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Tuntafa v Kayapo [2008] PGNC 12; N3277 (6 March 2008)

N3277

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1392 OF 2006

BETWEEN:

MATHEW KAMANA TUNTAFA
Plaintiff

AND:

JOHN KAYAPO
First Defendant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant

Waigani: Salika, J
2008: 22 February
6 March

PRACTICE & PROCEDURES – CIVIL- Application to set aside default judgment Order 12 Rule 35- Even after factors satisfied Court still has discretion.

Counsel:

Mr S Uyassi, for the Plaintiff
Ms B Bakau, for the Defendant

6 March, 2008

1. SALIKA J: By Notice of Motion dated 31 July 2007 and filed on 9 August 2007, the defendant moved the court for orders:-

(1) The default judgment entered against the defendants on 24 May 2007 be set aside pursuant to Order 12 Rules 35 of the National Court Rules.
(2) Alternatively the defendants be granted leave to file their defence out of time pursuant to Order 7 Rule 6(2) of the National Court rules.
(3) Costs be in the cause.

2. The application is supported by the affidavit of Beverlyn Bakau, a lawyer employed in the office of the Solicitor General. She deposed in her affidavit that the file in this matter was only transferred to her on 23 April 2007.

3. She says that the second defendant was served the Writ of Summons on 4 October 2006. On 29 October 2006 the second defendant wrote to the Police Commissioner seeking instructions on this matter. Five months later on 5 March 2007 the First Defendant wrote a statement denying the allegations in the Writ of Summons. On 17 May 2007 the second defendant filed an intention to defend and a defence which were irregular because they were filed out of time and without the leave of the court.

4. The plaintiff on 24 May 2007 applied for default judgment and was granted the default judgment. Two and half months later on 9 August 2007 the defendants applied to have the default judgement set aside.

5. That is the application before the court now.

WAS THE DEFAULT JUDGEMENT ENTERED IRREGULARLY?

6. In this case the Writ of Summons was served on the defendants and they were required to file a Notice of Intention to Defend and a defence but the time to file those ran out. It is obvious therefore in this case that the defendants had defaulted in filing a notice of intention to defend and a defence.

7. Order 12 Rule 26 of the National Court Rules then provide for the procedure on default. In this case the relevant provision is Rule 28 which says that where the plaintiffs claim against a defendant is for unliquidated damages only. The Plaintiff may enter judgment against the defendants for damages to be assessed and for costs.

8. The abovementioned procedure was invoked by the plaintiff after the defendants defaulted in filing a notice of intention to defend and a defence.

9. Before the default judgment was entered, the plaintiff filed a Notice of Motion and served the notice on the defendants. The defendants were represented by their lawyer on the day the motion was moved and the application heard inter parte. The application for default judgment was granted after the defendants’ lawyer made submissions.

10. In the circumstances, I find that the default judgment was regularly entered.

THE LAW

11. An applicant wishing to set aside a default judgment may apply to the court to set it aside. This is provided for in Order 12 Rule 35.

12. In order for such an applicant to get the court to exercise its discretion in his favour, the applicant must show and demonstrate to the Court the following factors:-

(1) He has a defence on the merits.
(2) Explain why default occurred
(3) Whether any prejudice or injustice will be occasioned to the plaintiff
(4) Whether there was any delay in filing this application.

DEFENCE ON MERIT

13. A draft defence is attached to this application to set aside default judgment. I have perused the defence. The defence relied on is that it was not the First Defendant who caused the injuries to the plaintiff but the relatives and the parents of the girl the plaintiff allegedly molested. The First defendant denied assaulting the plaintiff but said that he in fact stopped the victim’s relatives from further assaulting the plaintiff. The First Defendant therefore says he was not involved and therefore the second defendant says it cannot be vicariously liable for something not done by its servants or agents. On face value it is indeed a defence on merit.

WHY WAS DEFAULT ALLOWED

14. The reason for the default have been stated in the affidavit of Mrs Baliau. She appears to be saying that other officers had carriage of this matter and did not do anything to file a notice of intention to defend and to file a defence. It is the same old story told and repeated so many times in this court.

15. The explanation given has no merit.

WILL ANY PREJUDICE BE OCCASIONED IF DEFAULT JUDGEMENT IS SET ASIDE?

16. The prejudice that the plaintiff will suffer is that the matter will be delayed and he will now have to prove his claim. This will mean more costs to him.

17. On the other hand the rights of the plaintiff to still have his day in court remains. This time he will still have to prove his case if the judgment is set aside.

DELAY IN MAKING THIS APPLICATION

18. There was a delay of over 2 months to make this application. Was the delay reasonable in the circumstances? The delay of over 2 months in this case was unreasonable given the fact that the defendants were represented by lawyers when the default judgment was entered, but more glaringly even after the First Defendant had given a statement of his defence to the State lawyers in March of 2007. I consider the delay unreasonable in those circumstances.

EXERCISE OF COURTS DISCRETION

19. The court still has a discretion even after any of the factors enunciated in Green v Green (1976) PNGLR 73 have been satisfied, whether for or against the setting aside of the judgment. While each court may have its own determining factor or factors in this case, the main determining factor for me is the defence on merit. If the plaintiff was indeed assaulted by the relatives of the alleged victim then gross injustice to the defendants will occur if indeed that defense is made out and holds. The plaintiff has his primary right still preserved and that is to face the Defendants at trial.

20. In the circumstances and in the interest of justice, I will exercise the Court’s discretion to set aside the default judgment entered on 24 May 2007.

21. I further order that the defendants be granted leave to file their defence within 14 days of today’s date.

22. Costs of this application is awarded to the plaintiff.
________________________________

Henaos Lawyers: Lawyer for the Plaintiff
Solicitor- General: Lawyer for the Defendant