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Kul v Independent State of Papua New Guinea [2010] PGNC 14; N3898 (22 February 2010)

N3898

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 978 OF 1999

JOHN KUL
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Makail, J
2008: 7th March &
2010: 22nd February

PRACTICE & PROCEDURE - Application for judgment - Admissions in pleadings - Admissions in defence - Admissions in affidavit - Whether judgment should be entered - Out of court settlement negotiations - Agreement on quantum of damages - Deed of settlement - Consent order - Evidence of - Lack of - Power to enter judgment - Grounds of - National Court Rules - Order 12, rule 1, Order 5, rule 28 & Order 9, rule 30.

CLAIMS AGAINST THE STATE - Authority of Solicitor General to settle claims out of court - Agreement - Evidence of - Lack of - Written submissions of lawyer in Solicitor General’s office on quantum not binding - Lack of authority of Solicitor General - Attorney-General Act, 1989 - Section 13.

Cases cited:

The State -v- Zachary Gelu & Manoburn Earthmoving Limited (2003) SC716
Polem Enterprises Limited -v- Attorney General of Papua New Guinea & Ors (2008) SC911

Counsel:

Mr P Kopunye, for the Plaintiff
Mr G Odu, for the Defendant

RULING

22nd February, 2010

1. MAKAIL, J: This is an application for judgment in the sum of K260,000.00 to be entered against the defendants pursuant to the plaintiff’s notice of motion filed on 05th March 2008. The substantive action arises from an alleged negligent conduct of one Constable David Takpe of Minj Police Station where it is alleged that, on 11th December 1998, Constable David Takpe negligently drove a State owned motor vehicle bearing, registration number ZGR 340 and crashed into the plaintiff’s Toyota Hiace Bus ("bus") on the road towards Banz town market. The alleged accident was referred to Minj Police Station and Constable David Takpe was arrested, charged and found guilty of driving without due care and attention by the Minj District Court on 06th July 1999.

2. The plaintiff makes the application pursuant to Order 12, rule 1, Order 5, rule 28 and Order 9, rule 30 of the National Court Rules. In support of the application, he relies on following affidavits:

1. Affidavit of Peter Kopunye sworn on 17th October 2007 and filed on 22nd October 2007;

2. Affidavit of the plaintiff sworn on 4th July 2007 and filed on 5th July 2007; and

3. Affidavit in support of Peter Kopunye sworn on 12th December 2007 and filed on 13th December 2007.

3. The defendant opposes the application and relies on the affidavit of Constable David Takpe sworn on 10th December 2003 and filed on 3rd May 2004.

4. Mr Kopunye of counsel for the plaintiff submits that from these affidavits and defence, there is overwhelming evidence of admission of liability by the defendant and judgment should be entered against it. He further submits that there is evidence that the defendant admitted that Constable David Takpe was negligent when he drove the motor vehicle and crashed into the plaintiff’s bus. Further, Constable David Takpe was convicted by the Minj District Court for driving without due care and attention on 6th July 1999. The conviction confirms the admissions made by the defendant in its defence filed on 16th December 1999. All these considerations make this case ripe for judgment now than later as to refuse the application would further delay the plaintiff’s right to an early judgment, especially where the case has dragged on for almost 11 years since it was commenced on 09th September 1999 and gross injustice would occur.

5. For these reasons, Mr Kopunye submits that this Court has power to enter judgment based on admissions of parties pursuant to Order 12, rule 1, Order 5, rule 28 and Order 9, rule 30 of the National Court Rules. If the Court enters judgment against the defendant, it would settle liability and the next issue would be damages. How much should be awarded in terms of damages to the plaintiff for the loss suffered? He submits that this case is peculiar as it would not require a separate date for trial on assessment of damages where evidence would be called to establish the damages of the plaintiff. This is because the parties have successfully negotiated quantum of damages out of Court. All that is required now is for the Court to endorse the agreement of the parties in a judgment pursuant to Order 12, rule 1, Order 5, rule 28 & Order 9, rule 30 of the National Court Rules.

6. Mr Kopunye’s submission is very persuasive, I must admit. It is also tempting at first sight as when it is considered in the light of the history of the case, there would be no hesitation for the Court to enter judgment on liability and also on damages. Here is a case that has been outstanding for a very long time and parties have decided to settle their dispute by agreeing to settle it out of Court. But when the entire case is considered in the light of the law, another side of the argument appears and creates some doubts as to the propriety of the application.

7. First is the Court’s power to enter judgment on admissions. There is no doubt in my mind that the Court has power to enter judgment based on admissions and that power is found in Order 9, rule 30(1) of the National Court Rules which states:

"30 Judgment on admissions. (18/3)

(1) Where admissions are made by a party, whether by his pleadings or otherwise, the Court may, on application of any party, direct the entry of any judgment or make any order to which the applicant is entitled in the admission.

(2) ................"

8. On what grounds may the Court invoke its power under Order 9, rule 30(1) to enter judgment based on admissions? First, judgment may be entered against a party in cases where admissions are made in the pleadings whether in the statement of claim, defence or cross claim and secondly, in other circumstances. The use of the word "otherwise" empowers the Court to also enter judgment in other circumstances where admissions are made like for example where admissions are made in affidavits of a party’s witness or witnesses. In the present case, the plaintiff claims that the defendant made admissions in its pleadings and affidavits hence, judgment on liability should be entered against it on both grounds.

9. Should the Court enter judgment against the defendant based on these two grounds under Order 9, rule 30(1)? First, upon review of the pleadings in the defendant’s defence, I am not satisfied that this is a case where judgment on liability should be entered against the defendant. Whilst the defendant admits at paragraphs 6(a)-6(c) of the defence that Constable David Takpe was the driver of the motor vehicle involved in the accident and that there was a motor vehicle accident, it did not admit that it was responsible for the accident. That is, it did not plead that Constable David Takpe drove without due care and attention when he crashed the motor vehicle into the plaintiff’s bus on that day. So I am unable to find any admission of fault in the pleadings, except admissions in relation to Constable David Takpe been the driver of the motor vehicle and the motor vehicle accident itself.

10. In relation to admissions in the evidence of the defendant, a review of the affidavit of David Takpe sworn on 10th December 2003 and filed on 3rd March 2004 neither show the defendant’s admission of liability nor fault. On the contrary, it is apparent that Constable David Takpe as the driver of the motor vehicle denied that he drove the motor vehicle negligently or was at fault. This is clear from his explanation at paragraphs 10-19 of his affidavit. To this end, I take note of Mr Kopunye’s argument that since Constable David Takpe was convicted by Minj District Court for driving without due care and attention, there is clear admission of liability as the certificate of conviction settles the issue. In my view, the certificate of conviction of Constable David Takpe by Minj District Court produced by Mr Kopunye is not an admission of liability or fault in a negligence action. It is evidence of the fact that Constable David Takpe was convicted by Minj District Court of driving without due care and attention and that is it: see section 47 of the Evidence Act, Ch 48.

11. An action in negligence is different from a criminal proceeding based on a charge of driving without due care and attention although the facts giving rise to both proceedings and the parties may be the same. However, the difference is that, the elements of establishing negligence are not the same as those for driving without due care and attention under section 17(2) of the Motor Traffic Act. The other difference is that, the onus of proof is higher (beyond reasonable doubt) in a criminal proceeding than in civil proceeding. That means, the plaintiff still bears the onus of proving liability in this case on the balance of probabilities and the certificate of conviction is merely evidence of the fact that Constable David Takpe was convicted of driving without due care and attention. It does not establish liability per se. For these reasons, I am not satisfied that the defendant made admissions in its witness’s evidence (affidavit).

12. In the end, the grounds upon which the Court may enter judgment based on admissions under Order 9, rule 30(1) have not been established to my satisfaction and I refuse the plaintiff’s application.

13. Since Mr Kopunye did also address the issue of quantum of damages in his submissions, I consider that in all fairness to the plaintiff, I should also consider it. Briefly recapping Mr Kopunye’s submissions, the application for judgment for K260,000.00 is premised on the agreement of the parties to settle the claim out of Court on that amount. In my view, this submission on quantum of damages is in fact a submission for entry of judgment based on an agreement. The plaintiff is asking the Court to enter judgment by consent pursuant to its power under Order 5, rule 28 and Order 12, rule 1 of the National Court Rules. However, the first matter to mention here is, Order 5, rule 28 is inapplicable because this is not a case dealing with disable persons or infants settlement. It is an action seeking general damages and loss of profit arising from damage to a PMV bus. Hence, the application for entry for judgment under Order 5, rule 28 is misconceived and is dismissed.

14. Secondly, there is no evidence of letters exchanged between the parties of the offer, counter offer and acceptance of the amount of K260,000.00 by the defendant. There is also no written agreement by way of a deed of release or a consent order evidencing the agreement before the Court. There is only a written submission filed by the defendant’s lawyers on 19th November 2007 proposing K260,000.00. This written submission was forwarded to the plaintiff’s lawyers for consideration and the plaintiff has purportedly accepted the amount.

The difficulty I have with Mr Kopunye’s argument is that, there is no evidence of an agreement in writing either by way of a deed of release or a consent order for the Court to base its judgment. The written submission from a lawyer in the office of the Solicitor General by the name of Marcus Nandape to the lawyers for the plaintiff filed on 19th November 2007 proposing K260,000.00 and purportedly accepted by the plaintiff is inadequate and not binding on the defendant. This is because there is no evidence that Mr Nandape was authorized to bind the defendant to that agreement. For, the law under section 13 of the Attorney-General Act, 1989, is that, the principal advocate of the State is the Solicitor General and in my view, the Solicitor General is the authorized officer to agree to any out of Court settlement in any legal proceedings coming before the National Court after consultation and obtaining instructions from the Attorney General. That means, there must be an agreement in the form of a deed of release or consent order signed by the Solicitor General upon instructions from the Attorney General to verify the agreement before the Court may enter judgment for the plaintiff: see The State -v- Zachary Gelu & Manoburn Earthmoving Limited (2003) SC716 and Polem Enterprises Limited -v- Attorney General of Papua New Guinea & Ors (2008) SC911.

15. In the absence of a written agreement either by way of a deed of release or consent order signed by the Solicitor General, I am not satisfied that there is a binding agreement to settle the action in the sum of K260,000.00 and judgment should be entered accordingly. For the foregoing reasons, I refuse the plaintiff’s notice of motion filed on 5th March 2008 for judgment and further order that the matter shall be referred for directions hearing on Monday 1st March 2010 at 9:30 am. Costs of the application shall be in the cause and time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

Ruling accordingly.

________________________________
Kopunye Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the Defendant