment, the Defendants’ lawyers filed a Notice of Intention to Defend.
On 24th May, 2000 the Defendants’ lawyers wrote to the Plaintiff’s lawyer enclosing their Notice of Intention to Defend by way of service and further requested the Plaintiff’s lawyer not to proceed with their intention to apply for default judgment.

The Plaintiff then on the 6th of June, 2000 filed the present motion seeking default judgment against the Defendants. This was done well after 50 days from the purported service of the Writ of Summons by the Plaintiff upon the second Defendant.

Mr. Potane for the Plaintiff/Applicant submits that his client is entitled to the orders sought as the Defendants have had ample time to file their defence.

Mr. Sino for the Defendants submits relying on his own affidavit that the reason why he did not file the defence was that there was no affidavit of service of the Writ of Summons on the National Court file when he conducted a search. He only sighted the affidavit of service of the Originating Summons in OS 101 of 2000 and documents pertaining to it. He submits that absence of the affidavit of service of the Writ of Summons indicated that the Writ had not been served.

Although not referred to by both counsel, O6 of the National Court Rules deals with service. Rule 3 provides:

"Subject to any Act, and to these Rules, Originating process shall be served personally on each Defendant."

It is therefore quite clear that service of originating process on each Defendant is mandatory.

Except for the Second Defendant the service of process on whom I will discuss below, I am satisfied on the basis of the material before me that the First, Third and Fourth Defendants have not been served the Writ of Summons. Service on the Second Defendant was not service on the other Defendants. Consequently the First, Third and Fourth Defendants were not legally obliged to file their Notice of Intention to Defend as well their Defence. I accordingly dismiss the application for default judgment against the First, Third and Fourth Defendants.

With regard to service of the Writ of Summons on the Second Defendant, I note that he was served the Writ of Summons with the Originating Summons and other documents pertaining to OS 101 of 2000. That was a separate proceeding in which the Plaintiff sought orders to restrain the Defendants from withdrawing certain monies from the Papua New Guinea Banking Corporation and the Bank of South Pacific. To my mind, service of the writ of summons with other documents that seek separate orders is not service of the writ of summons. The writ of summons being a separate and distinct mode of proceeding from originating summons, it should be served separately. This is the most desirable course for a plaintiff to take if he is to take advantage of any failure by the defendant to file his Notice of Intention to Defend or his Defence.

I consider service on the Second Defendant in the way the plaintiff has done in this case to be not only irregular but also an abuse of process of the Court. I accordingly dismiss the application for default judgment against the Second Defendant.

I order that the defendants costs of and incidental to this application be paid by the Plaintiff to be taxed if not agreed.
__________________________________________________________________
Lawyer for Plaintiff/Applicant : Potane Lawyers
Lawyer for Defendants/Respondents : Kunai & Co. Lawyers