N5261

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 148 OF 2011

BETWEEN:

MURISO POKIA
Plaintiff

AND:

MENDWAN YALLON
First Defendant

AND:

DOROTHY NANAI
Second Defendant

AND:

SENIOR CONSTABLE JOB EREMUGO
Third Defendant/applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant/applicant

Waigani: Davani .J
2013: 3rd June
12th July

DEFAULT JUDGMENT – plaintiff obtained separate orders for default judgment against separate defendants – matter set down for hearing of assessment of damages – Defendants seek leave to set aside default judgments

PRACTISE AND PROCEDURE – Application for leave to vacate trial date and to set aside default judgment – applicant must demonstrate a prima facie, arguable defence

PRACTISE AND PROCEDURE – set aside of default judgments – types of orders to issue – Court must control proceedings before it – two current, similar proceedings on foot – Court will dismiss proceedings, filed later in time – self executing orders issued for proceedings filed first in time.

Facts

The plaintiff filed 2 sets of proceedings seeking the same orders and reliefs. He obtained separate default judgments against separate defendants in these proceedings. He allowed the other proceedings, filed first in time, to become stagnant and did not discontinue or withdraw. In these proceedings, the defendants applied for leave to set aside the separate default judgments, which was granted. At the later hearing of the application to set aside, the defendants pointed out legal, technical defences which warranted the setting aside of the default judgments. However, because the separate same set of proceedings are still current, that it is proper that these proceedings be dismissed and that the plaintiff proceed and continue with the same action in the earlier filed proceedings.

Held

1.	Where a party intends to apply to set aside default judgment where there has been a long delay and that matter has progressed to the stage where the Court has appointed a date for the substantive hearing of the matter, that the applicant must seek leave from the Court to have the trial date vacated and must demonstrate to the Court that the Defences he will raise in the application to set aside, are prima facie, arguable and demonstrate serious procedural irregularities.

2.	Submissions in relation to the revisiting of the entry of default judgment, are correctly and properly made at the hearing of the assessment of damages, not at the hearing of an application to set aside default judgment. The Court will not be correctly applying the established principles and practices of law by considering those principles at the hearing of an application to set aside.

3.	A lawyer must not swear an affidavit to rely on in an application to set aside default judgment or any application for that matter. The affidavit must be sworn by a person with knowledge of the facts and not the lawyer for the applicant.

4.	That proceedings WS 1481 of 2011 is dismissed and that the plaintiff must progress WS 687 of 2010 which will be dismissed, if not progressed when the matter next returns on 5th September, 2013.

Cases cited

Papua New Guinea

Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramers Pty Ltd v. the State (1993) PNGLR 285 
William Maki v. Michael Pundia [1993] PNGLR 337) 2005 SC 790,
Leo Hannet and Elizabeth Hannet v. ANZ Banking Group (PNG) Ltd (1996) SC505
MVIT v.Viel Kampu (1998) SC 587
Peter Flynn Aihi v. the State (2000) N2006
Thomas Paraka v. Mathew Kawa (2000) N1987
Grace Lome v. Allan Kundi (2004) N2776
William Mel v. Coleman Pakalia, the Police and the State (2005) SC 790
Maku v. Maliwolo (2012) PGSC5; SC 1171

Overseas Cases

Wallingford v. Directors of the Mutual Society (1880) 5AC 685
Sharpless v. Northern Territory (1988) 55 NTR 35

Counsel

Mr M. Pokia, appears in person
First Defendant, appears in person
Mr W. Mapiso, for and on behalf of the third and fourth defendants/applicants

DECISION

12th July, 2013

1.	BY THE COURT: Before the Court is Notice of Motion filed on 28th February, 2013 by the Acting Solicitor-General. The motion reads:

"1.	Pursuant to Section 149 of the Lukautim Pikinini (Child) Act, 2009, Section 113 of the Child Welfare Act, 1961, the inherent powers of the Court under section 155 (4) of the Constitution, and pursuant to the Supreme Court decision in Maku v. Maliwolo (2012) PGSC5; SC 1171 and William Mel v. Coleman Pakalia, the Police & the State (2005) SC 790, an order that the default judgment entered against the Defendants on 24th June, 2011 and 13th July, 2011, be set aside.

2.	Consequently, an order pursuant to Section 155(4) of the Constitution, Section 149 of the Lukautim Pikikni (Child) Act, 2009 and Order 12, Rule 40 of the National Court Rules, that the entire proceedings be dismissed for abuse of the Court process.

3.	An order that the Plaintiff pays the Defendants costs of the proceedings if not agreed to be taxed.

4.	Any further Order this Honourable Court deems fit."

2.	The application is made after the entry of default judgment, done on separate occasions and before different Courts. I granted leave to the third and fourth defendants/applicants ('Applicants') to file this application after I heard Mr Mapiso's submissions requesting such leave. I made those orders on the 5th February, 2013 and which read as follows;

"1.	The trial date of 9th April, 2013 is vacated.

2.	The defendants more particularly the 3rd and 4th defendants are at liberty to apply to set aside Default Judgment of 24th June, 2011, and 13th July, 2011 and to do so on 7 days notice to the plaintiff to be done on or before 28th February, 2013.

3.	After the application is filed and served, the defendant applicants and plaintiff must file and serve written submissions in the time allowed under the Rules and before the hearing of the application.

4.	The defendants shall list the application anytime from 18th March, 2013."

3.	The plaintiff opposes the application.

Background

4.	The plaintiff is a lawyer by profession and sues both the first and second defendants for defamation. The first defendant is the plaintiff's former wife. The second defendant is a Welfare Officer and is alleged in this statement of claim, to be the author of a letter dated 27th August, 2009 which letter was addressed to the OIC, Family and Sexual Violence Unit, Boroko Police Station requesting assistance from the Police to remove the youngest child of the plaintiff's relationship with the first defendant, from the plaintiff's custody, as the child was alleged to be covered in sores. The full text of the letter reads;

"Date: 27/08/09

To:

The OIC & Staff

F & S Violence Unit

Boroko Police Station

Complainant: Mrs Lena Pokea of Gordon

Against: Muriso Pokia of Foodland

Nature of Case: RE – POLICE ASSISTANCE TO REMOVE A TWO YEARS OLD CHILD

Lena is the mother of three children, all girls the youngest being two (2) years. Since March 2009, Muriso kept the girls away from Lena. We requested Police and Lena got the youngest but Muriso used force and got the child back. Muriso is now living with another woman elsewhere leaving the three girls with another person. Lena hears the youngest is full of sores and very concern. We therefore seek your assistance to help Lena get her child and further assist her bring her to the Family Support Centre at POMGH. We thank you for your continues help.

Action Officer: (signed)

Mrs D. Nanai"

5.	The plaintiff and the first defendant have three children. They separated in March 2003 after having lived together for several years during which time the three children were born, which includes the child the subject of the letter referred to above.

WS 687 of 2010

6.	On 16th June, 2010, the plaintiff filed proceedings, WS 687 of 2010. Although the plaintiff claims to have withdrawn the proceedings, the Applicants submit otherwise, stating that the proceedings are still on foot and that these present proceedings now before me are an abuse of process as what is alleged in these proceedings are the same as in WS 687 of 2010. 

7.	Both counsel did not put before me court documentation that would show the proper status of WS 687 of 2010. I have had to conduct my own investigations to ascertain the existence or not of WS 687 of 2010 and to decide on the correct status. 

8.	Upon a perusal of Court file WS 687 of 2010, I note the following;

i.	It is a Civil Track No.3 matter.

ii.	The Writ of Summons and Statement of Claim was filed on 16th June, 2010.

iii.	The plaintiff makes the same allegations of defamation, now pleaded in these present proceedings, where the letter, the subject of the defamation, is set out in full.

iv.	Except for third defendant Senior Constable Job Erenugo, the defendants are the same.

v.	These present proceedings were filed on 4th March, 2011.

vi.	On 9th January, 2012, WS 687 of 2010 was listed on the Summary Determination List but not dismissed. The matter was removed from the Summary Determination List and returned to the National Court Registry.

9.	Therefore, contrary to Mr Pokia's submissions, WS 687 of 2010 is current. If the proceedings had been withdrawn, as is Mr Pokia's contentions, then there is no Notice of Withdrawal in the Court file, nor is there notation to that effect on the endorsements in the Court file cover for WS 687 of 2010.

10.	I note Mr Mapiso's submissions that Mr Pokia was to have withdrawn WS 687 of 2010 because he had not issued S. 5 Notice under the Claims By and Against the State Act. Notwithstanding those submissions, I am indeed concerned that it is clearly apparent that the plaintiff filed this proceedings upon becoming aware of the lack of s. 5 Notice in the earlier proceedings however, has not taken steps to put an end to those earlier proceedings.

11.	One alternative available to this Court would be to direct that the plaintiff file a Notice of Withdrawal in the earlier proceedings. However, that will not address the clear and blatant disregard for Court rules and Court etiquette, exhibited by Mr Pokia, a lawyer, in filing fresh proceedings, pleading the same cause of action and seeking the same reliefs without first rectifying the earlier proceedings by withdrawing or discontinuing.

12.	I address the effect of this later below.

Default Judgments

13.	Default Judgments were taken out on separate occasions for all the defendants.

14.	For the first, third and fourth defendants, default judgment was ordered on 24th June, 2011 and entered on 7th July, 2011. The order reads;

"1.	Default Judgment is entered against the first and third defendants for failing to file their respective Notices of Intention to Defend, and Defenses.

2.	Default Judgment is entered against the fourth Defendant for failing to file its Notice of Intention to Defend within time.

3.	The first, third and fourth Defendants shall pay the plaintiff's costs of the proceedings to date.

4.	The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith."

15.	For the second defendant, default judgment was ordered on 13th July, 2011 and entered on 25th July, 2011. The order reads;

"1.	Default Judgment is entered against the second defendant.

2.	The second defendant shall pay the plaintiff's costs of the application.

4.(sic)The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith."

Application for Leave

16.	On 5th February, 2013, when both Mr Pokia and Mr Mapiso appeared before me, Mr Mapiso submitted that although trial was scheduled for 9th April, 2013, that the defendants seek leave to apply to set aside default judgment because they have a good Defence.

17.	Therefore, where a party intends to apply to set aside default judgment where there has been a long delay and that matter has progressed to the stage where the Court has appointed a date for the substantive hearing of the matter, then the applicant must seek leave of the Court to have the trial date vacated and must demonstrate to the Court that the Defences he will raise, prima facie, are arguable.

18.	Mr Mapiso pointed out the following which I took into account and then granted leave. I did so because I considered that to be a proper exercise of my discretion, done in the interests of justice, and taking into account what I heard, which I set out below. I did that also because the Courts have an inherent power to control and be in the control of proceedings that are before it and must not exercise it too readily especially where it will put to an end to proceedings. (William Maki v. Michael Pundia [1993] PNGLR 337). In this case, I granted leave based on what I heard which were prima facie, serious procedural irregularities. These were;

i.	Proceedings are statute-barred:

19.	Mr Mapiso referred to and relied on section 149 (2) of the Lukautim Pikinini (Child) Act 2009 ('Lukautim Pikinini Act') which states that any action against the Director of Lukautim Pikinini and his Officers or Agents based on grounds of want of good faith or reasonable care must be brought within a period of 6 months from the date of accrual of the cause of action. He submitted that in the present case, the cause of action arose on 26th August, 2009 and expired on or about 27th February, 2010. The plaintiff filed proceedings WS 687 of 2010 on 15th June, 2010 which he submitted was 3 months and 19 days out of time. 

20.	In relation to the present proceedings, he submitted that these proceedings were filed on 4th March, 2011, one year 6 months and 4 days out of time.

21.	I considered that this was indeed, prima face, an arguable Defence.

ii.	Multiplicity of proceedings:

22.	Mr Mapiso submitted that WS 687 of 2010 alleges the same or similar cause of action and was still on foot when this present proceeding was filed, therefore an abuse of process. I considered that these submissions had merit and were indeed arguable. I noted also that these submissions could be considered as a stand alone ground, for possible dismissal of proceeding.

iii.	Section 149 of Lukautim Pikinini Act 

23.	The Applicant further submitted that default judgment should not have been entered because the Director of Lukautim Pikinini and his Officers and Agents were protected by s149 of the Lukautim Pikinini Act, an indemnity provision. My quick perusal of s149 at that time, indeed demonstrated an arguable case. 

24.	I gave leave to the applicant after consideration of all the above because I was of the view that it would not be proper for the Court to proceed to trial when the applicant may have a good Defence. However, I also considered the fact that the plaintiff should be allowed to or given the opportunity to make submissions on a formal application to set aside which would occur after parties complied with the directions I would issue.

25.	Thereafter, the parties complied with directions I issued on 5th February, 2013 (see above) and the application to set aside is now before me.

Application to Set Aside

26.	Mr Mapiso's submissions are on two bases. These are:

i.		Revisiting of the Default Judgments; and

ii.	Section 149 of the Lukautim Pikinini Act.

i.	Revisiting of Default Judgments

27.	Although Mr Mapiso submits that he is revisiting the entry of default judgment and in doing so, relied on the case William Mel v. Coleman Pakalia, the Police and the State (2005) SC 790, amongst others, I find that such submissions are correctly and properly made at the hearing of the assessment of damages, not at the hearing of an application to set aside default judgment. I say this because I would not be correctly applying the established principles and practices of law by considering this at the hearing of an application to set aside.

28.	The principles in relation to the setting aside of default judgments are:

-	the reasons for allowing judgment to be entered by default,

-	whether there is a meritorious defence,

-	whether there is a delay in applying to aside.

29.	In support of the application to set aside default judgment, there must be an affidavit preferably by the plaintiff, deposing to those above principles, more particularly that there is a defence on the merits.

30.	The affidavit of Wailyo Mapiso, sworn and filed on 28th February, 2013 is the affidavit relied on by the applicant State in support of the application to set aside. I must state for the record, that a lawyer must not swear an affidavit to rely on in application to set aside default judgment or any application for that matter. Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramers Pty Ltd v. the State (1993) PNGLR 285 at 293; MVIT v.Viel Kampu (1998) SC 587; Peter Flynn Aihi v. the State (2000) N2006).

31.	The reasoning for this is that lawyers are not the parties and would often depose to matters that are not of evidentiary value but are arguments or submissions. And often, lawyers have no direct knowledge or a directly involved in the dispute as a party would and so often, what they depose to is what their clients have told them. The Supreme Court has upheld appeals where an aggrieved party has raised objections in relation to affidavits sworn by lawyers (MVIT v. Viel Kampu (supra)).

32.	In applications to set aside default judgments, to show a proposed draft Defence is not sufficient. (Leo Hannet and Elizabeth Hannet v. ANZ Banking Group (PNG) Ltd (1996) SC505, Kapi DCJ Los J and Salika .J). The applicant must 'condescend upon particulars' (Wallingford v. Directors of the Mutual Society (1880) 5 AC 685 at pg 704 and referred to in Grace Lome v. Allan Kundi (2004) N2776).

33.	The affidavit must be sworn by a person with knowledge of the facts and not the lawyer for the applicant (Thomas Paraka v. Mathew Kawa (2000) N1987, Hinchliff .J and referred to in Grace Lome v. Allan Kundi (supra)).

34.	An affidavit sworn by a lawyer that there is a good Defence is not sufficient (Sharpless v. Northern Territory (1988) 55 NTR 35, Asche CJ and referred to in Grace Lome v. Allan Kundi (supra)).

35.	Mr Mapiso does not depose to delay or the reasons for delay in applying to set aside default judgment. Apart from the fact that Mr Mapiso, a lawyer, cannot depose to an affidavit, that delay has not been explained.

36.	The affidavit of Mr Mapiso also does not explain why default judgment was allowed to be entered by default on those separate days. That ground is not made out, and also because Mr Mapiso's evidence on this ground, is not accepted.

ii.	Section 149 of the Lukautim Pikinini Act

37.	Mr Mapiso deposes to and relies on Section 149 of the Lukautim Pikinini Act, a legal technical defence. That section reads in full;

"149.	INDEMNITY.

(1)	No civil proceedings may be commenced against the Director or an officer for or on account of an act, matter or thing done by him, or under his direction, and purporting to be done for the purpose of carrying out the provisions of this Act if the Director or officer acted in good faith and with reasonable are

(2)	No civil proceedings referred in Subsection (1) may be commenced more than six months after-

(a)	The time when the alleged cause of action arose; or

(b)	the person aggrieved by the act, matter of thin ceased absolutely to be a child to whom this Act applies, whichever last occurs.

(3)	Where, pending civil proceedings against the Director or an officer for or on account of an act, matter or thing done by him or under his direction and purporting to be done for the purpose of carrying out he provisions of this Act-

(a)	application to stay the proceedings is made to Court in which the proceedings are pending or were commenced; and

(b)	the court is satisfied that-

(i)	there is no reasonable ground for alleging want of good faith or reasonable case; or

(ii)	the suit or action was commenced out of time, the Court may stay the proceedings in the suit or action on such terms as to cost or otherwise as the court thinks proper."

38.	Mr Mapiso submits that relying on this provision, more particularly section 149 (1), that no civil proceedings may be commenced against the director or an officer for acts done by them if they acted in good faith and with reasonable care. That is an indemnity provision.

39.	Mr Mapiso also seeks to rely on s. 113 of the Child Welfare Act which is in the exact same terms as s. 149 of the Lukautim Pikinini Act.

40.	In this case, although Mr Pokia raises submissions in response which prima facie do have merits, it is not this Court's role at this time, to determine whether this defence should remain or fail but rather, this Courts role is to decide whether the principles in relation to the setting aside of default judgments, have been made out and whether the defendants have a meritorious Defence.

41.	As the issue of whether there is a meritorious Defence is a technical issue based on interpretation of a legislative provision, one that a plaintiff need not depose to, that I will accept what is stated in Mr Mapiso's affidavit to which is also attached the draft Defence, which pleads the legislative provisions the plaintiff relies on, including the Lukautim Pikinini Act.

42.	Having said that, I find that the applicants do have a good defence, more particularly the related issue of which legislation the Court should be relying on in addressing the indemnity Defence raised because as I understand, the Child Welfare Act is still current. The issue of which legislation should be relied on, is now at the fore.

43.	The other provisions of various legislation including the Constitution, relied on by Mr Mapiso, are matters that the applicant's lawyers have raised and pleaded in the draft Defence attached to Mr Mapiso's affidavit.

Conclusion

44.	The act of setting aside default judgments is an exercise of discretion to be exercised where the justice of the case requires. In this case, I note and am aware that the Lukautim Pikinini Act is legislation that has not yet been tested in a Court of law, more particularly the National Court and the Supreme Court. This is one such case that should be allowed to proceed as a test case, on whether the Lukautim Pikinini Act and the Child Welfare Act can continue to co-exist and which indemnity provision applies. It is for these reasons that I will set aside the two default judgments obtained.

45.	However, the fact that there are similar proceedings still pending means that the orders I will issue, apart from the setting aside, in relation to the further progress of this matter, will be meaningless, especially when the defendants have already filed Notice of Intention to Defend and Defence in WS 687 of 2010. This option I am taking is done with a view to controlling the proceedings before me because this Court has an inherent power to do so. (William Maki v. Michael Pundia (supra)). It is therefore appropriate under these prevailing circumstances, that this Court dismiss this present proceedings for abuse of process and order that parties return to WS 687 of 2010 and, progress those proceedings, which will remain in Civil Track No. 3.

46.	As to costs, the plaintiff must pay the costs of the dismissed proceedings, to be paid before 5th September, 2013 when this matter next returns. This is done to demonstrate the Court's obvious disapproval of the manner in which the plaintiff, a lawyer, dealt with his claims against the first defendant and the Welfare Officer which in my view was one of careless abandon and of course, abuse of his role as a lawyer.

Formal Orders

47.	The formal orders of the Court are:

1.	Default Judgment ordered on 13th July, 2011 against the second defendant and Default Judgment ordered on 24th June, 2011 against the first, third and fourth defendants are set aside;

2.	The whole proceedings are dismissed,

3.	The plaintiff has leave to progress WS 687 of 2010 which must be mentioned before the Judge sitting on Civil Track No. 3 on 5th September, 2013 at 9:30am, for directions to issue; 

4.	Together with order no. 6 herein, in the event WS 687 of 2010 is not mentioned on 5th September, 2013, that it will automatically stand dismissed;

5.	The plaintiff will pay all defendants' costs of this proceedings which includes the defendants' application to set aside and which will be taxed if not agreed;

6.	These taxed costs or otherwise, must be paid, before WS 687 of 2010 is mentioned on 5th September, 2013, failing which WS 687 of 2010 will not proceed and will be summarily determined, done in accordance with order no. 4 above;

7.	Time is abridged to time of settlement, to take place forthwith.

____________________________________________________________

Plaintiff in person
First Defendant in person
Office of the Solicitor-General: Lawyer for the second, third and fourth defendants