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Gibson v Tulemanil [2018] PGNC 14; N7082 (22 January 2018)

N7082

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
WS No. 1043 of 2016

CRAIG GIBSON PRINCIPLE KIMBE INTERNATIONAL SCHOOL

AND

KIMBE INTERNATIONAL SCHOOL

V

BERNARD TULEMANIL

AND

LARI TULEMANIL

Kimbe: Miviri AJ
2018: 19, 22 January

PRACTISE & PROCEEDURE - Notice of motion- application for default Judgment Or 12 r 25 ncr-defendants not served-person served not defendants-identity of person served not confirmed-no order for substituted service-improper service-default judgment not available-motion refused-costs follow the event.

Cases cited:

Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001
Giru v Muta [2005] PGNC 83
Kunkene v Rangsu [1999] PGNC 80; N1917
Provincial Government and Others (1998) N1773,
Tiaga Bomson v Kerry Hart (2003) N2428
Tima Korohan [2006] PGNC 21; N3045.
Wong v Haus Bilas Bilas [1988-89]PNGLR 42

Counsel:

F Kua, for Plaintiffs

Defendants in Person

RULING

22^nd January, 2018

1. MIVIRI AJ: This is the ruling on the Motion of the Plaintiff filed on the 21^st February, 2017 for Default Judgement to be entered against the defendant with damages to be assessed. He bases so upon Order 12 Rule 25 of the National Court Rules (“the Rules”). The Motion also seeks Assessment of Damages on distress and anxiety pursuant to order 12 Rule 38 (2) of the Rules. He also seeks interest at 8% from the date of the commencement of the proceedings pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52. The latter will be the subject of another proceedings should default be awarded here.
   
2. Order 12 is headed Judgements and Orders and Rule 25 default is in this terms, “A defendant shall be in default for the purpose of this division-
   
   • (a) Where the originating process bears a note under order 4 rule 9, and the time for him to comply has expired but he has not given the notice; or
   • (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) Where he is required under order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with the rule has expired but he has not so verified his defence.”
     
3. It follows his Writ of Summons dated the 24^th August, 2016, (“Writ”) filed for school fees owing of K13,848. 00 which are for the years 2015 and 2016.
   
4. The Writ bears the note under Order 4 Rule 9 that the Defendant will suffer judgment or an order unless the prescribed form of Notice of Intention to Defend is filed in the registry within 30 days after service of the Writ. The writ was served 26^th September 2016 by Richard Korerua teacher at the Plaintiff School who has filed Affidavit of Service dated the 06^th October, 2016 filed 19^th October, 2016 attaching annexure “A” copies of the Acknowledgement of Service by Shane Konid at Bay Side, Managing Director of Bayside Inn.
   
5. Service of today’s hearing is confirmed by the Affidavit of Service deposed to by Jonny Vogae of the Kimbe International School sworn and dated the 23^rd October, 2017 filed the 30^th October, 2017 wherein he served personally on Shane Koniel at Nahavio, Kimbe on the 12^th October 2017 the Notice of Motion on default Judgment application.
   
6. Today’s hearing both defendants are not before me to argue as to why the Plaintiff’s Motion should be granted for default against them. I pose could they be expected to appear before me in this matter if at all if they were personally served given that the writ initially was served on Shane Konid at Bay Side who is not the same person as the Defendants named in this proceedings. Alternatively no material is before me to say why service was affected on this person rather than on the named defendants to these proceedings. Further the person served at Bayside is Shane Konid per the affidavit of service of Richard Korerua. And the person served at Nahavio per the affidavit of Jonny Vogae is Shane Koniel not the parties named as Defendants in these proceedings. I do not have evidence before me that Shane Konid and Shane Koniel are one and the same person, Order 6 Rule 5, and why are they served on a matter where they are not named as parties to these proceedings. In my view there is no service of the proceedings on the Defendants in fulfilment of the Rules. They cannot be held to have defaulted if they have not been served the proceedings.
   
7. Therefore the default notice of motion is not in proper form in accordance with the rules of court. That it had not been duly served upon the Defendants. And there cannot be Default where there is no Intention to Defend nor is there Defence filed within the time under the Rules (Order 12 Rule 32), if the parties named as Defendants are not personally served (Order 6 Rules 1, 2 (1), 3). There are no orders for substituted service on court record, Order 6 Rule 12. And the proof of the service of the Writ of Summons upon the Defendant with the note under order 4 Rule 9 that the defendant will suffer judgment or an order on the writ, Order 12 Rule 34 has not been done. There is no evidence to this effect before me. The time that has been inscribed on the Writ cannot run without the defendant being properly named and served personally. There is no evidence before me to this effect. Unless and until these are in order can default judgement be properly heard and determined against the defendant, Tima Korohan [2006] PGNC 21; N3045; Giru v Muta [2005] PGNC 83.
   
8. Default Judgement is not of right but discretionary by read of the rules Order 12 rule 32. And a number of cases demonstrate this: In Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773, fraud and deceit came out and the interests of justice required that the matter go to trial to prove by evidence. Application for default Judgement was refused basing on Kunkene v Rangsu [1999] PGNC 80; N1917 (18^th September 1999). Default Judgment was refused because the defence though late when filed was meritous and the matter was in applying the court’s discretion allowed togo for full trial. In Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001 the statement of claim amounted to abuse of process. Default Judgement motion was refused. In Tiaga Bomson v Kerry Hart (2003) N2428 defence was filed outside time but had merit and so application for default judgement was refused with costs.
   
9. Here before me the Defendants named have not been served personally: Wong v Haus Bilas Bilas [1988-89] PNGLR 42. I am not satisfied on the balance of probabilities that the discretion of the court should be exercised in favour of the Plaintiff/Applicant because he has not complied with rules of service and therefore the motion for default judgment is not granted.
   
10. Application refused, Default Judgement not granted.
    
11. Costs will follow the event.
    

Orders Accordingly.
__________________________________________________________________

Felix Kua: Lawyer for the Plaintiff Applicant

No representation for the Defendant